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

Palestinian boys look at a demolished house after the Israeli shelling of Beit Hanoun in the northern Gaza Strip during which at least 20 people were killed, November 8, 2006. (MaanImages/Wesam Saleh)

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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