A/HRC/12/48
page 183
814. The State of Israel would be responsible under international law for these internationally
wrongful actions carried out by its agents
815. From the facts ascertained, the Mission finds that the conduct of the Israeli armed forces
in these cases would constitute grave breaches of the Fourth Geneva Convention in respect of
wilful killings and wilfully causing great suffering to protected persons456 and as such give rise
to individual criminal responsibility.
816. The Mission also finds that the direct targeting and arbitrary killing of Palestinian
civilians is a violation by the Israeli armed forces of the right to life as provided in article 6 of
the International Covenant on Civil and Political Rights.
817. In most of the cases examined above, the Mission finds that the Israeli armed forces
denied the medical emergency services access to the wounded civilians. This was the case with
regard to all the incidents occurring in the al-Samouni neighbourhood, particularly after the
shooting of Ahmad al-Samouni, where the PRCS ambulance was forced to return to Gaza City
having come within 100 metres of the gravely wounded boy. Ambulances were also arbitrarily
prevented from reaching the wounded after the attack on Wa’el al-Samouni’s house, most
dramatically after the shooting of Amal, Souad, Samar, and Hajja Souad Abd Rabbo and of
Rouhiyah al-Najjar. In the case of the shooting of Muhammad Hekmat Abu Halima and Matar
Abu Halima, it is the rescuers who were executed, preventing them from taking their severely
burned relatives to hospital. In the case of Iyad al-Samouni, finally, the relatives who wanted to
assist him were threatened with being shot themselves.
818. The Mission recalls that article 10 (2) of Additional Protocol I provides that “In all
circumstances [the wounded] shall be treated humanely and shall receive, to the fullest extent
practicable and with the least possible delay, the medical care and attention required by their
condition. …” This provision enjoys customary international law status. The Mission is mindful
that “the obligation to protect and care for the wounded … is an obligation of means.” It applies
whenever circumstances permit. However, “each party to the conflict must use its best efforts to
provide protection and care for the wounded,… , including permitting humanitarian
organizations to provide for their protection and care.”457
819. The facts ascertained by the Mission establish that in the incidents investigated the Israeli
armed forces did not use their best efforts to provide humanitarian organizations access to the
wounded. On the contrary, the facts indicate that, while the circumstances permitted giving
access, the Israeli armed forces arbitrarily withheld it.
820. On this basis, the Mission finds a violation of the obligation under customary international
law to treat the wounded humanely.
Article 147 of the Fourth Geneva Convention defines the “wilful killing” of protected persons as a grave breach
of the Convention. The same qualification is applied to acts which “wilfully caus[e] great suffering or serious injury
to body or health”.
456
457
Customary International Humanitarian Law…, rule 110 and p. 402.
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