Case Study Al Fakhoura UN School
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The al-Fakhura School incident took place nearby a United Nations (UNRWA) run school of al-Fakhura located in theJabaliya refugee camp in the Gaza Strip on January 6, 2009.
In response to alleged militant gun and rocket fire coming from beside the school, the IDF fired upon the targets. The UN and several NGOs claim that about 42 were killed in the incident and although UNRWA Gaza director, John Ging specified that the perimeter of the school was hit, the MSNM reported that the school was hit. Initial reports alleged that the IDF strike occurred inside the school compound that provided shelter to some 1400 refugees. Tuesday's killing by Israeli shells of 42 people, including women and children sheltering in a United Nations-run school in Jabalya refugee camp, intensified international pressure on Israel to call a halt. U.N. officials denied an Israeli army account that militants had been firing from the school. (Nidal al Mughrabi, "Israel Pounds Gaza Again," Reuters, 7/1/09; see also Al Jazeera, "Scores killed as Gaza UN School Hit," 7/1/09) That, together with supposedly high death toll, had created a public outcry and prompted condemnation from Secretary General of the United Nations Ban Ki Moon, members of the news media, and international aid agencies.
But according to PCHR's exhaustive list of fatalities published in April 2009, 21 people listed as killed "near" the school, which (though still high death toll) is half of what was reported. According to the IDF, as a result of the counterstrike 9 militants and 3 noncombatants were killed. And in February, the BBC reported that the UN corrected its "clerical error": In February 2009, the United Nations said that a clerical error had led it to report that Israeli mortars had struck a UN-run school in Jabaliya, Gaza, on 6 January killing about 40 people. Maxwell Gaylord, the UN humanitarian co-ordinator in Jerusalem, said that the Israeli Defense Force mortars fell in the street near the compound, and not on the compound itself. He said that the UN "would like to clarify that the shelling and all of the fatalities took place outside and not inside the school". Neither of these observations had any impact on journalists. When, on March 2, 2009, Time Magazine corrected Tim McGirk's article of January 7 which insisted there were no Hamas fighters in the school when it was it, they conceded that the UN Report of January 6 had mistakenly claimed the school was hit by Israeli bombs, but stuck to the total of forty dead and insisted that people from inside the school were killed. Similar reports from other journalists hastened to minimize the implications of the UN's error in claiming the school was hit and reiterated the inflated civilian casualty figures.
On April 22, 2009, the IDF publicly announced the results of its internal investigation on Operation Cast Lead. The report found that Hamas had fired mortar shells at a position 80 meters from the school and that the IDF used "minimal and proportionate retaliatory fire" afterward. It also concluded that the IDF "did not, at any time, fire with the deliberate intention to hit a UN vehicle or facility" at any point in the conflict.
2. The Israeli Government report provides IDF insight into the incident (para. 336-340): The force came under 120mm mortars, fired from a location situated about 80m from the school, as was confirmed by scouting unit. About 50 minutes later, following the verification of the source of fire and establishing that safe margin exists between the fire source and the school, the force responded with the most accurate weapon available to it at the time – 120mm mortars.
The IMFA report thus suggests that since the IDF responded to defend soldier's lives under fire, responded with the most accurate weapon available at the time, succeeded in stopping the Palestinian mortar fire and took precaution to minimize the possible collateral damage, the IDF counterstrike withstood the requirements of the Laws of Armed Conflict".
3. The UNHRC fact-finding mission criticized IDF for the choice of the weapons for the supposed counterstrike and concluded that the IDF fire at the Al-Fakhura street violated the law of proportionality.
The Goldstone report says in para. 675 that: The Mission notes that the statement of the Israeli armed forces on 22 April did not indicate where the Hamas fire came from, only stating it was 80 meters away. The Mission finds it difficult to understand how the Israeli armed forces could have come to this view without having the information at the same time that Hamas operatives had been firing mortars for almost one hour". This passage indicates that the mission did not read IMFA report and disregarded the scouting force described in IMFA report.
The Goldstone report writes in para. 690 that: The Mission notes that the attack may have been in response to a mortar attack from an armed Palestinian group Numerous indicators demonstrate that mortar attack from armed Palestinian group did took place, and that none of those who had taken refuge in the school got killed). See Steven Erlanger, Weighing Crimes and Ethics in the Fog of Urban Warfare NYT (16/1/09)
Nonetheless, the Goldstone report writes in para. 697-703 that: The Mission recognizes that for all armies proportionality decisions will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case…According to the position the Government has itself taken, Israeli forces had a full 50 minutes to respond to this threat – or at least they took a full 50 minutes to respond to it. Given the mobilization speeds of helicopters and fighter jets in the context of the military operations in Gaza, the Mission finds it difficult to believe that mortars were the most accurate weapons available at the time… The time in question is almost 1 hour. The decision is difficult to justify… The choice of weapon – mortars – appears to have been a reckless one. A decision to deploy them in a location filled with civilians is a decision that a commander knows will result in the death and injuries of some of those civilians…Even if the version of events presented now by Israel is to be believed, the Mission does not consider that the choice of deploying mortar weapons in a busy street with around 150 civilians in it (not to mention those within the school) can be justified. The Mission does not consider that in these circumstances it was a choice that any reasonable commander would have made… Whatever the truth, the Mission is of the view that the deployment 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.
4. Colonel (res.) Halevi from Jerusalem Center for Public Affairs stated that examination of freely accessible Palestinian sources shows that one of the key witnesses of the fact-finding committee on the incident (Abu Askar) was directly and closely linked to the Izzadin al-Qassam Brigades (military wing of Hamas) contrary to his claims (he admitted connection to Hamas but did not mention his or his son's affiliation to the armed groups, including Khaled who were killed in the attack). The same sources provide insight into Khaled's recent activities and support IDF intelligence that the house of Abu Askar served as an Izz al-Din al-Qassam Brigades weapons storehouse.
Moreover, cross-checking names with various websites related to Palestinian armed groups reveal that at least 7 of those of the killed in the incident belong to that armed groups.
5. In the initial response to the UNHRC fact-finding mission report, Israeli Government replied that the committee findings reflect the oversimplistic approach to complex military challenges during the fighting, implying that the mission members did not possess the information that was known to the force's commander at the time of the attack regarding the immediate threat, weapon's availability and potential risks to civilians.
The response also reproduces the conclusions of the UN Board inquiry. Indeed, UN Board inquiry into attacks on UN-run compounds concluded that Israel is responsible for the damage to the site close to the UNRWA school. However, as IMFA report notes (para.334-335 and footnote 262), U.N. Board of Inquiry asked only whether the physical premises of U.N. facilities had been affected – a standard described as “inviolability” under diplomatic law. Unlike this standard adopted by the Board of Inquiry, the Law of Armed Conflict does not impute a violation from the mere fact that a particular site may have incurred damage, incidental to the targeting of a legitimate military objective.
With regard to this specific incident, the UN Board of Inquiry did not go so far as to examine whether laws of armed conflict were violated in this incident. The IMFA report quotes (footnote 265) the findings of the Board: [the Board was] unable to reach any conclusion whether or not mortars were being fired and directed against the IDF from near to the school...[the Board] was not in a position to assess whether [more precise] means of response was available to the IDF at the time and, if it was not, the length and consequences of any delay until it might have become available.
Preliminary Conclusions:
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