Rockets used against Israeli targets – Hamas and the other Palestinians armed groups mainly use two types of rockets – locally made Kassam rockets (with a 16km range) and Grad rockets (with a 21-40km range). Since 2001, the primary target of the Palestinian rockets has been Sderot. During 2008, rockets also struck Ashkelon and Netivot, and since late December 2008 (during “Operation Cast Lead”), the range was expanded and rockets were fired at the cities of Beer-Sheva and Ashdod. As a result, during the time period addressed by the report, 800,000 Israeli civilians were living within rocket range.
HRW states in the report that neither Kassam nor Grad rockets can be reliably aimed. These weapons are inherently indiscriminate when fired toward densely populated areas. Moreover, the absence of military targets in the areas struck by the rockets indicates that these attacks were deliberately intended to strike Israeli civilians and civilian structures. This conclusion is reinforced by explicit statements issued by the leaders of Hamas and the other armed groups.
Civilian deaths and injuries – Since November 5th, 2008 and until the end of “Operation Cast Lead,” approximately 1000 rockets were fired from Gaza into Israeli territory. The rocket attacks on Israel caused civilian casualties – three civilians were killed as a direct result of the rocket attacks – Beber Vaknin, a 58 year old male was killed in Netivot; Hani al-Mahdi, a 27 year old male, was killed in Ashkelon; and Irit Sheetrit, a 39 year old female, was killed in Ashdod. Although an Israeli ‘early warning’ alarm system greatly reduced the number of casualties, the repeated attacks caused many injuries, as well as severe psychological damage to the civilian population.[5]
As a result of the inaccurate aim of Kassam and Grad rockets, some rockets fell within the Gaza Strip. These misfires resulted in the death of two cousins – Sabbah Abu Khusa, a 12 years old girl, and Hanein Ali Abu Khusa, a 5 years old girl.
Displacement and destruction of property – The rockets fired at Israel also caused damage to civilian property such as a kindergarten, a synagogue, a school, as well as to private houses and cars. Due to the security situation, Israeli public schools and universities were forced to close their gates throughout southern Israel for weeks during “Operation Cast Lead.” Moreover, many civilians left their homes and moved north, beyond the range of the rockets, as a result of the barrage of rocket fire.[6]
Rocket fire from within populated areas – The report mentions that Palestinian fighters use densely populated urban areas as rocket launching sites, despite and sometimes because these actions endanger the civilian population in Gaza. This was done, in part, because Israel developed a capacity to intercept or immediately respond to attacks executed from most of the open fields in Gaza, which were typically used as launching sites, and partially in order to use the civilians as “human shields,” with the hope that the presence of civilians would deter Israel from responding to the rocket attacks. Nevertheless, HRW researchers did not find any evidence that Hamas or other armed groups actually forced civilians to remain in areas situated in close proximity to rocket launching sites.
Legal framework and obligations – According to HRW's report, the Palestinian justifications for engaging in rocket attacks directed at Israeli civilians were based on the right to resist the Israeli occupation and the right to retaliate against Israeli attacks, which caused death and injury to Palestinian civilians.
According to HRW, the conduct of hostilities in the Gaza Strip is regulated by international humanitarian law (IHL). The rules on the methods and the means of armed conflict are found in the First Additional Protocol of 1977 to the Geneva Conventions and the 1907 Hague Regulations. The customary rules found in those treaties are binding on all parties to an armed conflict, whether states or non-state armed groups.
The report elaborates on two fundamental principles of IHL – "civilian immunity" and "distinction." These principles impose obligations on the parties to a conflict to distinguish between combatants/fighters and civilians, on the one hand, and to target only military objectives, on the other hand. Threats or attacks directed at civilians or intended to spread terror among civilian populations, including acts of reprisals, are strictly prohibited. Furthermore, while fighting from within urban areas is not prohibited, this tactic imposes greater obligations on the parties during the conflict, and the use of civilians as “human shields” is strictly prohibited.
HRW concludes its analysis by emphasizing that serious violations of IHL committed willfully (deliberately or recklessly) are war crimes and give rise to individual criminal responsibility. Hamas’ violations include deliberate or indiscriminate attacks on civilians, as well as disproportionate attacks and the use of civilians as “human shields,” which grossly violate the principle of distinction and constitute war crimes.
Hamas and other armed groups have publicly taken responsibility for a large number of rocket attacks on civilians in Israel, including the three fatal attacks that were executed during “Operation Cast Lead.” Moreover, the leaders of Hamas and other armed groups have expressed their intention to target more Israeli civilians. According to HRW, such statements, in the context of deliberate or indiscriminate rocket attacks against Israeli civilians, are evidence of war crimes.
Recommendations – The report concludes with HRW's recommendations to Hamas and to the UN member states. They include the demands that Hamas cease all rocket attacks that deliberately target civilians or are fired into civilian areas with rockets that cannot discriminate between military objectives and civilians. Hamas must also prevent, as the governing authority in the Gaza Strip, other armed groups from launching such rocket attacks.
Moreover, Hamas ought to publicly repudiate attacks on Israeli civilians or civilian objects, and renounce the argument that such attacks are permissible when carried out in reprisal for Israeli attacks that harm Palestinian civilians. Hamas should also provide clear guidelines and training to all commanders and fighters to ensure compliance with the norms of international humanitarian law, which prohibits attacks that target or indiscriminately harm civilians. The launching of attacks should be restricted to sites that are not near populated areas in Gaza.
HRW expects Hamas to conduct a prompt and impartial investigation of the alleged violations of international humanitarian law by persons working for or affiliated with Hamas-run security forces or militia; to publish the investigation results; and to prosecute those considered responsible for war crimes in trials that respect international standards. It should also accord full consideration to the findings and recommendations of the final report produced by the Gaza fact-finding mission of the United Nations Human Rights Council.
HRW recommends that the UN member states insist that both Israel and Hamas conduct transparent and impartial investigations. Moreover, HRW requests that the UN member states urge Hamas and Israel to duly consider the findings and recommendations of the final report produced by the Gaza fact-finding mission of the United Nations Human Rights Council, and that the UN Human Rights Council establish a dedicated UN mechanism that would monitor and report the efforts by all parties to transparently and impartially investigate allegations of serious laws-of-war violations committed during the hostilities in Gaza and Israel.
Finally, in the event that the authorities are unable or unwilling to conduct an investigation and to prosecute those considered responsible for war crimes, the international community should press for the invocation of international prosecution.