Wilful Killing not Collateral Damage: Israeli War Crimes in the Gaza Strip must be Prosecuted
By Al-Haq
March 01, 2008

As a Palestinian organisation dedicated to the promotion and protection of human rights and international humanitarian law in the Occupied Palestinian Territory (OPT), Al-Haq is extremely concerned about the constant escalation of Israeli attacks in the Gaza Strip, which are exacting a heavy toll on the civilian population, in particular amongst children. The Israeli air strikes conducted in the last three days against highly populated areas of the Gaza Strip have killed at least 33 people, including 14 civilians, seven of them children, and injured 86 people, including 46 children. These attacks, when coupled with recent statements by Israeli officials clearly indicate a policy of unrestrained violence towards the civilian population of the Gaza Strip. In a notable example, on 20 January, Israeli Internal Security Minister Avi Dichter stated that unlawful rocket fire by Palestinian armed groups must be “stopped completely irrespective of the cost to the Palestinians.”

The use of unrestrained force against a civilian population in response to the unlawful rocket attacks carried out by Palestinian armed groups is a blatant violation of the laws of war, enshrined in customary international humanitarian law and the Fourth Geneva Convention. Many of the recent Israeli attacks constitute war crimes which may amount to grave breaches of the Geneva Conventions, for which individuals can be held criminally responsible. Grave breaches are the most serious infringements of the laws and customs of war and are listed in Article 147 of the Fourth Geneva Convention as including wilful killings, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. All States have criminal jurisdiction to try those accused of grave breaches, whatever their nationality, or wherever the crimes were committed, by virtue of the principle of universal jurisdiction.

On 27 February an Israeli air strike hit a street in the vicinity of Salam mosques in Jabalia killing five civilians, amongst whom there were four children aged between 7 and 14, and injuring seven people, three of them critically. On the same day around 10:00 pm, three missiles targeted a central area of Gaza City, where the Palestinian Ministry of Interior, an UNRWA school and an 11-storey residential building are located. In the attack a five-month old child was killed, 22 apartments were rendered inhabitable and a clinic was severely damaged. On 28 February Israeli air forces attacked a main street in Jabalia killing two children, aged 12 and 13, and injuring at least another three civilians.

In order for the above killings and injuries to constitute grave breaches both a material and mental element must be satisfied. The material element of the crimes is the death and injury of civilians, who are protected persons under the Fourth Geneva Convention, and the extensive damage to civilian property. The mental element of the crime, namely the intent to commit the acts leading to the material element is also present. Despite statements by Israeli political leaders and military officers claiming that potential harm to civilians is taken into account during the planning and execution of military operations, the choice of targeted areas, methods of attack and the number of civilians killed and injured, clearly indicate a reckless disregard for civilian life, synonymous with intent. The wilful disregard by those who executed and sanctioned the attacks described above, of the foreseeable impact on civilians is evident in Israeli Defence Minister Barak’s recent blanket statement: "Israel will not refrain from taking any course of action in order to bring a stop to the fire against Sderot."

While the laws of war do allow that civilian life may be lost as an incidental result of military action, this is only the case where such military action distinguishes between military and civilian targets, is proportionate and causes the least foreseeable harm. These conditions cannot be found in the cases reported above.

Those who planned, ordered and executed the attacks described above are individually criminally responsible and should be made the subject of prosecution as required under Article 146 of the Fourth Geneva Convention. The blanket impunity for civilian deaths that military officers and political leaders enjoy in Israel, as recently proved by the rejection of any legal action in regard to the killing of 21 civilians in Beit Hanoun in November 2006, requires that these crimes be prosecuted in other jurisdictions. Article 146 of the Fourth Geneva Convention establishes that the High Contracting Parties have the legal obligation of searching for those who have allegedly committed grave breaches and of bringing them before their courts to face trial.

Some High Contracting Parties, in particular member States of the European Union, have enacted the necessary legislation implementing the principle of universal jurisdiction over grave breaches of the Geneva Conventions. No excuse can therefore justify their inaction in view of the unlawful wilful killing of civilians in the OPT.

In light of the cost in human life that Israel’s most recent military escalation in the Gaza Strip is imposing on the civilian population, Al-Haq urges the High Contracting Parties to take immediate action and to fulfil their legal obligations under common Article 1 of the Geneva Conventions and Article 146 of the Fourth Geneva Convention, in particular to adopt the necessary measures, including searching for and prosecuting those responsible for grave breaches of the Geneva Conventions, and to ensure that Israel as the Occupying Power respects its legal obligations under international humanitarian law.