Thursday, November 09, 2006

B'Tselem: The Killing of Civilians in Beit Hanun is a War Crime

B'Tselem: The Killing of Civilians in Beit Hanun is a War

8 November 2006

Israeli artillery shells struck a residential neighborhood
in Beit Hanun, Gaza Strip, early Wednesday morning,
killing 18 civilians, including 7 minors, and wounding
some 40 others. The Israeli military contended that the
artillery fire was aimed at the place from which Qassam
rockets were fired at Ashkelon yesterday, an area about
half a kilometer from where the shells actually landed.
The IDF said that human or technical error caused the
shells to strike the houses. The Minister of Defense has
ordered an investigation into the incident.

Even according to the military, the shelling was not
defensive; it was not aimed at Palestinian fire or Qassam
rocket-fire that was in progress. The artillery was aimed
at what the IDF refers to as a "launching space," i.e., an
area from which the army believes that Qassams had
previously been fired.

Shells fired from cannons several kilometers away are
known and expected to occasionally miss their target by a
few hundred meters. For this reason, it is especially
likely that such weapons will harm civilians when they are
fired towards or near densely-populated residential areas.
Several such cases have occurred over the past year, and
it was to be expected that they could recur.

Moreover, in April 2006, it was reported that the IDF
reduced - from 300 meters to 100 meters - the "safety
range" between populated areas in the Gaza Strip and the
areas targeted for artillery fire. Six human rights
organization, B'Tselem among them, warned about the great
risk inherent in the decision, contending it would lead to
the injury of innocent civilians. The organizations
petitioned the High Court of Justice to order the IDF to
cancel the decision. The High Court has not yet ruled in
the matter.

It is still unclear if the deaths this morning resulted
from the inherent inaccuracy of artillery or from
technical or human error. However, massive shelling
towards a densely-populated area carries a high risk of
civilian casualties. Therefore, as discussed below, such
shelling should be avoided, unless there is no alternative
in defending against attack.

The principle of discrimination, one of the pillars of
international humanitarian law, requires that all parties
to a conflict attack only legitimate military objects.
According to the principle of proportionality, it is
forbidden to launch an attack, even if aimed at a
legitimate military object, if the attack is expected to
cause injury to civilians that would be excessive in
relation to the concrete and direct military advantage
anticipated. These two principles lead to the prohibition
on using a means of warfare which, under the
circumstances, is likely to cause disproportionate injury
to civilians. Launching of such attacks is deemed a grave
breach of international humanitarian law and a war crime.

The circumstances involved in the killing of the
Palestinians in Beit Hanun, including the fact that the
attack was not a defensive action, raise a grave concern
that the shelling constitutes a war crime. The Israeli
military's contention that they did not mean to harm
civilians is meaningless, and cannot justify an action
that amounts to a war crime. An investigation conducted by
military officials subject to the same chain of command
responsible for the action cannot serve as a substitute
for a criminal investigation. B'Tselem today wrote to the
Israeli Judge Advocate General, demanding that he
immediately order a Military Police investigation into the
incident, with the objective of prosecuting those
responsible for the killings in Beit Hanun.

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