B'Tselem: Was Beit Hanoun a War Crime?

November 10, 2006

In News

Israeli artillery shells struck a residential
neighborhood in Beit Hanun, Gaza Strip, early
Wednesday morning, killing 18 civilians, including 7
minors, and wounding some 40 others. The Israeli
military contended that the artillery fire was aimed
at the place from which Qassam rockets were fired at
Ashkelon yesterday, an area about half a kilometer
from where the shells actually landed. The IDF said
that human or technical error caused the shells to
strike the houses. The Minister of Defense has ordered
an investigation into the incident.

Even according to the military, the shelling was not
defensive; it was not aimed at Palestinian fire or
Qassam rocket-fire that was in progress. The artillery
was aimed at what the IDF refers to as a “launching
space,” i.e., an area from which the army believes
that Qassams had previously been fired.

Shells fired from cannons several kilometers away are
known and expected to occasionally miss their target
by a few hundred meters. For this reason, it is
especially likely that such weapons will harm
civilians when they are fired towards or near
densely-populated residential areas. Several such
cases have occurred over the past year, and it was to
be expected that they could recur.

Moreover, in April 2006, it was reported that the IDF
reduced – from 300 meters to 100 meters – the “safety
range” between populated areas in the Gaza Strip and
the areas targeted for artillery fire. Six human
rights organization, B’Tselem among them, warned about
the great risk inherent in the decision, contending it
would lead to the injury of innocent civilians. The
organizations petitioned the High Court of Justice to
order the IDF to cancel the decision. The High Court
has not yet ruled in the matter.

It is still unclear if the deaths this morning
resulted from the inherent inaccuracy of artillery or
from technical or human error. However, massive
shelling towards a densely-populated area carries a
high risk of civilian casualties. Therefore, as
discussed below, such shelling should be avoided,
unless there is no alternative in defending against

The principle of discrimination, one of the pillars of
international humanitarian law, requires that all
parties to a conflict attack only legitimate military
objects. According to the principle of
proportionality, it is forbidden to launch an attack,
even if aimed at a legitimate military object, if the
attack is expected to cause injury to civilians that
would be excessive in relation to the concrete and
direct military advantage anticipated. These two
principles lead to the prohibition on using a means of
warfare which, under the circumstances, is likely to
cause disproportionate injury to civilians. Launching
of such attacks is deemed a grave breach of
international humanitarian law and a war crime.

The circumstances involved in the killing of the
Palestinians in Beit Hanun, including the fact that
the attack was not a defensive action, raise a grave
concern that the shelling constitutes a war crime. The
Israeli military’s contention that they did not mean
to harm civilians is meaningless, and cannot justify
an action that amounts to a war crime. An
investigation conducted by military officials subject
to the same chain of command responsible for the
action cannot serve as a substitute for a criminal
investigation. B’Tselem today wrote to the Israeli
Judge Advocate General, demanding that he immediately
order a Military Police investigation into the
incident, with the objective of prosecuting those
responsible for the killings in Beit Hanun.