Did Israel Violate the Laws of War When It Fired Mortars Near a UN School?

The Israeli government just released an update to its internal review of the Israeli Defense Force’s conduct during Operation Cast Lead. The review was a response to the Goldstone Report which contained allegations that the IDF committed war crimes during its Gaza operations in Winter 2008-2009.  So how does this internal review compare to the Goldstone Report?  The blog Hybrid States says that the Israeli review confirms the report’s main findings. I am not so sure. 

One incident I have been following is the al-Fakhura street bombing. Here is what both reports agree occurred:

1) On January 6, 2009, the IDF launched four mortars into an area known as Al-Fakhura junction.

2) The IDF claims (and the Goldstone Report does not dispute) that Israel fired in response to Hamas rocket fire coming from the area.

3)This was adjacent to a UN school that was serving as a temporary shelter for over 1,000 Gazans. 

4) Civilians, including children, were killed in the attack.  The Israeli report acknowledges that the incident resulted in the “regrettable loss of civilian life.” The Goldstone report puts the number of civilians killed at 35.

In other words, everyone agrees that there was an attack that took the lives of civilians and that this attack occurred in a civilian area.  The central question of both the Goldstone Report and the Israeli review is whether or not the Israeli mortar fire violated the laws of war.  The Goldstone report concludes that it did. Specifically, the report argues that the Israeli response did not satisfy the principle proportionality.

In drawing its legal conclusions on the attack against al-Fakhura junction, the Mission recognizes that for all armies proportionality decisions, weighing the military advantage to be gained against the risk of killing civilians, will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case. The firing of at least four mortar shells to attempt to kill a small number of specified individuals in a setting where large numbers of civilians were going about their daily business and 1,368 people were sheltering nearby cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought. The Mission considers thus the attack to have been indiscriminate in violation of international law, and to have violated the right to life of the Palestinian civilians killed in these incidents.

Not surprisingly, the Israeli report comes to the opposite conclusion:

Ultimately, the MAG determined that the anticipated collateral damage prior to initiating IDF mortar fire was not excessive when weighed against the expected military benefit, in light of the clear military necessity of the force to protect itself from ongoing mortar fire, the force’s measured response, the relatively small area of dispersal, and the precautions taken.

The MAG also found that the IDF’s choice of weapons was appropriate under the circumstances. The Israeli forces employed a burst of four 120mm “Keshet” mortar rounds, fired in quick succession. The Keshet mortar contains advanced target acquisition and navigation systems and was the most precise weapon available to Israeli forces at that time. Air support was not available to the unit under attack at that moment, and the Law of Armed Conflict does not require commanders to await air support and prolong soldiers’ exposure to enemy fire.

Israel acknowledges that, while the strikewas effective in removing the threat to Israeli forces, it also resulted in the regrettable loss of civilian lives. Although the MAG found that the IDF had not violated the Law of Armed Conflict with respect to this incident, as part of Israel’s efforts to minimize civilian casualties under all circumstances, the MAG reiterated the recommendation of the special command investigation to formulate more stringent definitions in military orders to govern the use of mortars in populated areas and in close proximity to sensitive facilities. The IDF Chief of General Staff has ordered the undertaking of staff work to draft the required orders.

So, bottom line:  Israel believes it acted in accordance with international law.  The Goldstone Report argues the opposite.  I’m afraid we are no closer to justice or accountability either way.