On 12 January 2009, Adalah, the Al Mezan Center for Human Rights in Gaza, and Al Haq (West Bank) sent an urgent letter to Israeli Attorney General Menachem Mazuz and the Military Advocate General Brig. Gen. Avihai Mandelblit demanding an independent and impartial criminal investigation into the events leading to the killing of dozens of Palestinian civilians from the shelling of two UN-run schools in Gaza. The letter demands that those found responsible be criminally charged and indicted.
On the night of Monday, 5 January 2009, three people were killed following a direct Israeli missile strike on the Asmaa Elementary School in Gaza City. Some 400 people, mostly children, had taken refuge in the school after fleeing their homes in the northern Gaza town of Beit Lahiya. The school had been marked as a UN facility by local UNRWA personnel (The United Nations Relief and Works Agency for Palestine Refugees in the Near East). In a separate incident on Tuesday, 6 January 2009, Israeli artillery missiles landed near the UNRWA Al-Fahura School for Girls. One of the missiles landed in the school yard, killing 40 people and injuring at least 100 others. The Al-Fahura school has also been used as a refuge for many families fleeing their homes as a result of the Israeli military attack on Gaza.
A spokesperson for the Israeli army stated on 6 January 2009, the day on which the Al-Fahura school was attacked, that “apparently artillery missiles were shot from inside the school towards IDF units. The IDF shot retaliatory artillery missiles in the vicinity of the school.” However, a military investigatory report revealed these missiles were not in fact launched from inside the school but from a nearby home.
In the letter, Adalah Attorney Fatmeh El-‘Ajou stated that both events, in which mostly children were killed, constitute grave breaches of international humanitarian law and amount to war crimes. Attorney El-‘Ajou further argued that the Israeli military breached two central principles of IHL in carrying out these attacks: the distinction between combatants and civilians and the principle of proportionality. The letter further argued that Israel’s massive ongoing shelling of Gaza also violates the principle of proportionality.
The letter references a ruling of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which states that from attacks which fail to discriminate between civilian and military targets, the direct targeting of civilians may be inferred. Therefore the principle of distinguishing between military and civilian population necessitates the halting of a military attack when it cannot be guaranteed that the target is indeed a military one and the damage resulting from the attack to civilians and property will be proportionate.
The fact that the targets were schools, civilian targets, and that hundreds of civilians were seeking refuge in them, in addition to the fact that they are situated in heavily populated areas necessitate the highest precautions. An investigation must therefore be opened into the circumstances that led to the killing of civilians in both of these cases. Such investigations are necessary under international humanitarian law, international human rights law, and Israeli domestic law.
An Israeli military investigation into the events is insufficient as this would not fulfill Israel’s obligations under international law to conduct an independent and impartial investigation, the human rights organizations further argued. “An internal [military] investigation is not the correct mechanism through which to uncover those who bear personal responsibility for these crimes, nor to guarantee their indictment,” the three organizations stressed.
The Letter (Hebrew)