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Case Study Al Fakhoura UN School Goldstone Report: Al Fakhura UN School
Case Study Al Fakhoura UN School Goldstone Report: Al Fakhura UN School
| Goldstone Report: Al Fakhura UN School |
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The section of the Goldstone Report that analyzes the "al-Fakhoura incident." The shelling in al-Fakhura Street by Israeli armed forces 651. In the afternoon of 6 January at least four mortar bombs fired by Israeli armed forces exploded near the al-Fakhura junction in the al-Fakhura area of the Jabaliyah camp in northern Gaza.380 652. The Mission interviewed Mr. Muhammed Fouad Abu Askar on three occasions. His brother and two sons were killed in the attack.381It also met surviving members of the al-Deeb (381) family on two occasions.382
(380) Interviewees’ statements vary, asserting between four and six shells landed. The Mission saw for itself what it assessed to be the effects of mortars that landed. The crater in the orchard beside the al-Deeb house may have been caused by a mortar, but given the nature of the surroundings it is less easy to tell in terms of shrapnel patterns. The Mission does not reject the possibility that more landed but was not able to inspect those sites or to come to a firm view confirming the additional shells.
(381) Mr. Abu Askar is a Hamas member. He also provided testimony at the public hearings in Gaza. He was detained on the charge of being a member of Hamas in 1992. He is the Director-General for Religious Affairs (a voluntary position) and is on the Dialogue Committee, organizing the pilgrimage to Mecca (Saudi Arabia). He is in charge of the Hamas Follow-Up Committee in North Gaza related to the settlement of disputes between Hamas and other groups in the Occupied Palestinian Territory. He has a master’s degree in education and is currently pursuing a PhD in the Syrian Arab Republic. He denies any involvement in armed militant activities.
382 Two of the members of the family also presented their testimony at the public hearings in Gaza.
The Mission interviewed four men who had lost family members in the attack, the Director of the UNRWA premises that were being used as a shelter for civilians and a number of journalists who covered the story. In addition, the Mission has seen a number of statements provided to organizations in Gaza in the form of affidavits. The Mission has also considered to the degree possible the information available from Israeli sources on the circumstances of the strike.
B. The facts surrounding the Israeli armed forces’ mortar shelling
653.On 5 January 2009 UNRWA had opened the elementary school on al-Fakhura Street to provide shelter to civilians fleeing the areas where the Israeli armed forces had entered.
654.The Mission spoke on two occasions with the Director of the shelter about its management. He said that about 90 per cent of those in the shelter had come from outside of Jabaliyah camp, largely from the al-Atatra area. He explained that the shelter was guarded by security staff at its entry points and that all people coming in were registered by name and searched to ensure no weapons were being taken into the premises.
655. UNRWA has confirmed to the Mission that the Israeli armed forces were fully aware that the school was being used as a shelter from 5 January 2005. UNRWA materials indicate that there were 1,368 people in the shelter at the time.
656. About 16 hours prior to the shelling on the afternoon of 6 January 2009, Israeli armed forces had already carried out at least one strike, destroying the house of Mr. Abu Askar.At around 1.45 a.m. on 6 January 2009, Mr. Abu Askar received a personal telephone call from the Israeli armed forces advising him that he should evacuate the house and everyone in it because it was going to be destroyed by an air strike. The building housed not only his immediate family but a large number of his extended family, about 40 in all. Mr. Abu Askar responded quickly, evacuating not only his own extended family but also advising neighbours of the imminent strike. The survivors of the al-Deeb family confirm they were advised at this time by Mr. Abu Askar of the call he had received.
657. The house was struck by a missile from an F-16 according to Mr. Abu Askar about seven minutes after the call was received. Several hours later, at around 6 a.m., he returned to the site of the house with members of his family hoping to retrieve some items of furniture. There he noticed that a number of other houses in the area also appeared to have been hit at some time in the intervening four hours. In the course of that day Mr. Abu Askar and members of his family took various steps to prepare the move of the family to rented accommodation nearby.
658. Mr. Abu Askar was in the street at around 4 p.m., when several mortars landed. He believes that there were about 150 people in the street at the time. The Director of the shelter confirmed that the street outside the school was generally busy. It had become busier than usual due to the large influx of people into the school looking for shelter. Some relatives were coming to the school to visit those who had recently arrived and new people were arriving to seek shelter, including with belongings on donkey carts.
659. Witnesses indicate that all of the explosions were over within around two minutes. One shell landed directly in the courtyard outside the al-Deeb house, where most of the family was gathered. Surviving family members interviewed by the Mission explained that nine members of the family were killed immediately. Ziyad Samir al-Deeb lost both legs as a result of the blast.383 Surviving family members and neighbours carried the dead and injured one after another to hospital. Ambulances came, but most casualties were transported in private cars. Alaa Deeb, a daughter of Mo’in Deeb, was taken to al-Shifa hospital and thereafter to Egypt, where she died of her injuries. In total, 11 members of the family died, including four women and four girls.
660. Apart from the shell that landed in the al-Deeb courtyard, three other shells landed in the street outside. The total spread of the four mortars was a little over 100 metres. The Mission cannot specify in which order the mortars fell, but proceeding southwards from the al-Deeb house along al-Fakhura Street, the Mission saw the impact of another mortar, 45 metres away, a third was seen a further 50 metres south and a fourth a further 10 metres south.
383 Ziyad al-Deeb testified before the Mission at the public hearings in Gaza along with his uncle.
661. The three other shells that the Mission could identify as having landed at different places on al-Fakhura Street killed at least 24 people. The witnesses estimate that up to another 40 were injured by the blasts.384 The Mission has not been able to verify those figures, but having inspected the site and viewed the footage, it does not consider these numbers to be exaggerated.
662. Among those killed immediately were two sons of Mr. Abu Askar, Imad, aged 13, and Khaled Abu Askar, aged 19. Mr. Abu Askar’s brother Arafat was also killed.
663. The Director of the UNRWA school shelter confirmed to the Mission that the blasts had damaged the part of the school building facing onto al-Fakhura Street. Up to nine people were injured. One boy of 16, who was sheltering in the school but was in the street at the time, was killed. No one inside the school was killed. He confirmed that no shell had directly hit the United Nations premises either inside or outside.
664. Witnesses have described the scene of chaos and carnage caused by the bombs. They indicate that people were ferried to hospitals in private cars because of the difficulties in reaching ambulance services at the time, although some ambulances did arrive.
C. The Israeli position
665. Contradictory accounts emerge from official Israeli statements. The initial position accepted that Israeli forces had struck inside the UNRWA school, claiming to be in response to Hamas fire. A later response accepted that Hamas had not been in the UNRWA school but had allegedly fired from 80 metres away from the school. Finally, the Israeli Government claimed that in fact Hamas operatives were launching mortars at Israeli armed forces for around one hour, firing every few minutes until the Israeli armed forces identified them and returned fire, killing a number of them.
666. On 6 January the Israeli armed forces posted the following statement on their website: An initial inquiry by forces on operating in the area of the incident indicates that a number of mortar shells were fired at IDF forces from within the Jebaliya school. In response to the incoming enemy fire, the forces returned mortar fire to the source. This is not the first time that Hamas has fired mortars and rockets from schools, in such a way deliberately using civilians as human shields in their acts of terror against Israel. This was already proven several months ago by footage from an unmanned plane showing rockets and mortars being fired from the yard of an UNRWA school. Again, we emphasize that this announcement is based on an initial inquiry. After an investigation that took place over the past hour it has been found that among the dead at the Jebaliya school were Hamas terror operatives and a mortar battery squad who were firing on IDF forces in the area. Hamas operatives Immad Abu Iskar and Hassan Abu Iskar were among terrorists identified killed.385
384 A number of reports put the total figure of deaths at 42 or 43, including the al-Deeb family deaths. The Mission
has not been able to contact all the relatives of those reported to have died.
385 http://www.mfa.gov.il/MFA/Government/Communiques/2009/Initial_inquiry_school_incident_6-Jan-2009.htm
667. Further statements from spokespersons for the Prime Minister,386 the Foreign Ministry and the Israeli armed forces all adhered to the position set out in the statement cited above. In two interviews the Prime Minister’s spokesman, Mr. Regev, emphasized that he considered Hamas were mounting a cover-up in relation to the fact the senior operatives had been killed by the Israeli armed forces in its strike and in particular that two persons, Imad and Hassan Abu Askar, were “well-known members of the Hamas military machine – part of the rocket networkâ€.387
386 On 7 January in a television interview on the British Broadcasting Corporation’s programme Newsnight, Mr.
Regev indicated that he believed that the Israeli armed forces had attacked the school because they had come under
fire, that the school was occupied by Hamas operatives and that those Hamas operatives had committed a war crime
by using the premises for the purpose of launching mortars. See http://www.youtube.com/watch?gl=GB&hl=en-GB&v=9wv0giW1elo&feature=PlayList&p=9277810AA376DF8D&playnext=1&index=5.
In another interview he indicated the Israeli armed forces’ patrol returned fire having received mortar fire, that he
assumed the school had been taken by force by Hamas “with guns†and held the people in the school as “hostagesâ€.
See https://www.csidonline.org/resources/news/9/462-strike-on-gaza-school-kills-40?tmpl=component&print=1&page.
On the same day Major Avital Leibovich, spokeswoman of the Israeli armed forces, in an interview with Channel 4
news said that Hamas had fired from “the vicinity of the school†but later asserted that the two Hamas militants were
inside the school firing at the Israeli armed forces. See
On the same day Israeli armed forces’ spokesman Captain Benjamin Rutland made a presentation posted on
YouTube. He indicated that it had transpired later that the mortar fire had come from within a United Nations
school, that this was a crime on the part of Hamas and that civilians had been killed. He noted, however, that Hamas
terror operatives had been killed including the well-known Abu Askar brothers. Another Israeli armed forces
spokesperson confirmed on 12 January that it was adhering to the same positions as had been expressed on 6 and 7
387 See https://www.csidonline.org/resources/news/9/462-strike-on-gaza-school-kills-40?tmpl=component&print=1&page
668.The position set out on 6 January was repeated again in comments to the press on 12 January by an Israeli armed forces’ spokesman.388
388 The statement of Captain Ishai David in The Jerusalem Post on 12 January 2009.
669.On 15 and 19 February 2009 TheJerusalem Post published reports quoting Colonel Moshe Levi of CLA. He indicated that the stories of 40 or more dying as a result of the attack were the result of distortions and that in fact the Israeli armed forces had killed 12 people, including nine Hamas operatives and three non-combatants. The report of 19 February lists 7 of the 12 he said were killed. He also pointed out that the Israeli surveillance footage showed only a “few stretchers were brought in to evacuate peopleâ€.
670. On 22 April 2009 the Israeli armed forces published the results of their preliminary investigations, stating a completely different position from that previously expressed:
Regarding the UNRWA school in Jabaliya, the Fahoura school, the investigation concluded that the IDF used minimal and proportionate retaliatory fire, using the most precise weapons available to them. Hamas made this necessary, as it fired mortar shells at Israeli forces 80 metres from the school. Additionally, it was concluded that all of the shells fired by IDF forces landed outside of the school grounds.389
671.In July 2009 the Israeli Government stated: Soon after the source of fire was detected, a scouting unit was dispatched to confirm the location. Approximately 50 minutes after the mortar attack had begun, two independent sources cross-verified the location of the mortars. Only subsequent to this, and after verification of a safety margin of at least 50 metres between the target (i.e. the identified source of the mortar fire) and the UNRWA school, did the force respond to the ongoing barrage, by using the most accurate
weapon available to it – 120-mm mortars.390
390 “The operation in Gaza…â€, para. 338.
D. Other reports
672.The Mission carried out nine interviews with people who were present in al-Fakhura Street, in the al-Deeb yard or in the UNRWA school. No witness stated that he had heard any firing prior to the Israeli armed forces’ mortars landing. On the other hand, the Mission is aware of at least two reports that indicate local residents had heard such fire in the area.391
391 One report comes from the Associated Press, whose sources insisted on anonymity. The other is by a
correspondent of the British Channel 4 News programme who reports that locals told him “militants had been firing
rockets†at the Israeli armed forces and were running down the street to get away. See Jonathan Miller, "Why UN
'reversal' over Gaza school should be treated with caution". Channel 4, 5 February 2009, available at:
http://www.channel4.com/news/articles/world/middle_east/why+un+reversal+over+gaza+school+should+be+treated+with+caution/2924657
673.The Mission notes that the statement of the Israeli armed forces on 22 April did not indicate where the Hamas fire came from, only stating it was 80 metres away. The Mission finds it difficult to understand how the Israeli armed forces could have come to this view without having the information at the same time that Hamas operatives had been firing mortars for almost one hour. It regards these new allegations as lacking credibility. However, the Mission accepts, for the purposes of this report, that some firing may have occurred that gave rise to the Israeli armed forces’ response.
674.It seems clear to the Mission that Israel’s Government developed a position justifying the striking of an UNRWA school as a result of the immediate outcry generated by initial erroneous reports that the school had been hit. That effort included a number of statements, in particular those by Mr. Regev and Major Leibovich, which turned out to be erroneous.
675.The Mission notes the comment of Colonel Moshe Levi in TheJerusalem Post on 15 February 2009 casting doubt on the numbers of dead noting that Israeli surveillance saw only a few stretchers being used to lift the dead and injured. If Israel had that capacity of surveillance in the immediate aftermath of the shelling, it must have been able to see that the shells had hit on the street outside the school and not inside the school. Furthermore, if such surveillance was recorded, in the face of serious allegations levelled against the Israeli armed forces by several sources after the military operation in Gaza, the Government could have made this footage public in order to establish the truth of its claims regarding this incident.
676.Finally, the Mission comes to the repeated assertion of the Israeli authorities as to the identities of those killed in the strikes. The most detailed attempt to name these come in Col. Levi’s statement of the 12 dead, including nine militants and three non-combatants. On 19 February TheJerusalem Post published seven of the names given to them by CLA. The Mission notes that CLA did not provide any information to explain where the information on the dead came from. None of the seven names corresponds with any the Mission has so far established died in the attack.
677.The position assumed by Colonel Levi of CLA is problematic in the light of the relatively uncomplicated case of the al-Deeb family, of whom nine members died immediately and two died later. Four of these were women and four were children. Given these figures alone, and the relative ease with which the victims could be identified, the Mission considers the CLA assertions as to the total numbers and identities of those killed in the Israeli armed forces’ mortar strikes to be unreliable. Even if the Israeli authorities were to be correct in saying that nine combatants were killed, they are, in the considered view of the Mission, incorrect in stating that only three non-combatants were killed.
678.A further assertion made several times by Israeli spokespersons on 6 and 7 January and confirmed again on 12 January was that the strikes had not only managed to hit the militant rocket launchers but had also killed two senior Hamas militants, namely Imad Abu Askar and Hassan Abu Askar.392 Again, for the most part these early assertions indicated that both had been killed in the UNRWA school. It is noticeable that the Israeli armed forces’ summary of their own preliminary investigations does not repeat this claim.
392 In her interview with Channel 4 News, Major Leibovich in fact appears to say “Amr Abu Askar†after some
hesitation but in the light of the other statements the Mission considers this to have been an error on her part and that
in all likelihood she intended to say “Imadâ€.
679.What is now clear is that, if any Hamas operatives were killed by the Israeli strike, they were not killed in the school premises. It is difficult for the Mission to understand how the Israeli authorities could establish with such certainty within a matter of hours the identities of two of the Hamas operatives it had killed but could not establish within a week that the alleged firing had not come from the school and that the Israeli armed forces had not hit the school.
680.The Mission is satisfied that three Abu Askar family members were killed: Imad, aged 13, his brother Khaled, aged 19, and their uncle, Arafat, aged 33. Mr. Mark Regev indicated that Imad Abu Askar was a well-known member of Hamas’s militant operation and of some significance in the rocket-launching operations. Major Leibovich and Captain Rutland also named Imad as one of the two operatives killed.
681.The Mission does not deny the possibility of children being recruited by Palestinian armed groups. However, in the case of Imad Abu Askar, the Mission is satisfied that he was not a Hamas operative. Apart from his father’s vehement and, in the Mission’s view, credible rejection of any such claim, two other factors appear relevant. Firstly, since it has become clear that Imad was a 13-year-old boy it is noticeable that Israel has not commented further on the allegation of his alleged Hamas activity in general or the allegation in particular that on the day in question he had launched mortars at Israel.
682.Secondly, the Israeli armed forces directly called Mr. Abu Askar early in the morning of 6 January notifying him that his house would be attacked imminently. If Imad Abu Askar was as notorious and important as alleged, despite his young age, the Mission presumes that the Israeli authorities would have known where he lived and, in particular, that he lived in the very house they were about to destroy. It is extremely doubtful that the Israeli armed forces, having identified the house where alleged Hamas militants of some significance lived, would warn them so that they may escape and then bomb the house.
683.There is no indication that anyone of the name of Hassan Abu Askar was killed in the attacks as far as the Mission can determine. The Mission notes that the two Hamas operatives Israeli reports refer to were at least on one occasion referred to as brothers. Mr. Abu Askar confirms that there is no one of such a name in his family.
684.It would appear that shortly after the attack the Israeli armed forces received some information that two Abu Askar brothers had been killed. That much is indeed true. However, the use made of that information appears to the Mission to have been knowingly distorted. The brothers were Imad and Khaled, not Imad and Hassan as asserted. One was a 13-year-old boy, the other was a recently married 19-year-old. The certainty and specificity with which the Israeli authorities spoke at the time make it very difficult for them to suggest now that they had simply mixed up the names.
E. Factual findings
685.The facts gathered by the Mission indicate that on 6 January 2006 at around 1.45 a.m. the Israeli forces called Mr. Abu Askar’s house, alerted him to the imminent strike on his house and proceeded to destroy it with an aerial strike about seven minutes later. As a result of the warning, Mr. Abu Askar was able to save himself and his family. The Mission finds that the Israeli forces did not seek to kill Mr. Abu Askar or the members of his family with this strike.
686.The Mission also finds that at around 4 p.m. Israeli forces launched at least four mortar shells. One landed in the al-Deeb courtyard, killing nine people immediately and two later on.
687.Three other shells landed on al-Fakhura Street, which was busy at the time, killing at least a further 24 people and injuring as many as 40.
688.The Mission notes that the attack may have been in response to a mortar attack from an armed Palestinian group but considers the credibility of Israel’s position damaged by the series of inconsistencies and factual inaccuracies.
F. Legal findings
689.Elements of article 50 of Additional Protocol I reflect customary international law and provide the following:
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
690.Article 57 is relevant in relation to the following provisions:
1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
691.The Mission considers there are two key issues to be considered in the present case: the issue of proportionality in relation to the military advantage to be gained and the choice of weapons used.
1. The issue of military advantage
692. A detailed discussion of the difficulties of assessing military advantage is presented in the analysis of the Committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia in 1998.393 According to that Committee, the following are some of the relevant questions to be asked:
(a)What are the relative values to be assigned to the military advantage gained and the injury to non-combatants and or the damage to civilian objects?
(b)What do you include or exclude in totalling your sums?
(c)What is the standard of measurement in time or space? and
(d)To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian casualties or damage to civilian objects?
393 “Final report to the Prosecutor…â€, paras. 47–50.
(a)The military advantage to be gained was to stop the alleged firing of mortars that
posed a risk to the lives of Israeli armed forces;
(b)Even if there were people firing mortars near al-Fakhura Street, the calculation of
the military advantage had to be assessed bearing in mind the chances of success in killing the
targets as against the risk of firing into a street full of civilians and very near a shelter with 1,368
civilians and of which the Israeli authorities had been informed.
693.The Committee reflected further:
The answers to these questions are not simple. It may be necessary to resolve them on a case-by-case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the "reasonable military commander". Although there will be room for argument in close cases, there will be many cases where reasonable military commanders will agree that the injury to non-combatants or the damage to civilian objects was clearly disproportionate to the military advantage gained.
694.Accepting that these views are helpful to inform the present discussion, the Mission finds the following:
695.The Mission recognizes that for all armies proportionality decisions will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case.
696.The Mission does not say that the Israeli armed forces had to accept the risk to themselves at all cost, but in addressing that risk it appears to the Mission that they had ample opportunity to make a choice of weapons that would have significantly limited the risk to civilians in the area. According to the position the Government has itself taken, Israeli forces had a full 50 minutes to respond to this threat – or at least they took a full 50 minutes to respond to it. Given the mobilization speeds of helicopters and fighter jets in the context of the military operations in Gaza, the Mission finds it difficult to believe that mortars were the most accurate weapons available at the time. The time in question is almost 1 hour. The decision is difficult to justify.
697.The choice of weapon – mortars – appears to have been a reckless one. Mortars are area weapons. They kill or maim whoever is within the impact zone after detonation and they are incapable of distinguishing between combatants and civilians. A decision to deploy them in a location filled with civilians is a decision that a commander knows will result in the death and injuries of some of those civilians.
698.Even if the version of events presented now by Israel is to be believed, the Mission does not consider that the choice of deploying mortar weapons in a busy street with around 150 civilians in it (not to mention those within the school) can be justified. The Mission does not consider that in these circumstances it was a choice that any reasonable commander would have made.
699.From the facts available to it, the Mission believes that there has been a violation of:
•Additional Protocol I, articles 57 (2) (a) (ii) and (iii) as set out above;
•The inherent right to life of the Palestinian civilians killed in the above incidents by depriving them arbitrarily of their life in violation of article 6 of the International Covenant on Civil and Political Rights.
700.The Mission views as being unreliable the versions given by the Israeli authorities. The confusion as to what was hit, the erroneous allegations of who was specifically hit and where the armed groups were firing from, the indication that Israeli surveillance watched the scene but nonetheless could not detect where the strikes occurred, all combine to give the impression of either profound confusion or obfuscation.
701.Whatever the truth, the Mission is of the view that the deployment of at least four mortar shells to attempt to kill a small number of specified individuals in a setting where large numbers of civilians were going about their daily business and 1,368 people were sheltering nearby cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought.
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