Israel rejects UN war crimes claim: Hamas turned ‘large parts of Gaza into combat sites’
Document responding to UN Human Rights office allegations says report suffers from ‘hindsight and methodological biases,’ lacks crucial information
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Israel has rejected a UN report accusing it of having “systematically violated” key principles of the laws of armed conflict during the ongoing war against Hamas in Gaza.
The report was issued last week by the UN Office of the High Commissioner for Human Rights (OHCHR). It detailed in particular the IDF’s use of air-dropped bombs in densely populated areas, and focused on six specific incidents with high casualty counts as examples of how Israel has allegedly violated the principles of distinction, proportionality, and precaution in its campaign.
A response compiled by the Israeli government to the document has rejected the OHCHR’s claims, noting in particular that the agency made its claims based on the outcomes of attacks instead of assessing the decision making process behind them, as is required when assessing the legality of an attack.
Israel’s military campaign in Gaza in response to Hamas’s October 7 invasion and mass atrocities has prompted numerous allegations that the IDF has violated the laws of armed conflict laid out by international law, in light of what appears to be the high number of civilian casualties and the massive destruction of civilian infrastructure.
These claims have even been taken up by the International Criminal Court, with its prosecutor Karim Khan now seeking arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for, among other alleged crimes, “willful killing” and “intentionally directing attacks against a civilian population.”
OHCHR’s report could likely be used by the ICC and other UN agencies to bolster the legal accusations against Israel.
The OHCHR report issued on June 19 was scant on the details of its methodology, saying only that information was gathered from “multiple independent sources” including “through interviews carried out by OHCHR with witnesses, military and weapons experts,” but did not detail who those people were, or name the report’s authors.
And the Israeli response, authored by Israel’s delegation to the UN in Geneva under the auspices of the Foreign Ministry, took the OHCHR to task for what it said were serious methodological failings.
It insisted the organization did not have the relevant information to determine what the expected harm to civilians had been at the time of the attacks, and pointed out that Hamas’s comprehensive use of civilian infrastructure in Gaza had turned a multitude of previously civilian sites into military ones.
Critically, the response pointed out that Hamas’s “extensive and unprecedented” use of the civilian environment for military purposes meant that broad swaths of urban Gaza had become legitimate military targets.
“Large parts of neighborhoods in the Gaza Strip were converted, sometimes containing substantial portions of the buildings in them, into combat complexes that include ambushes, command and control apartments, weapons caches, observation posts, firing positions, trap houses and explosives in the streets and rocket launchers,” the response said.
This was in addition to “the extensive use of terror tunnels, going beneath neighborhoods, schools, UN facilities, and other civilian objects, with thousands of tunnels shafts inside and around such infrastructure, and containing the presence of many military operatives inside these tunnels.”
In many circumstances, using aerial munitions, including those with “wide area effects” were “the only type of weapon that can accomplish the military objective.”
Addressing what it described as methodological flaws in the OHCHR report, the Israeli rebuttal pointed in particular to its reliance on publicly available information which did not include information and intelligence held by IDF commanders who carried out the strikes.
“The chosen methodology by which OHCHR analyzes these strikes, which includes mainly relying on alleged results and media coverage, leads to an inaccurate understanding of which targets were struck, the military importance given to each target, and the operational constraints,” said the Israeli response, and this flaw led to “unjust accusations of violations.”
It also noted that the OHCHR report relies on fatality figures provided by the Hamas-run Gaza health ministry which have been shown to be unreliable and potentially distorted, leading the UN itself to reduce its fatality estimates.
In particular, the Israeli response observed that Hamas’s list of fatalities includes male combatants who are listed as women, minors who have been identified as combatants, and men who have been identified as combatants, which would potentially change the calculations of proportionality when assessing a strike.
Hamas’s fatality list also includes deaths caused by Hamas and other terror groups, including misfired munitions and explosives placed in areas populated by civilians, the Israeli rebuttal said.
The response also asserted that in general, estimating expected civilian harm in Gaza “can be very challenging” due to the fact that the IDF is operating in “a complex and dense urban environment where civilian presence is dynamic and often hard to ascertain.”
And it observed that attacks cannot be legally evaluated based on the outcome, but rather “only the harm that could reasonably be anticipated at the time of the decision.”
If the outcome of the attack is higher than expected “this does not necessarily indicate a violation,” the response noted, adding “compliance is conduct-oriented, not result-oriented.”
The OHCHR study itself focused on six incidents during the war which resulted in heavy Palestinian casualties, to illustrate what it said was a broader pattern of Israeli violations of the laws of armed conflict.
The first attack it highlighted was a strike in the Jabaliya camp on October 9 which resulted in the deaths of at least 42 people, including 14 children and one woman, according to OHCHR.
Another airstrike on the Taj3 Tower in Gaza City on October 25 killed 105 people, including 32 women and 47 children, and leveled an area of 5,700 square meters, according to OHCHR.
The organization said that another strike on Jabaliya on October 31 killed 56 people including 12 women and 23 children and flattened 2,500 square meters, noting that Israel said it killed the Hamas commander of the terror group’s Central Jabaliya Battalion in the attack.
A strike on the Al Bureij camp in central Gaza on November 2 resulted in the deaths of at least 15 people including five women and nine children, OHCHR said, while an attack on the Al Buraq school on November 10 resulted in the deaths of 34 people, including a Hamas company commander named Ahmed Siam, along with other Hamas combatants.
The final strike analyzed by OHCHR was an attack on the Shejaiya neighborhood in Gaza City on December 2, which it said resulted in the deaths of 60 people, including the commander of Hamas’s Shejaiya Battalion.
In these various attacks, the report said Israel used guided bombs of different sizes, including the GBU-31 2000lb munition, the GBU-32 1000lb bomb, and the GBU-39 250lb bomb.
Based on its analysis of the six airstrikes, the OHCHR report accused Israel of violating the principle of distinction, by which the laws of armed conflict require armed forces to target combatants alone, alleging that Israel has targeted “members of de facto civilian administration and Hamas political structures not directly participating in hostilities.”
OHCHR said Israel had also violated the principle of proportionality, which requires that the expected military advantage of a specific attack be proportional to the damage done to civilians and civilian objects.
The report alleged in regard to the strikes on Jabaliya, the Taj3 Tower, Al Buraq school and Shejayia that it was “hard to conceive” of a military advantage that would justify what it said was the “predictable scale” of harm to civilians in those strikes.
It also alleged that there were “hundreds” of similar strikes, which it said appear, to have been committed “as part of a pattern of attacks” over several months.
OHCHR also accused Israel of failing to take sufficient precautions in its attacks to avoid or minimize civilian casualties, another requirement of international law.
It said that in some attacks the IDF failed to issue warnings of an impending strike, and said that the use of heavy bombs with “wide area effects in densely populated area” also demonstrated a violation of the principle of precaution.
Additional Protocol I of the 1949 Geneva Conventions says that “effective advance warning” should be given of attacks which might affect the civilian population, “unless circumstances do not permit.”
Addressing the specific strikes underlined in OHCHR’s report, the Israeli response revealed several details not known to the UN agency, which it said would have to be taken into account when evaluating the legality of the attack.
Israel said the October 9 Jabaliya attack struck a terror tunnel with tunnel shafts which themselves were part of a Hamas compound, and included a rocket launcher and Hamas combatants.
Any assessment of that strike would have to take into account the military advantage to be gained in striking all those targets, the response said, while pointing out at that early stage of the war, a ground attack was not possible.
The response provided less specific information about the Taj3 Tower attack in which OHCHR claimed some 79 women and children were killed, but stated that the IDF struck “on that day” several “unique and high value Hamas military assets and infrastructure, which were used by Hamas’ highest level of military commanders, both above and underground.”
The Foreign Ministry document did not detail whether those targets were in, around, or under the Taj3 Tower.
The rebuttal made similar comments about the October 31 attack on Jabaliya and the Shejaiya attack, insisting that there had been multiple targets in those attacks including high ranking commanders and military infrastructure.
“The notion that the expected incidental damage of the strikes were weighed against a single Al Qassam commander ‘whether with or without other combatants,’ is factually wrong, and leads to a flawed legal conclusion,” the response asserted.
The document also pointed out that five of the six strikes, excluding the October 9 Jabaliya attack, are currently under review by the Fact-Finding and Assessment Mechanism (“FFA Mechanism”) of the IDF’s General Staff, which is responsible for conducting factual assessments of the legality of “exceptional incidents.”
Once those are completed, the results are submitted to the Military Advocate General (MAG) corps for a decision on whether or not to open a criminal investigation.
Israel’s rebuttal did not contend with OHCHR’s contention that “extensive civilian losses and damages” can never be justified.
The OHCHR report, the Israeli response nevertheless argued, lacked “many crucial facts and understandings that are crucial for any sound legal discussion,” adding that, “It is apparent that the document suffers from hindsight and methodological biases which cast a shadow on the credibility of its legal assessment.”