Global Security: Israel and the Occupied Palestinian Territories - Foreign Affairs Committee Contents


2  The 2008/09 Gaza conflict

The December 2008/January 2009 Gaza conflict

7. Gaza is one of the territories taken and subsequently occupied by Israel as a result of its victory over Arab states in the 1967 Six Day War. Of those territories, those which remain under Israeli control are the Golan Heights (from Syria), Gaza (from Egypt), and the West Bank and East Jerusalem (from Jordan) (see map). Gaza and the West Bank are commonly referred to as the Occupied Palestinian Territories (OPTs). Under the 1993 Oslo Accords, the OPTs gained a measure of self-government, under a new Palestinian Authority with an elected President and Legislative Council. The Oslo Accords were reached after the Palestinian Liberation Organisation (PLO) under Yasser Arafat, dominated by Mr Arafat's Fatah party, renounced violence and accepted the existence of Israel. In 2005, after Mr Arafat's death, Fatah's Mahmoud Abbas was elected Palestinian Authority President. In the same year, Israel left the Palestinian Authority in charge of Gaza internally when it withdrew its forces and settlers from the territory, while retaining control of Gaza's airspace, sea border and land border with Israel.

8. The immediate background to the 2008/09 Gaza conflict can be traced to the victory of Hamas in the January 2006 Palestinian Legislative Council elections. Hamas is not a member of the PLO, and does not—under the terms of its Charter—accept the existence of Israel on any of its current territory; it is an armed movement engaged in attacks on Israel and proscribed as a terrorist organisation by the UK, EU and US. For a year from March 2006, a Hamas-nominated Palestinian Authority government co-existed with Fatah's President Abbas. In March 2007, under the Saudi-brokered Mecca agreement, Hamas and Fatah agreed to form a national unity government under Hamas Prime Minister Ismail Haniyeh; this also included independents such as Finance Minister Salam Fayyad. However, violence between Hamas and Fatah escalated, especially in Gaza, and in June 2007 Hamas took sole control of Gaza by force, denying control of the territory to the Palestinian Authority. President Abbas dissolved the national unity government and formed an emergency non-party Palestinian Authority administration—without both Hamas and Fatah—under Mr Fayyad, which effectively had control only over the West Bank. Mr Haniyeh disputes the legality of his dismissal and continues to regard himself as Prime Minister.[8] From June 2007, therefore, the two Occupied Palestinian Territories were under the effective control of two separate political authorities, with fundamentally different stances towards Israel and the peace process. The Hamas takeover of Gaza was the last major development in the Israeli-Palestinian conflict of which we were able to take account in our 2007 Report on Global Security: The Middle East.[9]

9. With Hamas in sole control of Gaza, there was an increase in rocket attacks from the territory on southern Israel: according to the Israel Security Agency (Shin Bet), rocket launchings from Gaza numbered 1,276 in 2007 and 1,785 in 2008 (prior to the start of Israel's December 2008 military operation in Gaza, Operation Cast Lead). This rocket fire killed two Israelis in 2007 and four in 2008 (again, prior to Operation Cast Lead).[10] Meanwhile, after the Hamas takeover of Gaza, Israel imposed a blockade on the territory through its control of the Israel-Gaza crossing points, keeping the crossings largely closed and restricting the range of goods that could be transported through them. Sporadic Israeli incursions into Gaza in pursuit of terrorist targets, and other forms of clashes between Israeli forces and Palestinians in and around the territory, continued. According to the UN Office for the Coordination of Humanitarian Affairs in the OPTs (OCHA), 301 Palestinians were killed in Gaza in 2007 and 389 in the first ten months of 2008 as a direct result of the conflict with Israel.[11]

10. In June 2008, Egypt—which maintains relations with both Israel and Hamas—brokered a six-month ceasefire agreement between them. The ceasefire brought a reduction in rocket fire from Gaza, although not a complete halt.[12] The progressive breakdown of the ceasefire, and Hamas's ultimate decision not to extend the truce, paved the way for the outbreak of the conflict in December 2008. The two sides dispute bitterly each other's responsibility for the breakdown of the ceasefire, with Israel blaming Hamas for failing to halt rocket fire, and Hamas blaming Israel for failing to implement what it says were commitments in the ceasefire agreement to provide greater access through Gaza's border crossings.[13]

11. On 27 December 2008, Israel launched an air campaign against targets in the Gaza Strip. On 3 January 2009, this campaign was expanded into a ground offensive. The operation was codenamed "Cast Lead". During the conflict, Israeli troops came under fire from Palestinian fighters in the Gaza Strip, and civilian targets in southern Israel continued to be hit by rockets fired from the territory. The conflict continued for 22 days. Israel declared a unilateral ceasefire on 17 January, saying that it had achieved its military objectives, and Hamas—the principal combatant organisation on the Palestinian side of the conflict—followed suit the following day. Israel withdrew all its forces from Gaza by 21 January.

12. Thirteen Israelis were killed during the conflict: three civilians in southern Israel, and ten soldiers (four as a result of "friendly fire").[14] According to the Israeli Foreign Ministry, 770 injured Israeli civilians had to be evacuated in southern Israel during the conflict, including four severely wounded.[15] Palestinian casualty figures remain disputed. Those cited most often are those given by the UN, sourced from the Palestinian Ministry of Health, which are for 1,440 dead, including 114 women and 431 children, and 5,380 injured, including 800 women and 1,872 children.[16] The Israeli military has been reported as putting the Palestinian death toll at 1,166.[17] The most contentious point is the ratio of civilian to combatant casualties: the Israeli military reportedly gives respective figures of 295 civilian and 709 combatant fatalities, with 162 unidentified, whereas the Palestinian Center for Human Rights in Gaza reportedly puts the ratio at 926 civilians to 236 combatants killed.[18] Whatever the breakdown of casualties between civilians and combatants (something which is inherently difficult to establish in a conflict involving an armed non-state group in an urban area), Dr Albasoos of the Palestinian Institute for the Study of Conflict Resolution and Governance stressed to us the imbalance of power between Israeli and Palestinian forces which the overall casualty figures suggest.[19]

13. Dr Bregman of King's College London told us that, in launching Operation Cast Lead, Israel wanted to bring an end to the rocket fire out of Gaza and to weapons smuggling through the tunnels into it from Egypt, and to undermine Gazans' support for Hamas.[20] He also suggested that Israel wanted to send a wider regional message, to Hezbollah in Lebanon and to Iran as well as to Hamas, about the consequences of provoking it.[21] Dr Bregman and Dr Albasoos also reminded us that Israel had been in the midst of an election campaign when it launched its operation in Gaza, although Dr Bregman said that this had not been the decisive factor in Israel's decision to take military action.[22] For his part, Mr Blair told us that for Israel the position was "very simple […]. If it is subject to rocket attacks on its civilians over a prolonged period of time, it will respond at some point."[23] He stressed the role that Israel's status as a democracy played in its decision to take action: "in circumstances where you have rocket attacks on innocent Israeli civilians, believe me, there is no democratic Government […] that will not act."[24]

INTERNATIONAL DIPLOMATIC RESPONSE

14. The British Government opposed the Israeli military action in Gaza. Giving evidence to us in March, the then FCO Minister of State Bill Rammell MP said that the Israeli campaign had been "wrong and counter-productive".[25] He said that the Government had opposed the Israeli action because it risked strengthening Hamas.[26] However, Mr Rammell acknowledged that the rocket attacks on Israel from Gaza were "a fundamental problem that had to be addressed", and that the military campaign had had broad popular support in Israel.[27]

15. Leading figures in the UK Government—including the Prime Minister and Foreign Secretary—called for a ceasefire from the outset of the Gaza conflict.[28] In her evidence to us, the independent foreign policy adviser on Middle Eastern affairs Nomi Bar-Yaacov argued that the international diplomatic response to the Gaza crisis came "very late", owing to the timing of Israel's action (over the Western Christmas and New Year holiday); and that Israel interpreted this as "a massive green light."[29] The EU response, in particular, appeared somewhat confused because of the concurrent handover from the French to the Czech Presidency of the Council. Some differences were also evident among Quartet members and between EU member states regarding the relative apportionment of responsibility between Israel and Hamas for the conflict, and regarding the extent to which Israel was said to be acting in legitimate self-defence. However, by 30 December, the Quartet, the EU, the UN Security Council (in a statement) and the US had all made statements calling for a halt to the fighting.[30]

16. The British Government tabled the text which became UN Security Council Resolution 1860 on the conflict. The negotiations at the UN were also shaped by an alternative text put forward by the Arab League. Approved on 8 January 2009, UNSCR 1860 called for a "durable" ceasefire, as well as for the unimpeded provision of humanitarian aid in Gaza; it also condemned acts of terrorism and all violence directed against civilians.[31] Although the two sides did not implement ceasefires until 17-18 January, Mr Rammell judged that UNSCR 1860 probably secured an end to hostilities earlier than would otherwise have been the case.[32] Ms Bar-Yaacov believed that the British Government and Security Council efforts at this stage were to be commended.[33]

17. It was initially reported that the US opposed a Security Council resolution calling for an immediate ceasefire, on the grounds that Hamas would not accede to such a demand.[34] However, the US then participated in the negotiations on the resolution, before declining to vote for it at the last minute and abstaining instead. Giving evidence after the US Administration had changed, Mr Rammell openly admitted the British Government's disappointment at this outcome,[35] which he said was the result of "a dialogue between the Israeli Government and the US Administration".[36] It was reported in the press that the US abstention followed telephone calls from the then Israeli Prime Minister Ehud Olmert to then-President George W. Bush, and from Mr Bush to then-Secretary of State Condoleezza Rice, who was conducting the negotiations at the UN.[37] However, Mr Rammell stressed that Dr Rice had made it clear publicly that "she supported the broad thrust" of UNSCR 1860, and he pointed out that the US did not veto the resolution, as it might have done or threatened to do "in previous situations and circumstances".[38]

18. Our witnesses were uniformly of the view that the conflict had changed little "on the ground" in Gaza. They all said that Hamas remained in control of the territory;[39] Mr Blair told us that "militarily, Hamas [had] a complete grip" on it.[40] If anything, some of our witnesses judged that the conflict had strengthened Hamas—as the Government had expected that it would. Ms Bar-Yaacov drew our attention to opinion polling among Palestinians which suggested that, following the conflict, support for President Abbas and negotiations with Israel had fallen, and support for Hamas and violent resistance had increased. According to the polling, conducted by the Jerusalem office of the Friedrich Ebert Stiftung and the Jerusalem Media and Communication Center among around 1,200 Palestinians in the West Bank and Gaza, trust in Hamas had risen to 27.7% by the end of January compared to 16.6% in October/November, belief in the efficacy of rocket fire had risen from 39.3% to 50.8%, and opposition to peace negotiations had risen from 34.7% to 50.7%. In the West Bank alone, trust in Hamas had risen from 12.8% to 26.5%.[41] "The rise in popularity of Hamas leaders in government and the decline and unpopularity of Fatah are an important direct outcome of this war", concluded Ms Bar-Yaacov.[42] However, Mr Blair suggested that political support for Hamas in Gaza was not as strong as is sometimes thought, and that Gazans might hold Hamas, as well as Israel, responsible for their plight.[43] We return to intra-Palestinian issues in Chapter 4.

19. As regards Israel, Dr Bregman thought that in the wake of the conflict Hamas might be more careful about provoking it, especially given the make-up of the new Israeli government (see paragraphs 134-135).[44] According to the Israel Security Agency, the number of rocket firings in February-June 2009 ranged between four and 50 a month, compared to over 100 in each of the non-ceasefire months in 2008.[45] By June 2009, Mr Blair noted that Hamas was "now saying that it will actively stop people who are engaged in trying to fire rockets".[46] However, Ms Bar-Yaacov felt that international public support had "turned sharply" against Israel as a result of the conflict. On this basis, she judged that, even if Israel had won greater international support on the issues of rocket fire from—and smuggling into—Gaza, these gains for Israel were outweighed by costs.[47]

LESSONS FROM THE 2006 LEBANON WAR

20. In summer 2006, Israel launched a military campaign in Lebanon against the militia of Hezbollah, after the latter had killed and captured Israeli soldiers in a cross-border raid. In Israel, the Lebanon campaign is largely held to have been a failure: to investigate Israel's conduct of the conflict, the government established the Winograd Commission, which concluded that the campaign "ended without [Israel's] clear military victory".[48] In our 2007 Report, we noted that, following the conflict, Hezbollah appeared to be at least as strong militarily, and probably stronger politically, than it had been previously.[49]

21. Some of our witnesses indicated that the 2006 Lebanon war formed a key part of the context for Israel's decision-making on its Gaza campaign, in particular as regards the scale of the military action.[50] Dr Bregman told us that "the memory of what happened in 2006 in Lebanon […] explains why the move into Gaza involved massive firepower";[51] and Nomi Bar-Yaacov said that the scale of the operation was "100%" attributable to Israel's experience in Lebanon two years earlier. She told us that the Gaza operation had been planned on the basis of "direct" lessons that Israel had drawn from the Lebanon conflict.[52]

22. In our 2007 Report, we criticised the failure of the British Government at the time to call for an immediate ceasefire in Lebanon in 2006 until after the UN Security Council had done so, a month after the conflict broke out. The Government's position at the time was in line with that of the US. We concluded that the Government's position had "done significant damage to the UK's reputation in much of the world".[53] At the time, the Government rejected our conclusion.[54]

23. In a report on the Gaza crisis published in early January 2009, the International Crisis Group (ICG) suggested that "some world actors appear to have learned a useful lesson from the Lebanon war. There is more activism now." The ICG noted "signs that important actors—European in particular—have learned from bitter experience that time is of the essence" as regards pressing for a ceasefire.[55] Giving evidence to us, Bill Rammell rejected the idea that Israel had been emboldened to take action in Gaza in 2008 by the West's arguably weak reaction to the war in Lebanon two years earlier. However, he stressed that, both before and after the outbreak of hostilities in Gaza, the stance of the UK and EU towards the conflict had differed from that seen in 2006 regarding the war in Lebanon. Mr Rammell implied that the Government had learned from the 2006 experience: when we asked him directly whether the Government had taken anything from its experience in 2006, Mr Rammell said: "If you are serious about government and foreign affairs, you always learn from experience."[56]

24. We conclude that the Government took speedier and more robust diplomatic action to try to halt the conflict in Gaza than it did in the case of the war in Lebanon in 2006. We further conclude that this development is to be welcomed, particularly as it appears that the Government may have drawn on the 2006 experience in making policy during the Gaza conflict, in line with criticisms which we made of its earlier policy at the time.

FCO CONFLICT PREVENTION OBJECTIVES

25. Under the 2008-11 Comprehensive Spending Review settlement, the FCO has a Departmental Strategic Objective (DSO) to "prevent and resolve conflict" (DSO 6).[57] The FCO is also the lead Department for the delivery of the cross-Government Public Service Agreement (PSA) 30, to "reduce the impact of conflict through enhanced UK and international efforts". This PSA target is measured in terms of the number of conflicts, including in the Middle East; the impact of conflicts, including in the Middle East; and the ability of international institutions and the British Government to prevent, manage and resolve conflicts.[58] We recommended, in our 2007 Report, that the indicators to be used to measure the FCO's performance against its conflict prevention targets should include specific references to the Middle East, and the FCO accepted our recommendation.[59]

26. Mr Rammell effectively acknowledged that the Government had miscalculated the risk of the situation in Gaza and southern Israel escalating into all-out conflict. He told us that because the rocket attacks on Israel and the Israeli incursions into Gaza prior to December 2008 had been "relatively low scale, there was a view that the situation was containable. With hindsight, that was clearly the wrong view."[60] Mr Rammell also noted that Israel had launched its military campaign despite the UK and other European states having "made it very clear" that they were opposed to it doing so.[61]

27. In correspondence with us following the publication of its 2008 Autumn Performance Report, the FCO said that:

The recent upsurge in violence in Gaza demonstrates the challenge of achieving the desired outcomes of both PSA 30 and DSO 6. As the Middle East is one of the priority regions cited in both documents, this will naturally be reflected in our assessments.[62]

In its 2008-09 Departmental Annual Report, published at the end of June 2009, the FCO duly reported a worsened performance on some indicators for PSA 30 compared to the Autumn Performance Report, and said that—combined with the conflict in Georgia in August 2008—"the upsurge of violence in Gaza suggest[s] that achieving a downward trend over the course of the PSA [in the number of conflicts globally] is unlikely."[63] The FCO judged Georgia and Gaza to have represented "high-profile failures for conflict prevention" in 2008.[64]

28. We have consistently expressed reservations as to whether it is appropriate for the FCO to have performance targets, assessed in terms of quantified indicators, in policy areas which are to subject to a very large number of influences beyond the Department's control. For example, in our Report on the FCO's 2004-05 Annual Report, we "question[ed] whether such targets always provide an appropriate mechanism for measuring the FCO's performance."[65] We have raised such concerns in particular in connection with targets for conflict prevention.

29. In light of the FCO's official conflict prevention goals, we conclude that the outbreak of the conflict in Gaza constitutes a disappointment, although we welcome the fact that the Government has acknowledged publicly that it underestimated the risk of the situation escalating into full-scale conflict. We recommend that in its response to this Report, the Government should set out the steps that it is taking to reduce the risk of such a miscalculation occurring again and to work with others to increase prospects of being able to prevent another outbreak of full-scale conflict in Gaza.

30. We conclude that the conflict in Gaza has confirmed our previously expressed view that it is not appropriate for the FCO to have quantified performance targets in fields such as conflict prevention where the causes of the prospective conflict are likely to be wholly or largely beyond the Government's control.

Humanitarian aftermath and Gaza access

31. In our 2007 Report, in the wake of the Hamas takeover of Gaza and the imposition of the Israeli blockade, we already assessed the territory as suffering a "profound" humanitarian crisis. We urged the Government to press Israel to ensure full humanitarian access.[66] Humanitarian and economic development issues in the OPTs are scrutinised in the House of Commons primarily by the International Development Committee (IDC), as British Government assistance is delivered through the Department for International Development (DFID). In its most recent Report on the subject, published in July 2008, the IDC outlined a humanitarian situation in Gaza which it described as "acute".[67]

32. Giving evidence to us in early March 2009, six weeks after the end of the Gaza conflict, Bill Rammell described the humanitarian situation in the territory as a "genuine crisis". He said that:

there are scheduled power cuts of six to eight hours each day; 50,000 people are without running water; a further 100,000 receive running water in their homes only once every seven to ten days; 90% of people are partially dependent on food aid compared to 76% before the conflict; during the conflict 58 facilities were either destroyed or damaged; more than 4,000 homes were destroyed and almost 12,000 partially destroyed.[68]

We saw for ourselves during our visit to Gaza later in March the destruction of homes, businesses and infrastructure which had taken place there during the conflict, and the human suffering and economic dislocation which was the result.

33. At the time of completion of this Report, in early July 2009, the humanitarian situation in Gaza did not appear to have improved significantly. In its monthly "Humanitarian Monitor" report covering April 2009, for example, OCHA described the needs which had arisen out of the conflict as "still hardly addressed". It judged that "the entire population of Gaza remains affected by a severe crisis of human dignity."[69] At the beginning of May, the UN Under-Secretary-General for Humanitarian Affairs, John Holmes, said that the situation "herald[ed] the fall of almost an entire society into dependency". At that point, he said that around 75% of the population of Gaza continued to require assistance.[70] The UN Special Coordinator for the Middle East Peace Process, Robert Serry, confirmed that "time is passing and there is no real progress".[71] On 17 June, a group of over 30 international NGOs and UN agencies, marking the second anniversary of the Gaza blockade, said that "while Gazans are being kept alive through humanitarian aid, ordinary civilians have lost all quality of life as they fight to survive".[72] On 29 June, the International Committee of the Red Cross (ICRC) released a report to mark six months since the end of the conflict, in which it stated that "Gazans still cannot rebuild their lives" and that most "struggle to make ends meet".[73]

34. The serious humanitarian situation in Gaza persists despite the fact that, at a post-conflict conference at Sharm El Sheikh in Egypt at the beginning of March, international donors pledged a further $4.5 billion in aid for the Palestinian economy, for purposes including humanitarian relief and reconstruction in Gaza.[74] The British Government pledged £20 million in new funding, to add to relief and economic development assistance already announced.[75] Mr Blair told us that "there are billions of dollars waiting to go into Gaza, but they can only go in and do some good if people are allowed in".[76]






Source: UN Office for the Coordination of Humanitarian Affairs-Occupied Palestinian Territory (OCHA-oPt)

35. The most significant immediate obstacle to an improvement of the humanitarian situation in Gaza is Israel's continuing blockade of the territory. There are five access points between Israel and Gaza: Erez, the only crossing point for people; Karni and the much smaller Kerem Shalom and Sufa for goods; and Nahal Oz for fuel (see map). Mr Blair told us at the beginning of June that Gaza was "still very much in a situation of general lockdown".[77] Mr Serry, Mr Holmes and UN Secretary-General Ban Ki-moon have all described the satisfactory delivery of humanitarian and reconstruction assistance as "impossible" without improved access.[78] In its "Humanitarian Monitor" report covering May, for example, OCHA reported on the continued ban on imports of baby formula, benzene, construction materials, diesel, tea, several types of canned food and jam. The overall number of truckloads entering Gaza in May 2009 was less than 25% of the monthly average for January-May 2007, before the blockade. According to OCHA, six truckloads carrying construction materials were permitted entry to Gaza in January-May 2009, compared to over 39,000 in January-May 2007.[79] Mr Blair highlighted the shortage of physical cash in Gaza, which is further holding back efforts to launch reconstruction and economic revitalisation;[80] we also heard about this issue during our visit. Import restrictions are creating a shortage of cooking gas, which is contributing to a poor diet for children, 30% of whom are reported to have anaemia.[81] The poor quality of Gaza's water, which has been exacerbated by the effects of the conflict and the limitations on the import of items needed for infrastructure reconstruction, is also causing health problems.[82] In late May, the UN Relief and Works Agency for Palestine Refugees (UNRWA), the main aid agency in the OPTs, reported that around 40 medical items were being allowed to cross into Gaza each day, compared to around 4,000 before the conflict;[83] OCHA reported that the number of drugs unavailable in Gaza had risen to 82 in May from 52 in March.[84] The closure of the border crossings is also placing severe obstacles in the way of Gazans needing to leave the territory for medical treatment.[85]

36. Israel's control of access to Gaza by water is also affecting efforts by international activists to deliver aid to the territory by ship. At the end of June, Israel impounded an aid ship of the Free Gaza Movement, the "Spirit of Humanity", reportedly after it continued to sail towards or into Gazan waters despite warnings not to do so.[86] Israel detained the ship's 21 passengers and crew, who included six Britons. As we completed this Report, the Britons were reported to have been released and deported, but four of the ship's passengers—two Irish citizens, one Dane and one Yemeni—were reported still to be in Israeli custody.[87] FCO Minister Ivan Lewis told the House on 7 July that the Foreign Secretary had raised the issue with Israeli Foreign Minister Avigdor Lieberman and asked for clarification as to whether Israel had apprehended the ship in international waters.[88]

37. The Quartet, and its members including the British Government, have continued to call on Israel to allow unrestricted access into Gaza for humanitarian supplies, and to relax the restrictions on other imports that are hampering reconstruction efforts.[89] In a Parliamentary answer on 8 June, DFID noted that "although the Israeli Government announced on 25 March that all humanitarian food items would be allowed into Gaza, this has not yet been implemented".[90] In its latest Annual Report on Human Rights, published in March 2009, the FCO confirmed that it regards Israel as continuing to have international legal obligations towards Gaza as an occupying power, under the Fourth Geneva Convention. The FCO said that "the Fourth Geneva Convention is clear that an occupying power must cooperate in facilitating the passage and distribution of relief consignments".[91]

38. Mr Blair suggested that, from Israel's perspective, there were two reasons for continuing to restrict the transfer of goods into Gaza. One was a genuine security concern that materials allowed into the territory for civilian purposes might be used in rocket attacks. The second was the concern that any easing of access conditions would be seen as a victory for Hamas and thus benefit it politically. Mr Blair did not think that either of these concerns was sufficiently well-founded.[92]

39. Mr Blair's view, that Israel was reluctant to grant greater access through the Gaza border crossings partly for fear of benefiting Hamas, suggested that Israel's policy on the transit of goods into the territory was being driven partly by political considerations. Dr Bregman told us that Israel "used control over the crossings in to the Gaza Strip to put pressure on Hamas and to drive a wedge between the people of the Gaza Strip and the leadership".[93] For his part, Mr Rammell told us that it was "difficult not to conclude that some of [the Israeli restrictions were] arbitrary".[94]

40. One of the official crossings into Gaza, at Rafah, is on the territory's border with Egypt rather than Israel (see map). Following Israel's withdrawal from Gaza in 2005, and under the terms of the Agreement on Movement and Access (AMA) reached between Israel and the Palestinian Authority that November, Israel handed control of the Gaza side of the crossing to the Palestinian Authority, with an EU monitoring mission at the crossing as an integral part of the deal. The mission is known as EUBAM Rafah. We saw the new EU mission at work during our visit to Gaza in late 2005. However, the mission has been withdrawn from Rafah since the Hamas takeover of Gaza in June 2007, as the mission's official purpose is to support the Agreement on Movement and Access, which specifies Palestinian Authority control of the crossing. The mission retains its operational readiness and the EU has stressed consistently that it is willing to redeploy it as soon as circumstances allow.[95] Since the Hamas takeover, Egypt has largely kept the Rafah crossing closed, as part of its own policy towards Hamas and Gaza (see paragraphs 173-174). Rafah is a crossing for people rather than goods.

41. The lack of free transit for goods through the crossings between Gaza and Israel has highlighted the role of the system of tunnels between Gaza and Egypt, under Gaza's southern border around Rafah. Dr Bregman told us that there were around 400 such tunnels prior to the Gaza conflict, of which Israel had destroyed perhaps 50% during Operation Cast Lead.[96] He told us that Gazans registered their tunnels with Hamas.[97] Our witnesses disagreed on the extent to which the tunnels were used for the smuggling of weapons for Hamas as opposed to civilian goods: Dr Albasoos told us that only around 5% of the tunnels were used for weapons smuggling, and that the tunnels served primarily as Gazans' only means of access to civilian goods barred at the official crossings, whereas Dr Bregman and Ms Bar-Yaacov thought that weapons smuggling was a more significant element in the underground traffic.[98] In June, the Foreign Secretary said that the "majority" of smuggling through the tunnels was of commercial goods and that this constituted a "major part of the Gazan economy", as a result of the continuing Israeli restrictions at the official crossings. However, the Foreign Secretary also said that weapons smuggling continued, although "recent actions [had] disrupted this to some extent".[99]

42. Israel has made the halting of weapons smuggling into Gaza a key demand, linking progress on this issue to its willingness to accede to Palestinian and international demands for the opening of the border crossings. Ms Bar-Yaacov told us that weapons were the "key concern" for Israel.[100] This nexus of issues has in turn been central to the effort to achieve a longer-term ceasefire agreement between Israel and Hamas, which we outline in the next section.

43. Especially given Israel's linkage of the smuggling issue to that of access through the official crossings into Gaza, the international community has become engaged in the effort to prevent the illicit weapons traffic. Addressing the House immediately after the end of the fighting in mid-January, the Foreign Secretary identified the two "immediate challenges" as being "stopping the flow of arms and starting the flow of aid".[101] On 16 January, seeking to bring an end to the Gaza conflict, the US agreed in a Memorandum of Understanding with Egypt to provide technical and intelligence cooperation and logistical support to support Cairo's efforts in the Sinai desert, next to Gaza, to prevent illicit arms transfers into the territory.[102] The US and the UK are both involved in the Gaza Counter-Arms Smuggling Initiative (GCASI), along with Canada, Denmark, France, Germany, Italy, the Netherlands and Norway. At a conference in London in March, GCASI agreed a programme of action aimed at developing "an effective framework for international cooperation, supplementary to measures taken by regional states to prevent and interdict the illicit flow of arms, ammunition, and weapons components, to Gaza."[103] A follow-up meeting at official level was held in Ottawa on 10-11 June. FCO Minister Ivan Lewis said that the Government would "continue to work closely with the EU, US and regional partners to establish how best our expertise, including naval resources, can be used."[104]

44. Dr Albasoos told us that the tunnels into Gaza would be closed, as being unnecessary, if Israel opened the official crossing points.[105] As regards Israel's fears about the use that might be made of materials transferred through the official crossings into Gaza, Mr Blair commented that "you can get materials in there that are used for the purposes for which they are supposed to be used",[106] although Dr Bregman warned that Hamas would probably always have weapons with which to attack Israel, manufacturing them itself if necessary, because of the movement's raison d'être as a "liberation movement".[107] As regards Israel's fears about benefiting Hamas politically if it were to ease access conditions, Mr Blair argued that the operation of the tunnels was already to Hamas's benefit, while the current situation simultaneously penalised Gazans wishing to operate legitimate businesses.[108] Mr Blair argued that the "separate, illegitimate economy […] over time displaces the legitimate economy".[109] For example, OCHA has reported that the Ministry of Agriculture in Gaza told farmers in April not to plant export crops, because of the prospect that they would lose money as a consequence of being unable to export their produce.[110]

45. Given the international community's demands for Israel to open the crossings into Gaza, and Israel's concerns about the use which might be made of imported goods, the possibility has been discussed of some form of international monitoring role at the crossings. In January, the EU said that it was:

examining options and intends to support the sustainability of the ceasefire including through assistance on border management. […] the Council expresses the European Union's readiness to reactivate the EU Border Assistance Mission (EUBAM Rafah), as soon as conditions allow, and to examine the possibility of extending its assistance to other crossing points as part of the overall EU engagement in the region.[111]

Ms Bar-Yaacov told us that "the EU could serve a very constructive role […] in monitoring. One needs enhanced monitoring, verification and compliance."[112] Mr Blair said that plans had been drawn up for the international community to take a role at the crossings into Gaza, but that "a change in policy will be required first".[113]

46. In addition to the difficulties for aid delivery caused by the Israeli blockade, there have been some instances in which humanitarian agencies could not deliver aid to its intended recipients in Gaza because it was appropriated by Hamas or other Palestinian groups. In early February, UNRWA temporarily suspended aid deliveries into Gaza after Hamas stole a second delivery.[114]

47. We conclude that rocket fire from Gaza by Hamas and other Palestinian groups on civilian targets in Israel is unacceptable. It generates the risk of a renewed escalation in violence, and constitutes a central obstacle in the way of Israeli willingness to move forward towards a two-state settlement. We therefore conclude that the British Government is correct to support Israel's goal of bringing rocket fire from Gaza to an end. However, we are not persuaded that the maintenance of the current regime of restrictions at the official crossings between Israel and Gaza is likely to achieve this. Rather, we conclude that the restrictions at the official crossings help to sustain the system of smuggling under the Egyptian border which itself contributes to the presence of illicit weaponry in Gaza. We recommend that, in its response to this report, the Government should update us on the steps being taken and the results being achieved as part of the international effort against smuggling into Gaza, and in particular on the British contribution. We further recommend that the Government should update us on any discussions which are underway on a possible international monitoring presence at the crossings between Israel and Gaza.

48. After two years in which we and others have consistently been highlighting the poor humanitarian situation in Gaza, and six months after the end of a damaging conflict, we conclude that Gaza's continued lack of free access to humanitarian and reconstruction supplies is a matter of distress and frustration. We conclude that it is unacceptable that Israel continues to deny unrestricted access for humanitarian assistance to Gaza. We further conclude that there are indications that Israel is seeking to use its control over the transfer of humanitarian and other supplies into Gaza partly for political objectives.

49. We conclude that the obstacles to legitimate economic activity and the increased role of unofficial economic transactions in Gaza may have a damaging long-term effect on the territory, which could make more difficult the creation of an integrated Palestinian state including both Gaza and the West Bank.

GAZA COMMONWEALTH WAR GRAVES CEMETERY

50. The reporting of the BBC's Mark Urban drew our attention to the impact of the conflict in Gaza on one of the two Commonwealth war graves cemeteries in the territory.[115] We visited the cemetery during our visit in March in order to be able to see for ourselves the damage that it had sustained. Richard Kellaway, Director General of the Commonwealth War Graves Commission (CWGC), told us that 363 of the 3,690 headstones in the cemetery would need to be replaced as a result of the effects of Israeli shelling, and that the total cost of the post-conflict restoration work required in the cemetery had been assessed at £83,936. Mr Kellaway told us that the CWGC was seeking to recover these costs from the Israeli government. Mr Kellaway said that he suspected that "the process may be lengthy", although he noted that in 2008 Israel had paid compensation to the CWGC for damage which the cemetery had sustained on a previous occasion.[116]

51. Despite the damage which the cemetery sustained in the most recent conflict, we were impressed on our visit by the condition in which the local CWGC staff were nevertheless maintaining it. We would like to take this opportunity to pay tribute to their work.

52. Mr Kellaway and Mr Paul Price, the local CWGC supervisor, confirmed that between taking up the post in January 2008 and March 2009, Mr Price had been unable to visit the two CWGC cemeteries in Gaza, on the basis of security advice. However, we were pleased to learn from Mr Kellaway that the CWGC Vice-Chairman, Admiral Sir Ian Garnett, had been able to visit the cemeteries, together with Mr Price, in April.[117]

53. We recommend that the FCO should press the Israeli government to compensate the Commonwealth War Graves Commission (CWGC) for the costs of repairing the damage to the CWGC cemetery in Gaza which was sustained during the latest conflict there, as Israel did in 2008 for the costs of repairing damage sustained on a previous occasion. We further recommend that the Government should provide an update on this issue in its response to this Report.

Regional diplomatic follow-up

54. Following the Gaza conflict, two sets of negotiations got underway. One set, between Hamas and Israel, was aimed at reaching a new longer-term ceasefire agreement to replace that which broke down in December 2008. The second set of talks, between Hamas and Fatah, was aimed at the establishment of a new Palestinian national unity government, thereby bringing Gaza and the West Bank back under a single political authority and in that respect restoring the pre-June 2007 situation. Both sets of negotiations were mediated by Egypt.

55. In early March, Mr Rammell told us that the Government supported the conclusion of a new Israel-Hamas ceasefire agreement. UN Security Council resolution 1860 had called on member states to support efforts in this direction.[118] However, the Egypt-mediated talks broke down in mid-March. One issue had been the opening of the crossings into Gaza by Israel in exchange for a halt to rocket fire out of it and reassurances on the smuggling of arms, as we outlined above. The deal-breaker in the talks appeared to be the decision of outgoing Israeli Prime Minister Ehud Olmert to link the conclusion of a new ceasefire agreement to agreement on a prisoner exchange, allowing the release of the Israeli soldier Corporal Gilad Shalit in exchange for the release of Hamas prisoners held by Israel. The release of Corporal Shalit has been an Israeli demand since he was kidnapped by Hamas in a cross-border raid in 2006, and Mr Olmert was reported to be keen to secure his release before leaving office, but Israel and Hamas could not agree on the list of Hamas prisoners to be released.[119]

56. As regards the Hamas-Fatah talks, Mr Rammell told us that the Government supported the formation of a new Palestinian national unity government.[120] The UN Security Council has also called for intra-Palestinian reconciliation.[121] The Quartet's present support for a Palestinian unity government, involving Hamas in some way, contrasts with what we heard during both our 2007 inquiry and our present inquiry, namely that there had been US opposition to the formation of a national unity government in 2006-07.[122] In our 2007 Report we called for the formation of a new national unity government.[123]

57. In March, Salam Fayyad submitted his resignation as Palestinian Authority Prime Minister, in order to facilitate the formation of a new government, possibly under an alternative premier. However, as of early July, after six rounds of Cairo-based talks, no agreement had been reached. It was reported that Hamas would not accede to Fatah's demand that, at least for the purposes of the new government's programme, it should accept the three conditions which the Quartet set for any Palestinian Authority government with which it was to deal, namely a renunciation of violence, acceptance of the existence of Israel, and acceptance of previous agreements reached between the PLO and Israel. The two sides could also not reach agreement on a number of further issues, including, reportedly, arrests by the security forces of each side of people affiliated with the other, and the terms for holding the Palestinian elections due by 2010 (see paragraphs 128-132).[124] Nomi Bar-Yaacov had told us in February that Hamas was opposed to the formation of a national unity government on the basis of a commitment to negotiations with Israel because it felt so strengthened by the conflict in Gaza.[125] She told us at that stage that "Hamas and Fatah are hardly talking to one another",[126] and Dr Albasoos confirmed that the rift between the two parties was "wider than before".[127]

58. Having warned us, prophetically, in February 2007 that there could be a return to violence in the OPTs "very quickly",[128] Ms Bar-Yaacov told us in February 2009 that there could yet be "another civil war".[129] She suggested that the arms that Hamas were continuing to smuggle into Gaza could be targeted at Fatah, as much as Israel.[130] Since the end of the Gaza conflict, there have been reports of reprisals there by Hamas against individuals believed to have collaborated with Fatah or Israel, and of reprisals against Hamas figures in return.[131]

59. On 19 May, shortly before his first meeting with President Obama in Washington, President Abbas re-appointed Mr Fayyad to head a new government, which this time includes eight Fatah ministers rather than comprising only non-party figures.[132] Many elements within Fatah continue to be discontented with their party's representation in the Palestinian Authority government, and the government's continued leadership by a non-Fatah figure.[133] Some Fatah figures also did not want to see the apparent abandonment of the effort to form a government with Hamas, although as of early July the unity talks had not been formally called off and a further round of negotiations was scheduled for later in the month. There have been reports that Egypt has set the two parties a deadline of the end of July.[134] We take up the issues of relations between Fatah and Hamas and international policy towards the Palestinian side of the conflict in Chapter 4.

60. We are dismayed that, six months after the end of the conflict in Gaza, there remains no ceasefire agreement between Israel and Hamas and no united Palestinian government. There also appears to have been little underlying change regarding several of the key issues which contributed to the outbreak of the conflict, such as Hamas's control of Gaza, weapons smuggling into the territory, and the lack of access through the Gaza border crossings. We conclude that this situation makes for an ongoing risk of insecurity and a renewed escalation of violence. We recommend that, in its response to this Report, the Government should set out what support it has offered to the conclusion of a new ceasefire agreement between Israel and Hamas, and its assessment of the prospect that such an agreement will be reached.

Possible violations of the laws of war

61. International human rights NGOs and other observers have alleged that the conflict in Gaza in December 2008/January 2009 saw violations of the laws of war, by both sides.[135] The prominence of this issue led us to take evidence from Professor Iain Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East at the School of Oriental and African Studies, University of London.

62. Professor Scobbie explained that Israel is not a Party to Additional Protocol I to the Geneva Conventions, which are the main instruments establishing the international laws of war—including, in the case of Additional Protocol I, with respect to "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination".[136] Professor Scobbie also noted that "there can be differences in the implementation" of the laws of war between state and non-state actors.[137] However, he said that many of the provisions of Additional Protocol I form part of customary international law, and that overall the "basic rules" of international law relating to armed conflict applied to the conflict in Gaza.[138] In a memorandum, the FCO also made clear that it regards several of the principles regarding the targeting of civilians which are set out in Additional Protocol I as being part of customary international law and therefore as applying to Israel and Hamas.[139]

63. One of the most prominent allegations made against Israel was that its military action in Gaza was disproportionate. The Foreign Secretary described the Israeli operation in these terms.[140] Mr Blair told us that there had been "no conception of proportionality" in the Israeli action.[141] We note the Foreign Secretary's terminology in particular in light of our criticism, in our 2007 Report, of the Government's decision not to use the term "disproportionate" of Israel's military action in Lebanon in 2006.[142] Professor Scobbie explained that the term "disproportionate" had a specific legal significance—namely, that in order to avoid disproportionality "damage done to civilian property and civilians must not be excessive in relation to the military advantage anticipated by a given attack".[143] He stressed that the requirement to avoid disproportionate military action was not, therefore, a requirement to avoid civilian casualties altogether.[144]

64. International human rights NGOs charged Israel with violating the requirement to discriminate adequately between combatants and non-combatants during its Gaza action. Additional Protocol I requires that only military targets may be attacked; that all feasible precautions must be taken to avoid or at least minimise civilian harm; and that indiscriminate attacks are not permissible, where the lack of discrimination may arise from either the choice of target or the choice of weapon.[145]

65. Allegations that Israel violated the requirement to discriminate adequately between combatants and non-combatants in the Gaza conflict were made with respect to both its targeting and the weapons types it used. As regards targeting, a number of allegations were made:

  • Human Rights Watch, for example, argued that Israel had violated the prohibition on indiscriminate attack owing to its use of artillery shells in densely populated residential areas of Gaza, where it was suggested that extensive civilian casualties were unavoidable.[146]
  • Human Rights Watch and Amnesty International both said that Israel had been operating with too broad a definition of a military target, and had attacked illegitimate civilian targets as a result.[147] Professor Scobbie highlighted in particular Israel's attack on a civilian police graduation parade, which he said probably constituted a breach of the laws of war because police are normally presumed to be civilians.[148] Other civilian facilities which were damaged and which drew international attention included hospitals and medical transports, the Gaza war graves cemetery (which we discussed above) and, above all, UN schools and a UN aid distribution warehouse. Concerns about Israeli targeting behaviour were heightened when a number of Israeli soldiers who had been involved in the conflict described apparently lax rules of engagement which they had been given and an apparently careless attitude to Palestinian civilian life and property prevailing among some IDF personnel.[149]

66. As regards the weapons which Israel used or may have used during the conflict, human rights organisations and other observers alleged that a number may have violated the prohibition on indiscriminate attack:

  • White phosphorus. Amnesty International and Human Rights Watch both charged that Israel used white phosphorus in civilian areas and thereby violated the discrimination requirement.[150] The use of white phosphorus as an incendiary weapon is outlawed, by Protocol III to the Convention on Certain Conventional Weapons, but Israel is not party to this instrument;[151] and Professor Scobbie said that the use of white phosphorus is not necessarily illegal if it is used as an illuminant or smokescreen.[152] However, Professor Scobbie said that the use of white phosphorus would be subject to the general laws of war requiring discrimination and proportionality.[153] The FCO told us that "whether the use of white phosphorus munitions in civilian areas is or is not a breach of international law depends on the facts." In its memorandum, submitted in February, the FCO said that "Until the facts are clearly established, it is not possible to form a definitive view as to whether the alleged use of white phosphorus in Gaza is, or is not, in breach of international law."[154]
  • Flechettes. Amnesty International reported testimony that Israel used flechettes during the Gaza conflict. Flechettes are anti-personnel weapons that release thousands of tiny metal darts over a large area from a single shell. Amnesty and the Israeli human rights organisation B'Tselem have argued that flechettes should not be used in the type of built-up environment found in Gaza.[155]
  • DIME bombs. Dense Inert Metal Explosive bombs are designed to cause an intense explosion in a small space, in order to try to avoid collateral harm. They are packed with tungsten powder, which can dissolve in human tissue. A number of newspapers reported injuries to Palestinians in Gaza which gave rise to suspicions that DIME bombs may have been used.[156] Professor Scobbie told us that any use of DIME bombs would be illegal under Protocol I to the 1980 Convention on Certain Conventional Weapons, to which Israel is a party.[157]

67. In a public background paper about Israel's conduct of the Gaza campaign, the Israeli Foreign Ministry said that it had "demonstrated great sensitivity in exercising force in order to avoid, as much as possible, harming the civilian population not involved in terror." It said that Israel had refrained from certain operations where innocent civilians would have been harmed, and had issued warnings in order to avoid civilian casualties. The Foreign Ministry paper blamed Hamas for conducting operations from civilian facilities and for using human shields.[158]

68. International human rights organisations have charged Hamas with using human shields during the Gaza conflict.[159] Professor Scobbie told us that "civilians who take a direct part in hostilities are legitimate targets". However, he described the meaning of "taking a direct part in hostilities" as an issue which was "quite controversial", and one where further international legal guidance was expected.[160] The FCO noted similarly that there is no definition in customary international law of "direct participation in hostilities".[161]

69. International human rights organisations have stated that Hamas's rocket attacks on Israel are indiscriminate and therefore violate the laws of war.[162] Professor Scobbie shared this view.[163]

70. We asked Professor Scobbie about the argument that might be made, with regard to either side in the Gaza conflict, that the armed actions involved were in self-defence. Professor Scobbie told us that the legal doctrine of self-defence was "only relevant when a conflict starts, so that one side can claim that it is using force in self-defence, knowing that it is a breach of international law." By contrast, he argued that "in the situation that we have here, there has been an ongoing conflict and a situation of occupation for 40-odd years, so […] self-defence is not a legal plea."[164] Professor Scobbie also argued that no one side in the Gaza conflict could rely on the doctrine of "belligerent reprisals"—namely the argument that a violation of international law had been committed in order to try to bring to an end a prior violation committed by the other side.[165]

71. In addition to allegations over Israel's conduct of its military campaign, human rights groups have charged Israel with violating international humanitarian law by denying medical personnel access to the injured in at least one case, and by blocking access to medical care in addition through its closure of Gaza's borders.[166] Amnesty International also charged that Israel had "deliberately blocked and otherwise impeded emergency relief and humanitarian assistance" during the conflict.[167] Israel said that it was "making major efforts […] to ensure that the humanitarian needs of the civilian population […] are met"[168] and pointed, for example, to the three-hour daily ceasefires which it instituted in order to allow access for humanitarian relief.[169]

72. Concerns were also raised about the closure of Gaza's borders because of the way in which this prevented the civilian population from fleeing the conflict. Professor Scobbie told us that there was a provision in the Fourth Geneva Convention for the parties to a conflict to designate civilian safe areas, but that this had not happened in Gaza.[170]

73. We recommend that in its response to this Report the FCO should state whether it considers that violations of the laws of war were committed during the December 2008/January 2009 conflict in Gaza and southern Israel.

OFFICIAL INVESTIGATIONS

74. A number of investigations have been launched in response to the allegations that the laws of war were violated during the Gaza conflict:

i.  The IDF conducted an inquiry into the conduct of its forces which reported on 22 April. The IDF concluded that it had "conducted itself in an appropriate manner within the limits of international law", although there had been "a very small number of mistakes and incidents that indicated inappropriate conduct" which "were unavoidable" in the circumstances.[171] In a joint statement, ten Israeli human rights groups called the results of the investigation "very problematic".[172] Kate Allen, UK Director of Amnesty International, told our separate human rights inquiry in June that the Israeli investigation was "neither independent nor impartial".[173] Professor Scobbie told us that Israel's record on investigating and prosecuting legal violations by its military was "pretty patchy".[174]

ii.  The Arab League established a Fact Finding Committee which travelled to Gaza in February and reported at the end of April.[175] The Committee found that both the IDF and Palestinian militants who fired rockets into Israel had perpetrated "indiscriminate and disproportionate attacks on civilians."[176]

iii.  UN Secretary-General Ban Ki-moon established a Board of Inquiry into incidents during the conflict which involved damage to UN personnel or property. The Board was led by the UK's Ian Martin, formerly Secretary-General of Amnesty International. According to the summary of the Board's report which Mr Ban released and forwarded to the Security Council on 5 May, the Board found the IDF to have been responsible for seven of nine incidents, and "a Palestinian faction, most likely Hamas" to have caused the damage in an eighth.[177] The summary concluded that "IDF actions involved varying degrees of negligence or recklessness with regard to United Nations premises and to the safety of United Nations staff and other civilians within those premises".[178] The summary said that the Board called for the UN to seek reparation from Israel or Hamas as appropriate, and for the establishment of a further "impartial inquiry mandated […] to investigate allegations of violations of international humanitarian law in Gaza and southern Israel by the IDF and by Hamas and other Palestinian militants".[179] Israel rejected Mr Ban's summary of the report. Mr Ban rejected the call for a further investigation.[180] In Parliamentary answers in May, FCO Minister Lord Malloch-Brown said that the Government was "deeply concerned" by the findings of the Board's report.[181] He said that Israel was still conducting some investigations, that it was "important that Israel ensures that the various allegations are fully investigated, taking into account [the Board's] findings",[182] and that once the outcome of remaining investigations was clear the Government would "consider the results carefully and assess whether further action is necessary."[183]

iv.  The UN Human Rights Council has established an inquiry which began work in early May. The inquiry has taken evidence in Gaza, Amman and Geneva from people affected by or involved in the conflict, and expects to complete its report in August 2009 for presentation to the Council in September.[184] The inquiry is being led by the former international prosecutor Richard Goldstone of South Africa. The inquiry's original mandate, as approved by the Human Rights Council, referred only to alleged human rights violations committed by Israel,[185] but the mandate eventually conferred on the inquiry by the Council's President is "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after."[186] Amnesty's Kate Allen told our human rights inquiry that Amnesty was "really disappointed with the UK Government's failure to make a public statement of support for the Goldstone mission and to put pressure on the Israeli Government to co-operate".[187] Tom Porteous of Human Rights Watch concurred that the Goldstone inquiry "needs to be supported by the international community, including by the UK, and its recommendations need to be taken extremely seriously."[188] The Foreign Secretary told us subsequently that the Government supported the Goldstone inquiry, now that it was mandated to investigate alleged violations by both sides.[189] The Foreign Secretary suggested that the main problem for the Goldstone inquiry was its need for the cooperation of the parties to the conflict;[190] in February, Professor Scobbie had warned us that any international investigation "would need the consent of the parties to be effective",[191] but Israel has indicated that it will not cooperate with the Goldstone inquiry, something which Kate Allen called "deplorable."[192] Under these circumstances, the Foreign Secretary sounded sceptical about the prospects for the inquiry. He told us that:

The problem […] is that the Human Rights Council is seen as a politicised body and its inquiry, notwithstanding the huge distinction of Judge Goldstone, is perceived, though not by us, to be prejudiced. […] the politicised nature of the Human Rights Council […] makes it very difficult for [it] to carry the confidence of the Government of Israel on this issue.[193]

We are considering the UN Human Rights Council more generally as part of our human rights inquiry.

75. Some observers have charged that Israel committed war crimes during its Gaza campaign. Kate Allen of Amnesty International, for example, told us that there was "absolutely, evidence of war crimes".[194] The International Criminal Court (ICC) has the power to try war crimes, where national authorities do not take appropriate action. The ICC is reported to have received over 200 requests to investigate possible violations during the Gaza conflict.[195] Professor Scobbie warned that, in order for alleged legal breaches to count as war crimes, intent must be proved.[196] He also noted that neither Israel nor any authority on the Palestinian side is party to the Statute of the ICC.[197] However, in January, the Palestinian Authority made a "declaration of competence" in order to seek to confer on the Court the authority to try alleged crimes committed in the OPTs. Professor Scobbie told us that before it could proceed to investigating any specific allegations, the ICC must first adjudicate as to whether the Palestinian Authority was competent to make such a declaration.[198] The FCO told us that it took no view on this matter.[199]

76. Professor Scobbie stressed that "the ICC is not the only route by which prosecutions could be made": he stated that "all states that are party to the Geneva Conventions have the duty to ensure that those who commit grave breaches are prosecuted, even if they have to do it in their own courts".[200] He confirmed that British courts would have jurisdiction over grave breaches of the Geneva Conventions, under the Geneva Conventions Act 1957.[201]

77. We are deeply concerned about the high number of casualties, the extent of the damage sustained and allegations of violations of international law during the conflict in Gaza. We conclude that Hamas targets civilians in its armed actions, and that Israel's military action in Gaza was disproportionate. We welcome the establishment of the UN Human Rights Council's inquiry into the conflict under Judge Goldstone, and the fact that it will investigate all violations of international human rights law and international humanitarian law that might have been committed during the conflict, by either side. We recommend that the Government should give the Goldstone inquiry its full support and press Israel to cooperate with it fully.


8   Foreign Affairs Committee, Eighth Report of Session 2006-07, Global Security: The Middle East, HC 363, paras 24-50 Back

9   Foreign Affairs Committee, Eighth Report of Session 2006-07, Global Security: The Middle East, HC 363 Back

10   "2007 Summary-Data and Trends in Palestinian Terror" and "2008 Summary-Data and Trends in Palestinian Terror", via http://www.shabak.gov.il/english/enterrordata/pages/default.aspx. There are several different sets of statistics relating to attacks on Israel: the numbers tracked may be of rockets launched, rockets which hit Israeli territory, or rocket attacks. There are also other types of attack on Israel and therefore of sources of casualties. There are similarly several different types of figure for Palestinian casualties.  Back

11   UN Office for the Coordination of Humanitarian Affairs-Occupied Palestinian Territory (OCHA-oPt), "OCHA-oPt Protection of Civilians Summary Data Tables: Reports to the end of October 2008", via www.ochaoprt.org; see also International Development Committee, Eleventh Report of Session 2007-08, The Humanitarian and Development Situation in the Occupied Palestinian Territories, HC 522-I, paras 4-11. Back

12   Rocket launches from Gaza numbered 22 in total in July-October 2008, 148 in November and 178 in December, up to Israel's launch of Operation Cast Lead; Israel Security Agency "2008 Summary-Data and Trends in Palestinian Terror", via http://www.shabak.gov.il/english/enterrordata/pages/default.aspx; see also FCO, Annual Report on Human Rights 2008, Cm 7557, March 2009, p 152. Back

13   Q 2 [Dr Bregman, Dr Albasoos, Ms Bar-Yaacov]; International Crisis Group, "Ending the War in Gaza", Middle East Briefing No. 26, 5 January 2009 Back

14   Q 10 [Dr Albasoos]; "Israel holds its fire: Statement by PM Ehud Olmert", 17 January 2009, via the website of the Israeli Ministry of Foreign Affairs, www.mfa.gov.il; "UN mission to assess Gaza damage", Jerusalem Post, 20 January 2009 Back

15   "Operation Cast Lead: Israel strikes back against Hamas terror in Gaza", 21 January 2009, via www.mfa.gov.il Back

16   OCHA-oPt, "Field Update on Gaza from the Humanitarian Coordinator", 6-9 February 2009, via www.ochaopt.org Back

17   "Israel disputes Gaza death rates", BBC News, 26 March 2009, via www.bbc.co.uk/news; "Israel's internal war review deflects charges over Gaza; casualty estimates differ, and rights organizations urge independent inquiry", International Herald Tribune, 23 April 2009 Back

18   "Israel's internal war review deflects charges over Gaza; casualty estimates differ, and rights organizations urge independent inquiry", International Herald Tribune, 23 April 2009 Back

19   Q 4 Back

20   Q 2; we consider smuggling through the tunnels into Gaza from Egypt at paras 41-45 below.  Back

21   Q 3 Back

22   Qq 3, 5, 27; we outline the Israeli election results in paras 134-135 in Chapter 5.  Back

23   Q 205 Back

24   Q 205 Back

25   Q 109 Back

26   Q 98 Back

27   Q 109 Back

28   "Israeli jets kill 'more than 200' in revenge strikes on Gaza", Sunday Times, 28 December 2008; "Situation in Gaza", comments by the Foreign Secretary, 28 December 2008, and BBC News interviews with the Foreign Secretary, 29 December 2008, transcripts via www.fco.gov.uk; "Blair visits Middle East amid pressure to broker ceasefire", The Independent, 30 December 2008; "Israel defies peacemakers and prepares for invasion", The Independent, 1 January 2009 Back

29   Q 8 Back

30   "Statement by Secretary of State Condoleezza Rice on the Situation in Gaza", 27 December 2008, http://2001-2009.state.gov/secretary/rm/2008/12/113500.htm; "Security Council press statement on situation in Gaza", 28 December 2008, http://www.un.org/News/Press/docs/2008/sc9559.doc.htm; "Statement by the European Union on the Situation in the Middle East", Paris, 30 December 2008, via www.ue2008.fr; "Press Briefing by Deputy Press Secretary Gordon Johndroe", White House, 30 December 2008, via http://georgewbush-whitehouse.archives.gov; "Ban, top diplomatic partners call for immediate ceasefire in Israel-Gaza fighting", UN Daily News, 30 December 2008 Back

31   UN Security Council Resolution 1860, 8 January 2009 Back

32   Q 102 Back

33   Q 8 Back

34   "Brown breaks with the US to call for an immediate ceasefire", The Times, 5 January 2009 Back

35   Qq 101-102 Back

36   Q 102 Back

37   "Gaza: UN diplomacy: White House breaks rank with Israel to back draft resolution", The Guardian, 9 January 2009; "UN resolution: US abstention stuns Security Council", The Guardian, 10 January 2009 Back

38   Q 101 Back

39   Q 15 [Ms Bar-Yaacov, Dr Albasoos, Dr Bregman] Back

40   Q 197 Back

41   Jerusalem Media and Communication Center Poll No. 67, January 2009, via www.jmcc.org Back

42   Q 19 Back

43   Q 197 Back

44   Q 19 Back

45   "Monthly Summary" for each of February-June 2009 and "2008 Summary-Data and Trends in Palestinian Terror", via www http://www.shabak.gov.il/english/enterrordata/pages/default.aspx Back

46   Q 205 Back

47   Q 19 Back

48   "English Summary of the Winograd Commission Report", New York Times, 30 January 2008 Back

49   Foreign Affairs Committee, Eighth Report of Session 2006-07, Global Security: The Middle East, HC 363, paras 110, 116; we touch on recent developments in Lebanon in paragraphs 175-180 in Chapter 6. Back

50   Q 27 [Dr Albasoos] Back

51   Q 6 Back

52   Q 9 Back

53   Foreign Affairs Committee, Global Security: The Middle East, para 102 Back

54   FCO, Eighth Report of the Foreign Affairs Committee, Session 2006-07, Global Security: The Middle East, Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 7212, October 2007, para 51 Back

55   International Crisis Group, "Ending the War in Gaza", Middle East Briefing No. 26, 5 January 2009, pp 2, 24 Back

56   Q 99; see also Qq 98, 100. Back

57   FCO, Departmental Report 1 April 2007-31 March 2008, Cm 7398, May 2008, pp 16, 84-85 Back

58   PSA 30, October 2007, via www.hm-treasury.gov.uk Back

59   Foreign Affairs Committee, Global Security: The Middle East, para 222; FCO, Eighth Report of the Foreign Affairs Committee, Session 2006-07, Global Security: The Middle East, Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 7212, October 2007, para 119 Back

60   Q 108 Back

61   Q 98 Back

62   "FCO Response to FAC Questions on the FCO Autumn Performance Report 2008", April 2009, written evidence submitted to the Foreign Affairs Committee's inquiry into the FCO's Departmental Annual Report, published online at http://www.publications.parliament.uk/pa/cm200809/cmselect/cmfaff/memo/departmentreport/contents.htm Back

63   FCO, Departmental Report and Resource Accounts 1 April 2008-31 March 2009, HC 460-II, p 46 Back

64   Ibid., p 66 Back

65   Foreign Affairs Committee, Second Report of Session 2005-06, Foreign and Commonwealth Office Annual Report 2004-05, HC 522, para 12; see also Foreign Affairs Committee, Eighth Report of Session 2005-06, Foreign and Commonwealth Office Annual Report 2005-06, HC 1371, paras 62-69; Foreign Affairs Committee, First Report of Session 2006-07, Foreign and Commonwealth Office Annual Report 2006-07, HC 50, paras 59-69. Back

66   Foreign Affairs Committee, Global Security: The Middle East, para 64 Back

67   International Development Committee, Eleventh Report of Session 2007-08, The Humanitarian and Development Situation in the Occupied Palestinian Territories, HC 522-I, Summary Back

68   Qq 121-122 Back

69   OCHA-oPt, "Humanitarian Monitor", April 2009, via www.ochaopt.org Back

70   John Holmes, "Life and livelihoods in Gaza are being made impossible", European Voice, 30 April 2009 Back

71   "Better access crucial for Gaza's recovery and reconstruction-top UN official", UN Daily News Digest, 1 May 2009 Back

72   "UN, aid agencies call for end to Israel's two-year blockade of Gaza", UN Daily News Digest, 17 June 2009 Back

73   ICRC, "Gaza: 1.5 million people trapped in despair", 29 June 2009, p 1 Back

74   "Donors pledge $4.5bn for Palestinians but no funding must go to Hamas", Financial Times, 3 March 2009 Back

75   HC Deb, 5 March 2009, cols 1743-4W Back

76   Q 214 Back

77   Q 215 Back

78   John Holmes, "Life and livelihoods in Gaza are being made impossible", European Voice, 30 April 2009; "Better access crucial for Gaza's recovery and reconstruction-top UN official", UN Daily News Digest, 1 May 2009; "Secretary-General's message to UN Asian and Pacific Meeting on the Question of Palestine", Jakarta, 8 June 2009 Back

79   OCHA-oPt, "Humanitarian Monitor", May 2009, via www.ochaopt.org; see also ICRC, "Gaza: 1.5 million people trapped in despair", 29 June 2009, p 1. Back

80   Q 214 Back

81   "Health conditions worsening in Gaza as borders remain closed-UN agency", UN Daily News Digest, 22 May 2009 Back

82   See, for example, ICRC, "Gaza: 1.5 million people trapped in despair", 29 June 2009, pp 2-3. Back

83   "Health conditions worsening in Gaza as borders remain closed-UN agency", UN Daily News Digest, 22 May 2009 Back

84   OCHA-oPt, "Humanitarian Monitor", May 2009, via www.ochaopt.org Back

85   See, for example, ICRC, "Gaza: 1.5 million people trapped in despair", 29 June 2009, pp 4-5. Back

86   "IDF Navy Forces Intercept Cargo Boat", IDF statement, 30 June 2009, via http://dover.idf.il/IDF/English; "Navy stops ship on way to Gaza", Jerusalem Post, 1 July 2009 Back

87   "Israel frees all but four protesters from ship", Toronto Star, 7 July 2009 Back

88   HC Deb, 7 July 2009, col 633W Back

89   See, for example, Qq 121-122 [Mr Rammell]; Quartet Statement, Trieste, 26 June 2009, via www.fco.gov.uk Back

90   HC Deb, 8 June 2009, col 759W Back

91   FCO, Annual Report on Human Rights 2008, Cm 7557, March 2009, p 149 Back

92   Qq 215, 240 Back

93   Q 2 Back

94   Q 125 Back

95   Most recently, in the Conclusions of the External Relations Council meeting on 18-19 May 2009, via www.consilium.europa.eu Back

96   Qq 16-17 Back

97   Q 16 Back

98   Qq 16, 18 Back

99   HC Deb, 3 June 2009, col 515W Back

100   Q 18 Back

101   HC Deb, 19 January 2009, col 501-16 Back

102   "US steps up peace effort with pact to police Egypt border: Washington talks fulfil key Israeli demand", The Guardian, 17 January 2009 Back

103   "Anti-smuggling conference-final communiqué", 16 March 2009, via www.fco.gov.uk Back

104   HC Deb, 11 June 2009, col 967W Back

105   Q 18 Back

106   Q 240 Back

107   Q 19 Back

108   Qq 211, 214 Back

109   Q 211 Back

110   OCHA-oPt, "Humanitarian Monitor", April 2009, via www.ochaopt.org Back

111   Conclusions of the External Relations Council, 26 January 2009, via consilium.europa.eu Back

112   Q 34 Back

113   Q 214 Back

114   "UN suspends Gaza aid after theft of food", Daily Telegraph, 7 February 2009 Back

115   "Battle still rages where my brave great-uncle fell in Gaza back in 1917", The Observer, 22 February 2009; BBC Newsnight, 24 February 2009 Back

116   Ev 54-55 Back

117   Ev 54 Back

118   UNSCR 1860, 8 January 2009 Back

119   "Israel demands release of captured soldier in return for Gaza deal", The Guardian, 19 February 2009; "Hamas refuses to free Israeli soldier in return for lifting Gaza blockade", The Guardian, 20 February 2009; "Israeli leader fails to bring soldier home; Olmert refuses to release all of the Palestinian prisoners Hamas had demanded in exchange for Shalit", Los Angeles Times, 18 March 2009 Back

120   Q 126 Back

121   UNSCR 1860, 8 January 2009; Security Council Presidential statement, 11 May 2009 Back

122   Q 41 [Dr Albasoos]; Foreign Affairs Committee, Global Security: The Middle East, paras 31-36 Back

123   Foreign Affairs Committee, Global Security: The Middle East, para 60 Back

124   "Hamas still refusing to recognize Israel, renounce terror. Islamists sit with Fatah in Cairo for yet another round of unity talks", Jerusalem Post, 17 May 2009; "Little hope for progress as Hamas, Fatah enter latest round of talks", Jerusalem Post, 28 June 2009; "Abbas hosts released Hamas parliamentary speaker", Jerusalem Post, 1 July 2009 Back

125   Q 26 Back

126   Q 32 Back

127   Q 41 Back

128   Foreign Affairs Committee, Global Security: The Middle East, para 32 Back

129   Q 21 Back

130   Q 21 Back

131   "Gaza: Dozens believed dead in reprisal attacks as Hamas retakes control", The Guardian, 30 January 2009; Human Rights Watch, "Under Cover of War: Hamas Political Violence in Gaza", 20 April 2009 Back

132   "Palestinians reappoint Prime Minister who had quit", New York Times, 20 May 2009 Back

133   "Palestinian premier is sworn back in to office; Abbas installs a new Cabinet ahead of his trip to Washington, a move likely to add to the rift with Hamas", Los Angeles Times, 20 May 2009 Back

134   "Little hope for progress as Hamas, Fatah enter latest round of talks", Jerusalem Post, 28 June 2009; "Hamas bends to pressure in Gaza and abroad", Christian Science Monitor, 7 July 2009 Back

135   Most extensively, in a report by Amnesty International published on 2 July: "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction". Back

136   Protocol I to the Geneva Conventions, Article 1.4 Back

137   Q 51 Back

138   Qq 53-55 Back

139   Ev 49-50 Back

140   HC Deb, 12 January 2009, col 21 Back

141   Q 236 Back

142   Foreign Affairs Committee, Global Security: The Middle East, paras 103-108 Back

143   Q 69 Back

144   Qq 68-72 Back

145   Protocol I to the Geneva Conventions, Articles 51, 52, 58; see also the FCO's summary of these points at Ev 49-50. Back

146   Kenneth Roth, "The Incendiary IDF", 22 January 2009, at http://www.hrw.org/en/news/2009/01/22/incendiary-idf-kenneth-roth Back

147   Kenneth Roth, "The Incendiary IDF", 22 January 2009, at http://www.hrw.org/en/news/2009/01/22/incendiary-idf-kenneth-roth; Amnesty International, "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction", 2 July 2009, p 64 Back

148   Q 67 Back

149   "Army to probe accounts of serious misconduct during Gaza offensive. Soldiers allegedly fired at known noncombatants", Jerusalem Post, 20 March 2009 Back

150   Human Rights Watch, "Rain of Fire: Israel's Unlawful Use of White Phosphorus in Gaza", 25 March 2009; Amnesty International, "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction", 2 July 2009, pp 27-36 Back

151   Q 53 [Professor Scobbie]; Ev 50 [FCO] Back

152   Q 62 Back

153   Q 62 Back

154   Ev 50 Back

155   Amnesty International, "Israeli army used flechettes against Gaza civilians", 27 January 2009; B'Tselem, "Flechette shells: An illegal weapon", at www.btselem.org/english/firearms/flechette.asp Back

156   "'Tungsten bombs' leave Israel's victims with mystery wounds", The Independent, 18 January 2009 Back

157   Q 65 Back

158   Israeli Ministry of Foreign Affairs, "Responding to Hamas Attacks from Gaza-Issues of Proportionality", background paper, 29 December 2008, via www.mfa.gov.il Back

159   "War crimes charges fly in Gaza; Israelis, Palestinians both cite violations of international law", Toronto Star, 6 February 2009; "War court asked to examine Gaza war; Hague prosecutor could study claims", International Herald Tribune, 11 February 2009 Back

160   Q 73 Back

161   Ev 50 Back

162   Kenneth Roth, "The Incendiary IDF", 22 January 2009, at http://www.hrw.org/en/news/2009/01/22/incendiary-idf-kenneth-roth Back

163   Q 67 Back

164   Q 56 Back

165   Q 82 Back

166   Human Rights Watch, "Israel and Egypt: Allow Humanitarian Access to Gaza", 8 January 2009; Amnesty International, "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction", 2 July 2009, pp 40-46 Back

167   Amnesty International, "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction", p 52 Back

168   Israeli Ministry of Foreign Affairs, "Responding to Hamas Attacks from Gaza-Issues of Proportionality", background paper, 29 December 2008, via www.mfa.gov.il Back

169   "Cessation of IDF activities in Gaza to facilitate humanitarian activities", Israeli government statement, 7 January 2009, via www.mfa.gov.il Back

170   Qq 83-84 Back

171   "IDF Releases Information on Military Investigations", statement by IDF spokesperson, 22 April 2009, via http://dover.idf.il/IDF/English/News/today/09/4/2201.htm Back

172   "Israeli human rights groups reject army probe results", Jerusalem Post, 23 April 2009 Back

173   Oral evidence taken before the Foreign Affairs Committee on 10 June 2009, HC (2008-09) 557-i, Q 87 Back

174   Q 89 Back

175   "No Safe Place. Report of the Independent Fact Finding Committee on Gaza presented to the League of Arab States", 30 April 2009 Back

176   Ibid., paras 20, 21 Back

177   Secretary-General's Summary of the Report of the United Nations Headquarters Board of Inquiry into certain incidents in the Gaza Strip between 27 December 2008 and 19 January 2009, para 89 Back

178   Ibid., para 101 Back

179   Ibid., recommendation 11 Back

180   "UN chief rejects further inquiry", The Guardian, 6 May 2009; "UN report blames IDF for attacks on its facilities. Foreign Ministry rejects conclusions of probe, claiming investigators ignored evidence against Hamas", Jerusalem Post, 6 May 2009 Back

181   HC Deb, 14 May 2009, col 225WA Back

182   HC Deb, 21 May 2009, col 359WA Back

183   HC Deb, 14 May 2009, col 225WA Back

184   UN Daily News Digest, 7 July 2009 Back

185   "The grave violations of human rights in the Occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip", resolution S-9/1 of the UN Human Rights Council, Ninth Special Session, 12 January 2009 Back

186   "Appointment of the United Nations Fact Finding Mission on the Gaza Conflict", 3 April 2009, http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm Back

187   Oral evidence taken before the Foreign Affairs Committee on 10 June 2009, HC (2008-09) 557-i, Q 87 Back

188   Ibid. Back

189   Oral evidence taken before the Foreign Affairs Committee on 16 June 2009, HC (2008-09) 557-ii, Q 190 Back

190   Oral evidence taken before the Foreign Affairs Committee on 16 June 2009, HC (2008-09) 557-ii, Q 191 Back

191   Q 87 Back

192   Oral evidence taken before the Foreign Affairs Committee on 10 June 2009, HC (2008-09) 557-i, Q 87 Back

193   Oral evidence taken before the Foreign Affairs Committee on 16 June 2009, HC (2008-09) 557-ii, Q 189 Back

194   Oral evidence taken before the Foreign Affairs Committee on 10 June 2009, HC (2008-09) 557-i, Q 87; see also, for example, Amnesty International, "Israel/Gaza: Operation 'Cast Lead': 22 days of death and destruction", 2 July 2009 Back

195   "War court asked to examine Gaza war; Hague prosecutor could study claims", International Herald Tribune, 11 February 2009 Back

196   Q 62 Back

197   Q 91 Back

198   Q 91 Back

199   Ev 51 Back

200   Q 92 Back

201   Q 94 Back


 
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Prepared 26 July 2009