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15.6.06 Israel Air Force Attack in Gaza: Grave suspicion of a war crime

On June 13, the Israeli airforce fired missiles into a residential neighborhood in northern Gaza city. This missile fire killed eleven Palestinians, including ten civilian passersby, two of them children: Maher al-Mughrabi, aged 8; Hisham al-Mughrabi, aged 14; ambulance driver Adnan Taleb, aged 46; Shweiki a-Saikli, aged 41; Rafik al-Mabayed, aged 18; Musa Nasrallah, aged 21; Ali al-'Omri, aged 32; Hussam Hamed, aged 37; Ashraf al-Mughrabi, aged 39, and Ibrahim a-Da'alsah, aged 38. Also killed in the attack was Muhammad al-Wadia, aged 24, who was in the car which was fired upon.

According to the IDF Head of Operations, Lieutenant General Gad Eisencott, the target of the attack was a van in which an Islamic Jihad cell was traveling with a GRAD rockets. According to Eisencott, the members of the cell were on their way to launch the rockets into Israel. B'Tselem's investigation indicates that the first missile killed one of the men in the van, Muhammad al-Wadia. The driver of the van was injured. Palestinian rescue and medical teams arrived after the first missile fire, and a large crowd gathered. After a short time, between one minute and four minutes according to various sources, a second pair of missiles was fired from the air at the van. These second missiles killed the ten civilians. According to Eisencott, at the time the second pair of missiles was fired, "no civilians were identified at the scene of the operation."

The circumstances of this incident raise the grave suspicion that this was a disproportionate attack. Attacks of this kind are defined as a war crime. B'Tselem wrote the IDF Judge Advocate General demanding that a Military Police Investigation be opened immediately regarding all those involved in the attack, including the Chief of Staff and the Commander of the Air Force.

Legal Analysis

The principle of proportionality, a central pillar of international humanitarian law to which Israel is obligated, prohibits conducting an attack, even against a legitimate military target, if it is known that the attack will cause harm to civilians that is excessive compared to the anticipated military advantage. Israel bears the burden of proof that a particular attack was expected to achieve a military advantage significant enough to justify harming civilians. This burden of proof also requires proof that there was no reasonable alternative to the attack. Violation of the principle of proportionality in defined as a war crime, and therefore carries individual criminal liability for those responsible.

The missiles were launched in the afternoon in the heart of a crowded neighborhood. Those planning the attack should therefore have expected that innocent civilians would be harmed. In addition, the gap between the two missile fires made the likelihood of civilian casualties as a result of the second missiles, almost inevitable. Despite the extensive harm to civilians, Israel has not released its video footage of the attack, and not provided any evidence that there were no alternatives - in terms of the timing and location of the attack - that would have endangered civilian passersby to a lesser degree. All of these facts raise the grave suspicion that the missile-fire constituted a disproportionate attack.