Sunday, December 27, 2015

HRW non-in depth examination of war crimes in the Gaza conflict of 2014 Part 4 of 5

Rafah, August 3rd, 10:45 am; when common sense is another victim of a war crime

There is no major dispute between the IDF and HRW as to what has happened outside the Preparatory 'A' Boys' School in Rafah, on August 3rd, at 10:45 am. A motorcycle chased by an Israeli drone was hit by a missile, probably a Spike missile. This happened across the street from the open front gate of that school, where children and adults were buying ice cream and sweets from food vendors. As a result 12 were killed, among them 8 children, and around 30 were wounded. According to Israel there were three members of Islamic Jihad on that motorbike. HRW does not dispute that, instead they argue that it was an unlawful attack because it was a disproportionate willful attack.  Here, again, a serious actuation is made, without supporting evidence, based on another incomplete investigation. But even before that they needlessly undermine their own credibility. Out of the 3,000 or so people sheltering in that school, these dead and wounded make less of a percentage than the dead and wounded of the Jabalya tragedy. But this is completely irrelevant to this case, since this is a totally different situation. As Mark Regev, the Israeli foreign ministry spokesperson pointed out at the time, it was not an attack on the school, rather on a motorcycle operating in the vicinity of that school.  And the testimonies gathered by HRW confirm that. The very testimonies that captured the horror of this situation, also verify the Israeli government line. Moammar Shaqlaih is a 32 years old volunteer who helped mediate a dispute between one of the directors of the school and another volunteer at the front gate, he says: "I was 20 meters away from the explosion when it happened. I didn't see it happen because my back was to the street. I ran towards the explosion, and I was completely shocked. Kids who had been buying ice cream were lying in the street, their bodies were bleeding everywhere. It was horrific….We brought the dead and the wounded inside the school" The second male volunteer, described as a, 45 years old volunteer that choose to remain anonymous, also describes the motorcycle and the attack as taking place in the street, outside the school. "In the street there were three people on a motorcycle. The motorcycle slowed down, exactly in front of the gate of the school, I could see it. The minute the cycle slowed down, the missile hit." He too had to step outside to see what happened. The testimony of Saber al Hams, the ice-cream vendor who left early is taking place entirely in the street. There he sold ice-cream for about an hour. Along that street he walked away, and run back again once he heard the explosion. And in the street he saw the horrific site of the dead bodies. He was never inside that school. These testimonies confirm what Mark Regev had said. This was not an attack on a UN run school. It was an attack on a motorcycle that rode nearby. The idea that this is an attack on a school is an outcome of false impression. This false impression was initially created by the news media. By the time the news crews got there the dead and wounded had already been moved into the school. Since around that time the ambulances came to take them away, the news crews entering the school saw the casualties been taken outside and into the ambulances. This created the impression that the school itself was attacked, and that is what the world saw. But for some reason HRW chose to sustain this false impression. First with the main headline that suggests all three schools were attacked, then with the secondary headline, containing just the school's name. Yes, the two places, the site of the attack and the school were close, close enough to make those who were at the school at the time witnesses, but not victims or survivors. The two separate places are not one and the same. This false impression undermines the credibility of HRW account regarding the events outside the UN run school in Rafah, but it also puts Israel's defenders in a bind. Because percentage wise, these 42 dead and wounded, are probably close to 100% of the people standing around the sweets and ice cream vendors, if not all of them.  For the purpose of making serious s accusation against Israel, this false impression is completely unnecessary. They could have made a stronger case without it, if it wasn't for the other holes in this account.  The faults in this one are far more serious than everything reviewed so far.

Here, HRW is announcing a guilty verdict against Israel that is based on several failures of the common sense type, and one omission that is simply too big to be overlooked. HRW's first argument introduces itself as a common sense question, "why couldn't the drone takeout the motorcycle before or after it slowed down in front of that school?" There are common sense answers to this question. The first has to do with the laws of nature and science. The drone could not have hit the motorcycle before it slowed down in front of that school from the simple reason that fast moving objects are more difficult to hit. The idea that the drone, could have taken out motorcycle, "after," makes even less sense. Taking it after it resumed speed, requires the drone to hover around and wait until the motorcycle riders decide to resume the chase.  Why would they do that? This would also make the drone vulnerable to fire from the ground. And what if slowing down was a part of getaway trick - some kind of an escape maneuver? If the three men on that motorcycle posed a military threat, a fact HRW reluctantly accepted, then the drone operator could not have afford to let them get away. Elementary reason shows that there was no after option either.

In their second failure of the common sense type HRW's emphasized the fact the drone's alleged missile, a Spike anti-tank missile, uses an optical guidance system. This they say suggests the drone operator had a clear view of the food vendors and the children gathering around them. And therefore could have seen the civilians and aborted. No it doesn't. A clear view requires a clear field of view with no obstacles. As HRW keeps emphasizing the Gaza Strip is an urban environment. Videos that came from that street shortly after the attack, (some of them from the above mentioned news crews), show a street that is wide to some extant but with its share of buildings and tall trees. To argue responsibly that the operators of the drone and its missile could see the children around the food vendors, an accuser must identify the course taken by the missile as it chased the motorcycle. And show that along that course its guidance system had the alleged clear view. HRW did not even address this necessity. Another key requirement they did not address was whether or not aborting that launch was possible. If this was indeed a Spike missile then its operator had only 30 seconds to choose a different target for it. The school was clearly not an option. And neither were the surrounding buildings, where people were living in. As this IDF video shows, a successful abortion of missile strike requires identifying the civilians, and a large enough available clearing. A grossly incomplete investigation is a good enough reason not to file criminal charges of any type. You do not need to be a lawyer to know that. But the faults of this account don't stop here.
HRW next fallacy is the following description of the Spike missile, allegedly fired from the drone. "Spike missiles can create casualty-producing fragments up to 20 meters from impact, which was well within the distance of the school's front gate." This statement is simply wrong. It is not the missile that produces the wide distribution of the fragments, it's the warhead. Without identifying the warhead this charge cannot be made. Identifying the warhead is needed for another important reason. It is needed in order to explain an inconstancy in the account. According to the nameless 45 years old volunteer, one of three men on the motorcycle survived the attack. Now, how could a man sitting next to an explosion that is able to kill people 10 or 20 meters away survive it? It is quite possible that the science of physics can explain this, but such an explanation is not provided. Until this is resolved an alternative explanation has the same level of credibility as HRW's accusation. As agreed by both the IDF and HRW, the occupants of the motorcycle were members of an armed group. As such there is high probability that they carried bombs and explosives with them. In almost all cases of bombs used by armed Palestinian forces, the bombs included large amounts of debris and fragments added in order to maximize the harm to civilians. As the evidence and testimonies gathered by HRW tell us most of the casualties in this horrific tragedy were caused by fragments that went deep inside their bodies. (Read the testimony of the volunteer Moammar Shaqliah). Therefore the alternative explanation suggests that it was not the Spike missile or its warhead that caused the large number of casualties outside the school's gate. Instead, it was a secondary explosion from an explosive device carried by the occupants of that motorcycle that caused this tragedy. The gap between the two explosions may have been too short to be detected by the nearby crowd, but it was enough to allow one of the riders of that motorcycle to survive the two explosions. The large amount of fragments added to all Palestinian made bombs is what brought about the horrific deaths and injuries of 42 victims of this explosion. Only a further investigation can determine if this explanation is the correct one. Until then it has the same merit as the explanation offered by HRW.

HRW had challenged the taking out of a legitimate military target with arguments that supposed to be those of common sense. This makes their glaring omission of another common sense question, far bigger, alarmingly bigger. It is a very simple question, what were those kids doing out there in the first place? It’s a war zone outside that shelter. If they wanted ice cream and sweets so bad, there were plenty of adults who could step outside and buy it for them. This is such a disturbingly unusual behavior in times of crisis any reasonable person would have noticed it. Children are not supposed to be outside in a war zone for the same reason they are not supposed to do this when a hurricane or a tsunami is approaching. It is simply and obviously too dangerous. If we are to accept HRW's version of events at face value, we will have to accept the unlikely occurrence of a horrific set of coincidences. When a set of highly rare, unusual, and bewildering behaviors, took place in a monstrously perfect sequence needed to bring about this horror. First we have the food vendors. For some reason these guys decided to risk their lives and businesses, and open shop in the middle of a war. Yes they started during a cease fire, one of many that kept collapsing, the danger they were under was imminent. Food vendor like these guys had no way of knowing where and when the war will fall on them. This is a very unusual decision, which the average business person is unlikely to make. This is made worse by the testimony of the surviving ice cream sales man Saber al Hams, who said that the vendors kept on selling their ice cream and sweets after the cease fire had collapsed. More unusual is the behavior of the parents. Apparently not even a single parent, out of hundreds, protested.  Hundreds of parents inside that shelter and none were concerned?  All are apathetic to their children safety? Does this sound likely to anyone? A third group with a similar bewildering behavior are those of the staff and volunteers that operated this UN run school. Judging from HRW account non-of of them said a thing either.

Each of those behaviors is an extremely unlikely conduct in its own right. Normal food vendors do not open shop at a war zone during war time, especially after a cease fire had collapsed. Normal parents do not let their kids step outside of their shelter, no matter what the danger is. And responsible staff workers and volunteers will keep them inside and sent away such un-normal vendors. Each of these behaviors is extremely unusual, and extremely rare, if not totally unlikely. And for these three separate highly unusual counter safety behaviors, to occur at the same place at the same time, is so unlikely it is outright suspicious.  Made worse by another suspicion coincident; that of all the places the motorcycle riders could choose to slow down at, they did it in front of this school, the sight of an already implausible set of bad coincidences. The more likely explanation is that this was prearranged at some point earlier, as an escape route. An escape route, were those kids were the equivalent of smoke screen, a cover of protection for the escaping motorcycle riders. Prearrange by militant elements that took control of that school and kept the parents and staff from interfering by either deceit, force, or both. All they had to do was to keep the vendors outside the gate, tempting the kids to stay out of the shelter, beyond the end of the cease fire, and long enough for that motorcycle to arrive.

This suspicion is reinforced by another suspicious coincidence. This is what 23 years-old Azhar Odwan said about the reason she became a volunteer: "I started to work as a volunteer because I felt a need for more women volunteers. The women sheltering inside the school need to be able to talk to women, not only men." More women volunteers were needed because the women there had only men to talk to. An all men hiring policy is very strange hiring policy for an organization that belongs to the United Nations. But it is quite common among religious fundamentalist organizations in the Middle East. One such organization that is highly active in the Gaza Strip is Islamic Jihad. And according to the IDF, the riders of the motorcycle belonged to that organization. So we have here a motorcycle ridden by people Israel's says belongs to Islamic Jihad, which slows down near a UN run school, with a hiring policy of volunteers that follows the religious philosophy of that very same organization. This is a suspicious coincidence in its own right. Add the two together and the alarm will turn on even for the skeptic.
For those who are not yet convinced that something very suspicious was happening at that school prior to the attack, here is a question. What was the getaway vehicle doing there? Here is what the nameless 45 years-old volunteer told HRW: "There were two guys killed on that motorcycle and the third one was taken away by a car immediately." Only a getaway car in a standby could take him away immediately.  And any good escape maneuver, no matter how cynical, needs a good diversion or a good cover. Something both Hamas and Islamic Jihad are more than capable of arranging.

There are two options in understanding the events of that day as they are described in this account. We can take HRW account at face value and accept that nothing unusual or worth investigating took place at the Preparatory 'A' Boys' School in Rafah, on August 3rd, prior to 10:45 am. This means accepting as a fact that Palestinian parents are grossly careless and apathetic to their children's safety. This is actually something many right-wingers will agree with, loudly and obnoxiously. Or accept as highly likely the possibility that one of the armed Palestinian groups had taken control over that school, used it and abused it for their own needs; including sacrificing children in order to save three of their men.

There is no choice to be made here. Just listen to the witnesses.

This is how the ice cream salesman Saber al Hams, describes how unusual their presence was: "The place was full of people. Actually the rest of the street that day was calm, because there had been a ceasefire, but then it collapsed, so people didn't go out." However it is the beginning of his testimony that is the most revealing. "I felt that day it was not busy enough. And it was not picking up, so we only stayed for an hour. I left at around 10:30 am…" Simply put, it made no business sense for the vendors to be there. Most of the kids in that shelter simply did not go outside to buy ice cream and sweets. What kind of kids do not go out to get ice cream and sweets? Only one kind, the ones forbidden to do so by their parents! And be certain it was not easy for them. Here is how Azhar Odwan describes the conditions inside the school's compound, "the playground is always full of people, especially kids. Given that its summer in Gaza, and the humidity" The parents in that UN shelter kept their children from stepping outside and buying ice – cream even under the unbearable conditions of the heat and humidity of the Gazan summer. In the complex and tense situation that had existed inside that school there are going to be a few parents that will cave in to their children bagging, and a few others that will be deceived by their kids. It is unavoidable, but it does not change the fact that the parents at the Preparatory 'A' Boys' School in Rafah behaved admirably, more precisely - parentally; and kept their kids from harm's way.

Their typically normal behavior as parents, in the highly un-normal circumstances of war and crisis, strengthen the already strong suspicion that something extremely wrong was taking place.  And they are not the only ones to do so. As the testimonies of two male volunteers tell us, those of Moammar Shaqliah and the nameless 45 years old volunteer, some kind of an altercation took place at that front gate. It was an altercation between one of the organizers of this UN run school and a third volunteer. It was so heated these two witnesses/ volunteers had to mediate.  There is no way of knowing from this HRW account what the debate was about. But anything short of immediate concern for the safety of children outside the gate would have been a huge dereliction of duty by this UN staffer. There is no way to confirm it with this data, but it is a strong likelihood that the UN staff also behaved normally and responsibly. And the reason he and the rest of his staff could not get that gate close is because they were not in charge of it at the time. Think of the picture of this mediation. We have here 3 volunteers vs one UN staffer. What kind of objective mediation they could offer, if any, is not all that important; since whatever the mediation there was, it was sufficient to keep the gate open long enough for the motorcycle to arrive. And bring about this devastating tragedy.
And for those who will oppose the idea that any of these volunteers is capable of such brutality I bring the full testament of the nameless 45 years old volunteer. And I recommend reading it, over and over again.

"On the black day, I was at the gate of the school trying to resolve a dispute between one of the managers and a volunteer. Suddenly the sound of a drone became really loud – it was unusual and very aggravating. I looked up to the sky and we all stopped talking. I was still at the gate, when one of the displaced families asked me to get them another gallon of water. The families get only one gallon per day, and to get an extra gallon would be a big procedure, so I was just turning around to go talk to another supervisor inside the school. I was 15 meters from the gate, in the middle of the court yard, there's a basic football (soccer) field there, a playground. That's where I was when the explosion happened.

In the street there were three people on a motorcycle. The motorcycle slowed down, exactly in front of the gate of the school, I could see it. The minute the cycle slowed down, the missile hit. I didn't see anything suspicious about them. There was a big fire, lots of smoke. As usual there were ice-cream sellers at the school gate; four or five carts are always there. The children always buy from them. As soon as the smoke cleared I run towards the street, but I was so nervous, I was not sure there would be another strike. Everyone else was running the opposite way, into the school. I was in such confusion about whether to go forwards or to run back.
I saw dead bodies all over the place, and wounded, mainly children, and the ice-cream sellers. One of the ice-cream sellers, Abu Harb, his body took most of the shrapnel. He was an older man. He was always there with his cart. There were two guys killed on the motorcycle and the third one was taken by car immediately – I don't know where he went."
Just listen to this guy:

First, he wants to be anonymous. Why? Who is he hiding from? With a testimony critical only of Israel, he clearly has no reason to fear Hamas or Islamic Jihad. This means that he is hiding from Israel. Only members of armed Palestinian organizations such as Hamas and Islamic Jihad have a reason to hide from Israel.
Second, he is the only one who thinks this was not unusual for the ice-cream vendors to be there. There are always there, he says, which is probably true. But war is not always there, the last time war took place there was on the eve of 2010. And that is why over 3,000 souls in that shelter actively disagreed with him.

Third, he is the only witness to mention the drone. He found its present unusual and aggravating, but not frightening enough to get people inside and close shut the gate.
Forth, he was able to notice the motorcycle while been preoccupied by a family asking for another gallon of water. And that is when he was 15 meters inside the school, which is a distance 25 or 35 meters away from the motorcycle. Surrounded by the school's confines and the distracting commotion of hundreds of people, (as described by the female volunteer Azhar Odwan); he was able to notice that motorcycle coming, slowing down, been hit by the missile, exploding, and one of its occupants surviving and taken away by a getaway car. That is the kind of attention to details we would usually find in a person waiting for that motorcycle to arrive.

Fifth, while all the other witnesses were devastated by the site of dying children his attentions was focused on that motorcycle. All he could offer them was this one sentence, "I saw dead bodies all over the place, and wounded, mainly children, and the ice-cream sellers. Abu Harb, his body took most of the shrapnel. He was an older man. He was always there with his cart." Not a single child that was dying or wounded caught his attention or broke his heart, and that is cold, very cold. The kind of cold bloodedness we would expect from a person able to sacrifice children for his own needs. In his testimony the nameless 45 years old volunteer exhibits all the properties needed for someone who participates in such a brutal escape maneuver. Besides helping keep the gate open, he acts like someone who is waiting for that motorcycle to arrive. And he is totally indifferent to the suffering of the children around him. Apparently, when many others were carrying the dead and wounded into the school's compound, he was the one who was too shocked and confused to do the same. But one of the casualties did catch his attention, the elderly ice-cream vendor Abu Harb. He was focused to notice that Abu Harb body took most of fragments from the explosion.

The allegation made in this review of HRW account, suggests that Palestinian militants, probably Islamic Jihad, orchestrated this situation in order to bail their friends on the runaway motorcycle. An escape maneuver like this, were children are nothing more than expandable pawns, requires the presence of someone like nameless 45 to co-ordinate and supervise. Well, here he is. He is waiting for that motorcycle to arrive even when he is distracted away from the front gate. He is indifferent to the suffering of children he himself put in danger by keeping the front gate open, even after the cease fire had collapsed and an enemy drone has been sited. His presence is no longer a matter of another unexplained coincident. This is incrimination. We have in front of us cold blooded humanitarian volunteer that seeks anonymity. Who just happened to positioned himself just where it is necessary, to monitor the escape maneuver of the motorcycle's occupants. 

The fact that only one of the casualties caught his attention, the elderly ice-cream vendor Abu – Harb, does not exonerate him from any charges. It only increases the level of the incrimination. Abu – Harb represents the most disturbing and monstrous part in this revealed outrage. He is a very peculiar ice – cream vendor, and not in a nice way. Besides been one of the ice-cream vendors who stayed, thus keeping the children in danger, he has a strange name. Abu Harb is an Arabic name that usually means father of war. This is not the kind of a name we would associate with selling ice-cream. If his name or nick name was Abu Boora, father of ice-cream, or Abu Mahroot, father of cone, as in ice-cream cone, that would have made sense. But father of war, is the kind of name usually associated with members of armed organizations and their sympathizers. In a culture where Jihad, holly war, is a common first name, the likelihood of someone being called Abu – Harb, may not be a small one. But if that is the case, it is another co-incident to add to the list; maybe not the most glaring, but disturbing enough. According to the testimonies gathered he took most of the hits from that explosion. This means that he was the closest to it when it happened. It also means that he was the farthest from the school's front gate. Why would he do that? Why would he sell his ice-cream far from this school? His market is inside that school. With business been tough, he should be doing the opposite, getting as close as possible to that school, shouting, singing, promising cold refreshing ice-cream. Instead he is in the worse possible location, battling his competitors over the handful of kids that did come out. Business wise this is pointless, counterproductive. But if he was a part of that escape maneuver, then his behavior would have made perfect sense. For the organizers of this diabolical escape maneuver to guarantee its success they had to make sure the operators of the drone and its missile are able to see those kids. As the IDF video of aborted missile strikes shows, it is the visual verification of the presence of civilians that leads to these cancellations. And the best way to ensure that is to get at least some of those kids as close as possible to the arriving motorcycle.  This requires perfect timing and co-ordination. In the clear division of labor that emerges here, the volunteers at the gate and the motorcycle riders had to work on the co-ordination and timing part of it, while Abu Harb's job was to make it perfect. Obviously, he failed, and a cold blooded gamble with children's lives became a war crime. A war crime performed by Islamic Jihad against their own people.  And quite possibly, people from their very city and neighborhoods.

It is a war crime that violates international law on several levels. International law forbids the use of human shields. It also requires all parties to a conflict to give special protection for children.  From a moralistic point of view, using children as human shields is especially outrages and monstrous. The problem is that international law's main focus is on war crimes aimed against an enemy population, not when it is self-inflicted.  When international law does face such situations, it refers to them as extraordinary. Best example is the Khmer Rouge trials, known as the 'Extra Ordinary Chambers in the Courts of Cambodia'.  This war crime may not require extra ordinary chambers, but it does require attention.  It shows that civilians need the same legal protection from their own forces as they do from enemy forces.

Having established the fact, that Islamic Jihad has committed this war crime, a war crime against their people, a new question rises. Does this conclusion, means Israel is innocent? After all, the Israeli missile was an instrument of death in this crime.

If an international judicial authority does decide to launch criminal proceedings against Israel and the IDF regarding this war crime; justice demands of them to take a series of actions first. The first among them is to take on the issues HRW investigators had avoided. Completing their investigation and proving that the operators of the Israeli missile could see those children and had the ability to abort its flight. That means also been able to identify in time an accessible vacant area where the missile could have exploded at safely. They also must verify that no secondary explosions took place; that no bombs or other explosive devices were carried on that motorcycle.
And once this judicial authority believes it has all the necessary information needed to actually file charges against Israel and the IDF, they must first file charges against those who share the greater part of the blame, Islamic Jihad and its group of volunteers that operated that day at the Preparatory 'A' Boys' School in Rafah.  Why them, and not those who sent the instrument of death? Think of the following analogy.  A group of kids is playing in the open. At some point a smaller group of adults is joining them. They are not complete strangers to those kids, so the two groups interact friendlily; especially when the adults have more fun staff to offer those kids. A fancy new football (soccer) that looks awesome when kicked skywards, a baseball with a bat to match, a few throwing balls to toss around, and a couple of skateboards. And of course the accompanying snacks and sweets. With these they lead those children to a different playground, the nearby highway.  At this time of the day it is still empty, silent, a tempting playground in its own right. But as the games continue, and the kids are distracted by their entertaining toys, this time of the day is about to end. And from behind the hill, that of which the empty highway goes over, rush hour traffic is coming in full speed. The outcome is as unavoidable as it is horrific. With wounded and dying children scattered all around.  The question is who would you blame for their deaths and injuries? The adults who lead them there and placed them in lethal jeopardy, or the drivers driving the instruments of death?

This analogy applies perfectly to the crime committed by Islamic Jihad outside the Preparatory 'A' Boys' School in Rafah; on August 3rd 2014. Ask yourselves two simple questions, If there were no civilians and children outside that school, would that motorcycle have slowed down in front of its front gate? And if there was no motorcycle trying to escape an Israeli drone, would that gate had remain open after the collapse of the cease fire? The answer to both questions is NO, and without those two actions this horrific incident would not have taken place.  The IDF operators of the missile may or may not have had a choice in their actions. If they did it was during a very narrow window of time, much like the car drivers in the analogy. The motorcycle riders and those who kept the gate open definitely did have other choices. And like the adults in the analogy they are the ones that brought the kids into a place of lethal jeopardy.  Therefore their share of the blame is both bigger and definite. And justice demands that they be the first to be prosecuted.  Because prosecuting the least responsible party to a crime while leaving out completely the chief instigator and facilitator of the crime, is a definition of injustice.
However the work of justice does not ends here. There is one more party to this monstrous war crime that has to face criminal charges, one whose responsibility is also greater than that of the IDF. This party is made up of those helping the main perpetrators of this crime avoid justice. These are HRW's authors, and researches of this abysmal account. 

Human Rights Watch as war criminals


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