A/HRC/13/53 13. From the perspective of international law, these elements raise serious questions as to whether Israel was entitled to act “defensively” under the circumstances, especially as it refused to explore the relevance of a diplomatic alternative to unbridled military force against an impoverished and crowded Gazan society, force that lacked clear military targets or even an opposing military. Also notable is the failure of the FFM report to take account of the refusal of Israel to allow civilians, including women and children, as well as the disabled, to exit Gaza and become refugees. This policy of locking civilians into a combat zone during sustained military attacks, denying them the right to seek refuge, is not explicitly prohibited in any existing human rights treaty or covenant, but seems clearly inconsistent with the prohibition of customary international law on cruel and inhumane tactics, and appears to be at odds with the fundamental duty of Israel, under the Fourth Geneva Convention, to provide protection to an occupied population. Finally, it is notable that the FFM report devotes considerable sympathetic attention to the captivity of the single Israeli soldier, Gilad Shalit, but no comparable concern is expressed in the report for the thousands of Palestinians being held in detention (estimated to be between 8,000 and 10,000, many without charge). 14. These serious gaps in the FFM report suggest that the contention of an anti-Israeli bias is without foundation. In fact, despite the refusal of Israel to cooperate with the Mission, the report indicates incredibly diligent efforts to meet with witnesses sympathetic to the arguments of the Israeli Government, including paying expenses associated with providing testimony received from the mayor of Sderot and from Israelis directly involved in Operation Cast Lead. Given the credibility of the members of the Mission, and in particular of Justice Goldstone himself, who insisted on including allegations of Palestinian war crimes within the FFM undertaking, it would seem irresponsible and frivolous to mount an argument against the findings and recommendations built around either the claim that anything emanating from the Human Rights Council is bound to be biased, or that the report, by finding the IDF responsible for the commission of war crimes, is by the very nature of its conclusions exhibiting an anti-Israeli, or in some dramatically-inflamed claims, even an anti-Semitic bias. C. Intrinsic unlawfulness 15. The FFM report was based on a fact-finding mission. It was probably correct for this reason to overlook the underlying concern as to whether the rather restrictive legal framing of the FFM inquiry is suitable for this kind of asymmetric encounter, in which the Palestinian side lacked any weaponry to defend itself against a modern military machine and Israel defined its war aims as extending to the civilian infrastructure of the Gaza Strip. The ratio of casualties on both sides, even leaving aside the widespread trauma induced among the civilian population (estimated by some psychologists as being as high as 90 per cent), exhibits clearly the one-sided character of the encounter.17 In addition, the property damage caused by Operation Cast Lead was entirely inside Gaza.18 Is reliance on such a blunt instrument of destruction, particularly under circumstances of effective occupation, ever capable of being reconciled with the values and principles embodied in international humanitarian law? At the very least, the character of Operation Cast Lead suggests the importance of raising such a question within the setting of the Human Rights Council or, as 17 18 GE.10-10260 See above para. 3. For more information on the extent of damage suffered during Operation Cast Lead, please refer to the reports indicated in footnote 3 above. See also Office for the Coordination of Humanitarian Affairs (OCHA), OPT, http://www.ochaopt.org/gazacrisis/index.php?section=3. 7