On July 16, 2014, the IDF killed four Palestinian children playing on the beach, Ismael Mohammed Bakr, 9; Ahed Atef Bakr, 10; Zakaria Ahed Bakr, 10; and Mohammed Ramez Bakr, 11. By this date, more than 200 Palestinians had been killed, including 43 children, in Israel’s so-called “Operation Protective Edge.”
Newsweek reported: Journalists from NBC News witnessed the attack and say that the children were playing soccer with journalists on the beach just moments before the shelling. Three other children survived but were wounded, one critically. Zakaria’s father told NBC News, “He was my only son…. He died with his cousins, they all died together.”
The U.N. Independent Commission of Inquiry examined the killing of the Bakr boys.
630. Case study: One of the criminal investigations closed by the MAG (Military Advocate General) without further legal proceedings had looked into the killing of four children on 16 July 2014. The boys had been playing on a breakwater near the port in Gaza City, when they were hit by two missiles fired by Israeli forces from the air. According to the 11 June 2015 update of the MAG, the MPCID (Military Police Criminal Investigations Division) investigation found that the incident took place in an area, located on the breakwater, that was known to be a compound belonging to Hamas naval forces and was “utilized exclusively by militants”. MPCID investigators learnt that an intelligence assessment indicated that operatives would gather in the compound to prepare for military activity against the IDF. Aerial surveillance then identified figures running into the compound, who were believed to be militants, and were not identified as children. On the basis of the investigation, the MAG concluded that “the attack process…accorded with Israeli domestic law and international law requirements”.
The (U.N. Independent Commission of Inquiry) also examined the killing of the four boys. Based on its own investigation, the commission found strong indications that the IDF failed in its obligations to take all feasible measures to avoid or at least minimize incidental harm to civilians. According to the International Committee of the Red Cross, “[i]n order to avoid the erroneous or arbitrary targeting of civilians entitled to protection against direct attack, it is…of particular importance that all feasible precautions be taken in determining whether a person is a civilian and, if so, whether he or she is directly participating in hostilities.” International humanitarian law provides that, in case of doubt, the person in question must be presumed to be a civilian and therefore protected against direct attack. In relation to targeting decisions, the determination of civilian status “will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”
632. In its evaluation of whether these criteria had been met in this specific case, the commission considered the following elements. Firstly, the boys were aged between 9 and 11 years, and were therefore small in stature in comparison to the size of an average adult. Secondly, there were no IDF soldiers in the area, as the ground operations had not commenced, nor were there any other persons in imminent danger, thus calling into question the urgency of launching the strike. From the information available, it would appear that the IDF could have more exhaustively verified whether those being targeted were taking a direct part in the hostilities or were members of armed groups with a continuous combat function. Thirdly, the compound was located in the centre of a city of almost 550,000 residents, between a public beach and an area regularly used by fishermen, and was visible from nearby hotels, where international journalists were staying. It could therefore not be ruled out that civilians, including children, might be present. These factual elements suggest that by assuming that the individuals were members of armed groups merely on the basis of their presence in a particular location, the IDF reversed the presumption of civilian status. In addition, the commission is concerned that the MAG appears to have validated this incorrect application of international humanitarian law.
633. Concerning the investigation itself, the MAG explained that testimony was gathered from a large number of soldiers, and supplemented by video footage, media images and affidavits of 3 Palestinian witnesses. International journalists and other eyewitnesses, including Palestinians, do not appear to have been questioned, despite many persons having witnessed the incident. This raises questions about the thoroughness of the investigation.