GAZA, Oct 13, 2014:
The July-August war in Gaza drew international condemnation for a number of reasons, but one episode proved more deadly than any other: an Israeli air and artillery bombardment on Aug 1 that killed 150 people in a matter of hours.
Six weeks on from the war, with the toll of destruction still being counted, there is deepening unease about what took place that day, especially over whether too much force was used.
Some legal experts say a war crime may have been committed.
The events unfolded just as a three-day ceasefire was supposed to come into force.
To rescue the soldier — dead or alive — and ensure Hamas could not use him as a hostage, the Israeli army invoked what is known as the “Hannibal directive”, an order compelling units to do everything they can to recover an abducted comrade.
Israeli artillery and tanks bombarded four neighbourhoods for several hours — at times firing a shell a minute — while fighter jets carried out air strikes.
One specific reservation is whether the abduction of a single soldier could have justified such heavy and relentless use of force in a populated area.
A panel set up by the United Nations’ Human Rights Commission is due to start investigating potential abuses in the war by both sides shortly, with Rafah one of several incidents investigators have indicated they will examine.
International legal scholars have raised red flags over the justification.
“If it is a legitimate military target then we’ve got to question if the damage and death done to civilians was proportionate,” said Iain Scobbie, a professor of public international law at the University of Manchester.
“In this case the answer is clearly no, it is not proportionate,” he said, adding: “If it’s not a legitimate military target, it’s clearly a war crime because it is an unjustified use of force with effects on the civilian population.”
It is not clear what time Hamas attacked — Hamas at first said it was before the ceasefire started, Israel said it was after — but militants leapt out of the concealed tunnel to ambush the soldiers.
Other Israeli soldiers from the same elite reconnaissance unit scrambled to the scene, where they found two bodies and realized that the third soldier, Second-Lieutenant Hadar Goldin, had been dragged back into the tunnel.
They recovered some of Goldin’s belongings, which allowed forensics experts to conclude later that he was killed in the ambush.
“I declared over the radio the word that no one wants to utter — ‘Hannibal’ — which means abduction,” he told the Israeli newspaper Yedioth Ahronoth on Aug 15.
Intense artillery shelling, tank fire and air strikes followed, according to accounts from local reporters, residents and medics.
At one point, the artillery fired at a rate of one shell a minute, with six cannons firing explosive and non-lethal smoke shells, according to a Reuters photographer.
“We ran out of the house and down a sandy road and as I was running shells were falling,” he told Reuters.
“One hit two women in front of me, I saw them, they were blown up, they were killed in front of my eyes.”
One of his sons, running just behind him, was also killed.
“That is why we used all the force. Anyone who kidnaps has to know he will pay a price. It was not revenge, they just messed with the wrong brigade.”
The Association for Civil Rights in Israel called for an investigation into why the Hannibal directive was employed in a populated, urban area, saying it “fundamentally violated the principle of distinction in international law”.
“When a force is in jeopardy or under severe threat, we carry out rescue fire,” he explained, adding that in the other two cases, residents had been warned to leave the area prior to troops moving in and before artillery was used.
“It should be examined at completely different levels.”
It remains unclear how high up the chain of command the declaration of the directive went.
Yet regardless of who gave the green light, one central question remains: was it proportionate?
“They may not simply bomb a whole area if they don’t know where the person is, just to make sure that the soldier cannot be evacuated,” he said.
“It is an advantage not to lose one soldier but it is not such a great advantage that it would justify risking to kill hundreds of civilians.”
Other experts underscored the importance of recovering a soldier, while saying that did not justify carte blanche.
“It’s more than just a simple mathematical calculation,” said Michael Schmitt, a professor of international law at the United States Naval War College’s Stockton Centre, who would comment on the principles involved but not the specific Rafah case.
“All militaries rate the protection of their forces as very high and for very good reason.
“You want morale among the troops, you want troops to know you will come to their assistance if they get in a tight spot and so forth,” Schmitt said.
“Although if someone has been captured this does not mean you can completely take off the gloves,” he added.
The Hannibal directive was drafted in 1986 after three soldiers from the Givati Brigade were captured in Lebanon. Their comrades saw the vehicle getting away and did not open fire. The directive aims to ensure that does not happen again.
Critics say it is misinterpreted on the ground as implying that it is better to have a dead soldier than a captured one.
The military has declined to define it precisely in public, only emphasising the need to prevent a soldier being taken. The debate has at times prompted army chiefs to stress that while risking the captive’s life was allowed, targeting him was not.
What could be different now is that the Palestinians are on the brink of joining the International Criminal Court, a move that would allow them to take action against Israel, but could also open the door to criminal proceedings against Hamas.
The head of the United Nations Human Rights Commission panel investigating the Gaza war has said any evidence it gathers could be used by the ICC in a war crimes case against Israel.
The panel’s final report is due by March next year.
The next few months — including whether Israel decides to cooperate with the investigation — will prove critical in determining if war crimes charges are eventually levelled.