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Use of 7 March 2006: Targeted Killing in Gaza: Grave Suspicion of a War Crime

The Israeli air force launched a missile yesterday afternoon into a residential neighborhood in the north of Gaza City, killing five Palestinians. Two of those killed were the targets of the attack, and were suspected by Israel of firing Qassam rockets at Israeli towns. Three bystanders, all of them minors, were also killed in the attack: brothers Ra'id (age 8) and Mahmoud (age 15) Al-Batash; and Ahmad a-Sweisi (age 14). Nine other bystanders were wounded, one of them critically.

The circumstances of their death raises the grave suspicion that the targeted killing constitutes a disproportionate attack, which is defined as a war crime. B'Tselem requested the Judge Advocate General to order a Military Police investigation into the attack, including the actions of those who carried it out and the role of high ranking officers such as the Chief of Staff and the Air Force Commander.

Legal Analysis

The principle of proportionality constitutes one of the central pillars of international humanitarian law. According to this principle, an attack is forbidden, even when directed against a legitimate military target, if it is known that the attack is liable to result in injury to civilians that is disproportionate to the military benefit anticipated from the attack. The burden of proof that the anticipated military benefit was so great as to justify harm to civilians rests on those carrying out the attack. Breach of the principle of proportionality is defined in humanitarian law as a war crime, for which the perpetrators bear personal criminal responsibility.

The targeting killing was carried out in the afternoon in the heart of a densely populated urban neighborhood (the a-Tufah neighborhood in northern Gaza City). Given the time and place chosen for the attack, the planners should have known that it was liable to injure many innocent civilians. Despite the extensive harm to civilians resulting from yesterday's attack, Israel has once again failed to provide any evidence regarding the necessity of the action or the lack of alternates that would entail lesser harm to civilians. These facts create a grave suspicion that yesterday's attack was disproportionate and thus constitutes a war crime.