A/HRC/12/48
page 182
D.
Legal findings with regard to the cases investigated by the Mission
809. The fundamental principles applicable to these incidents, which are cornerstones of both
treaty-based and customary international humanitarian law, are that “the parties to the conflict
shall at all times distinguish between the civilian population and combatants”452 and that “the
civilian population as such, as well as individual civilians, shall not be the object of attack”. 453
The Israeli Government refers to the principle of distinction as “the first core principle of the
Law of Armed Conflict.” It further states that “the IDF’s emphasis on compliance with the Law
of Armed Conflict was also directly incorporated into the rules of engagement for the Gaza
Operation.” The principle of distinction was reportedly incorporated in the following terms:
“Strikes shall be directed against military objectives and combatants only. It is absolutely
prohibited to intentionally strike civilians or civilian objects (in contrast to incidental
proportional harm).”454
810. In reviewing the above incidents the Mission found in every case that the Israeli armed
forces had carried out direct intentional strikes against civilians. The only exception is the
shelling of the Abu Halima family home, where the Mission does not have sufficient information
on the military situation prevailing at the time to reach a conclusion.
811. The Mission found that, on the basis of the facts it was able to ascertain, in none of the
cases reviewed were there any grounds which could have reasonably induced the Israeli armed
forces to assume that the civilians attacked were in fact taking a direct part in the hostilities and
had thus lost their immunity against direct attacks.455
812. The Mission therefore finds that the Israeli armed forces have violated the prohibition
under customary international law and reflected in article 51 (2) of Additional Protocol I that the
civilian population as such will not be the object of attacks. This finding applies to the attacks on
the houses of Ateya and Wa’el al-Samouni, the shooting of Iyad al-Samouni, of Shahd Hajji and
Ola Masood Arafat, of Ibrahim Juha, of Rayya and Majda Hajaj, of Amal, Souad, Samar, and
Hajja Souad Abd Rabbo, of Rouhiyah al-Najjar, and of Muhammad Hekmat Abu Halima and
Matar Abu Halima. In these incidents, 34 Palestinian civilians lost their lives owing to Israeli fire
intentionally directed at them. Numerous others were injured, some very severely and with
permanent consequences.
813. Not only are civilians not to be the object of attacks, they are also “entitled in all
circumstances, to respect for their persons … protected especially against all acts of violence or
threats thereof” (Fourth Geneva Convention, art. 27). Fundamental guarantees set out in article
75 of Additional Protocol I include the absolute prohibition “at any time and in any place” of
“violence to the life, health, or physical or mental well-being of persons”. According to the facts
presented to the Mission, these provisions have been violated.
452
Additional Protocol I, art. 48.
453
Additional Protocol I, art. 51 (2).
454
“The operation in Gaza…”, paras. 94 and 222.
Pursuant to article 51 (3) of Protocol Additional I, civilians enjoy immunity from attack “unless and for such time
as they take a direct part in hostilities.” On the status of this rule in customary law, see chap. VII.
455
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