October 20, 2009

Ismail Haniya

Prime Minister

Gaza

Dear Prime Minister Haniya:

We are writing you after the United Nations Human Rights Council's resolution last week endorsing the report of the UN Fact Finding Mission on the Gaza Conflict.  We view the report prepared by Justice Richard Goldstone as a crucial forward step towards securing accountability for the civilian victims of the war on all sides.  A key component of the report is its call on all parties to the conflict to conduct credible domestic investigations within six months. 

We welcome the October 15 statement from your foreign ministry, which says the authorities will conduct investigations into the allegations against the armed wing of Hamas and other Palestinian armed groups.  We therefore call on Hamas to conduct thorough, independent and impartial investigations into alleged violations of international humanitarian law by members of the Qassam Brigades and other armed groups in Gaza, and to prosecute in conformity with international fair trial standards those found responsible for rocket attacks that target Israeli population centers, as recommended by the Goldstone report.

Human Rights Watch recognizes that IDF military operations caused far greater total harm to civilian lives and property than operations by Palestinian armed groups during the December-January conflict.  The conflict was characterized by great disparity in the military strength of the parties, and Human Rights Watch has documented serious violations of the laws of war by Israeli forces, including the unlawful use of white phosphorus, the killing of civilians with drone-fired missiles, and the killing of civilians waving white flags.

However, these violations and the high death toll in Gaza do not detract from the need to investigate serious violations of the laws of war by all sides. Nor can they justify violations by Hamas.  Violations of the laws of war are not measured in the number of civilian casualties, but whether each side is taking all feasible precautions to minimize civilian loss.  Using unsophisticated weapons does not justify failure to respect the laws of war; nor does an adversary's use of sophisticated weapons provide a pass to its opponents to ignore those laws.  The unnecessary loss of civilian life can be minimized only if both parties recognize and respect their obligations to abide by the laws of war, however sophisticated or unsophisticated the weapons at their disposal.

Human Rights Watch would also like to ask for clarification of recent statements by Hamas spokespersons that Hamas rocket attacks into southern Israel were intended to target Israeli military bases, but not Israeli civilians.   Previous statements by Hamas leaders, as well as our own research, indicate that rocket attacks by Hamas and other Palestinian armed groups deliberately targeted Israeli civilians or were launched towards Israeli population centers indiscriminately.  The Goldstone report concluded that Hamas was responsible for serious violations of the laws of war, including war crimes and possible crimes against humanity, in connection with these rocket attacks directed against Israeli civilians.

According to an October 1 interview with the Ma'an news agency, Ahmad Yusuf, an advisory with your foreign ministry, said: "Hamas has said all the time that they were targeting military bases. Maybe because these are primitive weapons -- the rockets, because they're homemade -- maybe some of these rockets missed their targets, some of them fell short."  According to The Media Line news service, Yusuf made similar comments on September 21: "In Hamas, we have said that we never intended to target civilians during the war. These are home-made rockets and they were targeting military bases, but some of them may have missed the targets causing three Israeli [deaths] and a few injured."

In the past, leaders of Hamas and other armed groups have publicly expressed an apparent intent to target Israeli civilians, seeking to justify their attacks as lawful reprisals for Israeli attacks against Palestinian civilians. For example, Abu Obeida, identified as a spokesman for the Qassam Brigades, said in a pre-recorded video released on January 5, 2009 that "continuing the incursion will only make us increase our rocket range [...]. We will double the number of Israelis under fire."  He did not make any distinction between civilians and military forces. In a speech broadcast the same day, Mahmoud Zahar said, "The Israeli enemy ... shelled everyone in Gaza. They shelled children and hospitals and mosques, and in doing so, they gave us legitimacy to strike them in the same way."  Under the laws of war, reprisals against civilians are prohibited.

In addition, Hamas leaders seem to have claimed that rocket attacks against Israeli civilians are justified as part of their resistance tactics against Israeli occupation.  In an interview on May 5, head of the Hamas political bureau Khaled Meshal appeared to acknowledge that Hamas rocket attacks intentionally targeted Israeli civilians. In the course of describing why Hamas had decided to stop firing rockets for the time being, Meshal said:

Not targeting civilians is part of an evaluation of the movement to serve the people's interest. Firing these rockets is a method and not the goal. The right to resist the occupation is a legitimate right but practicing this right is decided by the leadership within the movement.

Any party which partakes in hostilities, irrespective of the basis on which they assert a right to do so, must comply with the laws of war which provide that civilians are protected from attack and prohibit directing attacks against civilian objects and attacks that will have indiscriminate or disproportionate impact on civilian objects. 

According to the website of the Izz al-Din al-Qassam Brigades, the group launched 345 Qassam rockets, 213 Grad rockets, as well as mortar rounds and other munitions from December 27, 2008 to January 18, 2009.  The Qassam Brigades website claimed responsibility for each of the three Israeli civilian deaths caused by rocket attacks in late December 2008, which Human Rights Watch investigated. 

Previous Qassam Brigades statements also indicated an intent to target civilian areas.  A Qassam Brigades statement dated June 11, 2006, said that in response to an Israeli attack that targeted a group of fighters, that the group had carried out a rocket attack against Sderot and would continue attacking Sderot "until its residents flee in horror. We will turn Sderot into a ghost town."

The absence of Israeli military forces in the areas struck by the rockets indicates that many of these attacks are deliberately intended to strike Israeli civilians and civilian structures. 

In addition the rockets fired by Hamas and other armed groups cannot be reliably aimed.  Civilian structures damaged in Israel by rocket attacks since December 27, 2008 include a kindergarten, a synagogue and private homes.  The inability to fire these rockets with any degree of accuracy has resulted in rockets also striking areas inside Gaza: on December 26, 2008 a Palestinian rocket hit a house in Beit Lahiya, killing two Palestinian girls, ages 5 and 12.  Under applicable international humanitarian law, such weapons are inherently indiscriminate when directed towards populated areas. 

Hamas and other Palestinian armed groups have also violated the laws of war by firing rockets from within populated areas. While fighting in urban areas is not prohibited under the laws of war, firing rockets from within or near populated areas places Palestinian civilians at grave risk of Israeli counter-attacks, and violates the laws-of-war obligation to take all feasible precautions to avoid placing military targets within or near densely populated areas and to protect civilians from the danger resulting from military operations.

The Goldstone report's recommendations represent an opportunity for the Gaza authorities to repudiate unlawful attacks on Israeli civilians in future, and to meet their obligations under international law to investigate and bring to justice those responsible for past attacks. Human Rights Watch is not aware of any previous inquiries by the Gaza authorities into such attacks, and we ask you to initiate thorough and impartial investigations as a matter of urgency.

Sincerely,

Sarah Leah Whitson

Executive Director

Middle East and North Africa division