Al Mezan Petitions UN Special Rapporteur on Extrajudicial Killings in Rafah; Airstrike Amounts to Indiscriminate and Extra-Legal Killing

Report
from Al Mezan Center for Human Rights
Published on 23 Aug 2011

Reference: 38/2011

Date: 23 August 2011

The Al Mezan Center for Human Rights today submitted a letter of allegation to the UN’s Special Rapporteur on extrajudicial, summary, or arbitrary executions concerning the killing of five men and one child during recent Israeli airstrikes on the Gaza Strip.

The incident in question occurred on Thursday 18 August 2011, when Israeli Occupation Forces (IOF) struck a house in the Rafah refugee camp where the victims had gathered for an iftar meal, the traditional evening fast-breaking during the Islamic holy month of Ramadan. Among the six killed were Kamal ‘Awad An-Neirab, the secretary-general of the Popular Resistance Committees (PRC, a politico-military faction in Gaza); ‘Imad Hammad, whom the PRC named after the killings as the head of its military wing; and Malek Khalid Sha’ath, the two-year-old son of one of the gathered men. The airstrike was carried out in a residential block of the Rafah refugee camp, near a mosque and other civilian structures. The Israeli attack came in the wake of attacks in southern Israel which killed eight; Israel publicly claimed responsibility for the killings in Rafah, describing them as retaliation for the attack in its south. However, no information as to the origin, affiliation, or even identity of the attackers in Israel was known at the time. The only fact established about the attackers was that they had infiltrated Israel from the Sinai Peninsula, far to the south of Gaza. To date Israel has presented no evidence that the attackers were linked to the PRC, which denies responsibility, or had any connection to Gaza whatsoever. Indeed, at present there is no independently confirmed information at all about the attackers’ identity or even nationality.

Regardless of the character of the attacks in Israel, the airstrike in Rafah amounts to a grave breach of international law, on several grounds. The attack was in the first instance indiscriminate, as it made no distinction between political and military members of the PRC, and was carried out with no regard at all for the life of the two-year-old boy present in the house or the lives and safety of other civilians who could have been in the house and the surrounding neighborhood. Furthermore, the attack was indisputably an extrajudicial execution. There was no pretense of judicial process surrounding the killing, which did not take place in a situation of armed combat characterized by imminent military necessity, the only legal circumstance under which the state may take the life of a human being without respecting the right to due process. Hence even assuming that Hammad and/or others among those killed could be considered military figures subject to attack during wartime, the wholly indiscriminate nature of the attack and the absence of any situation of armed conflict render it unlawful. Given the absence of evident military necessity, the only legitimate response to military acts attributed to foreign military activists is investigation and prosecution under established international legal processes. Indiscriminate attacks on population centers which do not differentiate military figures from political leaders and wholly innocent civilians are flatly forbidden by international law.

The legal right to life and protection against extrajudicial assassination is codified in the International Covenant on Civil and Political Rights (the ICCPR, to which Israel is a ratified signatory), expanding on the basic principle enunciated in the Universal Declaration on Human Rights, Article 3 (“Everyone has the right to life . . . and the security of person”). Article 6 of the ICCPR states that “No one shall be arbitrarily deprived of his life” (paragraph 1) and stipulates that “sentence of death . . . can only be carried out pursuant to a final judgment rendered by a competent court,” while “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence” (paragraphs 2 and 4). This right is nonderogable even in times of emergency and/or war (ICCPR paragraph 4). In addition to human rights standards, international humanitarian law (IHL), which governs situations of war and occupation, forbids military operations which fail to distinguish between military and civilian targets.

The airstrike therefore violates Israel’s international legal obligations under both human rights law and IHL, to which it is bound as an occupying power. The attack in Rafah is a prima facie case of extrajudicial killing and therefore falls under the mandate of the Special Rapporteur. Al Mezan requests that the rapporteur’s office undertake an investigation into the Rafah incident and intercede with appropriate states and international bodies to ensure that justice is pursued in this case and that such attacks are not allowed to reoccur. Al Mezan emphasizes that this attack comes in the context of Israel’s systematic practice of extrajudicial killing of Palestinian military and political activists. According to documentation gathered by Al Mezan, the Israeli military has killed 592 Palestinians in extrajudicial assassinations in the Gaza Strip from September 2000 to date. Of those, 407 were directly targeted and 185 were passersby, including 109 children. These acts must be investigated and those responsible for violating international law must be held responsible for their conduct.

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