Israel: Investigate Unlawful Destruction in Gaza War

JERUSALEM - Israel should investigate the unlawful destruction of civilian
property during the 2009 Gaza hostilities and lift the blockade that
hinders residents from rebuilding their homes, Human Rights Watch said
in a new report released today.

The 116-page report, "‘I Lost Everything': Israel's Unlawful
Destruction of Property in the Gaza Conflict" documents 12 separate
cases during Operation Cast Lead in which Israeli forces extensively
destroyed civilian property, including homes, factories, farms, and
greenhouses, in areas under their control, without any lawful military
purpose. Human Rights Watch's investigations, which relied upon
physical evidence, satellite imagery, and multiple witness accounts at
each site, found no indication of nearby fighting when the destruction
occurred.

Israel has claimed that its forces destroyed civilian property only
when Palestinian armed groups were fighting from it, or were using it
to store weapons, hide tunnels, or advance other military purposes.
Israel also claims that many Gazan homes were destroyed by Hamas
booby-traps. The evidence in the incidents that Human Rights Watch
investigated does not support such claims.

"Almost 16 months after the war, Israel has not held accountable
troops who unlawfully destroyed swaths of civilian property in areas
under their control," said Sarah Leah Whitson, Middle East director at
Human Rights Watch. "Israel's blockade continues to keep Gazans from
rebuilding their homes, meaning that Israel is still punishing Gaza's
civilians long after the fighting is over."

Human Rights Watch found evidence in the 12 cases indicating that
Israeli forces carried out the destruction for either punitive or other
unlawful reasons, violating the prohibition under international
humanitarian law - the laws of war - against deliberately destroying
civilian property except when necessary for lawful military reasons. In
seven of the cases, satellite imagery corroborated eyewitness accounts
that Israeli forces destroyed many structures after establishing
control over an area and shortly before Israel announced a ceasefire
and withdrew its forces from Gaza on January 18, 2009.

Israel's comprehensive blockade of the Gaza Strip, a form of
collective punishment against civilians imposed in response to Hamas's
takeover of Gaza in June 2007, has prevented significant
reconstruction, including in areas where Human Rights Watch has
documented destruction. Israel has allowed imports of cement for
several repair projects, but United Nations Secretary-General Ban
Ki-moon noted in late March that these were "a drop in a bucket"
compared to housing needs.

Israeli officials insist that the blockade - which had already
degraded humanitarian conditions in Gaza before Operation Cast Lead -
will remain in place until Hamas releases Staff Sergeant Gilad Shalit,
the Israeli soldier captured in 2006, rejects violence, and fulfills
other political conditions. Hamas's prolonged incommunicado detention
of Shalit violates the prohibition of cruel and inhuman treatment and
may amount to torture.

Many goods are being smuggled into Gaza through tunnels beneath the
southern border with Egypt, and many damaged buildings have been
repaired at least partially with bricks made from smuggled cement and
recycled concrete rubble. However, these improvised building materials
are reportedly of poor quality and cannot be used for large
reconstruction projects. In the areas of Gaza where Human Rights Watch
found that Israeli forces had destroyed homes in areas under their
control, there has been virtually no reconstruction of destroyed
buildings, indicating that the inadequate supply of reconstruction
materials still leaves these materials prohibitively expensive for most
of Gaza's residents, more than three-quarters of whom are impoverished.

Egypt shares responsibility for the collective punishment of Gaza's
civilian population due to its own closure of Gaza's southern border.
Except in limited circumstances, Egypt refuses to allow the passage of
goods or people through the border crossing it controls at Rafah.

The laws of war prohibit attacks on civilian objects, including
residential homes and civilian factories, unless they become a
legitimate military objective, meaning that they are providing enemy
forces a definite military advantage in the circumstances prevailing at
the time. The report examines incidents of destruction that suggest
violation of the laws-of-war prohibition of wanton destruction - the
term used to describe extensive destruction of civilian property not
lawfully justified by military necessity. Such destruction would be a
grave breach of the Fourth Geneva Conventions of 1949, which is
applicable in Gaza. Individuals responsible for committing or ordering
such destruction should be prosecuted for war crimes.

Human Rights Watch did not include in its report cases in which the
destruction was not extensive, or the evidence suggested any
possibility that Israel's destruction of the property in question could
have been militarily justified or based on mistaken information.

Human Rights Watch documented the complete destruction of 189
buildings, including 11 factories, 8 warehouses and 170 residential
buildings - roughly 5 percent of the total property destroyed in Gaza -
leaving at least 971 people homeless. In the cases investigated in the
neighborhoods of Izbt Abd Rabbo, Zeitoun, and Khoza'a, Israeli forces
had destroyed virtually every home, factory, and orchard within certain
areas, indicating an apparent plan of systematic destruction in these
locations. The destroyed industrial establishments include juice and
biscuit plants, a flour mill, and seven concrete factories. Human
Rights Watch did not determine whether these incidents represent a
broader pattern, but Israel should thoroughly investigate these cases -
including the lawfulness of any relevant policy decisions - and
appropriately punish persons found to have acted unlawfully.

"The evidence shows that, in these cases, Israeli forces
gratuitously destroyed people's homes and livelihoods," said Whitson.
"If the Israeli government doesn't investigate and punish those
responsible, it would be effectively endorsing the suffering that these
civilians have endured."

Israel Defense Forces (IDF) lawyers told Human Rights Watch that the
IDF is probing many of the cases of property destruction documented in
this report. However, these are not criminal investigations by military
police, but so-called operational debriefings that do not involve
contacting Palestinian witnesses. Of the 150 investigations opened to
date into Operation Cast Lead, 36 are criminal investigations and the
rest are operational debriefings. Two of these criminal cases include
allegations of damage to individual buildings.

The only reported penalty imposed for unlawful property destruction
during Operation Cast Lead was an unspecified disciplinary measure
taken immediately by the commander in the field against one soldier for
an incident involving "uprooting vegetation" in Gaza. The IDF has
provided no further details regarding the incident or the disciplinary
measure. Overall, to date Israel has criminally sentenced only one
soldier and has disciplined four other soldiers and commanders for
violations during the Gaza operation.

Notably, Israel has not conducted thorough and impartial
investigations into whether policy decisions taken by senior political
and military decision-makers, including pre-operation decisions, led to
violations of the laws of war, such as the unlawful destruction of
civilian infrastructure.

Israel has published the results of a military probe into one case
documented in this report, which found an attack on a flour mill to be
lawful. The probe's conclusions, however, are contradicted by available
video and other evidence. (In late March 2010, Israel announced that it
had approved cement imports to repair the flour mill.) The IDF has not
provided explanations for the other 11 incidents that Human Rights
Watch documented and previously raised with the IDF.

Hamas authorities are not known to have taken any meaningful steps
to investigate or hold accountable members of Hamas or other
Palestinian armed groups responsible for serious laws-of-war violations
either before, during, or since Operation Case Lead, primarily rocket
attacks at populated areas in Israel. However, under the laws of war,
unlawfulness by one party to a conflict does not justify unlawful acts
by another.

Under the laws of war, not all destruction of civilian property is
unlawful. At times, Hamas and other Palestinian armed groups used
civilian structures to engage Israeli forces and to store arms; they
also booby-trapped civilian structures and dug tunnels underneath them.

In addition, Human Rights Watch criticized Hamas and other
Palestinian groups for firing rockets from populated areas. In such
cases, property damage caused by Israeli counter-strikes against armed
groups may have been lawful "collateral damage." Palestinian armed
groups also may have been responsible for damage to civilian property
in cases in which IDF attacks triggered secondary explosions of weapons
or explosives stored by armed groups, which damaged nearby structures.
The destruction of civilian property during immediate fighting or in
order to permit the movement of Israeli forces because adjoining roads
were mined and impassable may be lawful as well, depending on the
circumstances.

Human Rights Watch's investigations considered these possibilities
and focused on 12 cases where the evidence indicates that there was no
lawful justification for the destruction of civilian property. In these
incidents, the IDF was not engaging Palestinian forces at the time they
destroyed the property - in all cases fighting in the area had stopped
- and in most cases the property destruction occurred after Israeli
forces had eliminated or dispersed Palestinian fighters in the area and
consolidated their control, such as by occupying houses, stationing
tanks in streets or on nearby hills, and undertaking continuous
surveillance from manned and unmanned aircraft.

The mere possibility of future military use by armed groups of some
civilian structures in these areas - such as to set booby-traps, store
weapons, or build tunnels - cannot under the laws of war justify the
wide-scale and at times systematic destruction of whole neighborhoods,
as well as of factories and greenhouses that provided food and other
items intended for the civilian population.

Public statements by some Israeli political leaders suggest a
willingness to destroy civilian infrastructure in Gaza to deter rocket
attacks by armed groups against Israel. Human Rights Watch documented
numerous cases in which Palestinian armed groups in Gaza launched
rocket attacks against Israeli population centers during and before
Operation Cast Lead in violation of the laws of war. During the
fighting, approximately 800,000 Israelis were within range of hundreds
of rocket attacks, which killed three Israeli civilians and seriously
injured several dozen others. Individuals who willfully conducted or
ordered deliberate or indiscriminate rocket attacks on civilians are
responsible for war crimes. However, as noted, laws of war violations
by one party to a conflict do not justify violations by another party.

Israel controls the Gaza Strip's land, air, and sea access with the
exception of a 15-kilometer border with Egypt. Since the end of the
conflict, Israel has approved limited shipments of food, fuel, and
material into Gaza, but these fall far short of the humanitarian needs
of the population. It has allowed construction materials designated for
specific projects, but continues to deny entry to cement, iron bars,
and other basic construction materials. While there are valid Israeli
security concerns that Hamas could use cement to build or strengthen
military bunkers and tunnels, humanitarian aid organizations report
that Israel has refused to consider a mechanism to ensure the
independent monitoring of the end-use of construction materials. Israel
should urgently seek to create such a mechanism.

"The United States, the European Union, and other states should
urgently call upon Israel and Egypt to open Gaza's borders to
reconstruction materials and other supplies essential for the civilian
population," Whitson said.