17 January 2009
As a Palestinian organisation dedicated to the protection and promotion of human rights in the Occupied Palestinian Territory (OPT), Al-Haq is dismayed
by the failure of Israeli occupying forces to allow medical assistance to thousands of stranded Palestinians who have been critically wounded in its attacks during “Operation Cast Lead” in the besieged Gaza Strip. The following is but one of hundreds of other ominous stories which describe the fate of wounded Palestinians. It highlights the callous disregard of the Israeli occupying forces for the lives of Palestinians in the Gaza Strip and Israel’s apparent contempt for its obligations under international humanitarian law. Incidents in which medical aid is denied to persons protected under international humanitarian law, such as that which follows, present prima facie cases of war crimes for which individuals should be held criminally responsible.
Summary of Facts
On Friday, 16 January 2009, between 1:00 and 1:30 pm, Mohammed Shurrab, 64 years of age, and two of his sons, Kassab and Ibrahim, aged 28 and 18, respectively, were returning by jeep from their agricultural land in al-Fukhara, approximately 500 metres away from the Israeli fence on the eastern border of the Gaza Strip. At a distance of 50 metres from their home, their jeep came under machine gun fire from Israeli occupying forces in the area. Mohammad was shot in the left arm and Ibrahim was shot in the leg. The elder son, Kassab, sustained a fatal bullet wound to the chest, dying after getting out of the car, running ten metres and falling. Mohammad and Ibrahim, continuing to bleed from their wounds, remained in their jeep for two hours and then, fearing for their safety, decided to move to another location, returning to the jeep after half an hour.
Mohammad contacted the media, the International Committee of the Red Cross (ICRC) and a number of NGOs via mobile phone in order to acquire medical assistance. Other agencies such as Physicians for Human Rights-Israel were also aware of the dire circumstances of the three and attempted on several occasions to negotiate their transport to a hospital. Israeli occupying forces denied medical relief agencies clearance to reach them until sometime between 11:00 am and 12:00 pm on Saturday, 17 January 2009, almost 24 hours after Mohammad, Ibrahim and Kassab had been shot. Earlier that morning, Ibrahim had succumbed to his wound and died. Thus, Mohammad and the bodies of his two sons were transported by an ambulance to the Gaza European Hospital, located only 1.5 kilometres away from where they had come under attack.
The three were shot during a so-called “lull” in Israeli ground operations. A daily three-hour lull was agreed to by Israeli forces on Wednesday, 7 January 2009 and is meant to allow humanitarian relief to enter and be distributed in the Gaza Strip.
Under customary international humanitarian law, the wounded are protected persons and must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their conditions. Moreover, no distinction can be made among the wounded except on medical grounds. While the ICRC must seek permission from Israeli occupying forces in order to enter zones to care for and collect injured persons, such permission must not be denied arbitrarily. The problems reported by the ICRC in accessing Mohammad and Ibrahim along with other reports by the ICRC and other recognised medical relief agencies, in this and other cases, indicate a policy of arbitrarily denying medical care to protected persons.
The denial of medical treatment to protected persons is a war crime that may amount to the grave breach of the Fourth Geneva Convention of wilfully causing great suffering or serious injury to body or health. The disregard by Israeli occupying forces for the lives of Palestinians in instances where it denies medical access to them and death results may also amount to the grave breach of wilful killing. Grave breaches, as listed under Article 147 of the Fourth Geneva Convention, are the most serious infringements of the laws and customs of war.
The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has confirmed that both the crime of wilfully causing great suffering or serious injury to body or health and the crime of wilful killing can be crimes of omission. In the case above, deaths were the foreseeable outcome of an omission – the non-provision of safe passage to medical personnel.
In interpreting the intent required to meet the threshold of “wilful,” the Trial Chamber in the ICTY’s Delalic case, held that “the necessary intent (…) is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life.” The intention to kill or cause great suffering or serious injury can, in the present case, be inferred from the fact that multiple agencies had informed Israeli occupying forces of the gravity of the injuries of the three and yet safe passage of medical transports was not granted.
Although not the case in this specific example, in addition to denial of access to the wounded, medical relief agencies are also widely reporting being fired upon by Israeli occupying forces, often in circumstances where time is of the essence due to the critical condition of the wounded. Under customary international humanitarian law, attacks on medical personnel, medical units and medical transports exclusively assigned to carry out medical functions are also prohibited.
In light of the clear emergence of a policy of impeding medical care to protected persons in the Gaza Strip, Al-Haq urges the following:
The European Union (EU), as a major donor of humanitarian assistance to the Palestinian people, in addition to the individual member States of the EU, to pressure Israel for safe and unimpeded humanitarian access to all injured persons in the Gaza Strip; and
The High Contracting Parties to the Fourth Geneva Convention to take measures to ensure respect for the Fourth Geneva Convention under Article 1, and to hold perpetrators of grave breaches responsible under Article 146.
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