August 6, 2009

Summary

Since 2001, Hamas and other Palestinian armed groups in Gaza have fired thousands of rockets deliberately or indiscriminately at civilian areas in Israel.   Such attacks virtually stopped during a ceasefire that began in June 2008 but escalated in November 2008 after an Israeli military incursion into Gaza. The rocket attacks continued during and since Israel’s three-week-long military offensive in Gaza that began on December 27. 

Palestinian rocket attacks – which have killed three Israeli civilians and wounded dozens of others since November – are an ongoing threat to the nearly 800,000 Israeli civilians who live and work in range of the rockets.  Hamas and other Palestinian armed groups have sought to justify the attacks as appropriate reprisals for Israeli military operations and the ongoing blockade against Gaza, and as a lawful response to the Israeli occupation of Gaza.   As noted below, international humanitarian law (the “laws of war”) does not support these asserted justifications.

While Hamas has at times significantly decreased the level of rocket fire from Gaza, including by pressuring other armed groups to stop unauthorized attacks, it has taken no apparent action to prosecute or otherwise hold accountable Hamas forces or other Palestinian armed groups for launching unlawful rocket attacks against Israeli civilian areas.

The rockets fired by Hamas and other armed groups are primarily locally made “Qassam” rockets, with a range of 16 kilometers.  A smaller number are Soviet-designed “Grad” rockets, with a 21-kilometer range.  The rockets have hit Israeli cities and towns close to the 1949 armistice line between Gaza and Israel, primarily Sderot; in 2008, rockets also struck Ashkelon and Netivot. Since late December 2008, some longer-range rockets have struck as far as 40 kilometers inside Israel, including, for the first time, the cities of Beer Sheva and Ashdod.

None of these rockets can be reliably aimed.  Under international humanitarian law applicable to the fighting between Palestinian armed groups and the Israel Defense Forces (IDF), such weapons are inherently indiscriminate when directed towards densely populated areas.  The absence of Israeli military forces in the areas struck by the rockets, as well as statements from the leaders of Hamas and other armed groups, indicate that many of these attacks are deliberately intended to strike Israeli civilians and civilian structures.  Individuals who willfully authorize or carry out deliberate or indiscriminate attacks against civilians are committing war crimes.

The rocket attacks have caused civilian casualties and property damage. Civilian structures damaged in recent attacks include a kindergarten, a synagogue and private homes.  An Israeli early warning siren system, which gives civilians roughly 10 to 45 seconds to find cover in prepared shelters, depending on their distance from the launch site in Gaza, has undoubtedly limited the number of civilian casualties.  However, the repeated attacks have, over months and even years, taken a psychological toll on the population in areas close to Gaza.  The laws of war prohibit attacks the primary purpose of which is to spread terror among the civilian population.  Because of the rocket attacks, thousands of people have moved away from frequently targeted areas such as Sderot municipality.

The rocket attacks have also placed civilians in Gaza at risk.  The unpredictable nature of the crude rockets has meant that rockets have struck areas not only inside Israel but also inside Gaza; on December 26 a rocket hit a house in Beit Lahiya, killing two Palestinian girls, ages 5 and 12.  In addition, Hamas and other Palestinian armed groups have frequently violated the laws of war by firing rockets from within populated areas.  In doing so, they failed to take all feasible precautions to avoid placing military targets within densely populated areas, such as by removing civilians under their control from the vicinity of military targets, and protecting civilians from the danger resulting from military operations.

The Israeli government said the military offensive in Gaza that began on December 27, 2008, which it called “Operation Cast Lead,” was intended to destroy the ability of Palestinian armed groups in Gaza to fire rockets into Israel.  The armed groups have fired thousands of rockets at Israel since 2001, killing 15 civilians inside Israel. At least 1,500 rockets were fired in 2008 alone.  These attacks virtually stopped during a six-month ceasefire between Israel and Hamas that went into effect on June 19, 2008, but resumed after Israeli forces killed six Palestinian fighters during an incursion into Gaza on November 4, 2008.   After major military operations ended on January 18, 2009, Palestinian armed groups in Gaza continued to fire rockets into Israel, although in gradually reduced numbers.

Palestinian armed groups in Gaza that have claimed responsibility for firing rockets into Israel include Hamas’s armed wing, the Izz al-Din al-Qassam Brigades, Islamic Jihad’s Al-Quds Brigades, the Fatah-aligned al-Aqsa Brigades, the Public Resistance Committee’s Salah al-Din Brigades, and the Ali Abu Mustafa Brigades of the Popular Front for the Liberation of Palestine (PFLP).   Hamas and Islamic Jihad are responsible for the majority of rocket attacks, and claim to have fired 820 rockets from December 27, 2008 to January 18, 2009.  

Statements by leaders of Hamas and other armed groups, media reports and independent analysis by nongovernmental organizations, and Human Rights Watch’s interviews with residents of Gaza, suggest that Hamas can control the ability of other armed groups to fire rockets at Israel.  Hamas has on several occasions effectively prevented other armed groups from firing rockets.

Leaders of Hamas and other armed groups have publicly expressed their intention to target Israeli civilians, seeking to justify their attacks as lawful reprisals for Israeli attacks against Palestinian civilians. For example, Abu Obeida, a spokesman for the Qassam Brigades, said in a pre-recorded video released on January 5 that “continuing the incursion will only make us increase our rocket range […]. We will double the number of Israelis under fire.”  Hamas leader Mahmoud Zahar, in a speech broadcast the same day, 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.” 

Hamas leaders have also claimed that rocket attacks against Israeli civilians are justified by the “right to resist” Israeli occupation.[1]  In an interview on May 5, 2009, Hamas leader 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.

Hamas claimed responsibility for each of the three Israeli civilian deaths documented in this report.

Human Rights Watch has documented laws-of-war violations by Israeli forces in Gaza, including evidence of war crimes during Operation Cast Lead.[2]  However, laws-of-war violations by one party to a conflict do not justify violations by another, and reprisal attacks that target civilians are prohibited under any circumstances.  Even assuming the rocket attacks were intended as reprisals for Israeli attacks that killed and injured civilians, they still are unlawful under the laws of war. The law governing reprisals—defined as otherwise unlawful actions that are considered lawful when used as an enforcement measure in reaction to an adversary’s unlawful acts—does not permit direct or indiscriminate attacks on civilians.

Moreover, a fundamental principle of the laws of war is that they apply to all parties to a conflict regardless of the justifications for going to war.  Whether it is Hamas’ claims of “the right to resist occupation” or Israel’s of the right “to combat terror,” the reasons for engaging in armed conflict do not permit a party to ignore its legal obligations in the way it conducts hostilities.

Some critics of Human Rights Watch's work have argued that its coverage of the Israeli-Palestinian conflict fails to recognize the great disparity in the magnitude and extent of the attacks and losses caused during the recent fighting between Hamas and Israel and the vastly differing sophistication of the weaponry used by each side, thereby creating an artificial balance and softening criticism of Israeli abuses. 

During the recent armed conflict in Gaza, IDF military operations caused far greater total harm to civilian lives and property than operations by Palestinian armed groups.  The IDF killed more than 1,350 Palestinians, including a large number of civilians; Hamas and other Palestinian groups killed six Israeli soldiers and three civilians. 

The conflict in Gaza was indeed characterized by great disparity in the military strength of the parties to the conflict. Palestinian armed groups primarily fought with small arms, whereas the IDF used highly advanced weaponry, including armor and aircraft. The tonnage and explosive power of weapons used by Israel in Gaza far outweighed those of Hamas. However, these discrepancies do not discount the need to examine violations of laws of war by all sides to a conflict, nor do they justify violations by Hamas.

The purpose of the laws of war is not to create parity between parties to a conflict, or to assess their violations in light of their relevant capacities, but to minimize the harm to the civilian population.  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. Disparities in military capability, however measured, are irrelevant. The taking of civilian life can be minimized only if both parties recognize their legal obligations to abide by the laws of war however sophisticated the weaponry at their disposal.

Human Rights Watch is committed to documenting the worst violations of the laws of war committed by all sides to conflict. It is to promote the principle that civilians may never be the object of attack, regardless of the relative strength of the attacker, that Human Rights Watch has published this report.

The laws of war require parties to a conflict to investigate and take appropriate punitive action against individuals within their control who are implicated in war crimes.  Hamas authorities have failed to take any action against Hamas commanders and fighters responsible for unlawful rocket attacks against Israel.  Hamas has reportedly taken violent steps to prevent other armed groups from firing rockets.  On March 10, the London-based pan-Arab daily Al-Sharq al-Awsat reported the alleged torture by Hamas police of 10 members of Saraya al-Quds, the armed wing of Islamic Jihad.[3] The paper reported that Hamas police detained the 10 men, from Khan Yunis, and tortured them to coerce them to sign pledges that they would not fire rockets at Israel. 

[1]In keeping with its position of neutrality in armed conflicts, Human Rights Watch neither endorses nor opposes the “right to resist” in Gaza or anywhere else in the world, but holds armed groups and states to their obligations under international humanitarian law.

[2]Human Rights Watch, “Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza,” March 2009, available at http://www.hrw.org/en/reports/2009/03/25/rain-fire, and “Letter to EU Foreign Ministers to Address Violations between Israel and Hamas,” March 16, 2009, available at http://www.hrw.org/en/node/81557/.

[3]Al Sharq al Awsat, الجهاد تتهم حماس باعتقال ناشطيها في غزة وإجبارهم على توقيع تعهد بوقف الصواريخ [Jihad accuses Hamas: activists arrested in Gaza and forced to sign a pledge to stop rockets],” March 10, 2009, http://www.aawsat.com/details.asp?section=4&issueno=11060&article=510382&search=الجهاد%20تتهم%20حماس&state=true, accessed March 13, 2009.