JUDGE GOLDSTEIN'S NOTES FOR THE PANEL ON CIVILIANS IN WAR ZONES

1.     During armed conflict civilians frequently pay a heavy price. They face death, injury and destruction of their homes, often by inadvertently becoming caught up in war. Yet, it is a comparatively recent development that international and domestic laws have included the protection of civilians and recognized violations of those laws as war crimes.

2.     At the cost of over-simplification, most war crimes consist of military attacks (whether by states or non-state actors) against civilians and civilian objects that are not justified by a reasonable military objective.

3.     Causing civilian casualties in consequence of a proportionate attack on a military target is not unlawful. The question is whether the civilian deaths were justified by the importance of the military target and whether reasonably sufficient steps were taken to ensure that civilian lives were protected.

4.     It is often a complex question as to whether an attack that has killed or injured civilians was proportionate. Oftentimes decisions are taken by military commanders in the heat of battle and it can be unfair to become an armchair critic after the event.

5.     It is never a defense to a war crimes charge that the heinous unlawful actions of the enemy justified the use of military force. If terrorists unlawfully operate from civilian areas as unfortunately happens in Gaza, in no way does that justify disproportionate let alone deliberate attacks against those civilians. Of course, using civilians as human shields places those civilians in peril and that itself is a serious war crime.

6.     During the 20^th Century, deliberate attacks against civilians grew exponentially. According to Mary Kaldor, of the London School of Economics, at the beginning of the Century, the ratio of civilian to military casualties was about 85 – 90 %. That means that for every civilian casualty there were 8 to 9 military casualties. In World War II the ratio was about 1:1. (This is hardly surprising if one thinks about the intentional bombing of cities, large and small). During the past 30 years or so the ratio has risen to about 1:9, i.e. for every military casualty there are nine civilian. The ratio at the beginning of the 20^th Century was completely reversed by the end of that most bloody century.

7.     There are no wars in which serious allegations of the commission of war crimes are not made. And there is no government that welcomes a war crimes investigation – even less so the military.

8.     Allow me to refer to three war crimes situations – the NATO attacks on Serbia in 1999, the war in Gaza in late 2008 and early 2009, and the war in Sri Lanka that ended in May 2009.  Each of these situations raised important war crimes issues.

9.     The bombing of Serbia arose from the serious human rights violations that were being committed by the army of the then Serbian President, Slobodan Milosevic. They were intent on the ethnic cleansing of Kosovo by the expulsion of its majority Albanian population. The NATO powers had repeatedly warned Milosevic that if his forces did not desist, military action would be taken to force them to do so. He refused to back down and NATO launched the most intensive bombing campaign since World War II. Over a period of 78 days, NATO aircraft carried out over 38000 combat missions. The bombs were dropped from a height of over 15000 feet thereby avoiding any NATO casualties. No ground troops were used. The number of civilians killed was approximately 500 and about 6000 were injured – a remarkably low number having regard to the statistics to which I have just referred. So, while the ratio of casualties was some 6500:0, it became obvious that the NATO commanders took reasonably effective steps to protect civilians.

10.                  The reasons for the low number (confirmed by US and German senior military officials during discussions I held with them in the course of the Kosovo Commission) were firstly the availability and use of precision ordnance and, secondly, they were well aware and concerned that ICTY had jurisdiction in respect of war crimes committed anywhere in the former Yugoslavia.

11.                  This notwithstanding, the Russian Federation and other States requested the Prosecutor of the ICTY to investigate the alleged commission of war crimes by NATO forces – the bombing of the Chinese Embassy and the Serbian Radio and Television building, and the attacks on a convoy of Albanian refugees, the village of Korisa, and a passenger train as it was crossing a railway bridge.

12.                  In respect of the train incident, a United States Defense Department official expressed regret for the loss of life and a similar apology was forthcoming from the NATO Supreme Commander, General Wesley Clark. There was a fulsome apology from President Clinton to the Chinese Government for the bombing of its embassy and that was followed by payment of compensation in an amount of $28 million to the Government and $4.5 million to the families of the three Chinese citizens who were killed and fifteen Chinese citizens injured in the attack.

13.                  NATO cooperated with the Office of the Prosecutor and furnished a detailed response to each of the incidents. A committee of experts within the Office of the Prosecutor prepared a report in which they advised that there was insufficient evidence to justify an investigation into any individual NATO official. The Chief Prosecutor acted on that advice.

14.                  I chaired the Independent International Commission on Kosovo. The members of that Commission criticized NATO for valuing the lives of NATO combatants above those of the civilian population of Kosovo. It was clear that if the NATO flights had been flown at lower altitudes the civilian loss of life would probably have been considerably lower and the danger of loss of lives of the pilots would have been higher.

15.                  The information furnished by NATO went a long way to establish that precautions were taken to avoid civilian casualties and that those that resulted were not the result of a deliberate policy. The Kosovo Commission stated that it was:

“. . . impressed by the relatively small scale of civilian damage considering the magnitude of the war and its duration. It is further of the view that NATO succeeded better than any air war in history in selective targeting that adhered to the principles of discrimination, proportionality, and necessity, with only relatively minor breaches that were themselves reasonable interpretations of ‘military necessity’ in the context.”

16.                  I would add two comments. First, there might well have been sufficient evidence to justify an inquiry into some of these incidents. However, having regard to the absence of intent on the part of the responsible NATO officials, the Chief Prosecutor may have been justified in not taking the complaints further. The significant number of deliberate and serious war crimes committed by the Serb Army eclipsed any unlawful acts of negligence that might have been committed by the NATO forces.

17.                  Second, I would emphasize that the cooperation of NATO in the ICTY investigation was crucial to the decision of the Prosecutor. Without it, there can be little doubt that the commission of war crimes by NATO would have been investigated.

18.                  I turn to Gaza. This is not an occasion to enter the heated debates that have swirled about the Report of the UN Fact Finding Mission. I will refer only to some of the issues it raised with regard to the protection of civilians in what some have somewhat confusingly called “asymmetric war”.

19.                  I have some introductory remarks.

20.                  Before it began its work, on behalf of the Mission, I sent three letters to the Israeli Government, pointing out that the mandate was an even-handed one enabling us to investigate war crimes committed by any of the parties; pleading with it to cooperate with the Mission; and to meet with and advise me how the Israeli Government wished the Mission to approach its mandate. One of those letters was a personal plea to Prime Minister Netanyahu. To my great and everlasting regret those pleas, after a couple of months of delay, were finally rejected. It follows that we did not have the benefit of any official assistance or information from the Israel Government or the Israeli Defense Force. We were not given assistance of the kind that the ICTY received from NATO.

21.                  The Gaza Mission was in no way a judicial or even quasi-judicial proceeding. It did not investigate criminal conduct on the part of any individual whether in Israel, Gaza or the West Bank. Indeed, its main recommendation was for each of the parties to hold good faith and open investigations into the incidents referred to in the Report. I concede that the Report does, for the most part, read like a judgment. But that is the danger in requesting a judge to head such a mission!

22.                  There is clearly a state of war between Israel and the militant Palestinian groups in Gaza. The Mission accepted that Israel was entitled to act in self-defense and take steps to put an end to the thousands of rocket and mortar attacks that for some years had rained upon civilians in Southern Israel. It was entitled to attack military targets and to kill or capture combatants, i.e. members of Palestinian militant groups such as the al-Qassam Brigade.

23.                  As I have already explained, in achieving that objective, the principle of distinction, i.e. distinguishing civilians from combatants as well as proportionality had to be observed. Those were the issues we investigated. We took into account also that such a campaign against combatants operating from a highly populated enclave is a difficult one.

24.                  There has been much debate about the number of combatants who were killed during the military operations. In recent months, reliance has been placed by some Israeli officials on the statement made in November 2010 by Fathi Hamad, the Hamas Interior Minister. He stated that:

                  it has been said that the people were harmed by the war, but is Hamas not part of the people? It is a fact that on the first day of the war Israel struck police headquarters and killed 250 members of Hamas and the various factions, in addition to the 200-300 operatives from the al-Qassam Brigades. In addition, 150 security personnel were killed, and the rest were from people.

This statement, made some two years after the event, was intended to bolster the reputation of Hamas with the people of Gaza.

25.                  The Israeli reliance on it is founded on the assumption that the “250 members of Hamas” who were killed in police headquarters were combatants. That is not necessarily so. Membership of Hamas alone would not have made anyone a combatant or lose their civilian status. I guess that the majority of all people living in Gaza were members of Hamas. That would not have made them combatants and subject to deliberate attack in war. If, in fact, those police officers were members of the Hamas military wing that would be another matter. On that assumption, the number of combatants who were killed would approximate the number claimed by the Israeli Government. I would add that the in the Gaza Report we did not make any finding as to the number of Palestinians killed in Operation Cast Lead. We stated that:

The Mission, not having investigated all incidents involving loss of life in the Gaza Strip, will not make findings regarding the overall number of persons killed nor regarding the percentage of civilians among those killed.

26.                  I would suggest that the overall number of combatants killed is not the important issue and is not relevant to proportionality. The question is rather whether civilians and civilian targets were unlawfully attacked, either because of a deliberate policy, negligence or indifference. The fact that comparatively few Israeli citizens have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality of every one of those attacks.

27.                  Of course, the fewer civilians killed the better. One civilian death is one too many. Each individual is equally worthy of protection under international law.

28.                  The Fact Finding Mission dealt in some detail with 32 specific incidents in which it concluded that the evidence available to it indicated that war crimes were committed. They were incidents where the evidence appeared to establish that civilians were attacked without any military justification. In respect of most of those incidents the attacks appeared to be deliberately aimed at civilians. Time permits me to consider only two of those incidents that have also been the subject of investigation by the Israeli Military.

29.                  The first was the single most serious incident reported in the Gaza Report – the bombing of the home of the al-Samouni family.

30.                  The extended al-Samouni family had lived for many years in the so-called al-Samouni area of Zeytoun, which is situated south of Gaza City. It is a semi-rural area in which there are a number of houses, some but not all occupied by members of the extended al-Samouni family. On January 4, 2009, members of the Givati Brigade of the IDF decided to take over the house of Saleh al-Samouni as part of the IDF ground operation; they ordered its occupants to relocate to the home of Wa’el al-Samouni. It was located about 35 yards away and within sight of the Israeli soldiers. A request from the family to be allowed to leave the area was refused. Similar demands were made on other members of the al-Samouni family members who were in other houses in the vicinity. In the result there were over 100 members of the family gathered in the single story home of Wa’el al-Samouni.

31.                  Early on the cold wintry morning of 5 January, several male members of the al-Samouni family went outside to gather firewood. They were in clear sight of the Israeli troops. As the men returned with the firewood, projectiles fired from helicopter gunships killed or injured them. Immediately after that further projectiles hit the house. Twenty-one members of the family were killed, some of them young children and women. Nineteen were injured. Of those injured, another eight subsequently died from their injuries. The number of members of the family killed was thus twenty-nine.

32.                  That was the evidence, considered credible and supported by ambulance records and reports given at the time to non-governmental organizations. It led the Fact Finding Mission to conclude that, as a probability, the attack on the al-Samouni family constituted a deliberate attack on civilians. The crucial consideration was that the men, women and children were known by the Israeli troops to be civilians and were ordered by them to relocate to a house that was in the vicinity of their command post. Members of the al-Samouni family had regarded the presence of the IDF as a guarantee of their safety.

33.                  Two inquiries by the Israeli military reported that there was no evidence of unlawful behavior on the part of the Israeli Army with regard to this incident.

34.                  Then, at the end of October 2010, (almost 22 months after the incident), to the credit of the Israeli Military Police, they announced that they were investigating whether the air strike against the al-Samouni home was authorized by a senior Givati brigade commander who had been warned of the danger to civilians.

35.                  At about the same time there were reports that the attack followed upon the receipt of photographs by the Israeli military from a drone showing what was incorrectly interpreted to be a group of men carrying rocket launchers towards a house. The order was given to bomb the men and the building. According to these reports, the photograph received from the drone was not of high quality and in fact showed the men carrying firewood to the al-Samouni home. The results of this military police investigation are as yet unknown.

36.                  The Gaza Report also contained references to occasions on which Israeli soldiers used Palestinians, including children, to walk in front of them at gunpoint in order to ascertain whether houses or rooms in houses had been booby-trapped, i.e. they were used as human shields.

37.                  There have been two cases in which the Israeli military, again to their credit, have reported that members of the Israel Defense Force had been found guilty of such conduct. The first was reported as follows by the IDF:

“The investigation found that a battalion commander authorized the sending of a Palestinian man into a house (adjacent to his own) sheltering terrorists, in order to convince them to exit the house. The battalion commander, not present on the scene, authorized the order following reports that the Palestinian man asked the soldiers if he could do this so as to prevent the destruction of his house if a battle were to transpire.

The Military Advocate General indicted the battalion commander because he deviated from authorized and appropriate IDF behavior, and the Israeli Supreme Court jurisdiction regarding the use of civilians during operational activity, when he authorized the Palestinian's request to enter the house. 

The disciplinary process was carried out before GOC Northern Command, Maj. Gen. Gabi Eisenkot, who convicted and warned the officer.”

38.                  The second incident related to separating a nine-year old boy, at gunpoint, from his mother and ordering him to open bags thought to contain explosives. On November 23, 2010 it was reported by the Israeli authorities that:

“An Israeli court has handed down suspended jail sentences to two soldiers who forced a nine-year-old Palestinian boy to search for suspected booby-traps. The ruling meant that the troops would go free but be subject to a minimum of three-months in the military stockade should they commit another crime.”

                I question whether this was an appropriate sentence.

39.                  There have been other investigations held by the Israeli military authorities. The findings in respect of some of them have been made public. In a small number the factual basis for the findings were also disclosed. There is no time to discuss them this afternoon.

40.                  I would also mention that Israel paid to the United Nations $10 million as compensation for the damage caused to its property during the course of Operation Cast Lead. There is litigation pending in Israeli courts for the payment of compensation at the instance of Gaza residents.

41.                  The mood in Israel has become increasingly antagonistic to human rights organizations and especially those who have reported on alleged war crimes committed by the Israeli Army. Legislation providing for official investigations of those organizations and the source of their funding is presently before the Knesset. In this atmosphere one must recognize the courage of the Israeli military authorities in making these findings public.  Indeed, after the second of the announcements relating to the use of human shields, the home of Military Advocate-General Mandelblit was covered in graffiti accusing him of being a traitor.

42.                  What a great pity it is that the Israeli Government did not follow the example of NATO and provide the Fact Finding Mission with its own version of the events and the evidence to support it. If the latest version to which I have referred with regard to the al-Samouni house is correct, it would not, I suggest, excuse the actions of the Israeli Defense Force in attacking the house – it might well, however, justify a finding that the attack was not a deliberate one against civilians.

43.                  I would refer to the complete absence of any investigations by Hamas as the de facto government of the Gaza Strip. To compound this failure, hundreds of rockets have continued to be fired at civilian targets in Israel from Gaza since the publication of the Gaza Report. Hamas was made aware by the Report that such activities by militant groups in Gaza constitute war crimes and probably crimes against humanity.

44.                  Finally, a few words about Sri Lanka.

45.                  In May 2010, the International Crisis Group (ICG) reported that evidence gathered by them indicated that the Government Security Forces and the Liberation Tigers of Tamil Eelam (LTTE) had both committed serious war crimes during the last months of their 30-year civil war. The scale and nature of those crimes worsened from January 2009 until the cessation of hostilities in May of that year. The evidence indicated that some tens of thousands of Tamil civilians, men, women and children were killed. Hundreds of thousands were wounded. Many more were deprived of adequate food and medical supplies and this resulted in yet more deaths.

46.                  Starting in late January 2009, the government and security forces encouraged hundreds of thousands of civilians to move into ever smaller government-declared No Fire Zones and then subjected them to repeated intense artillery and mortar barrages. This continued through May despite the government and security forces knowing the size and location of the civilian population and the scale of civilian casualties.

47.                  The security forces shelled hospitals and makeshift medical centers with full knowledge of their precise locations and functions. During the time of these incidents the government was informed of the consequences of their actions by the United Nations, the International Committee of the Red Cross and others. All to no avail.

48.                  Similarly, the government forces repeatedly shelled humanitarian operations and food distribution centers and many aid workers were killed or injured trying to deliver basic humanitarian assistance, including women, children and infants.

49.                  On the other side, the LTTE fired on and killed or wounded many civilians in the conflict zone who were attempting to flee. The LTTE refused to allow civilians to leave and forcibly recruited many of them to fight alongside their own troops.

50.                  It is likely that Sri Lanka and LTTE military leaders are responsible for the commission of these crimes.

51.                  Domestic and international human rights groups called repeatedly for a United Nations fact finding mission to be established and to make recommendations to ensure accountability for such crimes.

52.                  The United Nations High Commissioner for Human Rights, Navi Pillay, requested the Human Rights Council to establish such a Mission. To their shame, a majority of its members refused to do so. China, India, and Egypt were among the 29 mainly developing nations that backed a Sri Lankan-proposed resolution describing the conflict as a "domestic matter that doesn't warrant outside interference".  

53.                  This indefensible action by the Human Rights Council fueled the long-standing and repeated complaints by Israel that the Human Rights Council and the UN in general are biased against it. They repeatedly rush to pass condemnatory resolutions in the face of alleged violations of human rights law by Israel but fail to take similar action in the face of even more serious violations by other States. Until the Gaza Report they failed to condemn the firing of rockets and mortars at Israeli civilian centers.

54.                  I had hoped that the even-handed mandate I insisted upon and received from the President of the Human Rights Council for the Gaza Mission would be a fresh start for the Council. Sadly, notwithstanding the best efforts of the United States and other Western nations who serve on the Council, this has not happened. The resolve of the Human Rights Council will again be tested in the coming weeks with regard to serious human rights violations allegedly committed by the Government of Burma. I wish I could feel optimistic as to the response.

55.                  Attacks on innocent civilians reflect the worst face of war. In the past few decades there have been important advances with the effective withdrawal of impunity for war criminals. It is heartening that there are now 114 nations that have ratified the Rome Treaty establishing the International Criminal Court.

56.                  NATO should be commended for its concern for civilians in Kosovo and the United Nations should be commended for its concern for the injured in the Gaza conflict, both Palestinian and Israeli. Unfortunately, it stands to be condemned for ignoring the plight of tens of thousands of Tamils killed in the Sri Lanka conflict. The Tamil children are no less worthy of protection and vindication under international law than those of Prishtina, Gaza City or Sderot. Selectivity and political bias are not compatible with a system of international justice.

57.                  It may be that there are lessons to be learned from a comparison of the three situations to which I have referred. They reveal some of the problems that are associated with ad hoc investigations and prosecutions, and the need for more coherencies in the international law-enforcement mechanisms. They also shed some light on the importance of states' cooperation and the importance of states conducting their own investigations.

58.                   It is necessary for the democracies of the world to keep up the momentum to punish the commission of serious war crimes. This should be done, however, on the basis of the equality of all nations before the law.