Reporting Period:

(12:00 pm Tuesday, 9 May 2023 – 12:00 pm Thursday, 11 May 2023)

The ongoing Israeli military offensive on the Gaza Strip, so-called “Operation Arrow and Shield”, which started on 9 May 2023, has resulted in the killing of 25 Palestinians, including six children and four women, and the injury of 76 Palestinians, including 24 children and 13 women, according to the Palestinian Ministry of Health, as of 12:00 pm, 11 May 2023. The Government Media Office in Gaza has reported the total destruction of five buildings, including 19 residential units, and the partial destruction of 314 residential units, 28 of which are uninhabitable and 286 of which are partially damaged.

The Gazan agricultural and fishing sectors have ground to a halt since Israel’s latest offensive started on the Gaza Strip. Fishermen have been unable to enter the sea due to the aggression, while significant damage has been caused to agricultural lands that were bombed. Further, Israel’s continued closure of the “Kerem Abu Salem” commercial crossing, which is located in the far southeast of the Gaza Strip, is preventing the movement of goods and the entry of medical supplies and fuel necessary to ensure the continued operation of the power plant. Al-Haq warns that this may have serious repercussions on the health system and the lives of thousands of patients.

For the third day in a row, the Israeli occupying forces (IOF) have continued to close the Gaza Strip crossings. According to the Ministry of Health, the continued closure of the Beit Hanoun-“Erez” crossing, located in the northern Gaza Strip, has prevented 432 patients, most of whom are oncology patients, in addition to 27 critical cases, who do not receive treatment in the hospitals in Gaza, from travelling for their treatments to hospitals in the West Bank, including Jerusalem, and Israel. For the past 18 months, Israel has denied the entry of diagnostic medical devices, and obstructed the entry of medicines into the Gaza Strip. The continued denial of the entry of foodstuffs, medicines, and medical equipment into the hospitals of the Gaza Strip, resulting in the unparalleled suffering of two million Palestinians held under a 16-year military closure, amounts to acts of collective punishment and inhumane acts of apartheid, in contravention of international law.

1. North Gaza Governorate

At approximately 9:40 pm on Wednesday, 10 May 2023, an Israeli warplane targeted the house of Mohammad Sa’adi Salem Al-Masri, 67, located in Al-Shaimaa Street in the town of Beit Lahiya in the northern Gaza Strip, with two missiles. The targeted house is part of a two-storey residential building, which is 436 square metres  and contains four housing units, inhabited by four families, numbering 16 individuals, including four women and eight children. The targeted house was completely destroyed, and a number of neighbouring homes and the headquarters of the Beit Lahiya Development Association were partially damaged. No injuries were reported.

The owner of the house explained to Al-Haq that two of his neighbours had received calls from the Israeli intelligence at around 9:00 pm on the same day, from an unknown number. The caller informed them to evacuate the house of Mohammad Sa’adi Al-Masri and the neighbouring houses in preparation for its bombing. At approximately 9:30 in the evening, a reconnaissance plane targeted the house with a reconnaissance missile, known as a “warning missile”. Then, a warplane targeted the house with one missile, levelling the house to the ground.

2. Khan Yunis Governorate 

At approximately 5:15 pm on Tuesday, 9 May 2023, an Israeli drone targeted a civilian car, east of Al-Qarara town, hundreds of metres away from the perimeter fence, northeast of the city of Khan Yunis, in the southern Gaza Strip. According to initial information collected by Al-Haq’s field researcher, the targeting resulted in the complete destruction and burning of the car, killing two who were inside the car, Wa’el Mohammad Sabri Al-Agha, 34, and Sa’ed Jawad Abd Farawneh, 28, and wounding two others at the scene. They were all transferred to Nasser Governmental Hospital in Khan Yunis, where the Ministry of Health in Gaza announced the deaths. The bodies of the deceased were charred and remained unidentified for about three hours, before confirmation by their families. Following the attack,  the Israeli occupying authorities claimed that they had targeted a Palestinian cell of anti-tank launchers belonging to Al-Quds Brigades. Nonetheless, it remains unclear if the two targeted and killed Palestinians were directly participating in hostilities at the time of the attack 

At approximately 11:30 am on Wednesday, 10 May 2023, an Israeli drone targeted Palestinians while they were in  agricultural fields in the town of Abasan Al-Kabira, east of Khan Yunis, in the southern Gaza Strip. The injured were transferred to the European Gaza Hospital in Khan Yunis, where their injuries were described as critical, and doctors’ attempts failed to resuscitate them. At approximately 1:00 pm, the Ministry of Health in Gaza announced the death of Mohammad Yousef Saleh Abu Ta’ima, 23 (one day before his 24th birthday). Later the same day, at approximately 4:00 pm, the death of Alaa Maher Yassin Abu Ta’ima, 28, was announced. Both had been residents of the town of Abasan Al-Kabira, east of Khan Yunis. While Abu Ali Mustafa Brigades, the military wing of the Popular Front for the Liberation of Palestine, announced that Mohammad and Alaa were among its members, it remains unclear if they were directly participating in hostilities at the time of the attack.

At approximately 1:19 a.m., on Thursday, 11 May 2023, Israeli warplanes launched three missiles, suddenly and without prior warning, resulting in the killing of  of leader of the Al-Quds Brigades, Ali Hassan Mouhammad Ghali, 50, a leader of the Al-Quds Brigades, the military wing of the Islamic Jihad movement. The missiles targeted Apartment No. H1, on the fifth floor of a five-storey residential building containing 20 apartments, located in Hamad Residential City in Khan Yunis, in an area densely populated with civilians. The apartment was completely destroyed, and extensive damage was caused to the neighbouring apartments and buildings. Three dead bodies were recovered from the scene, Ali Hassan Mouhammad Ghali, 50, his brother Mahmoud Hassan Mouhammad Ghali, 34, and nephew Mahmoud Walid Mouhammad Abdel-Gawad, 26. Another seven Palestinians who sustained minor and moderate injuries were injured due to the attack, including a child and three women, one of whom is pregnant, and were transported from the nearby apartments and buildings. The injured include:

o   Maysa Muhammad Fawzi Abu Musa, 32, in moderate condition, and pregnant;

o   Rania Yahya Muhammad Hamid, 32, in moderate condition;

o   Nima Nahed Ibrahim Ayyash, 25, in minor injuries;

o   Maya Wissam Mahmoud Al-Hindi, 10, in minor injuries;

o   Wissam Mahmoud Ahmed Al-Hindi, 42, in minor injuries;

o   Abdul Karim Jamal Fayeq Al-Nakhala, 18, in minor injuries;

o   Abdullah Jamal Fayeq Al-Nakhala, 26, in moderate condition.

From the remains of rocket fragments found at the scene, it is likely that the military planes bombed the apartment with three GBU-39 rocket bombs.

3. Rafah Governorate

At approximately 3:00 pm, on Wednesday, 10 May 2023, an Israeli drone targeted two Palestinians while they were in an open agricultural land in the town of Al-Shouka, east of Rafah, in the southern Gaza Strip. The two killed, Ayman Karam Hussein Saidam, 26, and Alamuddin Samir Tawfiq Abdel Aziz, 23, both of whom are from Rafah, were transferred to Martyr Abu Yousef Al-Najjar Hospital in Rafah. While Abu Ali Mustafa Brigades announced that Ayman and Alamuddin were among its members, it remains unclear if they were directly participating in hostilities at the time of the attack.

At approximately 8:50 pm, on Wednesday, 10 May 2023, Israeli reconnaissance planes fired a missile at a three-storey residential belonging to Ziad Mousa Ahmed Al-Agha, 54, built on an area of 160 square metres on three dunums of land. The house is inhabited by four families consisting of 19 members, including four women and ten children. The building is located east of Al-Qarara town, northeast of Khan Yunis, about a kilometre away from the perimeter fence. About ten minutes later, Israeli F16 warplanes bombed the house with two missiles, which led to its complete destruction, without causing any casualties. The IOF called one of the neighbours and asked him to confirm the evacuation of the house and the neighbouring houses. The family had evacuated the house since the start of the escalation in the Gaza Strip, at dawn on Tuesday, 9 May 2023, due to its proximity to the border area. Notably, the house had previously been bombed during the Israeli aggression on the Gaza Strip in 2014, which had resulted in severe damage to the house.

At approximately 1:50 am on Thursday, 11 May 2023, Israeli warplanes bombed an old, uninhabited (abandoned) house in Bani Suhaila, east of Khan Yunis, which led to its complete destruction, without causing any casualties.

Legal Analysis

1. Direct Participation in Hostilities

Israel premises its undifferentiated targeting of members of the Palestinian resistance, even when not engaged in military actions, on the doctrine of continuous combat function (CCF), a notion derived from the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities. The notion, which is not legally binding, expands the concept of who is a combatant, outside of the parties to the conflict, and those directly participating in hostilities, to include those individuals who are members of an armed group and “recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf”. These individuals are considered “to assume a continuous combat function even before he or she first carries out a hostile act”. The Israeli High Court of Justice, similarly provides that members of armed groups who carry out “a chain of hostilities, with short periods of rest between them”, will lose their immunity from attack when carrying out hostile acts, and during the breaks in between.^[1] The application of CCF further raises preliminary issues around the classification of the conflict, given that CCF only applies in non-international armed conflicts (NIAC). Notably, the Palestinian territory held under belligerent occupation is one of an international armed conflict. 

The report of the Independent International Commission of Inquiry on the protests in the Occupied Palestinian Territory in 2018, warned against the application of CCF, stating that: “CCF does not appear in IHL treaties and the concept remains unsettled when assessed as custom. In such circumstances, the Commission has taken the view that it must choose, particularly with humanitarian law, the interpretation accepted by a significant majority of the international community. Legal approaches accepted by only a small group of countries are not necessarily wrong, but are best not applied by a Commission until there is further acceptance by the international community”.^[3] Given the absence of any treaty or customary law basis for CCF, the only legitimate targeting is of those who are at the time, directly participating in hostilities. Civilians would only lose protection from attack, “for the duration of each specific act amounting to direct participation in hostilities. This includes any preparations and geographical deployments or withdrawals constituting an integral part of a specific hostile act”. From the preliminary field reports, there is no evidence that those targeted were carrying out acts amounting to direct participation in hostilities, at the time of the attacks.

2. Knock on the Roof, Precautions

In the conduct of military operations, Article 57 of Additional Protocol I, requires that parties, “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. Further, the aforementioned Article specifically warns that “[n]o provision in this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.” Employing the use of a bomb to “knock” on the roof, or a reconnaissance missile as a form of communication, like a knock on a door, may amount to “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population” and accordingly “are prohibited” under Article 51 of Additional Protocol I.

Critically, reconnaissance missiles that are employed to deliver “knock on the roof” warnings are far from benign, and in many cases are capable of penetrating several floors in high rise buildings. There are numerous documented cases of persons being killed in missile attacks from “knock on the roof” warnings. It is worth mentioning that due to this type of bombardment the residents of the house, and neighbouring houses, evacuate them to be bombed and completely destroyed by fighter jets. In some cases, this happens after hours and mostly the residents of the house, and even the residents of neighbouring houses are not be able to go back to the houses out of fear of another bombardment, until there is a cease-fire. In this case the residential building containing four residential units was completely destroyed. Crucially the principle of distinction in armed conflict is sacrosanct and Israel must distinguish between civilian objects which do not constitute legitimate military objectives in targeting.

3. Superfluous Injury and Unnecessary Suffering

From preliminary field reports, the drone attack on a car, which caused the total destruction of the car, and the burning of the two occupants beyond recognition, may be indicative of a deployment of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering, acts which are specifically prohibited under Article 35 of Additional Protocol 1.

Further, collateral civilian damage arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations. Notably, the attacks were directed at densely populated compactly built residential areas, resulting in the total damage of 19 residential units, and the partial destruction of 314 residential units, and may be indicative of a response disproportionately destroying civilian objects. More specifically, the bombing and complete destruction of the residential building of Ziad Mousa Ahmed Al-Agha, 54, home to four families, amounted to a direct attack on a civilian object and may amount to a breach of the principle of distinction.

4. Collective Punishment of Palestinian Population

Article 43 of the Hague Regulations, reflective of customary international law, requires that the Occupying Power restore and ensure, as far as possible, public order and civil life in the occupied territory. This places an onus on the occupant exercising de facto control, to ensure the welfare of the occupied population, including by ensuring that Palestinians enjoy a fuel supply and electricity services. As Occupying Power, Israel also has specific obligations “to the fullest extent of the means available to it and without any adverse distinction”, to ensure “supplies essential to the survival of the civilian population of the occupied territory”.^[4] This includes the ensuring the entry of critical medical supplies into the Gaza Strip.

Article 55 of the Fourth Geneva Conventions obliges the Occupying Power, “to the fullest extent of the means available to it” the duty of ensuring “the food and medical supplies of the population”. In the case where such resources are inadequate, as has been clearly demonstrated from the impact of the 16-year closure of Gaza, “it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate”. There are further specific obligations to ensure the passage of humanitarian supplies in areas under siege. Article 17 of the Fourth Geneva Convention for example specifically requires that parties to the conflict conclude agreements to facilitate the passage of medical personnel and medical equipment on their way to such areas under siege.

The denial of movement to civilians in receipt of life-saving and life-prolonging medical treatments outside the Gaza Strip, breaches the inviolability of rights of the protected occupied population, enshrined in Article 27 of the Fourth Geneva Convention. All forms of collective punishment are absolutely prohibited by Article 50 of the 1907 Hague Regulations, Article 33(1) of the Fourth Geneva Convention, and constitute a breach of customary international humanitarian law. The Fourth Geneva Convention prohibits “penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed.” This includes, “economic closures on civilian populations, cutting off of power and water supplies, [and] withholding of medical supplies”.^[5]

Conclusion

Due to the failure of the international community to curb Israel’s continued aggressions on the Gaza Strip, due to the continued abuse of the US veto at the UN Security Council, it is incumbent on Third States to take measures to ensure respect for the Geneva Conventions and to cut off the economic incentives that drive the prolonged illegal occupation. Al-Haq calls on Third States to adopt legislation to ban the import of settlement goods and services into their jurisdictions, for financial institutions to divest from settlement enterprises including Israeli banks, and for municipalities and regional councils to end all procurements from illegal settlement enterprises. The international community must address the root causes underpinning Israel’s successive military offensives on the Gaza Strip, as acts of violence employed to maintain and entrench the settler colonial apartheid regime. Al-Haq calls on Third States to recognise Israel’s policies and practices of segregating Gaza as an isolated Bantustan disconnected from the world, as the inhumane acts of a segregationist discriminatory apartheid regime. Moreover, Al-Haq calls on Third States to implement meaningful and effective measures to counter Israel’s impunity, including economic sanctions, arms embargoes, severing diplomatic ties. 

Al-Haq further calls on the International Criminal Court to increase the budget allocation to the Situation in the State of Palestine, and for the Prosecutor to coordinate entry into the Gaza Strip to investigate the violations of international humanitarian law which may amount to grave breaches of the Geneva Conventions, war crimes and crimes against humanity within the jurisdiction of the court, including the crimes against humanity of apartheid and persecution.

^[1] Israeli High Court of Justice, The Public Committee against Torture v. The Government of Israel, HCJ 769/ 02, Judgment, 13 December 2006, para. 39.

^[2] ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities, p. 24, footnote 6.

^[3] Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory, para 105.

^[4] Article 69(1), Additional Protocol 1 (1977).

^[5] Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, para. 26.