Al-Haq condemns the recent escalation by the Israeli Occupying Forces (IOF) in the Gaza Strip, and its indiscriminate attacks on the civilian population. On Tuesday, 12 November 2019, the IOF assassinated Baha Abu Al-Atta, a member of the Islamic Jihad in Gaza City by destroying his home with a missile. The attack, which killed Al-‘Ata, also resulted in the killing of his wife, Asmaa Al-Atta, and wounded a further seven civilians, including four children and two women.[1]

Further attacks involved missiles being fired, seemingly indiscriminately, at a motorcycle in Beit Lahiya, North Gaza, wherein two men were critically wounded. The IOF also announced that all movement in and out of Gaza would be suspended, and that the fishing zone available to  fishermen would be reduced, thereby accentuating the existing policies of domination and fragmentation which Al-Haq and its partners recently recognized as constituting the maintenance of a regime of apartheid.[2]

Israel has a long history of engaging in extraterritorial assassinations; an article in American magazine Foreign Policyidentifies Israel as having carried out the highest number of assassinations worldwide, estimated at some 2,300 at the time of the article’s publication.[3] Senior Israeli officials have not shied away from calling for a continuation of this supposedly abandoned tactic: in March of 2016, then-Intelligence Minister Yisrael Katz hinted towards the “targeted assassination” of leaders of the Boycott, Divest, Sanctions movement[4], whereas in reference to the killings of Al-Atta, Israeli Prime Minister Benjamin Netanyahu and IOF  Chief of General Staff, Aviv Khoavi, evoked the sophistic language of the “ticking time bomb”, the hypothetical scenario often deployed to justify the use of torture against Palestinians as being authorized by military necessity.[5]

The recent attacks on the Gaza Strip have been described, both in the media and by Israeli officials, as pinpoint, or “targeted killings”[6], a concept brought into common usage by Israel, which has no definition under international law.[7]As identified by the former UN Special Rapporteur on extrajudicial, summary or arbitrary executions, “targeted killings” are intention and pre-meditated attacks, directed towards a pre-identified target, with the express intention to kill, which may be conducted using a wide array of means and methods of warfare.[8] As such, “targeted killings” bare a strong resemblance to the related practices of extrajudicial executions, summary executions, and assassinations, all of which are plainly illegal under international law.[9]

The terminology of “targeted killings” implies a level of precision and precaution which is plainly absent in Israel’s recent attacks: as noted above, a total of ten innocent civilians were killed or injured in the attack targeting Al-Atta. At the time of writing, 34 Gazans have been reported killed by Israeli attacks since Tuesday, including eight children and two women.[10] A further 85 Palestinians were reported injured by Gaza’s health ministry, including 30 children.[11] These attacks were described as having “struck a number of Islamic Jihad terror targets” by the IOF,[12] indicating a concerted attempt to use the language of “targeted killings” to mask the indiscriminate and reprehensible use of force against a civilian population, and to dehumanize those injured and killed by labelling them as “terrorists”.[13]

The Israeli use of “targeted killings” was considered by the Israeli High Court of Justice in a landmark 2006 decision, wherein it stressed that:

“Harming such civilians [who take a direct part in hostilities], even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportionate” (emphasis added).[14]

While not supported by the majority, Vice President E Rivlin, in his separate judgement, adopted the dangerous language put forward by the State of Israel, arguing for exceptional measures against what he dubbed “uncivilised civilians”, a markedly-s veiled synonym for the Bush archetype of the “unlawful combatant”[15]; neither of these categories are supported by existing international humanitarian or human rights law. Subsequent Israeli practice, doubtlessly including the recent attacks on Gaza, have been recognised as having violated this, and other, requirements set out by the Court.[16]

The attacks on the Gaza Strip in the past few days may amount to war crimes, and therefore come under the jurisdiction of the International Criminal Court. The Office of the Prosecutor of the Court must therefore include these attacks in her future investigation into the situation in Palestine, which has become of the utmost urgency. Further, Israel must ensure transparency and accountability for the deaths and injuries of Palestinian civilians, in particular those of children. As noted by Special Rapporteur Alston:

“In order to ensure that accountability is meaningful, States must specifically disclose the measures in place to investigate alleged unlawful targeted killings and either to identify and prosecute perpetrators, or to extradite them to another State that has made out a prima facie case for the unlawfulness of a targeted killing.”[17]

In cases where a “targeted attack” is to take place in a populated urban area, the Rapporteur further concluded that it was incumbent on the attacking power to provide advance warning to the surrounding civilian population. It is also worth noting the Rapporteur’s observation that “[a]lthough the use of civilians as ‘shields’ is prohibited, one side’s unlawful use of civilian shields does not affect the other side’s obligation to ensure that attacks do not kill civilians in excess of the military advantage of killing the targeted fighter”[18], due to Israel’s traditional use of this line of argument in defense of its attacks.

Al-Haq also notes the previously recognized engagement of third state responsibility in the occupied Palestinian territory : the UN Office of the High Commissioner for Human Rights, in the context of the ongoing Great Return March and closure of Gaza, has noted that “[i]f Israel will not take credible and effective steps to investigate, and indeed, where it has congratulated its military forces for their use of force, then the international community must fill the investigatory void to ensure respect for international law.”[19] More recently, the UN Commission of Inquiry has noted that third states, particularly those party to the Geneva Conventions, have both treaty obligations  “take action to safeguard compliance with the Conventions”.[20] Similarly, the events which have taken place in the Gaza Strip over the past two days trigger similar obligations, thus Al-Haq urges the international community to take immediate and positive action to ensure that further attacks on the civilian population in  the  Gaza Strip are not carried out. As part of this, we call upon the Prosecutor of the International Criminal Court to quickly conclude her preliminary examination, and move promptly to investigate these incidents, as well as the wider situation in the Occupied Palestinian Territories.