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Israeli, Hamas war crimes becoming increasingly hard to distinguish

Both sides are guilty of violating international law but the source of an attack on a Gaza UN school could be a game changer.

By Lolita Brayman

An attack on a United Nations-run facility in northern Gaza sheltering displaced Palestinians left at least 15 civilians killed and many more wounded on Thursday morning, reports indicate. Israel and Hamas are pointing fingers and negating responsibility for the deadly incident, the circumstances of which remain unclear but are significant in light of the UN Human Rights Council’s recent launch of a commission of inquiry into alleged Israeli war crimes.

The Israeli army is investigating the source of the hit, while UN General Secretary Ban Ki-moon condemned the attack and admitted in an official statement that the circumstances remain unclear. Israel denied intentionally targeting the school belonging to the UN Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA), which is located in the densely populated northern Gaza town of Beit Hanoun, but did say that it fired mortars in the area after the army was shot at from a source nearby.

Both the Israeli army and UNRWA spokesperson Chris Gunness confirmed that Hamas rockets were being fired near the UNRWA school, and that sometimes Hamas rockets fall short of their intended Israeli targets. It is also confirmed that the exact location of the UNRWA shelter was known to the Israeli army and that several rockets fell in Beit Hanoun that same day. The army spokesperson also tweeted that the Red Cross was told to evacuate civilians from the UNRWA shelter between 10 a.m. and 2 p.m., as they were planning on targeting nearby Hamas rocket launchers. Gunness confirmed via his Twitter account that the precise coordinates of the school were formally given to the army.

Chris Gunness tweet_UNRWA

IDF tweet_UNRWA

The source of the attack seems to be one of the following possible scenarios: 1) A Hamas rocket was launched from Beit Hanoun aimed at Israel and fell short of its target, landing on the UNRWA school; 2) the Israeli army targeted the Hamas rocket launchers in Beit Hanoun and accidentally hit the shelter; or 3) Israeli forces responding to Hamas militant fire shelled the school accidentally by targeting the source of the fire.

In a rather ambiguous tweet, Gunness wrote: “UNRWA tried to coordinate with the Israeli army a window for civilians to leave and it was never granted.” This is vague because it is unclear whether the Israeli army or Hamas refused to grant the opportunity for civilians to evacuate – a very pivotal factor in determining which side would be liable for the violation of international law that resulted in a large number of civilian casualties.

If a Hamas rocket is found to be the cause of this latest tragedy, Hamas could be found liable for crimes against humanity under international humanitarian law and customary international law. By intentionally targeting Israeli civilians with rockets, Hamas is in violation of the strict law of war standard, whereby only military objectives are permitted as military targets. The mens rea (guilty mind) intent is not negated even though their target was not the victim – the Geneva Conventions distinguish civilians from combatants but not civilians from civilians.

If the Israeli army is found to be responsible for the deadly attack due to an accident while targeting a rocket launcher, it would not be in violation of targeting civilians because the mark was clearly a legitimate military objective. However, Israel’s precision would come into question and the issue of proportionality must then be addressed as a principle of international customary law. Attacks seen as excessive in relation to concrete and direct overall military advantage anticipated are considered unlawful.

Palestinians prepare the body of a baby in Kamal Edwan Hospital's morgue after an attack on Beit Hanoun elementary school killed at least 17 people, Jabalyia, Gaza Strip, July 24. The school was being used as a shelter by 800 people at the time (photo: Anne Paq/Activestills)

Palestinians prepare the body of a baby in Kamal Edwan Hospital’s morgue after an attack on Beit Hanoun elementary school killed at least 17 people, Jabalyia, Gaza Strip, July 24. The school was being used as a shelter by 800 people at the time (photo: Anne Paq/Activestills)

The UN facility itself might be considered a legitimate military target since UNRWA schools have recently housed military objectives: On two separate occasions since the start of Operation Protective Edge, UN aid workers discovered a cache of weapons in UNRWA facilities and returned them to Gaza authorities. However, the Israeli army would not necessarily be absolved of responsibility for the civilians’ deaths even if it was found that proper evacuation procedures and warnings were effectively communicated. In international courts, Israel would still have to prove that the targeted buildings were making an effective contribution to Hamas’ military effort at the time it was attacked.

A similar legal analysis of proportionality would have to be assessed if the source was found to be Israeli artillery fire in response to Hamas militant fire.

It is indisputable that Hamas militants operate in urban and residential areas of the Strip, but whether they are guilty of using human shields is an extremely contested debate. It can be concluded from the Geneva Conventions, Additional Protocol I, and the Statute of the International Criminal court that a co-location of civilians and military objectives can amount to the use of human shields. Moreover, historic examples of this war crime have been cases where persons were actually taken to military objectives in order to shield them from attacks. Since UNRWA schools previously had hidden military objectives on their premises and then sheltered civilians in these buildings, the attack resembles – from a legal perspective – the use of human shields; however, more evidence would be needed to make this argument.

The tragic UNRWA hit comes a day after the UNHRC condemned Israel for its military operation and issued a commission of inquiry into alleged Israeli war crimes. The 49-member council backed the Palestinian-drafted resolution by 29 votes, with the U.S. being the only state to vote against the resolution. Although the condemnation is a far cry from actual UN judicial action – the Palestinian Authority has repeatedly threatened to seek redress from the International Criminal Court (ICC) – it places a significantly harsh international spotlight on Israel and delegitimizes military action in Gaza.

A Palestinian girl cries after an Israeli attack on Beit Hanoun elementary schools mourn in Kamal Edwan Hospital, Jabalyia, Gaza Strip, July 24. The school was being used as a shelter by 800 people. The attack killed at least 17 and injured more than 200 of the displaced civilians. Israeli attacks have killed 788 Palestinians and injured around 5,000 in the current offensive, most of them civilians. (photo: Anne Paq/Activestills)

A Palestinian girl cries after an attack on Beit Hanoun elementary school, as people mourn in Kamal Edwan Hospital, Jabalyia, Gaza Strip, July 24. The school was being used as a shelter by 800 people. The attack killed at least 17 and injured more than 200 of the displaced civilians. (photo: Anne Paq/Activestills)

It is a little-known fact that international law is an ever-evolving field dependent on state actors, who sometimes take advantage of the law’s ambiguity in interpretation. The authenticity of seeking justice via UN courts should be questioned, because the threat alone can be manipulated into a political tool to delegitimize instead of persecute. The ICC in particular has limited authority in imposing international law convictions because many countries, including the U.S., China and Russia, are hesitant to become signatories; however, the court does influence policy making and what conflicts are worthy of media attention. In the Palestinian case, acceding to the Rome Statute – a necessary step for ICC action – would also open the Palestinian Authority to persecution for Hamas’ war crimes. This is a potentially disastrous move for the newly established and unstable Palestinian unity agreement.

International law and the media have a hard time distinguishing between legality and legitimacy. In a recent INSS report, Pnina Sharvit Baruch, a former legal advisor for the Israeli army, explained: “Issues touching on the legality of Israel’s actions are not synonymous with issues concerning the legitimacy of these actions in the international arena, and legal actions may still be deemed illegitimate.” The UNHRC commission is an example of this difference: Israel’s legitimacy was questioned, no actual judicial action was proscribed, and the very next day both sides violated international law, resulting in more casualties.

At the end of the day, international law might just be adding more fuel to the fire and feeding the media frenzy by blurring the lines between legality and legitimization, and Hamas and Israeli war crimes. The debate over fault in the UNRWA attack will hopefully draw attention to the political consequences of UN condemnations and its shortcomings in creating a facilitative environment for a ceasefire to materialize.

Lolita Brayman is a lawyer and former editor at Haaretz.com with an M.A. in conflict resolution and mediation from Tel Aviv University. Follow her on Twitter at @lolzlita

Related:
AP: UN shelter shelled; more than 140,000 displaced
Palestinian human rights leader: ‘Cast Lead was a joke compared to this’
Gaza ground invasion: Shedding the pretense of ‘precision’

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    COMMENTS

    1. Barra Ó Seaghdha

      The framing of this article is interesting.
      Headlines are not usually written by the writer of the article so let’s pass on that.
      On the main issues:
      1. While it is possible that the attack on the school originated with Hamas, in the context of recent events and of the hours preceding the attack, the likelihood that the IDF was responsible is far greater.
      2. Even the known facts are not as cloudy as Brayman suggests. UNRWA sources are clear that they were not given the opportunity to evacuate the school. There is no suggestion from UNRWA that they were prevented from evacuating by Hamas.
      3. It is routine procedure for the IDF to emit a cloud of uncertainty about its responsibility for shootings and attacks that might attract bad publicity (see the first hours after the killing of the children on the beach). It is strange that Brayman does not refer to this. It is also easy to deploy words such as near, adjacent and vicinity to make the targeting of the innocent appear justifiable.
      4. In her list of possible causes of the slaughter, Brayman considers (1) a Hamas error, (2) the IDF targeting rocket launchers and accidentally hitting the school and (3) the IDF returning fire and accidentally hitting the school. Strangely, this list assumes that the IDF is operating with the intention of pinpoint precision, though subject to unfortunate error.
      Anyone who has been following events in the Middle East since, for example, the invasion of Lebanon in 1982 would know that the deaths of non-Israeli civilians are frequently not a major consideration for the IDF. (That Sharon could become prime minister of Israel suggest that this indifference is not confined to the IDF.)
      5. Arguments from justice and human respect appeal to me more than arguments from international law (which is indeed manipulable, especially by the powerful) or from statements by international bodies (also open to accusations of manipulation and hypocrisy). However, I can’t help noting that the later sections of Brayman’s article, which look at such issues, conveniently boil down to this: if you tackle Israel in such arenas, it will be at your own peril – echoing in a different domain the message of the horrors currently being inflicted on the people of Gaza.

      Reply to Comment
    2. Weiss

      This article is a new all-time low for 972 mag.

      Let us all bow our heads in a moment of silence ….

      Being that this was written by former Haaertz Editor, it read like a Hasbara PR release by the IDF…

      WHAT A SAD JOKE….

      This Jew WILL NOT BE SILENT…

      Reply to Comment
      • Freda Guttman

        What a surprise to see this on +972! Or should I not have been surprised. Brayman’s article is really disturbing. Hasbara indeed!!!

        Reply to Comment
        • Seconded!

          Reply to Comment
    3. Konrad Kalejs

      I was unaware that Hamas has committed any war crimes

      Reply to Comment
      • Sonnenuhr

        KALEJS:

        Listen to WHAT PA envoy to the UN said on July 9, 2014:

        “In an extraordinary moment of candor, Palestinian Ambassador Ibrahim Khraishi admitted, on Palestinian TV, that “each and every” Palestinian missile launched against Israeli civilians constitutes “a crime against humanity.”

        Now you know.

        Reply to Comment
    4. Average American

      Israel will say the school was hiding rocket-launching people. Or will say it was actually a weapons factory, like it said about some buildings in Iraq War. Which turned out to be Israeli lies. While American soldiers were killed and American equipment was destroyed and American treasure was spent, just because Israel said so. What a waste.

      Reply to Comment
      • Eric

        Ummmm….Did you miss the part where the UN has verified the truth of accusations?
        If you did, then I would recommend either actually reading the article or checking your short term memory.

        Reply to Comment

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