On the afternoon of 16 April 2008, Mr. Shana’a and his colleague Wafa Abu Meyzed, got out of their Reuters utility jeep, clearly marked as a “TV” vehicle, in the Juhor al-Dik area of the central Gaza Strip, in order to continue filming outside the village where earlier that day nine Palestinian civilians, including six children, had been killed by an Israeli air strike. There was no Palestinian armed resistance or clashes taking place in the area. Both men wore clearly distinguishable “Press” vests. An Israeli army tank crew, approximately one and a half kilometres away, under no threat to themselves and in the context of a calm situation devoid of any hostilities, aimed and fired a tank shell at Mr. Shana’a, killing him instantly. Two children, Ahmad Farajallah and Ghassan Abu ‘Ataiwi, who were among a group of children that had gathered to watch the journalist filming, were also killed. A second shell was fired moments later, killing another civilian, Khalil Ismail Dughmosh, and destroying the Reuters vehicle. Numerous civilians, including children, were also severely injured in the attack, two of whom, Ahmad al-Najar, 15, and Bilal al-Dheini, 16, died in hospital as a result of their wounds three days later.
On the basis of a so-called investigation into the incident carried out by the Israeli military itself, Military Judge Advocate General Avichai Mendelblith recently wrote to Reuters claiming that the tank crew responsible could not see whether Fadel Shana’a was operating a camera or aiming a weapon, and that therefore “the decision to fire at the target … was sound.” The chronic lack of any semblance of impartial and independent investigations into killings of Palestinian civilians by Israeli occupying forces has been repeatedly admonished by Palestinian, Israeli and international human rights organisations, including in relation to this case.
The decision of the Military Judge Advocate General is irreconcilable with the consistent findings of investigations into the incident conducted by Al-Haq and other organisations. Given the sophisticated optical technology at the disposal of the tank crew, and the likelihood of aerial cover supporting them, it is somewhat implausible that the Israeli forces were unable to distinguish the “Press/TV” markings on the journalists’ vests and vehicle. It must be emphasised that the incident took place in an open, flat area on a clear day, with nothing obscuring the view of the tank. By firing in such circumstances at a group of journalists and children, the Israeli occupying forces defied the humanitarian law principles of distinction, proportionality and military necessity, resulting in the wilful killing of six civilians. The failure of the Israeli military investigation to acknowledge this is testament to the fact that such investigations are a mere façade, conducted solely in order to present the appearance of accountability for the actions of Israeli soldiers. The reality is the contrary.
An additional and crucial point which has not been noted in the condemnation of the Military Judge Advocate General’s decision is that even if the alleged findings of his office’s investigation are accepted at face value, i.e. that the tank crew could not be sure that Mr. Shana’a was not aiming a weapon at them, a fundamental principle of customary international humanitarian law, that of precautions in attack, has been flagrantly violated, and yet the decision to carry out the attack has been upheld as “sound.”
The principle of precautions in attack, first set out in the 1907 Hague Convention (IX), codified in detail in Article 57 of the First Protocol Additional to the Geneva Conventions, and firmly established in the lexicon of customary international humanitarian law, holds that those who plan or decide upon an attack shall, inter alia:
Ø do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects but are military objectives;
Ø 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; and
Ø take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects.
According to the letter of Advocate General Mendelblith, “[t]he tank crew was unable to determine the nature of the object mounted on the tripod, and positively identify it as an anti-tank missile, a mortar or a television camera” [emphasis added]. Despite this, the Advocate General concluded that, given the chance that it may have been a weapon, the soldiers were justified in attacking. This clearly falls short of “doing everything feasible to verify” that the target was a military objective before attacking. On the basis of such lack of verification, the tank shell should never have been fired at Mr. Shana’a. The cameraman having been wilfully killed, there was even less possible justification for the firing of the second shell.
Furthermore, the means of attack employed grossly violate the obligation to take all feasible precautions to avoid or minimise incidental loss of civilian life. Mr. Shana’a’s autopsy showed that he was killed by flechette darts, confirming that the missile fired by the tank was a flechette shell, which when it explodes releases thousands of small metal darts to disperse over an area a few hundred metres long and up to one hundred metres wide. The use of such a weapon in the vicinity of a populated area where civilians, including children, had gathered is also clearly inimical to the principle of precautions in attack.
Wilful killing of civilians is a war crime amounting to a grave breach of the Geneva Conventions, which all High Contracting Parties are obliged to investigate, and prosecute by exercising universal jurisdiction. In light of the lack of genuine investigations by Israel itself, the importance of this obligation is highlighted in relation to grave breaches perpetrated by the Israeli military. Those responsible must be held accountable. In cases such as this, responsibility under international criminal law means not just the soldiers who fired the shells, but their superior officers who ordered or authorised their subordinates to perpetrate the attack; or, if not, knew or should have known that they would do so.
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