27 October 2016
Adalah–The Legal Center for Arab Minority Rights in Israel and Al Mezan Center for Human Rights filed an appeal to the Israeli Attorney General, Avichai Mandelblit, on 25 October 2016 against the Military Advocate General’s (MAG) decision not to open an investigation into civilian killings near a United Nations Relief and Works Agency (UNRWA) school in Rafah, Gaza during “Operation Protection Edge” in the summer of 2014.
This case made international headlines, as formaton 3 August 2014, the Israeli air forces fired a missile adjacent to the main gate of the UNRWA school. At the time, the Israeli military knew that around 3,000 Palestinian civilians were sheltering at the school. As a result of the attack, 14 civilians were killed, including eight children, and 30 civilians were injured.
Two years later, on 24 August 2016, the MAG announced that it would close the file, and that no criminal investigation or any other measures against those responsible for the killings would be pursued. The Israeli military claimed that it was targeting three military operatives, and at the time of firing against the motorbike, it was "not able to discern in real-time the group of civilians that were outside the school" and that "it was not possible to divert the munitions" after the motorbike started to travel along the road bordering the wall, which surrounded the school.
Adalah Attorney Muna Haddad argued in the appeal that in this case, the Israeli forces committed serious violations of the laws of war, which amount to a war crime: "The decision to attack the people who were riding on a motorcycle indicates a gross violation of the principle of distinction and the rules derived from it, as well as the prohibition on the targeting of civilians and civilian objects.”
Adalah and Al Mezan emphasized that UNRWA confirmed that it informed the Israeli military on 33 separate occasions that the Rafah school was being used to accommodate displaced civilians, the last time only an hour before the attack. The Israeli army admitted that it knew that the school compound was being used to shelter Palestinian civilians. However, despite this knowledge, the military nevertheless decided to launch this attack near the school where thousands of people were residing, and in an already densely populated neighborhood. The human rights organizations argued that these facts should have been enough to prevent the attack. Thus, there is a flagrant breach of the principle of distinction and the attack should be considered as a direct attack against civilians. Moreover, the testimonies and affidavits collected by Al Mezan from witnesses and victims after the incident revealed that contrary to what is claimed by the army officials, two (and not three) people were riding on the motorcycle and they were not militants or taking part in the hostilities.
In addition, Attorney Haddad argued in the appeal that the attack violated the principle of proportionality, as stipulated in international law. In this case, thousands of civilians lived in the neighborhood where the attack was carried out, and at UNRWA school, there were about 3,000 civilians. The civilians were not present within or near military targets, but the opposite–in a densely populated area and near the UNRWA school–which reinforces the conclusion that it was prohibited to launch the attack because of the undoubted high risk of excessive collateral damage. Moreover, the missile used can create casualty-producing fragments up to 20 meters from impact, which was well within the distance of the school. This attack, five meters from the school, is necessarily disproportionate.
Regarding the MAG’s decision not to open an investigation into the killings, Adalah and Al Mezan argued that, "even without disputing the facts as claimed by the Israeli army, this attack should not have been allowed to be carried out. The MAG’s position that the Israeli military's actions did not give rise to reasonable grounds of suspicion of criminal misconduct constitutes an incorrect interpretation of international humanitarian law, and a misapplication of the laws of war. In fact, there is no intention to investigate and prosecute those responsible for the killing of civilians."
As to MAG’s examination, Attorney Haddad stressed that the procedure does not meet the requirements of international law, namely: independence, impartiality, effectiveness, promptness and transparency: "We cannot ignore the fact that the military bodies involved in fighting are the same entities that are supposed to review and decide on the opening of an investigation into a particular event. The MAG itself plays a double role: It provides legal advice to the army before and during military operations, and at the end of the fighting, it decides whether or not to open a criminal investigation. Such a situation is a blatant violation of the requirement of independence. The present case is just one example, which gives rise to a suspicion of partiality.” "In addition, while there is ample evidence about the identities of the people who were riding on the motorcycle and the circumstances of the incident, the MAG and the military’s fact-finding assessment mechanism did not present any evidence to support their claims and did not take testimonies from any of the witnesses who do not belong to the military. This procedure also violated the principle of effectiveness and thoroughness."
Therefore, Adalah and Al Mezan demand that the Attorney General cancel the MAG’s decision not to investigate the killings and injury to civilians, and to order an independent criminal investigation into the events in question.
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