Day #26 – August 1, 2014 – Black Friday in Rafah

There were many atrocities committed in the Gaza Strip during last summer’s military operation, but if one stands out above all others, it must be Black Friday, August 1, 2014. The U.N. Independent Commission charged with investigating Operation Protective Edge spoke with 22 witnesses about these events, among them victims, medical personnel and journalists. It also studied submissions, video and satellite imagery and public reports from relevant stakeholders. The following description of the events of Black Friday are from the Commission’s Findings.

Rafah

Rafah

350.        In response to the killing of two IDF soldiers and the capture of Lt. Hadar Goldin, the Reconnaissance Unit of the Givati Brigade launched a major military operation on the town of Rafah in the morning of 1 August, or “Black Friday” as it was dubbed in Gaza. When the operation started, Israeli forces acted on the basis of the assumption that Lt. Goldin might still be alive. He was proclaimed dead several hours later, following the discovery of his blood-stained effects. There are conflicting reports about whether the capture of the Lt. Goldin occurred before or after a ceasefire that was due to come into effect. According to official Israeli sources, hostilities resumed “following a ceasefire violation by Hamas and the attempted kidnapping of an IDF officer.”

352.        During the operation, the IDF closed off areas of Rafah to block movement in and out, presumably to prevent the captors from leaving the area with the captive soldier. Residents returning home that morning – following the announcement of a ceasefire – found themselves trapped with no access to safer sanctuaries, as Rafah was basically turned into a closed military zone. According to media accounts, the IDF fired over 1000 shells against Rafah within three hours and dropped at least 40 bombs. Tanks and bulldozers demolished dozens of homes.  Inhabitants came under intense attacks in their homes and in the streets. Witnesses reported to the commission that dozens of homes were destroyed by IDF bulldozers. Ambulances and private vehicles trying to evacuate civilians from the fighting were also hit. As a result of the operation, virtually every person or building in Rafah became a potential military target. Families gave accounts of dividing their children into separate groups before fleeing their homes, in the hope that only one group might be fired on and the others would survive.

353.        “Before I left, I called my neighbour and agreed with her to  divide into two groups, so that, if one group were targeted, the others would survive. I left with my two younger daughters, whereas my neighbour left with her daughter and my eldest daughter Asil. We reached a place called Mashrough Amer in Salahaddin Street and found a lot of vehicles that had been recently destroyed as they were still emitting fumes. [… ]We later learned from the news that Shawka, our neighbourhood, had been targeted by 600 missiles in the span of one hour. The area had been totally destroyed and, as far as I can remember, the missiles I witnessed appeared to have been fired from the ground, probably a tank. I understand that Rafah city was targeted mainly from the air. Al Shawka, however, is on the margins of Rafah and very close to the border. There, all the attacks were launched by tanks. When I returned home, I found my house partially destroyed by three missiles. The house was empty and nobody had been hurt.” Saleh Hussein Abu Mohsen from Rafah

354.        A father described an incident in which three persons were killed and six injured, including himself, while trying to flee to safety. Beginning on from 17 July, the family had moved from one refuge to another to avoid the shelling. When they arrived at Mashrou’ Amer on 1 August around 11 a.m., tanks in front of the Sa’ad Sayel barracks fired at them. When they ran away in two groups, the eldest daughter was killed. The commission understands that the fiercest attacks occurred during the first four hours following the rumored capture of Lt. Goldin. The bombardment was reported to have been most intense in the eastern neighbourhoods of Rafah, such as Mashru’ Amer, Tannur, Hay al Jneina, Uruba Street, Al Shawka, Zallata, the Airport neighbourhood and Salahaddin street, with up to 95 per cent of the victims coming from these neighbourhoods. Satellite imagery shared with the commission corroborates that the destruction was concentrated in these areas.

355.        Doctors working at the Abu Yousef Al Najjar Hospital in Rafah told the commission that, in the last days of July, many civilians had rushed to the hospital not to seek medical care but “because they felt that the hospital was the safest place for their families and children. On 1 August, as the security deteriorated, patients from Al Najjar hospital were transferred to the Kuwaiti hospital. According to eyewitnesses, two missiles struck the Al Najjar hospital, which caused destruction to some of the infrastructure such as the windows, doors and the air conditioning system. Ambulances were also hit. For instance, at around 3 p.m., an ambulance transporting injured civilians in the Msabbeh neighbourhood was hit. The vehicle caught fire and three crew members and 5 other people were killed. The commission spoke with two ambulance workers from Al Najjar hospital who witnessed part of the incident. They said that, earlier on that day, the Al Bir Taka Mosque in northern Rafah had been hit and they were called to rescue the wounded. Three ambulances were dispatched, one of them driven by their colleague Atef Salah Ibrahim Al Zamali, who took a short-cut in order to save time. When the other two ambulances arrived at the scene a little while later, they found Atef’s ambulance enveloped in flames, about 250 meters away from the mosque. They could not approach the vehicle due to the heat. While they were there, another strike on the burning ambulance caused a second explosion. The eyewitnesses thought that this second explosion was not caused by an airstrike, but by a mortar, as fragments of shrapnel exploded around the ambulance area. The intense bombardment continued. After extinguishing the fire, the Civil Defence managed to extract the burned bodies from the vehicle and found inside, in addition to the three ambulance crew members, the bodies of a man, a woman and three children. They discovered that the man was an elderly patient. The woman was his daughter who had asked to accompany him in order for her children to be evacuated to a safer place.

356.        Dozens of shells struck the premises of the hospital, wounding a number of civilians and causing marginal damage to its infrastructure. The hospital was eventually evacuated and no other casualties were reported. The doctors also said the hospital received more than a thousand casualties on the first day of the operation alone. According to the UN Protection Cluster, 100 fatalities were recorded in Rafah on 1 August 2014, including 75 civilians (24 children and 18 women). Leaked audio recordings of IDF radio communications suggest that the fire was indiscriminate, with one Lt. Colonel telling his troops “to stop firing like morons” and another ordering a hesitant soldier, “Go, go, go![…] Give him another shell”. According to a media report, the Givati Brigade Commander invoked the Hannibal Directive in response to the capture of the IDF soldier:

“[A]t 09:36, after speaking to the commander there I uttered a word no one wants to utter – Hannibal, i.e. abduction. I started planning an assault towards Rafah. I ordered all of our forces to move there, in order to prevent the abductors from moving”.

358.        The “Hannibal Directive” was devised in 1986 and is widely understood to be “a code word for an IDF order that states that in the case of abduction of a soldier, everything must be done to prevent the escape of the abductors or captors, using gunfire, even if it endangers the life of the soldier.” According to official Israeli sources, the “IDF General Staff Directive for Contending with Kidnapping Attempts [also known as the “Hannibal Directive”] provides methods and procedures for preventing and frustrating attempted kidnappings of Israeli nationals (both civilians and IDF soldiers). This Directive has been in force for decades and has been amended several times. […] As an operational order, however, the Directive’s specific content is classified. As with other classified directives, revealing all of this Directive’s contents would provide adversaries with the ability to frustrate its very purpose.”  It appears that the procedure is premised on a very strong political commitment by Israel to do its utmost to ensure that no soldiers are captured by armed groups to avoid substantial leverage to armed groups in subsequent negotiations with Israel. A press report quoting the commander of the IDF’s Orev Unit provides a possible explanation for how the IDF viewed the goals of the 1 August operation in Rafah:

In such an event you do all to prevent the country from experiencing another turmoil as it underwent in the Gilad Shalit affair

While the Hannibal procedure was modified several times, apparently to clarify that it did not call for the killing of captured soldiers, it appears still to be unusually expansive in terms of defining what targets are legitimate military objectives.

IDF’s and Palestinian armed group’s version of events

361.        The commander of the reconnaissance battalion of the Givati Brigade, Lieu Col Eli Gino, was reported as stating that, “The fire was proportionate, and when they kidnap a soldier, all means are kosher, even if it exacts a price”. The press further quoted Col. Winter as saying that, “those who kidnap need to know they will pay a price. This was not revenge. They simply messed with the wrong brigade”. The events of 1 August in Rafah are presently being considered by Israel’s Military Attorney General for a possible criminal investigation.

362.        Israeli media reported on 15 April 2015 that an internal investigation by the IDF had concluded that no war crimes had been committed. Instead, the findings shed light on operational flaws vis-à-vis the IDF’s reaction to the capture of Lt. Hadar Goldin.[1] The media cite Givati Brigade commander Col. Winter as having stated that “[t]he brigade’s plan of operation took into account the cease-fire going into effect and was based on a situation in which, by 8 a.m., the forces would cease attacks and only after securing the territory, would initiate searches for tunnels. However, this was not the situation, and when the cease-fire went into effect, forces from the patrol unit entered to search an area that had not been conquered and in an unsecured sector”. The IDF apparently concluded that “from an analysis of the unit’s actions, it can be determined that in contrast to standard warfare and the simple instructions given during Operation Protective Edge, here, as a brigade, we managed to confuse the fighters and to put them in an unreasonable situation

   363.        With respect to Hamas’s version of events, according to press reports, Hamas stated that “Israel pretends that one of its soldiers had been kidnapped to cover its crimes against the civilians in Gaza strip, and to divert the attention of international public opinion towards an Israeli prisoner with the Palestinian resistance.” He added: “We have no information about an Israeli prisoner.” Also according to press reports, in a press release of 2 August, Al Qassam Brigades announced that it was not “aware of a missing soldier, nor his whereabouts or the conditions of his disappearance.”

Summary Legal analysis

Several factual elements of the shelling and bombing in the Rafah area on 1 August 2014 lead to important concern as to the conformity of this attack with international law.

365.        Information received by the commission concerning attacks on all vehicles in the area, including ambulances, as well as incidents in which groups of civilians appear to have been targeted by tank fire, raises serious concerns as to the respect by the IDF of the principle of distinction. The alleged invocation by IDF troops of the Hannibal Directive may indicate that the objective of targeting vehicles was to prevent the flight of those who had captured an IDF soldier. While targeting a vehicle whose passengers are fighters and who are escaping with a captured soldier may be legitimate, the information reviewed by the commission reveals a different course of events.  In Rafah, all vehicles appear to have been targeted, irrespective of their civilian or military use. Civilian vehicles, including ambulances, are civilian objects and cannot be targeted unless they are used in a way that makes an effective contribution to the military action. International humanitarian law provides that in case of doubt whether an object that is normally used for civilian purposes is being used to make an effective military contribution, it shall be presumed not to be so used. However, based on information collected by the commission, the opposite appears to have been the case on 1 August in Rafah, where all vehicles in a certain area were targeted. This amounts to a deliberate attack against civilians and civilian objects and may amount to a war crime.

366.        Statements made on IDF audio recordings, as well as the amount and types of ordnance fired at some Rafah neighbourhoods, also raise concern with regards to the respect by IDF forces of the principle of distinction. The alleged use of over 250 mortar shells, a statistical weapon with a wide impact area, in a densely populated area, as well as the firing of over 800 artillery and tank shells with wide area effects in a densely populated and built up area over the period of a few hours, indicate the use by the IDF of methods and means of combat which in the circumstances were of a nature to strike military objectives and civilians or civilian objects without distinction. This is demonstrated by the high number of shells that hit the Al Najjar hospital premises, and the number of civilians who were struck by shells in the street while attempting to flee. The attack of 1 August 2014, therefore, appears to have violated the prohibition of indiscriminate attacks.

367.        In relation to the “Hannibal Directive”, the IDF has stressed that: “allegations that IDF directives, and particularly, the IDF General Staff Directive for Contending with Kidnapping Attempts (also known as the “Hannibal Directive”), permit IDF forces to exercise force in a manner that does not accord with the principle of proportionality, are incorrect. […] The Directive does not grant permission to violate the Law of Armed Conflict, including the rules relating to distinction and proportionality. To the contrary, and as with all IDF directives concerning combat situations, IDF forces are required to adhere to the Law of Armed Conflict at all times when implementing the directives’ provisions. The use of unrestrained force is never permitted, even in the direst of circumstances.

368.        Nevertheless, the attack in Rafah on “Black Friday” raises concerns with regard to the IDF’s respect of the principle of proportionality. The invocation of the ‘Hannibal Directive’ and reported statements by IDF officers present during the attack provide a clear indication of the objective of the attack – namely preventing or putting an end to the capture by an armed group of an IDF soldier. Given the amount and type of ordnance used, as well as the likely presence of civilians in the area due to the announced ceasefire, a reasonable military commander should have known that such an attack could result in a high number of civilian casualties as well as in damage to civilian objects. In order for an attack to be considered proportionate, international law requires that the expected incidental loss of civilian life and damage to civilian objects not be excessive in relation to the concrete and direct military advantage anticipated.

369.        The latter point must be examined in depth. Preventing the capture or freeing a soldier from captivity may be conceived as a concrete and direct military advantage, albeit of a limited nature, since the loss of one soldier in a large army such as the IDF does not reduce its military capability. When doing so in a manner that is highly likely to result in the soldier’s death, it further reduces the concrete and direct military advantage. On the other hand, some have argued that in such a case the proportionality test must take into account the strategic consideration of denying the armed groups the leverage they could obtain over Israel in negotiations for the release of the captured soldier.

370.        The commission considers this an erroneous interpretation of international humanitarian law. The leverage that armed groups may obtain in negotiations does not depend solely on the capture of a soldier, but on how the Government of Israel decides to react to the capture in the aftermath. The strategic military or political advantage sought is therefore not a concrete and direct military advantage as required by international humanitarian law. An assessment of the strategic and political advantage depends on a large number of post facto elements which are merely speculative for the commander on the ground at the moment he decides to launch the attack. Indeed, the proposed interpretation of the anticipated military advantage, which would allow for abstract political and long-term strategic considerations in carrying out the proportionality analysis, would have the consequence of emptying the proportionality principle of any protective element. The commission finds therefore that the IDF attack of 1 August 2014 in Rafah could have been expected to cause incidental loss of civilian life and damage to civilian objects which would be grossly excessive in relation to the anticipated concrete and direct military advantage, and may therefore amount to a war crime.

371.        What is more, the commission believes that the military culture resulting from such policy priorities may have been a contributing factor for the unleashing of massive firepower on Rafah, in total disregard for its impact on the civilian population. Applying the ‘Hannibal Directive’ in the context of a densely populated urban environment using heavy weaponry inevitably leads to violations of the principles of distinction and proportionality.

372.        The nature of the attack, as well as statements reportedly made by an officer present in Rafah after the events, indicate that the IDF did not comply with its obligation to take constant care to spare civilians. Based on the information gathered by the commission, it does not appear that the IDF took all feasible precautions to adequately verify whether the targets of the attacks were indeed lawful military objectives and to choose the weapons used in the attack with a view to avoiding or at the very least to minimizing civilian casualties and damage to civilian objects.

373.         Finally, as the IDF had aerial assets over Rafah on “Black Friday”, it is very likely that commanders on the ground quickly gained knowledge of the calamitous impact of the attacks on civilians and civilian objects. This knowledge of the likelihood that the intense bombardment would lead to significant casualties is illustrated by the warning given to the doctors in Al Najjar hospital to evacuate the hospital. Yet, even though the attack lasted several hours, it was not suspended. This may constitute a violation of the obligation to do everything feasible to suspend or cancel an attack when it becomes apparent it is not respecting the principles of distinction or proportionality.

374.        The strikes against the Al Najjar hospital and against ambulances in Rafah also raise concerns as to the respect by Israel of the obligation to protect medical units and transports in all circumstances.

This week, Amnesty International released its report about Black Friday, see here.

There is overwhelming evidence that Israeli forces committed disproportionate, or otherwise indiscriminate, attacks which killed scores of civilians in their homes, on the streets and in vehicles and injured many more. This includes repeatedly firing artillery and other imprecise explosive weapons in densely populated civilian areas during the attacks on Rafah between 1 and 4 August. In some cases, there are indications that they directly fired at and killed civilians, including people fleeing.

In response, the Israeli spokesperson said: “In contrast to Amnesty’s claims, the IDF – as the military of a democratic state committed to the rule of law – conducts all its operations in accordance with international law”.

Mondoweiss and Ynet published an 11-minute video earlier this year containing heavily edited recordings set to dramatic music and “published with permission from the IDF censor.” Chief of Staff Benny Gantz denounced their release — “The army is not a reality TV show…not that I’m hiding anything” — and has reportedly ordered the military police to find those responsible.  Watch the video here.

A journalist/commentator with The Independent, Ahron Bregman, provided some insight into the man responsible for the IDF’s actions on Black Friday.

“The colonel who orchestrated the assault on Rafah was Ofer Winter, the commander of the Givati Brigade. A religious settler, on the eve of the Gaza war he dispatched a letter to his troops, laden with biblical references, which perhaps explains the ferocity with which they attacked Rafah.

What Colonel Winter called on his troops to do was, effectively, to conduct a religious war on Gaza. Here are some quotes from his letter:

“History has chosen us to be the sharp edge of the bayonet of fighting the terrorist enemy from Gaza which curses, defames and abuses the God of Israel’s battles … We will… wipe out the enemy… Using all means at our disposal and with all required force… I turn my eyes to the sky and call with you ‘Hear, O Israel: The Lord our God is one Lord.’ God, the Lord of Israel, make our path successful, as we are about to fight for Your People, Israel, against an enemy who defames your name.”

Colonel Winter managed to wipe out many Palestinians — but alas, they were non-combatant civilians. Therefore his actions, as well as those working with him, must be thoroughly investigated by the UN to establish whether it amounted to war crimes. We cannot allow The Hannibal Protocol to be used in such a way again.”

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Filed under Gaza, IDF, Israel Defense Forces, People, United Nations, Video

One response to “Day #26 – August 1, 2014 – Black Friday in Rafah

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