Letter to Israel Military Advocate General Re: Attacks on Health Facilities

Brigadier General Sharon Afek

Israeli Military Advocate General

Dear Brigadier General Sharon Afek,

We are writing to request information about the investigation your office conducted into airstrikes and shelling that damaged, and ultimately destroyed, the Wafa Rehabilitation Hospital, as well as about any potential investigation it may have conducted into the attacks on the Shuhada’ al-Aqsa Hospital. Both incidents occurred in the Gaza Strip during Operation Protective Edge in 2014. Human Rights Watch is investigating these incidents as part of its global work on attacks on healthcare facilities, and we hope to include your perspective in our work.

Human Rights Watch is an international nongovernmental organization that promotes respect for human rights and international humanitarian law and monitors violations by both states and non-state actors. We work in more than 90 countries around the world, including in many conflict zones. We have long been concerned about the impact of armed conflict on healthcare and particularly the frequency with which military operations result in damage to or disruptions of medical facilities.

The Geneva Conventions, its additional protocols, and customary international humanitarian law grant hospitals and other medical facilities special protection in armed conflict. Parties to international and non-international armed conflicts must refrain from deliberately attacking these facilities or interfering with their functioning. They must also take precautions to avoid harm to them even when a military target is nearby. Israel’s Manual on the Laws of War of 1998 recognizes the protections afforded to medical facilities, and Israel’s High Court of Justice has, on at least two occasions, ruled that customary international law as it relates to the protection of medical facilities applies to the Israel Defense Forces (IDF).

In May 2016, the UN Security Council unanimously expressed deep concern about the increase in the number of attacks and threats against medical facilities and personnel in resolution 2286 and urged countries around the world to take measures to prevent future attacks. The resolution also strongly condemned what it called the “prevailing impunity for violations and abuses committed against medical personnel and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, as well as hospitals and other medical facilities in armed conflict.” It noted that this impunity may in turn contribute to the “recurrence of these acts.” It strongly urged states to “conduct, in an independent manner, full, prompt, impartial and effective investigations within their jurisdiction of [relevant] violations of international humanitarian law … and, where appropriate, take action against those responsible in accordance with domestic and international law, with a view to reinforcing preventive measures, ensuring accountability and addressing the grievances of victims.”

Human Rights Watch and partner organizations in the Safeguarding Health in Conflict Coalition documented hundreds of incidents where medical facilities were attacked or the provision of healthcare was otherwise disrupted in more than a dozen armed conflicts or situations of civil unrest throughout the world since 2014. Human Rights Watch is currently collecting detailed information on a selection of these incidents to determine whether they were properly investigated by the appropriate authorities and if those responsible have been held to account.

As part of this project, we seek information about the attacks listed below that destroyed one hospital in the Gaza Strip and damaged another.

1. Multiple attacks on al-Wafa Rehabilitation Hospital in Shuja’iyeh Neighborhood, Gaza City on July 11, 15, 17, and 23, 2014.

According to medical staff interviewed by Human Rights Watch, including the hospital’s director, al-Wafa Rehabilitation Hospital was struck multiple times between July 11 and 17 by airstrikes and tank fire, causing damage to the facility’s upper floors. The hospital was destroyed by airstrikes on July 23. Based on its investigation, Human Rights Watch is concerned about the legality of the attack.

On July 11, a missile hit the hospital’s fourth floor, followed by several more strikes that hit the hospital later in the day, causing damage to the hospital’s upper floor. These strikes occurred without warning. On the morning of July 15, the hospital received a warning from the IDF that the hospital would be attacked. That evening, tank fire hit the third floor of the care center for the elderly. On July 17, the hospital received a warning of an impending attack. Five minutes later, a strike blew out windows in the hospital and two munitions hit the hospital’s upper floors, causing a fire. This was followed by several more strikes that hit the hospital. Staff evacuated the facility while the neighborhood was still under attack. On July 23, airstrikes destroyed the hospital.

On December 7, 2014, the IDF Military Advocate General (MAG) published a press release in which it summarized findings of an investigation by the General Staff Mechanism for Fact-Finding Assessments (FFAM) into the attack. The FFAM found that, with one exception, all attacks were carried out in accordance with Israeli domestic law and international humanitarian law, including the principle of proportionality. The FFAM found that one exception—the July 11 attack, which it found was carried out without warning—“did not establish a serious violation of the law of armed conflict which requires criminal investigation.” The MAG closed the case without opening a criminal investigation, though it recommended that the Chief of General Staff examine the reasons why the attack on July 11 was carried out without warning.

On July 16, 2014, Adalah, an Israeli-Palestinian non-governmental organization, and al-Mezan Center for Human Rights, a Palestinian non-governmental organization, submitted a complaint to the MAG about several attacks on medical facilities and personnel including the July 11 attack on al-Wafa Hospital.^[1] The Palestinian Center for Human Rights (PCHR) submitted a complaint to the MAG on August 20, 2014 about the July 17 and 23 attacks on the facility.^[2] The MAG responded to both complaints on December 4, 2014, reiterating the same conclusions as it did in its press release.^[3]

Human Rights Watch’s Concerns Related to the FFAM Investigation

Human Rights Watch has several concerns related to the findings of the FFAM’s investigation, as presented to Adalah, al-Mezan, and PCHR as well as in its press release. Primarily, Human Rights Watch is concerned that the attack on July 23, 2014 that destroyed the hospital’s three buildings may not have been proportional.

Al-Wafa Hospital was the only public rehabilitation hospital in the Gaza Strip and provided specialized services to an estimated 2,000 cases per year.^[4] The World Health Organization estimated that it housed US$3 million in specialized medical equipment.^[5]

Israel’s Manual on the Rules of Warfare of 2006, reflecting a foundational principle of international humanitarian law, states: “In any attack, it is a duty to ensure that … the military gain expected from the attack is proportional to the expected damage that would be caused to civilians as a result of the offensive.”^[6] The published summary of the FFAM investigation states that the attacks adhered “to the requirements of the principle of proportionality,” but does not provide any details about the proportionality assessment.

Even if the hospital was used for military purposes, as alleged by the IDF, and all staff and patients had been evacuated, it would not necessarily justify the destruction of the entire facility, which provided vital services. It is not clear whether Israeli officials assessed whether its forces could have achieved the same military objective without destroying the hospital’s buildings.^[7]

Human Rights Watch also has concerns about the omission of critical details about the FFAM investigation in the MAG press release and some significant discrepancies between media accounts, eyewitness testimony, and the summary findings of the FFAM investigation. These concerns include:

1. The MAG reports that the FFAM investigation found that Hamas used the hospital to position military surveillance devices, fire on incoming troops, and launch rockets. The report though does not specify, with one exception, the justification for each attack or whether the hospital was intentionally targeted.^[8]

The MAG only specifies that one of the attacks on July 11 targeted military surveillance equipment on the hospital’s roof. Earlier media reports reported that an initial IDF investigation found that the IDF targeted rocket launchers in the immediate vicinity of the hospital, not the hospital itself.^[9]

2. The MAG reports that the FFAM found “on a number of occasions during this period IDF forces were forced to return immediate fire, in a discerning and precise manner, towards sources of attacking fire that posed a serious and immediate threat to those forces,” but does not specify for which strikes this applied.
3. As noted above, on July 17, an attack hit the hospital just five minutes after the facility received a warning. This was followed by several additional strikes. We are concerned that five minutes was not a reasonable time limit for hospital staff to evacuate patients with physical disabilities, many of whom were immobile.
4. The MAG further states that it did not find evidence of any civilian harm during instances where the IDF launched attacks on the facility while civilians were still inside. However, according to health workers interviewed by Human Rights Watch, two patients and two staff were injured during the attack of July 17. We are concerned that the MAG did not take the injuries of these four individuals as well as the damage to the hospital and its equipment and supplies into account in its consideration of civilian harm.

We provide a more detailed account of the attacks on al-Wafa Hospital between July 11 and 23, 2014 in the Annex to this letter.

Human Rights Watch’s Requests

We would greatly appreciate your help in providing us with the following information:

• A copy of the full findings of the FFAM’s investigation;
• Answers to the following questions regarding the IDF’s proportionality assessment of the July 23 attack on al-Wafa Hospital:
  • Did the FFAM review the proportionality assessment conducted by the IDF prior to the July 23 attack on al-Wafa Hospital? If so, on what basis was the potential strike found to be proportionate?
  • On what basis did the IDF determine that al-Wafa Hospital was a legitimate military target and that its destruction presented a significant military advantage?
  • In its proportionality assessment, how much weight did the IDF give to the fact that al-Wafa Hospital was the only rehabilitation hospital in the Gaza Strip?
  • Did the IDF seriously evaluate any other methods of engagement other than airstrikes to address any military activity in or near al-Wafa Hospital on July 23?
• Answers to the following questions regarding the FFAM’s investigation into the IDF’s attacks on al-Wafa Hospital in general:
  • Did the IDF intentionally target al-Wafa Hospital in each of the attacks outlined above that occurred on July 11, 15, 17, and 23? If not, which of the attacks outlined above were intentional and which unintentionally affected al-Wafa Hospital?
  • What were the justifications for each individual attack that targeted al-Wafa Hospital?
  • In which of the attacks did the FFAM find Israeli forces to be “returning immediate fire … towards sources of attacking fire”?
  • What is the FFAM’s definition of “civilian harm”? Is damage to the hospital, its equipment, and its supplies included in its definition?
• Answers to the following questions regarding the July 17 attack on al-Wafa Hospital:
  • On which date did you determine that patients and staff were evacuated from the hospital?
  • Did the FFAM assess whether five minutes was a reasonable time to warn al-Wafa staff of an impending attack?
  • In its evaluation of the sufficiency of the five minute warning, did the FFAM take into consideration the patients with physical disabilities inside the hospital?
  • Did the FFAM evaluate injuries to patients and medical staff in its assessment of the July 17 attack for civilian harm?
• Answers to the following questions regarding the recommendations made by the FFAM to the Chief of General Staff:
  • Has the Chief of General Staff examined the reasons why the strikes of July 11 were launched without an effective warning? If so, what did the Chief of General Staff find?
  • Did the Chief of General Staff recommend any measures to address the failure to issue effective warning on July 11?
  • Did the Chief of General Staff provide any other recommendations regarding accountability?

2. Attack on Shuhada’ al-Aqsa Hospital in Deir al-Balah on July 21, 2014.

After assessing documentation by several Palestinian and Israeli human rights organizations as well media sources, Human Rights Watch found that the IDF repeatedly shelled Shuhada’ al-Aqsa Hospital in Deir al-Balah, the only public hospital in central Gaza, by tank fire over the course of at least two hours on July 21 while patients and staff were inside. At least four projectiles hit the eastern side of the facility, killing at least three civilians and injuring around 40 people, according to local human rights organizations and media reports. Two of the projectiles hit the surgical unit and the other two struck the intensive care unit. The attacks also damaged the facility’s furniture, medical equipment, and two ambulances. According to media reports, the IDF on the day of the strike said “that a cache of antitank missiles was stored in the immediate vicinity of the Shuhada’ al-Aqsa Hospital.”^[10] One media report quoted an IDF official as saying that the army ceased fire when it realized the building was a hospital.^[11]

On July 24, 2014, Adalah and al-Mezan Center for Human Rights submitted a complaint to the MAG about several attacks on medical facilities and personnel including the July 21 attack on al-Aqsa Hospital. Adalah and al-Mezan sent two reminder letters to the MAG about the complaint on July 28, 2015 and February 14, 2016.^[12] The MAG responded on June 2, 2016 saying that the FFAM was still reviewing the case of Shuhada’ al-Aqsa Hospital and soliciting any additional details or photos.

PCHR also submitted a complaint to the MAG on October 14, 2014 about the same attack. The MAG has not responded to PCHR’s complaint.^[13]

As the Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict reiterates, Israeli authorities have a duty to promptly conduct impartial and thorough investigations into alleged violations of international humanitarian law.^[14] Two and a half years later, the IDF has not publicly stated whether it has conducted an investigation into how the hospital was hit.

We provide a more detailed account of the attack on Shuhada’ al-Aqsa on July 21, 2014 in the Annex to this letter.

Human Rights Watch’s Requests

We would greatly appreciate your help in providing us with the following information:

• If the FFAM has completed an investigation into the attack on Shuhada’ al-Aqsa on July 21, 2014, we would appreciate a copy of the findings of this investigation.
• Answers to the following questions based on any investigations conducted into the attack:
  • Did your office determine whether or not this attack constituted a violation of international humanitarian law?
  • Did the IDF intentionally target Shuhada’ al-Aqsa Hospital?
  • If the IDF did intentionally target the facility:
    • What was the basis for authorizing this strike? On what basis did the IDF determine that the hospital was a legitimate military target?
    • What steps did the IDF take to minimize harm to civilians and to the facility?
    • Did the IDF conduct a proportionality assessment prior to launching the attack? On what basis did the IDF determine that the attack was proportional?
  • If the IDF did not intentionally target Shuhada’ al-Aqsa Hospital:
    • Why was the hospital hit? How long did the IDF fire upon the hospital before it realized that the facility was a hospital and ceased fire?
    • What steps did the IDF take to minimize harm to civilians and avoid attacks on civilian objects?
  • Has your office identified individual officers that were involved in the attack, and has it recommended that any criminal investigations or prosecutions of these individuals be carried out?

We ask that you respond to this letter and the questions above before March 31, 2017 so that we may reflect your response in our upcoming work in a timely manner.

Thank you very much for your attention to this matter. We look forward to receiving your response.

Sincerely,

Diederik Lohman

Director

Health and Human Rights Division

Human Rights Watch

Annex – Detailed descriptions of relevant incidents

Incident involving the al-Wafa Hospital in Shuja’iyah neighborhood, Gaza City – July 11-23, 2014

GPS Coordinates: 31°29'57.1" N 34°29'12.8" E ; 31.499194, 34.486889

Between July 11 and 23, 2014, al-Wafa Hospital, located in Shuja’iyah neighborhood in Gaza City at 31°29'57.1" N 34°29'12.8" E, was shelled and hit by airstrikes on at least four days, causing damage to and ultimately destroying the facility, according to a Human Rights Watch investigation.

Al-Wafa Hospital was established in 1996, had 75 beds and 220 employees, and treated 2,000 cases each year.^[15] Hospital staff told Human Rights Watch that many of the patients had physical disabilities and had difficulties with mobility. The hospital provided specialized services such as occupational therapy, cognitive rehabilitation, and psychological counseling as well as treatment for circulatory disorders, according to the al-Wafa Charitable Society, the organization that supports the facility.^[16] The hospital also reportedly contained the only bone densitometer in the Gaza Strip.^[17]

Timeline

July 11, 2014

The first incident occurred on July 11, 2014. The hospital’s director told Human Rights Watch that before dawn, a “warning” missile hit the hospital’s fourth floor, but did not explode. Later that day, several more strikes hit the hospital, causing extensive damage to the facility’s upper floor.

The hospital’s director told Human Rights Watch that the facility did not receive advance warning of these strikes. He said that around 4 or 5 p.m., he received a call from an Israeli official asking if anybody had been injured in the strikes. The official FFAM investigation into the incident later confirmed that the IDF had failed to warn the hospital of the impending attacks.

July 15, 2014

The hospital’s director told Human Rights Watch that the facility’s receptionist received a phone call from the IDF at 8 a.m. on July 15, 2014, warning that an attack on the hospital would be carried out and telling staff to evacuate the building. That evening, the third floor of the care center for the elderly, located next to the main building, was hit by tank fire.

July 17, 2014

The hospital’s director told Human Rights Watch that on the evening of July 17, the hospital’s receptionist received another phone call telling staff to evacuate the building immediately. Five minutes later, a strike on a nearby building blew out windows in the hospital, and two munitions hit the hospital’s upper floors, causing a fire, he said. This was followed by several further attacks that hit the hospital. The director said that they did not have enough time after the warning to evacuate patients and staff and the strikes started. Israeli human rights organization B’tselem reported that at least 17 patients in addition to staff were still in the building at the time of the strikes.^[18] Two patients and two staff were injured in the strike, according to the hospital’s director.

The hospital’s director told Human Rights Watch that the staff eventually evacuated the facility while the neighborhood was still under attack.

Photos posted to the hospital’s Facebook account on July 18 show significant damage to at least one room containing medical supplies and a hallway (see images 2-6 below). Several photos show scorch marks on the inside and outside of the facility, consistent with the director’s report of a fire breaking out.

July 19-21, 2014

According to multiple media reports published between July 19 and 21, 2014, IDF officials said that Israeli attacks targeted rocket firing positions in the vicinity of the hospital.^[19] The Jerusalem Post cited an initial IDF investigation that reportedly found that the IDF did not fire directly on the hospital.^[20]

According to the MAG, the FFAM investigation found that “rockets were launched from the immediate vicinity of these structures” and that the hospital was used for positioning surveillance devices and as firing positions. However, in its press release, the MAG did not specify which of the strikes were aimed at rocket launchers and which were directed at the hospital itself, nor did it clarify whether the hospital was hit accidentally at any point.

July 23, 2014

On July 23, 2014, airstrikes destroyed the hospital.^[21] The IDF posted two video clips to its website showing several flashes of gunfire from a building that resembles al-Wafa Hospital as well as audio from three separate phone calls with unidentified voices saying that the facility had been evacuated of patients and medical staff.^[22] These calls are followed by multiple aerial video clips that show at least four airstrikes destroying three of the hospital’s buildings.^[23]

The hospital’s Facebook page contains more than 20 photos of the site following the attacks, showing at least two destroyed buildings.^[24]

August 24, 2014

The IDF’s blog published a declassified slideshow on August 24 that shows an aerial image of al-Wafa Hospital with two areas marked “rocket launch site,” one of which is close to 150 meters from the hospital, the other is 200 meters away.^[25]

December 7, 2014

The MAG published a press release in which it summarized the findings of an investigation by the FFAM into the airstrikes on al-Wafa Hospital that occurred between July 11 and July 23, 2014.^[26] The investigation’s findings were as follows:

• IDF forces fired upon al-Wafa Hospital several times between July 11 and 23, 2014;
• Hamas used the hospital as a post to track IDF activity through surveillance devices, to fire at IDF forces, and to launch rockets;
• On several occasions, “IDF forces were forced to return immediate fire … towards sources of attacking fire.” The MAG was not aware of these incidents resulting in civilian harm;
• Warnings were made by the IDF on several occasions, requiring that military activity in the hospital to cease;
• On July 23, 2014, after warnings went unheeded and “after the IDF ensured that civilians had evacuated the hospital and that the hospital was being used solely for military purposes,” the IDF attacked the facility;
• With one exception, all attacks were carried out in accordance with “Israeli domestic law and international law requirements,” including the principle of proportionality;
• One of the attacks on July 11 targeted military surveillance equipment on the roof of the hospital and was carried out without advance warning. The attack did not cause collateral damage to civilians or to adjacent buildings, and therefore “did not establish a serious violation of the law of armed conflict.” The MAG’s press release did not clarify whether the attack constituted a violation, serious or otherwise;
• The MAG “ordered the case closed, without opening a criminal investigation or ordering further action against those involved in the incident”;
• The MAG recommended that the Chief of General Staff examine the reasons why the attack of July 11 was carried out without advance warning and to take appropriate measures.