Israeli forces’ 2018 Gaza actions may constitute war crimes

Geneva (Kanaga Raja) – During the large-scale demonstrations that began in Gaza on 30 March 2018, individual members of the Israeli Security Forces, in the course of their response to the demonstrations, killed and injured civilians who were neither directly participating in hostilities, nor posing an imminent threat, a UN probe has found.
These serious violations of human rights and humanitarian law may constitute war crimes or crimes against humanity, said a UN independent international commission of inquiry in its report released during the current fortieth session of the UN Human Rights Council (25 February-22 March 2019).
The commission’s report is expected to be presented at the Council session early next week.
The commission of inquiry is composed of Mr Santiago Canton of Argentina (Chair), Ms Sara Hossain from Bangladesh and Ms Kaari Betty Murungi (Kenya).
“The Commission has reasonable grounds to believe that during the Great March of Return, Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel,” said Mr Canton, the Chair of the commission, in a news release.
“There can be no justification for killing and injuring journalists, medics, and persons who pose no imminent threat of death or serious injury to those around them. Particularly alarming is the targeting of children and persons with disabilities,” said Ms Hossain.
“The Commission will place the relevant information in a confidential file to be handed over to the High Commissioner of Human Rights, to provide access to this information to national and international justice mechanisms. The International Criminal Court is already concerned with this situation,” said Ms Betty Murungi.
The UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories, Mr Michael Lynk, welcomed the findings and recommendations of the commission of inquiry.
“It found reasonable grounds to believe that, in all but two of the 189 fatalities investigated, the use of live ammunition by Israeli security forces against demonstrations was unlawful,” said Mr Lynk in a separate news release.
“Accordingly, I support the Commission’s call for accountability with respect to those who used lethal fire unlawfully, and for those who drafted and approved the rules of engagement which permitted this illegal use of lethal fire,” he added.
In May 2018, the commission of inquiry was mandated by the UN Human Rights Council to investigate all alleged violations and abuses of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military assaults on the large-scale civilian protests that began on 30 March 2018.
In accordance with its mandate, the commission focused its inquiry on the protests that began on 30 March 2018.
Given the time and access limitations, the commission said it investigated events up to 31 December 2018, with a particular focus on three demonstration days: 30 March, the first day; 14 May, which saw the highest number of fatalities and wounded; and 12 October, one of two demonstration days with the highest number of fatalities in the latter part of 2018.
The commission said it investigated the response of Israeli security forces to the protests and the policing of demonstrations by Palestinian security forces in the West Bank supporting the “great march of return and breaking of the siege” and demonstrations held inside Gaza since 30 March 2018.
The Israeli actions were in the context of the “great march” that “entailed weekly demonstrations by Palestinians near the fence that since 1996 has separated Gaza and Israel (along the Green Line traced by the armistice agreements of 1949), demanding the lifting of the blockade imposed on Gaza and allowing the return of Palestinian refugees.”
The commission of inquiry underlined that during armed conflict or occupation, international humanitarian law prohibits, inter alia, wilful killing and wilfully causing great suffering.
Unless undertaken lawfully in self-defence, intentionally killing a civilian not directly participating in hostilities is a war crime.
In its report, the commission found reasonable grounds to believe that individual members of the Israeli security forces, in the course of their response to the demonstrations, killed and gravely injured civilians who were neither directly participating in hostilities nor posing an imminent threat.
“If committed in the context of a widespread or systematic attack directed against a civilian population pursuant to or in furtherance of a State or organizational policy, serious human rights violations may also constitute crimes against humanity.”
Murder and “other inhumane acts” that cause great suffering or serious injury qualify as such violations.
In the course of the investigation, the commission said that it found serious human rights violations that may constitute crimes against humanity.
Civilian and military leaders bear responsibility for international crimes they commit directly, but also as commanders where they exert effective control over subordinates, knew or should have known about subordinates’ crimes, and failed to prevent or repress their commission or to submit them for investigation and prosecution, said the commission.
The commission conducted 325 interviews and meetings with victims, witnesses, government officials and members of civil society, from all sides, and gathered more than 8,000 documents, including affidavits, medical reports, open source reports, social media content, written submissions and expert legal opinions, video and drone footage, and photographs.
The commission noted that Gaza is home to 2 million people – half of whom are children – living in a coastal strip 42 km long, with a population density that is one of the highest in the world.
Their access to the outside world and to the rest of the Occupied Palestinian Territory is extremely limited owing to movement restrictions imposed by Israel since the early 1990s, increasing in the 2000s and maintained after Israel withdrew its settlements from Gaza in 2005.
After Hamas won the Palestinian legislative elections in 2006, in June 2007, Israel declared Gaza “hostile territory” and imposed an air, land and sea blockade in a campaign of “economic warfare”.
In 2017, the United Nations warned that Gaza would become “unliveable”, pointing to an ever-deepening water, electricity, health, education and food crisis resulting from the blockade.
Some 75 per cent of Gazans is registered refugees, living in or outside one of eight cramped cinderblock refugee camps in Gaza. They are among the descendants of the 750,000 Palestinians who, during the 1948 conflict, fled or were expelled from their previous homes in today’s Israel, in what Palestinians call the Nakba (“catastrophe”).
Over the past 10 years, Gaza and Israel have experienced successive violent confrontations; these included three major escalations with massive land and air attacks by Israeli security forces on Gaza and indiscriminate rocket attack s on Israel by Palestinian organized armed groups.
Nearly 1,400 Palestinians and 13 Israelis were killed during the three weeks of hostilities in 2008 and 2009, during Operation Cast Lead; 174 Palestinians and six Israelis were killed during one week of hostilities in 2012; and 2,251 Palestinians and 71 Israelis were killed during 51 days of hostilities in mid-2014, during Operation Protective Edge.
In the commission’s view, the demonstrations were civilian in nature, had clearly stated political aims and, despite some acts of significant violence, did not constitute combat or a military campaign.
Thus, the legal framework applicable to policing the protests was that of law enforcement, based in international human rights law.
This assessment did not change following the commission’s investigation into the demonstrators’ affiliation to or membership in organized armed groups.
Owing to the ongoing armed conflict, the rules of international humanitarian law were also in effect and operated as lex specialis during active hostilities. International humanitarian law only permits attacks that comply with the principles of distinction, proportionality and precaution.
Focusing its investigation on fatalities and physical injuries occurring in the context of the demonstrations between 30 March and 31 December 2018, the commission found that 189 Palestinians were killed at demonstrations sites, 183 of whom were killed by live ammunition used by Israeli security forces; 29 were members of Palestinian organized armed groups that were parties to the conflict with Israel (of which one was killed by a tear-gas canister and 22 were shot on 14 May).
The commission had insufficient information to render a finding on the membership of 18 of the other persons killed.
The commission said its estimate of 6,103 persons wounded by live ammunition at demonstration sites is based on its analysis of detailed data sets and electronic patient registry extracts collected separately from a large range of health -care providers in Gaza (including eight hospitals run by the Ministry of Health, six other hospitals, and several health-care and rehabilitation centres run by international non-governmental entities and organizations).
Of these, the commission tracked and corroborated more than 300 incidents in which demonstrators were wounded by live ammunition. Some 134 of those shot were hit in multiple or other parts of the body.
Most injuries by shrapnel were the result of bullet fragmentation from live ammunition. A small number may also have been caused by metal fragments stemming from direct tear-gas canister hits.
The Office for the Coordination of Humanitarian Affairs has estimated that 23,313 Palestinians were injured by Israeli forces in the context of the demonstrations in 2018, including by tear-gas inhalation and canisters, contributing to the highest toll of injuries recorded in the Occupied Palestinian Territory since 2005.
Highlighting some specific incidents, the commission found that overall, at the demonstrations held on 30 March 2018, Israeli forces killed 18 people and wounded 703 people with live ammunition; another 62 people were wounded by bullet fragmentation or shrapnel. The youngest casualty was a two-year-old, wounded in the head; the oldest, a 71-year-old woman shot in the legs.
In total, Israeli security forces killed 60 demonstrators on 14 May 2018, the highest one-day death toll in Gaza since their military operation there in 2014. The snipers shot at least 1,162 people with live ammunition; some 141 were wounded by bullet fragmentation or shrapnel.
The commission also found that Israeli security forces used lethal force against children who did not pose an imminent threat of death or serious injury to its soldiers. Four of the children were shot as they walked or ran away from the fence.
Several children were recognizable as such when they were shot. The commission found reasonable grounds to believe that Israeli snipers shot them intentionally, knowing that they were children.
The commission found reasonable grounds to believe that Israeli snipers shot journalists intentionally, despite seeing that they were clearly marked as such.
The commission noted that no Israeli civilian deaths or injuries were reported during or resulting from the demonstrations. According to Israeli sources, four Israeli soldiers were injured during the demonstrations.
Extensive damage to Israeli civilian property was caused by hundreds of incendiary kites and balloons launched from the Gaza Strip during the demonstrations. Some landed in empty educational institutions and private houses; others burned agricultural land and crops, causing significant property damage.
The commission said it investigated all 189 fatalities and tracked more than 300 injuries caused by the Israeli security forces at the demonstration sites and during the demonstrations.
With the exception of one incident in North Gaza on 14 May that may have amounted to “direct participation in hostilities” and one incident in Central Gaza on 12 October that may have constituted an “imminent threat to life or serious injury” to the Israeli security forces, in all other cases, the commission found reasonable grounds to believe that the use of live ammunition by Israeli security forces against demonstrators was unlawful.
Victims who were hundreds of metres away from the Israeli forces and visibly engaged in civilian activities were shot, as shown by eyewitness accounts, video footage and medical records.
Journalists and medical personnel who were clearly marked as such were shot, as were children, women and persons with disabilities, the Commission said.
The Israeli security forces killed and maimed Palestinian demonstrators who did not pose an imminent threat of death or serious injury to others when they were shot, nor were they directly participating in hostilities. Less lethal alternatives remained available and substantial defences were in place, rendering the use of lethal force neither necessary nor proportionate, and therefore impermissible.
The Commission, therefore, found reasonable grounds to believe that demonstrators were shot in violation of their right to life or of the principle of distinction under international humanitarian law.
The commission found that at least 29 of those killed at the demonstration sites were members of Palestinian organized armed groups. It is aware that the international legal community holds divergent views on whether organized armed group members may be targeted at any time, or only when directly participating in hostilities.
In accordance with the law enforcement paradigm as informed by international human rights law and in the absence of arms and active hostilities, the commission concluded that, in this specific context, targeting individuals purely on the basis of their membership of an armed group and not on their conduct at the time was impermissible.
The applicable tests remain whether an individual, at the time targeted, was directly participating in hostilities or posed an imminent threat to life. If not, targeting of such persons with lethal force was unlawful.
The shooting by Israeli security forces of Palestinian demonstrators with high-velocity weaponry at close range resulted in killings and long-term, life-changing injuries, including paralysis and amputations.
Although this was well known as early as April 2018, Israeli forces continued this practice throughout the period under review. Using such weaponry at short range, and justifying it by the need for accuracy at long range, indicates a disproportionate use of force.
The right to life includes the right to a life with dignity. As the occupying Power, Israel has obligations under international law to ensure the health and welfare of the Palestinian population.
The commission found that the ongoing blockade of Gaza and its impact on the health-care system in Gaza, and the ensuing deprivation of essential goods and services necessary for a dignified life, including basic medical supplies, safe drinking water, electricity and sanitation, constitute violations of the fundamental rights to life and health, in particular of wounded demonstrators.
International human rights law protects demonstrations under the freedoms of expression, of peaceful assembly and of association. While not all demonstrators were peaceful, the commission found reasonable grounds to believe that the excessive use of force by Israeli security forces violated the rights of the thousands who were.
The commission found reasonable grounds to believe that Israel violated those rights when its forces used lethal force against children who did not pose an imminent threat of death or serious injury to others at the time they were shot.
Customary and conventional international humanitarian law requires that medical personnel be respected and protected. Similar protection is afforded to journalists and children who do not take part in hostilities.
The commission found that the Israeli security forces shot paramedics, journalists and children, who had not lost their protected status; Israel is thus in violation of international humanitarian law.
Some members of the higher national committee, including Hamas, encouraged or defended demonstrators’ use of incendiary kites and balloons, causing fear and significant damage in southern Israel. The de facto authorities in Gaza failed in their due diligence obligations to prevent and stop the use of these indiscriminate devices.
The commission said violations of international law, such as those committed by the Israeli security forces and set out in the present report, give rise to State responsibility on the part of the State of Israel.
Israel has an obligation to investigate alleged violations of international human rights law and international humanitarian law by its security forces and, where appropriate, to prosecute those deemed responsible. Victims of human rights violations are entitled to remedies, including equal and effective access to justice and adequate, effective and prompt reparation, including compensation, and guarantees of non-repetition.
The commission found that responsibility for unlawful deaths and injuries lay primarily on two fronts.
First, those who employed lethal force assisted with or authorized it to be deployed in specific instances, in the absence of an imminent threat to life or where the victim was not directly participating in hostilities; this includes snipers, spotters and/or commanders on site.
Second, those who drafted and approved the rules of engagement. While the Supreme Court of Israel approved the rules, the commission has significant concerns about the status of “main inciters”, which does not exist in international law; indeed, its use undermined the threshold of “imminent threat to life” for the use of potentially lethal force.
Significantly, the Or Commission of Inquiry established by Israel in 2003 determined that “it should be made unequivocally clear that firing live ammunition, including sniper fire, is not a means to disperse crowds… This is a means to be used only in special circumstances, such as when there is a real and immediate threat to life…”.
While some deaths may have been examined by the Israel Defense Forces’ internal “fact-finding assessment”, criminal investigations were opened in only five cases, including the deaths of four children.
The commission’s findings suggest strongly that other killings and gunshot injuries appeared factually similar and therefore also warrant a criminal investigation.
The police force of the de facto authorities in Gaza, the Commission said, bears responsibility for failing to take adequate measures to prevent incendiary kites and balloons from reaching Israel, spreading fear among civilians in Israel and inflicting damage on parks, fields and property. Similarly, the police force failed to prevent or take action against those demonstrators who injured Israeli soldiers.
The commission said it was given the mandate to identify those it deemed responsible for the violations it refers to in the present report.
It said it will place the relevant information in a confidential file to be handed over to the United Nations High Commissioner for Human Rights.
The commission said that it will authorize the High Commissioner to provide access to that information to the International Criminal Court and national authorities conducting credible investigations for the purposes of ensuring accountability for crimes and other serious violations committed, establishing the truth about violations or implementing United Nations-mandated targeted sanctions against particular individuals or institutions.
The commission recommended amongst others that the United Nations High Commissioner for Human Rights manage the dossiers on alleged perpetrators, to be provided to national and international justice mechanisms, including the International Criminal Court, undertaking credible and independent investigations into alleged international crimes and violations. – Third World Network
Published in SUNS #8867 dated 15 March 2019