August 13, 2009

I. Summary

“I want to understand whether I did something wrong to Israel to be punished like this.”
—Khalid ‘Abd Rabbo, whose daughters, aged two and seven, were shot and killed while they waved white flags on January 7.[1]

 

This report documents seven incidents where Israeli soldiers fired on civilians with small arms during Israel’s major military operations in Gaza in December 2008 and January 2009.  These attacks killed 11 civilians—including five women and four children—and wounded at least another eight.

These casualties comprise a small fraction of the Palestinian civilians killed and wounded during what Israel called Operation Cast Lead, but they stand out because of the circumstances of the attacks.  In each case, the victims were standing, walking, or in a slowly moving vehicle with other unarmed civilians who were trying to convey their non-combatant status by waving a white flag.  All available evidence indicates that Israeli forces had control of the areas in question, no fighting was taking place there at the time, and Palestinian fighters were not hiding among the civilians who were shot.  Whether waving a white flag or not, these people were civilians not taking an active part in hostilities, and therefore should not have been attacked, according to international humanitarian  law (the laws of war).

Human Rights Watch conducted extensive investigations into each of these incidents by visiting the attack sites, examining ballistic evidence, collecting medical records, and interviewing multiple witnesses—at least three people separately for each attack. In one case, forensic pathologists examined a survivor.  The Israel Defense Forces (IDF) declined repeated Human Rights Watch requests for a meeting to discuss these cases and did not respond to questions about them submitted in writing (see Appendix).

In each of these incidents, the evidence strongly indicates that, at the least, Israeli soldiers failed to take feasible precautions to distinguish between civilians and combatants before carrying out the attack.  At worst, the soldiers deliberately fired on persons known to be civilians.

Under the laws of war, parties to an armed conflict must take all feasible measures to distinguish between civilians and combatants, and they may target only combatants.  Civilians lose their protection from attack only during the time they directly participate in hostilities.  Deliberate attacks on civilians are violations of the laws of war, and individuals who commit or order such attacks are responsible for war crimes.

The laws of war also oblige states to conduct impartial investigations into credible allegations of serious laws-of-war violations, and to hold accountable anyone found responsible for war crimes, regardless of rank.  To date, however, the Israeli government and IDF have failed to conduct serious investigations into many of the credible allegations of laws-of-war violations by Israeli forces during Operation Cast Lead.  When Israeli soldiers who fought in the operation spoke publicly about attacks on civilians and other violations, the IDF dismissed their claims as hearsay and exaggerations, and criticized the soldiers for speaking out.

Israel has repeatedly blamed Hamas for the deaths of Gazan civilians during the operation because, Israel says, Hamas fought from populated areas and used civilians as “human shields”—that is, deliberately used civilians to deter attacks against Palestinian forces.

In the killings documented in this report, Human Rights Watch found no evidence that the civilian victims were used by Palestinian fighters as human shields or were shot in the crossfire between opposing forces.  In each of the incidents, Israeli forces appeared in control, and Palestinian fighters had left the area in question.  The civilian victims were in plain view and posed no apparent security threat. 

In each of the seven cases, at least one person was waving an improvised white flag made from cloth or clothes, which international humanitarian law recognizes as a sign of truce or surrender.  Civilians are immune from attack with or without a white flag; in these cases they undoubtedly waved the flags to communicate that they were not engaged in hostilities and posed no threat, reaffirming their civilian status.

Two Israeli commanders have alleged that Palestinian fighters used white flags to shield themselves from attack, but without providing details to allow an investigation of the claims, such as date, time and place.  One colonel told the media that his soldiers had seen Hamas fighters move between houses while holding white flags; a second colonel said his soldiers had seen a Hamas fighter hide behind a woman with a white flag and a group of children. The IDF turned down requests from Human Rights Watch to discuss these allegations, as well as our broader findings.

In one case documented in the report, on January 7 in eastern Jabalya, two women and three children from the ‘Abd Rabbo family were standing for a few minutes outside their home—at least three of them holding pieces of white cloth—when an Israeli soldier opened fire, killing two girls, aged two and seven, and wounding the grandmother and third girl.  “We spent seven to nine minutes waving the flags and our faces were looking at them [the soldiers],” said the girls’ grandmother, who was shot twice.  “And suddenly they opened fire and the girls fell to the ground.”

Eyewitness accounts, tank tracks, an ammunition box and bullet casings found at the scene, and an examination of the grandmother by forensic experts indicate that an Israeli soldier fired upon identifiable and unarmed women and children.

On January 13 in the village of Khuza’a, an Israeli soldier shot and killed Rawhiya al-Najjar, 47, and wounded her relative, Jasmin al-Najjar, 23.  The women were walking in a small group on a straight road during daylight, with Rawiya holding a white flag, trying to leave their neighborhood after it had come under Israeli control.  Soldiers had occupied a house 230 meters down the street but apparently fired no warning shots to deter the group.

Three of the incidents in the report took place in and around the northern Gaza village of ‘Atatra, where Israeli forces had fought with Hamas.  The fighting had stopped by the time of the shootings, however, and in each case the civilians were visible, unarmed, and waving white flags. In one case, the civilians were walking in a group on an open street. In another they were driving slowly on tractors and in cars, trying to leave the area with the wounded and dead from previous attacks.

“We were driving the tractor and on the way we saw tanks and soldiers,” said Omar Abu Halima, 18. “When we saw them [the Israeli soldiers] they ordered us to stop.  After we stopped they fired at us.  They killed my cousin Mattar. My cousin Muhammad was wounded and later died.”

In the third ‘Atatra case, two women holding white flags stepped out of a house that the IDF was demolishing to tell the soldiers that civilians were inside.  “We opened the door and a sniper fired at us from a house,” said Zakiya al-Qanu`, age 55. “Ibtisam was hit and I turned to go back inside and another bullet grazed my back.  Ibtisam died in the doorway.”

The seven incidents in this report do not reflect all alleged shootings of civilians with small arms during the recent Gaza fighting.  The Associated Press reported two other cases: the killing of Shahed Hijeh, 2, and the wounding of ‘Abir Hijeh, 33, plus, in another incident, the killing of Mahdiyeh ‘Ayyad, in her 70s.[2]  More prominently, two Israeli soldiers who fought in Operation Cast Lead spoke about two cases—the killing of a mother and two children who accidentally walked into a no-go zone, and the killing of an elderly woman—although these may be the same cases as reported by the Associated Press.  The IDF said it investigated the soldiers’ claims and concluded they were unfounded.  Human Rights Watch did not investigate these cases due to limited access to Gaza.

In July, the organization Breaking the Silence, comp0sed of veteran Israeli soldiers, published the testimonies of 26 unnamed reserve and regular combat soldiers who had participated in Operation Cast Lead.  Two soldiers explained how soldiers had shot and killed an elderly Palestinian man who had approached an IDF position at night.  The company commander refused to order deterrent fire when the man was first sighted walking on an empty street with a flashlight at least 150 meters from the house, they said, so soldiers shot and killed the man in accordance with their rules of engagement when he reached within 25 meters.

So far the Israeli government and IDF have forcefully denied wrongdoing for civilian deaths during the Gaza fighting, saying the military did everything possible to distinguish between fighters and civilians. A key element of their argument is that the IDF warned civilians of impending military action by dropping leaflets, making telephone calls, and breaking into local radio and television broadcasts.[3] 

International humanitarian law encourages armed forces to provide advance warnings of an attack when circumstances permit, but the warnings must be “effective.” In Gaza, the IDF’s warnings were too vague, often addressed generally to the “inhabitants of the area.” The leaflets dropped from high altitudes scattered over wide areas; many Gaza residents told Human Rights Watch that they disregarded the leaflets because they were so common, widely dispersed, and imprecise. In addition, the warnings did not instruct civilians where to find safety after fleeing their homes. With the beginning of the ground offensive on January 3, the IDF warned residents to “move to city centers,” but then some city centers came under attack, including United Nations schools in urban areas where civilians had sought shelter. Ultimately, Gazan civilians had no safe place to flee, given the closure of Gaza’s borders, enforced mostly by Israel but also by Egypt in the south. Finally, even after warnings have been issued, international humanitarian law requires attacking forces to take all feasible precautions to avoid loss of civilian life and property. Just because an attacking force has issued a warning does not mean it can disregard its obligation to minimize civilian harm; attacking forces may not assume that all persons remaining in an area after a warning has been issued are legitimate targets for attack.[4]

On April 22, the IDF released the results of an internal investigation into the conduct of its forces in Gaza.  The report concluded that IDF forces “operated in accordance with international law” throughout the fighting and that “a very small number” of “unavoidable” incidents occurred due to “intelligence or operational errors.”

The IDF’s investigation failed to include any of the incidents documented in this report, even though Human Rights Watch had sent details of these attacks to the IDF in early February 2009, including GPS coordinates of the incidents, names of those killed and wounded, and the circumstances of their deaths (see Appendix).

In late July Israel announced that the IDF was investigating roughly 100 complaints of alleged soldier misconduct in Gaza, with 13 criminal investigations opened so far.  At least two of the cases documented in this report—the killings in eastern Jabalya on January 7 and in Khuza’a on January 13—are apparently under review.[5]

Because of the repeated failure in the past by Israel—as well as by Hamas and other Palestinian armed groups—to conduct credible investigations into alleged violations of the laws of war by their own forces, Human Rights Watch called for an independent and impartial international investigation into violations by both sides during the fighting in Gaza and southern Israel.  On January 12, the United Nations Human Rights Council voted to investigate violations only by Israel against Palestinians—a decision Human Rights Watch criticized as one-sided.[6]  But subsequent Human Rights Council negotiations created a respected fact-finding team with a balanced mandate to investigate alleged violations of international human rights and humanitarian law by both Israel and Palestinian armed groups.  The UN Fact Finding Mission on the Gaza Conflict is headed by Justice Richard Goldstone from South Africa, former chief prosecutor of the international war crimes tribunals for the former Yugoslavia and Rwanda. Israel has refused to cooperate with the mission because it views the Human Rights Council as biased against Israel.  It denied visas for Goldstone’s team to visit Israel, where three Israeli civilians died from Palestinian rocket fire in December 2008 and January 2009, so the mission invited Israelis to testify at public hearings in Geneva.[7]  Hamas said it would cooperate with the mission, and Goldstone’s team visited Gaza, via Egypt, in early June.

The fact-finding mission will submit its report to the Human Rights Council in September 2009, and Israel and Hamas and other Palestinian armed groups should give full consideration to the mission’s findings and recommendations.  Members of the Human Rights Council and other concerned governments should also duly consider the report and take steps to promote accountability for violations of international humanitarian law by both Israel and Palestinian armed groups.

Human Rights Watch calls on UN member states to establish a dedicated UN mechanism that would monitor and report on efforts by Israel and Hamas to conduct transparent and impartial investigations into allegations of serious laws-of-war violations committed during the recent hostilities in Gaza and Israel, and prosecute those responsible.  In the event that Israel and Hamas authorities are unable or unwilling to investigate and prosecute through fair trials those responsible for war crimes, UN member states should press for the use of international prosecutions.

Methodology

During major military operations, from December 27, 2008 to January 18, 2009, Israel banned access to Gaza for all media and human rights monitors.  Access via Rafah in Egypt was also blocked.  During this time, Human Rights Watch monitored the conflict from Israel, observed the fighting from the 1948 Israel-Gaza armistice line, and obtained information from its Gaza-based research consultant.

Human Rights Watch researchers entered Gaza via the Rafah border crossing with Egypt on January 21, three days after major military operations had ceased, and spent the next two weeks investigating alleged violations of international humanitarian law by the IDF and Palestinian armed groups.  A researcher returned to Gaza via Egypt from April 8 to 19.  Israel continues to ban access to Gaza for Human Rights Watch and other international human rights organizations.

Six of the seven cases documented in this report were brought to the attention of Human Rights Watch by journalists or human rights organizations, such as B’Tselem, the Al-Mezan Centre for Human Rights, and the Palestinian Centre for Human Rights.  Human Rights Watch discovered the seventh case during the course of other research.

For the seven cases, Human Rights Watch interviewed five victims and 29 witnesses to the attacks, as well as others who could provide information about what was happening in the area at the time.  Whenever possible, Human Rights Watch conducted interviews privately and individually—at least three separately for each attack.  Information was cross-checked with accounts of the fighting made available by the IDF or reported in the media. Names of victims were checked against a published list of deaths from Hamas’s armed wing, the Al-Qassam Brigades, to help determine whether any of those killed were combatants.[8]

Researchers examined each of the seven attack sites.  In one case, the killings of the two ‘Abd Rabbo family members, Human Rights Watch consulted forensic pathologists from Denmark and South Africa who examined one of the survivors.

On February 10, 2009, Human Rights Watch submitted to the IDF a series of questions about the cases documented in this report, including GPS coordinates of the shooting sites.  The letter is included as an appendix to the report.  As of August 1, the IDF had not replied.

[1] Human Rights Watch interview with Khalid ‘Abd Rabbo, Jabalya, January 25, 2009.

[2] Karin Laub, “Interviews Support Israeli Army Misconduct in Gaza,” Associated Press, March 26, 2009.

[3]To view and listen to the various warnings issued by the IDF, see the Israel Ministry of Foreign Affairs website, http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm (accessed April 6, 2009).

[4] In apparent recognition that its Gaza warnings were ineffective, the IDF in July announced that future warnings would contain more specific information, such as timetables for attacks and escape routes.  (Hanan Greenberg, “IDF to Give Better Warnings Before Attacks,” Ynet, July 29, 2009, http://www.ynetnews.com/articles/0,7340,L-3753851,00.html (accessed July 30, 2009).)

[5] Israeli Ministry of Foreign Affairs, “The Operation in Gaza: Factual and Legal Aspects,” July 29, 2009, http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Terrorism+and+Islamic+Fundamentalism-/Operation_in_Gaza-Factual_and_Legal_Aspects.htm (accessed July 30, 2009).

[6] “UN Human Rights Council Approves Gaza Inquiry,” Human Rights Watch press release, January 13, 2009, http://www.hrw.org/en/news/2009/01/13/un-human-rights-council-approves-gaza-inquiry.

[7] “UN Fact Finding Mission on the Gaza Conflict – Public Hearings,” http://www.un.org/webcast/unhrc/archive.asp?go=090706 (accessed July 28, 2009).

[8] The list of dead from the Al-Qassam Brigades is at http://www.alqassam.ps/arabic/statistics2.php?id=2009-01 (accessed June 24, 2009).