A/HRC/12/37
page 11
that either there was no large-scale abuse of civilians and civilian objects by combatants, or that
civilians’ deaths could not be explained as resulting from the presence of fighters in civilian
areas.40
25. Any civilian object becomes a legitimate military objective only if, by its nature, location,
purpose or use, it makes an effective contribution to military action, and if its total or partial
destruction in the circumstances ruling at the time offers a definite military advantage. Yet, even
if an object loses its essentially civilian character, the attacker must still refrain from any attack
that may be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the concrete
and direct military advantage anticipated. Moreover, article 53 of the Fourth Geneva Convention
prohibits, unless absolutely necessary by military operations, “[a]ny destruction by the
Occupying Power of real or personal property belonging individually or collectively to private
persons, or to the State, or to other public authorities, or to social or cooperative organizations”.
26. Israel asserts that it took measures to warn the civilian population of Gaza of imminent
attacks, including through the dropping of leaflets, recorded telephone calls and text messages to
mobile phones during the conflict. The accuracy and general effectiveness of these warnings
have been called into question.41 In any event, the use of such warnings does not discharge Israel
of the duty to consider the proportionality of any attack on a target which may include civilians.
Alleged use of white phosphorous
27. IDF used white phosphorous, a substance with a highly incendiary effect, in densely
populated, built-up areas of Gaza City.42 The use of munitions containing phosphorous is not, as
such, prohibited under international law, in particular for marking and smokescreen purposes.
However, the use of white phosphorus in airburst method over densely populated areas is
inevitably indiscriminate, insofar as its wide dispersal means that it is impossible to direct it
towards only military targets.
B. Reported failure to protect medical personnel and to evacuate the wounded
28. There are reports of failures on the part of the Israeli military to meet its obligation under
international humanitarian law to protect medical personnel and to care for and evacuate the
40
Amnesty International, Operation “Cast Lead”, pp. 4 and 75; Human Rights Watch, Rain of
Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, 25 March 2009, p. 5.
41
Amnesty International, Operation “Cast Lead”, op. cit., pp. 50-51 and B’Tselem, “Guidelines
for Israel’s Investigation into Operation Cast Lead”, pp. 10-11.
42
See Amnesty International, Israel/OPT: Fuelling conflict, p. 11; Human Rights Watch, Rain
of Fire, pp. 1-2, 31 and 58. A delegation from Amnesty International reported finding white
phosphorous still burning in residential areas in several parts of Gaza days after the hostilities
stopped on 18 January. See also No Safe Place, paras. 478 and 487-489.
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