B'Tselem calls for criminal investigation into Gaza bombing

Report, B'Tselem, 24 May 2007
22 May 2007 -- In an attack in the Sheja'iyeh neighborhood in Gaza on 20 May, the Israeli air force killed eight persons. Seven of them were members of the al-Haya family, relatives of Khalil al-Haya, a Hamas member of the Palestinian Legislative Council. The dead included three minors, aged sixteen and seventeen, and two men, aged fifty-six and sixty-four. Another four people were injured in the attack, two of them severely. The other two suffered light wounds and were discharged from the hospital.

The Israeli military subsequently announced that the attack was directed at members of the military wing of Hamas who were in the yard of the house. The military contended that five of the persons killed were armed members of Hamas, and only three were civilians. A later statement, however, named the target of the attack as Samah Farwaneh, allegedly a senior member of Hamas and responsible for the firing of Qassam rockets and the gunfire attack on an employee of the Electric Company on 19 March. Farwaneh was killed in the attack. No details were provided regarding the other victims' involvement in the hostilities.

The testimonies given to B'Tselem do not support the contention that most of the dead were armed Hamas members. Two persons injured in the attack stated that none of the dead were armed, and only two of them, Farwaneh and 'Ala al-Haya, 21, were Hamas activists. The victims were sitting in the tin-covered divan [a structure in which guests are hosted] of the al-Haya family. Farwaneh, who was active in the military wing of Hamas, passed by and was invited by the family to drink coffee. Later, when the family heard the sound of an air force drone, they decided to leave the structure and were then shot by the missiles.

Taking into account the nature of the location, the planners of the attack should have expected there was a risk that many bystanders would be injured, and should have taken cautionary means to prevent such a result.

The principle of proportionality, which is one of the pillars of international humanitarian law, states that it is forbidden to carry out an attack, even if it is aimed at a legitimate military target, knowing that the attack will result in injury to civilians in excess of the military advantage anticipated from the attack.

According to the army's version as well, Samah Farwaneh was not firing rockets at the time he was killed. Therefore, even if he could be considered a legitimate military target, it is not at all clear that the circumstances in which he was killed accord with the principle of proportionality.

Breach of the principle of proportionality is deemed a war crime, for which the persons responsible bear personal responsibility. The circumstances of the incident and its results raise serious concern that the bombing was disproportionate, and might constitute a war crime.

B'Tselem has requested the judge advocate general to immediately order a Military Police investigation into the matter.