Precisely Wrong – HRW Report of Six Drone Based Missiles Launched during Operation Cast Lead

Last month, Human Rights Watch (HRW) published a report on six missile attacks from unmanned combat aerial vehicles that were launched during Israel's Operation Cast Lead in Gaza, causing the deaths of 29 civilians, eight of whom were minors. According to the report, none of these attacks involved legitimate military targets.

The report raises a few questions on the legitimacy of unmanned drone attacks, and calls upon the Government of Israel to participate in a public inquiry of the incidents that resulted in the deaths of civilians during the conflict.

In this article, we present a brief discussion of the recent HRW report as part of the IDI's ongoing coverage of the issues raised by Operation Cast Lead in the Terrorism and Democracy Newsletter.

During Operation Cast Lead, the armed conflict between the IDF and Hamas that took place in Gaza from December 27, 2008 to January 18, 2009, the IDF used one of its most precise weapons – missiles launched from unmanned combat aerial vehicles (also known as drones). When used correctly, drone operators have full control and vision of the targets, and this weapon is known to have the ability to hit a target with pinpoint accuracy. Nevertheless, use of drones during the Gaza conflict resulted in many civilian casualties on the Palestinian side.[1]

HRW[2] initiated an investigation of six incidents in which the IDF launched missiles from drones that resulted in civilian deaths. According to several human rights organizations, 87 civilians were killed in 42 drone attacks during Operation Cast Lead; however, the HRW report focuses only on six specific drone strikes, which caused the deaths of 29 civilians (eight of whom were minors). The reason for focusing on these six attacks is that HRW determined that in all of these attacks, the IDF directly targeted civilians – according to HRW, there was no evidence that Palestinian fighters were present at the time or in the immediate area of any of the attacks.

The report, which was published on June 30, 2009, is based on interviews with victims and witnesses, investigations of the attack sites, IDF and media reports on the fighting, and IDF video footage of a specific attack.  In order to conduct the investigation and complete the report, HRW researchers entered Gaza on January 21, 2009, and spent 14 days investigating the conduct of both parties to the conflict, and the harm caused to the Palestinian civilian population and to civilian property. The researchers interviewed Palestinians victims and witnesses, and cross-checked the evidence with IDF reports in the media.

Legal Framework - HRW adopts in its report the legal position that Operation Cast Lead is regulated by international humanitarian law (hereinafter: "IHL"), which applies to all situations of armed conflict regardless of the question of the legality of the armed groups. The report emphasizes that deliberate attacks on civilian and civilian objects are strictly prohibited under all existing legal frameworks.

The report elaborates on the fact that civilians are protected from attacks unless and for such time as they take a direct or active part in the hostilities, and that although IHL does not prohibit fighting in urban or residential areas, the presence of civilians imposes greater responsibilities on the parties to the conflict.

First Incident: Gaza Technical College in Gaza City - This incident occurred on the first day of the operation (December 27, 2008). On 13:30, an IDF drone launched a missile at a group of men and women standing across the street from the UNRWA sponsored technical college in downtown Gaza City. This attack resulted in the death of 12 people – nine were college students who were waiting at a bus station, and three were civilian bystanders. The location of the attack was 25 meters from the UNRWA's Gaza Headquarters.

According to the HRW report, there were no Palestinians fighters active on the street or in the immediate vicinity at the time of the attack (or immediately prior to it). Moreover, since the attack took place at the very early stages of Operation Cast Lead, the streets were crowded with people at the time. It is important to note that none of the witnesses who were interviewed by the HRW indicated that any rockets were fired from that location (or even that neighborhood) at that time, or at any other time during Operation Cast Lead. Furthermore, three UN staff members confirmed that Palestinian groups did not operate in the area due to the presence of international workers and the distance of the Rimal neighborhood from the armistice line (which make it unsuitable for Kassam or Grad rockets fire).

The report mentions that the IDF did not provide any explanation for the attack. HRW speculates that the IDF may have considered the students to be fighters; however, according to the information available to HRW, there is no evidence supporting such an assumption.

Second Incident: Samur Family Metal Shop, Jabalya – On December 29, 2008, at 18:00, an IDF drone launched a missile that struck a truck outside a metal shop in Jabalya, which is located in the northern part of the Gaza Strip, and from which many rocket attacks into Israel originated. The IDF claimed at first that the truck was a Hamas vehicle loaded with dozens of Grad type missiles, and that the missiles were being transferred by Hamas to a hiding place or were on route to missile launching sites. However, as a result of the IDF's internal investigation,[3] the IDF later acknowledged that the truck was carrying oxygen tanks and not rockets, but that these tanks resembled Grad rockets and were likely to be used for rocket manufacturing by Hamas.

According to HRW, the drone's operator had enough time and should have noticed that the oxygen tanks are too short to be mistaken for Grad rockets. Furthermore, HRW related to IDF's claim that four Hamas operatives were killed during that operation, and noted that the four alleged operatives do not appear on the list of 171 Al-Qassam Brigade members killed during Operation Cast Lead, which Hamas published. Moreover, the IDF's claim that the oxygen tanks constituted a legitimate military target due to their possible use in the future runs contrary to IHL principles, which require that the object of an attack offer a definite military advantage at the time, and is not only a potential dual-use object, such as oxygen tanks, which may be used for military purposes in the future.

Third Incident: Masharawi Family House, Gaza City – This incident occurred on January 4, 2009, the second day of the IDF ground offensive. At 10:30, an IDF drone launched a missile that hit the rooftop of a two-story house in downtown Gaza City, causing the death of two boys who were playing on the roof.[4]

According to the HRW report, the house was located over five kilometers from the actual fighting zone. Moreover, due to the tall buildings surrounding the house, it was an unlikely site for firing rockets. There was no evidence that the two boys were fighters or that they were otherwise directly participating in the hostilities. Due to the technology used in the drones, the operator should have noticed the two boys. Their presence, the poor military location of the house and the absence of the IDF ground forces in that area (at that time) undermine any military justification for the attack.

Fourth Incident: Al-Habbash Family House, Al-Sha'f, Gaza City – On January 4, 2009, at 15:00, an IDF drone launched a missile that hit six children playing on the roof at the Al-Habbash family home in the Al-Sha'f area of Gaza City, causing the death of two girls, aged 10 and 12, and the injury of three other children.

According to the report, witnesses to the attack claimed that there was no fighting in the area at the time of the attack. In any case, since the drone operator had enough time to notice the six children playing on the roof through the drone's video surveillance, it is unclear why the attack was not canceled despite the belief that Palestinian fighters were in the area.

Fifth Incident: Allaw Family House, Al-Sha'f, Gaza City – This incident occurred on January 5, 2009, at 12:00. An IDF drone launched a missile that hit members of the Allaw family who were on the roof of their home, three blocks from the Al-Habbash house (which was attacked the day before). The missile caused the death of a ten year old boy, and injured his brother and sister (ages 13 and 8). The HRW report stated that the family did not know of any Palestinian fighters present in the vicinity of  the house at the time of the attack.

Sixth Incident: UNRWA Asma Elementary School, Gaza City – On January 5, 2009 at 22:00, an IDF missile struck a bathroom facility located in the yard of the URWA Asma Elementary Coeducational "A" school in the center of Gaza City.[5] The missile killed three family members who had left the building to use the bathrooms. According to the HRW report, the evidence in the area of the bathroom, which was retrieved by CNN and BBC reporters, is consistent with the impact of a drone-launched missile.

In February 2009, the UN Secretary General appointed a Board of Inquiry to investigate the attacks on the UN facilities during Operation Cast Lead. One of these attacks was the UNRWA Asma Elementary School incident. According to the report summary, the UN Board of Inquiry found that while it was possible that the three men were involved in military activity, it was more probable that they were using the toilets in the school compound, and were not preparing to engage in military activity.

The HRW report acknowledged that it is possible that before or after using the bathroom, the three men took actions that indicated that they were directly participating in the hostilities. Nevertheless, there was no evidence to support such a conclusion.

Recommendations - The HRW report concludes with four recommendations to the Government of Israel:

1. To appoint an independent board of inquiry, with military and civilian participation, to examine the use of drones during Operation Cast Lead. This commission should investigate missions involving drone-launched missiles, which resulted in civilian injuries or deaths. The commission should also recommend measures to minimize civilian casualties by armed drones in accordance with IHL principles.
   
   
2. To conduct a broader inquiry of the conduct of the IDF during the conflict and to appoint an independent board of inquiry to investigate allegations of serious violations of IHL by Israeli forces in Gaza. The findings of these investigations should be made public and should include recommendations for appropriate disciplinary measures or criminal prosecutions.
   
   
3. To air the gun-camera video of all the aforementioned drone attacks in order to clarify the IDF’s choice of targets in the cases involving civilian deaths.
   
   
4. To fully cooperate with the Commission of Inquiry appointed by the UN Human Rights Council, which includes providing the gun-camera videos of drone launched missile attacks in which civilians were wounded or killed.

In its legal framework, the report refers to the obligations imposed by IHL on the parties to the conflict, and to the terms under which Israeli soldiers could be accused of committing war crimes. However, one of the criteria to identify a legitimate military target is the intelligence information presented to military commanders prior to the operation, and the assessment of its military value in light of the overall military strategy (as opposed to merely evaluating  the actual unfortunate results of such operations). Since the IDF did not provide the HRW investigators with this information, it is difficult to know the precise details about these six locations that may have served to identify them as military targets in the eyes of the IDF prior to the attack.

Moreover, the report seems to apply a very rigid standard in assessing the permissibility of  attacks by Israel.

For example, in assessing the first incident, the report mentioned that there were no Palestinian fighters active in the immediate vicinity of the targeted area. This, however, does not answer the question of the presence of Palestinian fighters, who assume a continuous combat function and who, therefore, could be recognized as legitimate military targets under the appropriate IHL restrictions, even in breaks between their active participation in hostilities (which would include the civilians around them in the proportionality considerations).

For more discussions on Operation Cast Lead related issues, please refer to previous issues of IDI’s Terrorism and Democracy Newsletter.

[1] The accurate number of civilian casualties is unclear since there are disagreements on the categorization of the Hamas police forces and Hamas fighters who do not distinguish themselves from the civilian population.

[2] Human Rights Watch is an independent international NGO that aims to focus international attention on human rights violations around the world.

[3] For detailed coverage of the IDF's internal investigations, see the Issue no. 10 of the Terrorism and Democracy Newsletter.

[4] A video of the incident is available from the Norwegian Broadcasting Company at: http://www1.nrk.no/nett-tv/klipp/464816

[5] For more information on this incident, see Issue no 5 of the Terrorism and Democracy Newsletter