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

Human Rights Watch as war criminals

Helping criminals avoid justice is a criminal offense in its own right. It is known as accessory after the fact. And when that crime is a war crime, those who help the perpetrators avoid justice, should be regarded as war criminals as well.  There are several reasons why this entire account, of all three incidents is an accessory to the war crime committed by Islamic Jihad against their people at Rafah, on August 3^rd, 2014, in front of the Preparatory 'A' Boys' School.

1.       This is what it does. By focusing their investigations and the resulting accusations only against Israel and the IDF, they build a mindset were Israel is the only guilty party to be considered. This mindset turns people away from the possibility of a Palestinian responsibility.

2.       According to their account they were there on August 3^rd, the day it happened, and they could not see it?? They investigated, gathered information, build a picture of the events that took place in that horrible day, and nothing? The details of Islamic Jihad's crime are in the account and testimonies they collected, and they could not see it? Kids are outside the safety of a public shelter after the collapse of a cease fire and as far as HRW is concern it is as mundane as buying ice-cream on Venice Beach, California? Even if there was no criminal intention behind this, how could human rights activists of all people be indifferent to it?

3.       Nameless 45. Nameless 45 is one of the perpetrators of this war crime. His age suggests he had some kind of a command function. By treating him as a regular witness they gave him the aura of legitimacy.

4.       Where are the other two witnesses? They promised six witnesses, but published the testimonies of only 4 witnesses. The most noticeably missing testimonies are those of the UN staff that run that school. Why omit them? As employees of the United Nations their testimony is the most valuable there is. Even if HRW is biased against Israel there should be no reason to do that. The relationships between Israel and the UN agencies working in the Gaza Strip, especially UNRAW, are so bad and bitter that the likelihood that the testimony of any of their employees will carry even the slightest favorable view of Israel does not exist. The absence of their testimonies, especially of the UN organizer present at the open front gate at the time leading to the incident, omits only one thing. It omits their side of the debate that took place at that open front gate. The debate between him and the three volunteers. These volunteers did not share the nature of that debate, nor where they asked about it. If they were a part of a criminal activity that took place there, then they certainly had a good reason to hide this. But what were the reasons HRW investigators had to hide this debate or ignore it? Isn't it necessary background, like the family that asked nameless 45 for an extra gallon of water, or the heat and humidity of that day?

5.       This is the best way to cover up a crime. What is the best way for corrupt criminal investigators to cover - up a crime? What is their best way to hide the identity of the criminal actually responsible for the crime? The best way to do that is by not asking a single question that can raise that suspicion.

Look at what they did, and look at what they did not do. They were able to ask a common sense question criticizing the Israeli side but were unable to ask common sense question that criticizes the Palestinian side. On one hand they were puzzled by the IDF's decision to take out that motorcycle at that specific time and place. On the other hand, they were undisturbed by the presence of kids outside the safety of their shelter during wartime. One sided questioning does not make any sense, unless some kind of bias is involved. But it is more than just bias, because each of these questions leads to a different place.

Asking the IDF why it chose that time and place to fire at that motorcycle is a legitimate question. One that has an answer, there was no choice. Fast moving objects are simply difficult to hit. There is no reason to believe the drone did not try to hit it before; after all the motorcycle was running away from it. But only when it slowed down, the missile was able to catch it. There was no option to take out the motorcycle after it slowed down because this could have been a part of getaway maneuver. The presence of a getaway vehicle over there shows that indeed it was.

On the other hand the question not been asked of the Palestinian side leads to more questions. Why the gate was open after the collapse of the cease fire, and the sighting of the drone? What the ice-cream and sweats vendors were doing out there, tempting the kids to step into a likely danger zone, especially when they couldn't make a profit? The answer to these questions requires an investigation that digs out more details from this account. These details portray the most probable explanation regarding that horrific day. According to this explanation, members of an armed Palestinian group, most likely Islamic Jihad, operated inside that school. Acting as volunteers they kept the gate open with the ice-cream vendors outside in order to tempt children to leave the safety of that shelter. Their plan was to use some of those kids in the escape maneuver of their friends on the escaping motorcycle.  They wanted the drone to site the children in order to have it cancel the pursuit. Whether the drone operators were able to spot them in time or not, is needed to be investigated. But one thing is without any question. If it had not been for the Islamic Jihad cell working inside that UN run school all those kids (and adults), would have been alive and well today. In HRW account there is not a single reference to that possibility. Every word, every phrase, every sentence, and every question leads away from that possibility.  A possibility that once dug out of this account becomes the best explanation to this murderous incident, if not the only one.  HRW treatment of the horrific events of August 3^rd 2014 in Rafah is simply a cover-up. It functions as a cover-up, it is constructed as a cover-up, and it produced a cover-up. Therefor it is extremely likely, if not certain, that it was intended to be a cover-up. A cover-up that helps war criminals avoids justice by removing any suspicion from them.

6.       What's the rush?  On August 11^th Sarah Leah Whitson, the executive director of Human Rights Watch, North Africa and Middle East Division, wrote a public letter to US secretary of state John Kerry. The letter demanded from the United – States to place severe punishments on Israel. This was before their investigation was complete. As the account reviewed here says, they visited the Beit Hanoun School on August 12, 13, and 29. And the Jablya school at August 13. The only investigation they did complete was the one in Rafah, on August 3. This raises the suspicion that Israel's guilt was decided in advance.  Thus shedding a negative light on all previous investigations. By the nature of their work human rights activists are in-charge on one of the most ethically demanding subject of modern lives. Here however they had violated the most basic of ethical codes by pre-determining guilt before an investigation is completed. Why would, intelligent persons do that?  This could be a simple case of over confidence, which again sheds negative light on all previous investigations.  But working under the shadow of criminal complicity is a more powerful motivation. The sooner they can point the finger at Israel, the sooner they can point the finger away from themselves.

Sarah Leah Whitson,
 Human Rights Watch Director of Middle East and North Africa division

7.       HRW's poor criticism of Islamic Jihad. Historically HRW had criticized Israel, a lot, and offered some criticism of the Palestinian Authority and Hamas. But there is very little criticism in their archives of the Islamic Jihad. This is strange and puzzling since it is the third largest Palestinian military organization, and second largest official organization in the Gaza Strip. With an estimate of 8,000 fighters it is far smaller than Hamas, but significantly bigger than the DFLP (Democratic Front for the Liberation of Palestine), and the PLFP (Popular Front for the Liberation of Palestine). Yet, it had been the subject of the same amount of criticism as these two small organizations, little to nothing between 2002 and the end of Operation Protective Edge.

8.       A letter of self-incrimination. The content of Sarah Leah Whitson's letter can serve as a verification of these charges. In this letter she begins by accusing both sides of human rights violations. What is incriminating is the kind of actions she wants the United States and the world to take. On one hand she calls on the United States to limit the military technologies given to Israel. Technologies Israel is using to successfully defend its citizens. On the other hand she calls for the removal of all barriers over the transportation of goods and commerce into the Gaza Strip. An act that will allow Hamas and Islamic Jihad to get better military technologies, allowing them to violate more human rights. If both sides are violators of human rights, shouldn't there be restrictions on both of them? If her recommendation were to be implemented it will be more difficult for Israel to protect its civilians, and easier for Hamas and Islamic Jihad to kill them. She is literally offering aid to the Gaza based armed Palestinian organizations in violating the human rights of Israelis. If she can do that, what is keeping her from helping them violate the human rights of Palestinians?

9.       The actual series of events vs. the actual series of investigations. Is this entire account a case of gross incompetence or criminal complicity on behalf of Human Rights Watch? So far this review has argued that it is a cover up. A cover up that helps members of Islamic Jihad evade war crimes charges regarding a war crime they committed against their own people. Islamic Jihad's guilt cannot be disputed. However, HRW culpability could be simply a case of gross incompetence.  Such cases, of mind boggling illogical and stupendously amateurish decision making processes, are known to have happened throughout history. They happened to governments and militaries, banks and corporations, associations of various kinds, and religious institutions. Just as it happened to them it could happen to any human rights organization. No type of organization is immune. If this is the case here, then they are so incompetent that they are acting as if they are guilty of covering up someone else's war crime. It is certainly a possibility, but a weak one. The first thing that points to a cover up rather than incompetence is the actual series of investigations. The account describes each of the tragic events in their order of occurrence.  First is what happened in the coeducational elementary school in Beit – Hanoun, on July 24. This is followed by the Jablaya girls` school tragedy from July 30. And concludes with the attack on the motorcycle, outside the Preparatory 'A' Boys' School in Rafah on August 3. This lineup supports a scenario of ever growing incompetence. In their account of the tragedy at the UN run school in Beit Hanoun, they showed limited understanding of mortars fire behavior in an urban area, with no necessary supporting technical information. In the Jablaya incident they showed poor understanding of international law. This is a far worse case of ignorance in the material been used, since international law supposed to be their area of expertise.  And in Rafah they could not distinguish between war criminals and witnesses, unable to see what is in front of their eyes. But this is not the order of their investigations. First to be investigated was the Rafah motorcycle attack, on the day it happened, followed by Beit Hanoun, investigated on August, 12, 13, and 29, and Jablaya on August 13. The biggest demonstration of incompetence is the first investigation they made. This raises a great suspicion since the motive to a crime always comes before the crime. According to the cover up accusation, the later bad investigations are a part of the cover up, aimed to consolidate an anti – Israel mindset. Therefore it will be logical that the crime been covered up, will be the first investigation.

10.   Growths of the poisoning motive. With the Rafah investigation been the actual first investigation; it's not only stands at the beginning of this process like a motive would, it acts like one. It corrupts the two following investigations in a way where virtually every fault that exists in this investigation is found in either or both of the other two investigations:  A.) All three investigations are incomplete. In the Rafah account they claimed the operators of the Israeli Spike missile could see the children that were heart by the explosion because the Spike missile has an optical guidance system. But failed to show that there was no interference to its field of view from the surrounding urban environment. They also did not explain how come one of the occupants of the targeted motorcycle survived the attack while 12 people, including 8 children, were killed farther away from it. And of course they did not investigated why contrary to common sense the front gate of that shelter was kept open. In the Beit Hanoun account they did not provide any technical information to support their claim that the firing of the mortar shells showed precision. They did not eliminate all the possibilities that point to a Palestinian culpability. Most notably ignoring the possibility of bad maintenance practices. In the Jabalya account they relied mostly on someone else's investigation, the UN. Both investigations accused Israel and the IDF of irresponsible use of force but failed to demonstrate it. Instead the detailed they do provide show that the IDF did went to a great length to save Palestinian lives. And was successful in doing so. The 20 deaths that did occur, tragic though they are, are less than 1% of the 3,200 people sheltering there at the time. Since anything below 1% is most definitely the lowest possible minimum, international law had been implemented here to the letter. International law requires armed forces to minimize the death and harm inflicted on civilians by their weapons. On the other hand, both investigation teams, those of the UN and HRW, did not look for Palestinian mortar positions, even though this was Israel's main argument. That the IDF had fired at mortar position less than 180 meters from this UN run school.  But most importantly neither offered any analysis of the IDF's actions during that attack. Analysis needed to establish the accusation that Israel behaved irresponsibly that day and not as someone attacking mortar positions adjoining the UN run school. When an analysis is done the findings are the exact opposite. Because the smoke and laminations shells Israel is reported to have used are exactly what an attack like this requires when done responsibly. B.) Unprofessional investigation practices. In the Rafah account they investigated the Spike missile and its guidance system, but not the warhead and not the trajectory. Both of which are relevant technical information, relevant to the accusations been made. This had repeated itself in the Bet Hanoun were they failed to provide technical information necessary to support their precision argument.  C.) The specter of bias. This review suggests that HRW is covering up a Palestinian war crime against their people. At bare minimum this suggests an anti-Israel bias on behalf of HRW. We first came in contact with this suspicion when we read Sarah Leah Whitson letter to the US secretary of state. There she predetermined Israel's guilt before the investigations were complete. With every corky investigation always pointing the finger at Israel, the specter of that bias follows their entire account. But it is especially noticeable in the Beit Hanoun account. In this investigation they did not do a lot of the things required in order to substantiate their accusations. Yet, they spent three days investigating there. What were they doing there when they were not doing their job?  D.) Abusing the human rights of Israelis.  This entire account and the conduct it represents is an abuse of the ideals of human rights but it also contain specific threats to the human rights of Israelis. This threat first appears in Sarah Leah Whitson letter to the US secretary of state. There she calls for restriction to be imposed on Israel, while removing restrictions from Hamas. Needless to be repeated, should this be implemented it will be more difficult for the Israeli defense forces to defend the lives of Israelis, and easier for Hamas, Islamic Jihad, and other armed Palestinian groups to harm, kill, and murder Israeli civilians. We also see such a threat in the Jabalya account. There HRW introduces an interpretation of international law that gives legal protection to Palestinian fighters. It is a legal protection given to areas and places adjoining UN shelters. With that protection they can launch every military action they want; against the Israeli military, as well as against Israeli civilians, with impunity.    E.) Abusing the human rights of Palestinians. As bad as the abuse of the human rights of Israelis is, the abuse of the human rights of Palestinians is far worse. As said above, the interpretation of international law they presented in the Jabalya account allows ordinary Palestinians to be used as human shields. That is far worse than just putting them at risk. It is placing them in immediate danger. Much like Islamic Jihad did in Rafah, the crime HRW is accused of covering up. Even the Beit Hanoun investigation constitutes an abuse of human rights. People had died there, needlessly so. And their death deserves more than this botched job. Here we see the demonstration of a known universal truth regarding human rights. That when we allow one party to violate the human rights of one group, we open the door for the violations of the human rights of members of other groups. The hard bitter lesson is that what is true about the various brunches of the government and military is true just the same when it comes to human rights organizations.      

11.   Establishing bias. It is the bias that points away from incompetence and towards culpability more than any other suspicious characteristic of this account. The first thing that can be said about this bias is that it cannot be denied. Here, even incompetence cannot make excuses. In her letter Sarah Leah Whitson recognizes that in order to protect civilians, access to weapons and technologies should be limited.  But this recognition is an extremely selective recognition. As said above, even though Sarah Leah Whitson and HRW recognize that Hamas activities also harm civilians, they do not call for any restrictions over Hamas' access to weapons and technologies.  On the contrary, they want all existing restrictions to be removed. An act that will give Hamas access to more weapons and technologies that will harm more Israeli civilians. Are we to understand that when it comes to Israel they are intelligence enough to understand the impact of these restrictions, but when it comes to Hamas they are inept enough not to understand the impact of removing similar restrictions? This selectiveness goes deeper than that. It also ignores the fact that Israel is using its weapons and technologies to defend its citizens. Importantly but separately, this shortcoming is a part of a chronic problem that HRW has; the one that ignores the existence of hard heart wrenching dilemmas in times of war, where life vs life decisions have to be made. (See the background part, at the beginning of this review). As for Sarah Leah Whitson's type of selectiveness, this one is literally a characteristic of the entire account. In the Jabalya account the HRW investigators fully acknowledge the dense urban nature of most of the Gaza Strip. It is their main argument against Israel's using 155mm artillery shells in the urban environment of the Gaza Strip. But when the same reality of the war provides a defense to the Israeli side, this reality evaporates into a condition of not been mentioned or investigated. We saw that in the Beit Hanoun account, where the witnesses at the UN run school could not have seen whoever fired the mortar rockets at them because of the urban nature of the area, (unless unique and unusual conditions of visibility existed, none of which are provided.)  And we saw that in the Rafah account.  Here they argued that the Israeli drone operators could see the children near the targeted motorcycle, since the Israeli Spike missiles have an optical guidance system. But they did not address the possibility that the presence of trees and buildings near that school could have blocked that view. In the Jabalya account they are intelligent enough to notice what is there for everyone to see. But in accounts of Beit Hanoun and Rafah, where the same features provide a defense for Israel, they are too inept to see the very streets they walked through, when headed to investigate those UN run schools. This is an absurd that repeats itself with the technical data, (information regarding the weapons and munitions used, and their capabilities). When we examine the role of this information in these accounts we see the same contradiction. We are given a detailed description of capabilities, impact, and risks of the 155mm shells involved in the Jabalya tragedy. (This is very useful in order to understand what had happened. But it does not contradict the Israeli version; since the main debate there is over the interpretation of international law). On the other hand we have a complete lack of such information regarding the mortars used in the Beit Hanoun tragedy. In this case they claimed the rockets showed precision without giving the information from which they reached that conclusion. They also did not explain how they could make such a deduction based on just four rockets, and without identifying the intended target. With mortars the level of precision is determined based on the distances of the shells' hit points from the intended target.  The greater the number of hits that are closer to the intended targets the more precise the mortar is. But a large number of hits are needed in order to make that determination. Not doing that and not being able to identify the type of rockets, 120mm or 81mm, suggests a lack of professionality. Yet they are professional enough to identify the 155mm artillery shells of Jabalya and the Spike missile of Rafah. Again, whenever a piece of information may leads to an exoneration of Israel, incompetence reigns supreme. Selective incompetence is a proof of bias, and bias is a calculated act. But even bias can be blind to what is in front of it, and all around it. It is the very nature of the most extreme forms of bias. 

12. The final incriminating bias. The selectiveness demonstrated by HRW does not end here. When we look deeper into their treatment of technical information we find a greater absurd. They offer us the technical details regarding the Spike missile, and its guidance system, but not its warhead, and not its trajectory. The selectivity is practiced within a single investigation of the only weapon been studied.  This leads to the forth area of selectivity, the area of the 'could have beens'. We came across one case of a 'could have', earlier in this review. In the Beit Hanoun account HRW argued that the presence of Israeli tanks in the vicinity of the UN run school suggests that this is a place from which mortar rocket could have been fired. And that is enough for them to make it an incriminating argument against Israel. The problem is that there are more cases of 'could have' in this account, where a missing piece of information could support the Israeli side. And at the same time it couldn't, because the reason could is the poorest argument there is, is because for every 'could' there is a 'couldn't'. For example, there is no reason to state, with any degree of confidence, that information regarding the Spike's warhead would exonerate Israel. Perhaps there is a way a warhead can explode in a way that spares one person that is nearby while killing many others that are farther away. It is up to the experts to answer that. The same goes for the information regarding the Spike's optical guidance system. It is possible its field of view was blocked, but there is no way of knowing that for certain without examining its trajectory and the field of view along that path. Based on the currently available information, it is equally possible its field of view wasn't blocked. We do not know that it was; we only know that it could have. Any could have is a T junction. In the Beit Hanoun account HRW claimed Israeli mortar shells were responsible. All their arguments were flawed, and the investigation incomplete. This leaves the actual identity of those who did fire the mortar round, undetermined. It could have been an Israeli source. It could have been a Palestinian one. In Beit Hanoun HRW avoids other field of inquiry that could or couldn't exonerate Israel. The missing technical information could exonerate and show that no precision firing was involved. But there is always a chance no matter how slim that it could do the opposite. The same goes for Palestinian maintenance practices. In the Beit Hanoun account HRW argued that there is no way four Palestinian rockets could veer of target, within the same round. That is another faulty argument. If maintenance conditions are poor this will happen. Since HRW did not investigate this matter, we only that it could exonerate, not that it would. What we have here is a very strange selectivity. One that is completely unnecessary if the intention is just bias. On one hand we have the "could have been" argument that they do use. This is the presence of Israeli tanks in the vicinity of the UN run school in Beit Hanoun. Which HRW declare could have been the source of the mortars that were fired at that school.  This could have been possibility is enough for them to make an argument in support of war crimes allegations against Israel. On the other hand, there is a list of 'coulds' that HRW has completely avoided. Most of them mentioned above. They are integral parts of any investigation of this nature and are fundamental to understanding what has happened. Yet, they are not investigated, not addressed, and are not even mentioned. These raises two questions: first, why ignore these 'coulds'? Since all they suggest is that Israel could be innocent, they also suggest Israel could be guilty.  All a biased HRW author has to do is to phrase the matter in a way that fits his/hers convictions, just like they did with the tanks. Second question, how did they know to avoid these 'coulds' in the first place? There is only one answer to both of these questions. They knew in advance what really had happened. In Beit Hanoun, as well as in Rafah. They knew the Palestinians were responsible for both of these tragedies, and avoided any line of inquiry that led into that conclusion. This is why they avoided all these 'could have beens', and this is how they knew to avoid them in the first place. In Beit Hanoun, the UN run school was hit by Palestinian mortar shells. These shells either fell short of their intended target due to poor maintenance. Or due to mistaken identity, a case of Palestinian friendly fire situation. In Rafah however the picture is clearer. An Islamic Jihad faction, working as volunteers inside the UN run school, lured children outside using ice cream vendors. They willingly and knowingly sacrificed these kids in a failed attempt to rescue three of their comrades that were on that motorcycle. In sacrificing those kids, and causing their deaths, they committed a war crime against their own people. And HRW knowingly covers that up in the abysmal report reviewed here. A cover up that helps the main perpetrators of this war crime escape justice, thus turning HRW personal into accessories to this war crime. 

As Elise Keppler, the acting director of HRW's justice program, had said, "For World's worst crimes, Justice really matters." And for justice to matter it also must have credibility, and implemented on all those who violate human rights, even if they are human rights activists themselves.

P.S.

Let us not forget the contribution of Hamas


START

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

Rafah, August 3^rd, 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 3^rd, 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 3^rd, 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 3^rd 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. 


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HRW non-in depth examination of war crimes in the Gaza conflict of 2014 Part 3 of 5

      

Jabalya girls' school and the 100% demand

The tragedy in the Jabalya girls' school took place on July 30^th at 4:40am. In that incident 20 civilians were killed, among them 3 children. Based on all accounts, including that of Israel, the cause of these deaths and injuries were Israeli artillery shells. These shells were clearly identified as 155mm shells, and Israel is the only party in this specific conflict to use them. This time we do have a clear identification of the munition involved. And since the IDF had acknowledged firing them, there is no dispute here in the first place.  Therefore on the face of it Israel is clearly guilty. Only on the face of it; the details suggest this is not the whole picture. This is not where it ends, and this is not where it begins. It begins with the fact that during the battle in the outskirts of Jabalya, circumstances were those weapons were needed, kept on coming. There, as elsewhere in the Gaza Strip, fighters from Hamas and other armed Palestinian organizations were hiding behind barricaded positions scattered in a dense urban environment. This is a situation where every corner is a natural opportunity for an ambush, and where many were used for that purpose. From such fortified hideouts the Palestinian fighters fired mortars and anti-tank missiles at the Israeli forces, as well as long range missiles against Israeli population centers. These were threats infantry unit could not remove by themselves, therefore needing the assistance of the artillery.  As long as these threats had existed, these forces could not carry out their mission, and protect the Israeli civilians targeted by the Hamas rockets and missiles. This general description of the battlefield conditions is an undisputable fact. Both the IDF and HRW acknowledge the fact that heavy fighting took place. And heavy fighting by its very nature is not one-sided. If only one side in a fire exchange has the heavy weapons, the fighting ends quickly. The question as to whether these were the circumstances in this specific case is caught in the predictable dispute between the versions of each side.

In this case HRW's investigators rely a lot on a UN investigation as published by the NYT. The tone of that article is more accusatory towards Israel. But it also provides more details about that incident. As with the Beit Hanoun tragedy we have here a dispute between two versions. Israel, saying that its forces fired at enemy mortars positions firing from a distance of about 180 meters, (200 yards), from that school. And the version of the Palestinian witnesses; claiming not to have seen any such activity. But the details undermine the credibility of their testimony. Not of the witnesses themselves, even though one of them chose to be anonymous, but certainly of their testimonies. First it was dark, as NYT says "predawn", 4:40am. Second, it was noisy, extremely so, violently so. The hell of war was ongoing outside that shelter. As the witnesses told the NYT, "In the hours before the strike, explosions and shelling kept many people awake." In a situation such as this the surrounding conditions undermine the credibility of the accounts given by eyewitness and ear-witness alike. It is too dark to notice activity outside their shelter, and too noisy to clearly differentiate between the various sources of noise. It is simply too confusing to differentiate between the sounds of explosions, or the launching of projectiles, such as mortars, rockets, and missiles. Clearly identifying their distance from the shelter will also be impaired. In these kinds of circumstances confusion is unavoidable. Again it is a part of the very nature of a heated battle. The lack of such confusion, if indeed there was none, is so unusual it is the one that requires explanation or corroboration.  We get more than a glimpse of that intensity and confusion from these two IDF video, showing the Nahal brigade fighting in the outskirts of Jabalya on July the 29^th. 

As for the Israeli version, this one enjoys a support rising from the details provided by both the HRW's account and the account published by the NYT. According to HRW the UN run school and its surroundings were hit by ten 155mm shells, which included smoke and illumination shells, along with high explosive shells. The uses of illumination shells in the darkness of predawn hours help identify and differentiate the intended target from the surrounding area. Smoke shells prevent enemy spotters from aiming their artillery fire, such as mortars. These are the kind of tools the IDF had to use if its version is the correct one, and it did fire on enemy mortar positions. If Israel was firing indiscriminately, why bother including them in the artillery round? True, the UN investigators, mentioned in the NYT article, did not find any evidence of close infantry combat in the immediate vicinity of that school. But no such claim was made by the Israeli side in the first place.

The NYT brings the testimony of villa owner Abdel Latif Al – Seifi who said, "It was clear that they were not aiming at a specific house, but fired lots and it fell where it fell." His testimony is disputed by the map of the hit sites provided by the NYT itself. There we see two clusters on the opposite sides of this school. The central point of each cluster is outside the school at a distance very close to 200 yards. Just as the Israeli version claims.

But the strongest support for the Israeli version comes from the fact that Israel did go into a great length to minimize civilian casualties. A warning missile known as "knock on roof procedure" was sent at 2am, giving people time to prepare. The laminations shells lit the dark skies in order to better identify the actual target; and better aim the artillery away from that school. And from that artillery round only 3 out of 10 shells landed at the school's compound, and only one of them was carrying live munition, (see the NYT list, specifying where each shell hit). As the nameless witness told HRW, the bombardment was short, 3 – 5 minutes. The conclusion is simple and undisputable. Israel did what it could to keep the sheltering civilians from harm. Sent a warning ahead of time, illuminated the skies, kept its own bombardment short by using a handful of shells, and successfully kept most of them away from that school, especially the live ones. And these are just the measures we can learn about from the witnesses' accounts.

However, the most important evidence in support of this claim is the fact that Israel and the IDF were successful in this effort. This was not a 100% success, but very close to that standard. As HRW kept emphasizing, 3,200 people were sheltering in that school. And out of them only 20 were killed, (21 according to the NYT). 'Only', because 20 out of 3,200 is 0.625%, less than 1% killed, over 99% survived, extremely close to 100%. Effort wise, this should be considered, and is, a success. Adding the number of wounded, (45 according Mike Cole, a UN official quoted in the NYT, and 100 according to the Guardian), does not change the fact that most of the civilians sheltering in this school were unharmed, more than 90%. The only way this can be considered a failure is if the standard for success is 100%.  If so, those who set this standard should have the integrity to publicly say so in the first place. If this is not the standard, then the conclusion is unavoidable, the IDF operation in the immediate vicinity of the Jabalya girls' school was successful in minimizing the civilian casualties. Such a success, over 99% survival rate, cannot be achieved without an effort. A huge effort made by the attacking side to minimize civilian casualties. And why bother to go through all that effort, unless there is a real military target nearby?

Nonetheless, people were killed. And the question, could Israel have done more in order to save lives is proper and appropriate. When the value of life is at the core of your convictions, that question is always proper. To the opposing sides in this dispute, this question places each of them in a different position. For the IDF it is a requisite of professionalism and ethics, studying the details of the events in order to do better the next time. Fulfill the military objectives with less impact on civilian lives, less harm, fewer deaths, getting even closer to 100%. For Israel's critics and detractors it is about finding that one detail from which charges of war crimes and/or violations of international law can be built. An integral part of that process, for both sides, is taking into account what the IDF couldn't have done. And as powerful as the IDF is there are a few things it couldn’t do. According to the NYT and its witnesses most of the killing was caused by the only live shell to land in that compound. This one hit the courtyard were men were praying underneath eucalyptus trees. In predawn darkness, underneath the canopy of eucalyptus trees, the briefly lit lamination shells cannot help detect such a gathering. Therefore, these deaths, tragic as they are; the IDF could not have prevented.

According to both HRW and the NYT, another part of the school that was hit, was the second story of a classrooms' building. This place also took a lot of casualties. Judging from the pictures provided by both publications, something came crashing down throw the roof. Not exploding, crashing down. These are most likely the smoke shells or the lamination shells reported by the two accounts. As mentioned above only one shell with live munition fell in that school compound, and that was at the courtyard, not the buildings. Now, unless someone can prove, without a shadow of a doubt, that with commonly known and available means, there are ways to affect their trajectory without compromising their efficiency, efficiency needed among other things to keep the more lethal live shells away from school's buildings; unless someone can do that, this is another tragedy Israel could not have prevented. Israel also could not have prevented the harm caused by the window's broken glass, and the shrapnel that came through. This is typical collateral damage situation, the most obvious and most famous example of it.

A second tier of exclusions has to do with what the Palestinian armed groups and UN personal could and couldn't do in order to protect the lives of the unarmed. However, the role of the Palestinian armed groups is pointless to discuss, since there is a dispute as to whether they were there at the time. As for the UN role, here there is plenty to discuss. It is seemingly outrageous that their personal placed the women and children at the second floor, and allowed the men to gather outside in the courtyard. These are the most vulnerable places to collateral damage and spillovers from the ongoing fighting outside the shelter. The most protected places of course are the first floor and the basement, (if there is one), protected among other things by the second floor. Actually they really had no other choice. They had 3,200 people to take care off, with 24 rooms available; it is an average of over one hundred souls per room. Cramped is an understatement.  What made it all far worse is the fact that it is midsummer near the sea. Heat and humidity are at their highest, producing unbearable conditions even for smaller gathering of people, let alone 3,200.  And the nights offer very little relief. The sound medical decision was to place the women and children in the cooler upper floors; and to allow the men to enjoy the somewhat more breathable air outside. Knowing that, remembering that is to understand why they too had to operate under unenviable constraints. But even under these limitations the UN personal could have done more to help the people it was supposed to protect. For example, they could have prevented the windows' glass from breaking by simply crisscrossing them with duct tape.  If a single Palestinian woman could get enough duct tape to keep the windows in her home from braking so could the UN with its truckloads of supplies coming through the Erez Crossing and Kerem Shalom. And they could have done more. In Israel, one of reasons the number of civilian casualties is lower is because of a long of list of emergency procedures that are taken by civilians and civil authorities when an immediate threat is looming. There is no reference for these kinds of procedures in the accounts published by the NYT and HRW. According to the testimony of Suleiman Hassan Abd el-Dayam, as published in the HRW's account, it was up to him and his extended family to take safety precautions once the warning shell came at 2 am; precautions that were largely improvised. There is no mention in his testimony of any UN activity regarding their immediate safety concerns. No special procedure is mention, and no UN personal came to look after them. And that in a time span of at least 2 hours. As mentioned above the warning shot was at 2 am, and the brief bombardment begun at 4.40 am. According to another witness, the nameless staff worker, most of the injuries from glass and shrapnel he saw were to the heads and faces. This is something that can be prevented or minimized by covering the faces and staying away from the windows. We can see that in these American tornado drills, a natural disaster that can produce similar injuries. 

Interestingly, someone there did do something right. The statistics tell us that only 3 children were killed in that tragedy, a remarkably low figure. This tells us that someone was able to keep most of the children away from the more vulnerable parts of this school's buildings. Who was this person, and what she, he, or they did, the accounts of HRW and the NYT do not convey. But evidently someone was able to save lives in spite of all the difficulties mentioned above. Politics aside, whoever this person is, she, he, or they, deserves our praise. This heroism and ingenuity shows that something could have been done; and that puts to shame the entire UN's organization responsible for the people sheltering in the Jabalya girls' school. 

We, the mere readers and observers, must understand the difficulties of saving lives in such a precarious situation. With or without emotional involvement in the Israeli Palestinian conflict, and no matter which side we empathy with. We must all internalize that for lives of the unarmed and helpless to be saved during a violent, chaotic conflict, all must do their part; all must do their part! And even then there is no guarantee that all will survive. But if one side does the maximum and the other the minimum, more will needlessly die. And here the maximum was not done by the UN personal. And while one may choose dispute the fact that the IDF had done the maximum in order to save the lives of Palestinian civilians, there is no other way to explain the result. Carelessness with massively lethal weapons does not produce a 99% survival rate. If people are lucky, around 70% will survive. If they are not lucky less than 20% will live to carry that horror with them for the rest of their lives. A 99% survival rate can only be achieved if the attacking side goes into a great length to protect those 3,200 lives. This is a matter of a huge effort backed by a long experience. Without these two such a success could not have been achieved. Unless; again; the standard for success is that of 100% survival rate. And since Israel did the maximum and the UN did not, any charge of war crime will have very little to work with.

If the details of the evidences and testimonies speak in favor of Israel why does HRW find Israel guilty? According to them it is international law.  The dispute between the two versions they set aside, even though it is clear which of the versions they are in favor of. Instead they focused on a legal argument that says that the munition used, 155mm artillery shells, is simply too crude to be used in such densely populated urban environment. It has an error range of 25 meters and the spread of the fragments produced by its explosion has a radius of 300 meters. This is not an argument based on international law. This is an argument based on an interpretation of international law, a bad one. But first of all, there are some elementary flaws in the logic of this argument. If the weapon is that crude, and it is crude, that only enhances the magnitude of the IDF success in protecting the lives of the 3,200 people sheltering in the Jabalya girl's school. 99% survival rate is not the product of luck, especially when the weapons involved are crude. But for HRW the survival rate is not a criterion. Crudeness is their only criterion. This leads to a more serious flew of this interpretation. What if those same deaths, this same tragedy, had been inflicted by a more accurate, less crude of a weapon? Would they have been legal then? And since the survival rate is not a concern, will a greater number of deaths produced by a non-crude weapon be also legal?  These are unavoidable logical outcomes of their interpretation. Intentionally or unintentionally their interpretation dumps both the living and the dead and reduces them to mere props in the drama that preceded the accusations. Under HRW's interpretation of international law, even a far higher death rate, where survival rate can be less than 20%, would have been legal. If lives are valuable, the crudeness of weapons is important, but also how there are been used. The most accurate of weapons can be mishandled with frightening results. And evidently a crude weapon such as 155mm artillery shell can be used with such a care, 99% will survive, 90% will be unharmed. Of course HRW and other human rights activists can argue that even the hypothetical scenario introduced here constitute a war crime; since the number of civilians killed is far higher from what we would expect from a more accurate type of a weapon. But that means reintroducing the survival rate as a criterion. And if it is implemented on a more accurate weapon, it should also be implemented on a crude weapon. And the same logic that says it is a war crime when an accurate weapon produces a higher than expected death toll; must also say that when a crude and powerful weapon brings about a distinctly low number of deaths, it is not a war crime.

HRW's interpretation of international law does not only abuse Palestinian lives. It does the same to Israeli lives. There is no questioned that it is easier to avoid civilian harm with more accurate weapons. But such weapons are not always capable in taking out the legitimate military target. A fortified bunker is one example that requires the use of 155mm artillery shells. Another one is a mortar position that is defended by snipers, and various booby traps around it. Giving soldiers the cover they need when uncovering a tunnel that threatens other Israeli soldiers, and probably civilians, is another example. In prohibiting this weapon HRW creates legally secured, freehand regions for armed Palestinian groups to operate from. All they have to do is to be very close to large concentrations of civilians, such as these UN run schools, and target from there both Israeli soldiers and civilians, with no fear of consequences. This interpretation of international law is a non-starter, implementing it only leads to frightening absurd that international law cannot live with.

What international law actually says about situations such as this is more complex than that interpretation. But it is not much different than the analysis presented in this review. The ICRC (the international committee of the Red Cross) has a database that explains international law in simple yet through manner. The rules in this database show how in the Jabalya girls' school incident, Israel had in fact acted in accordance with international law:

Rule 15: minimizing civilian casualties. Remember the 99% survival rate I keep mentioning. It is a requisite of international law. 

Rule 20: advance warning. Even HRW acknowledge this was done.

Rule 17: target selection. This is summarized as follows, "Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects." As mentioned in this review, Israel gave an advance warning, illuminated the skies, kept most of its lethal ammunition away from that shelter's compound, and kept the bombardment short. As the map provided by the NYT shows, most of the strike sites are outside of the school's compound. One is on its border, and only one inside. The strike sites themselves are clustered outside that compound, and the largest gaps between the strike sites are located on the school compound itself. This shows an effort to differentiate between that school and its immediate environs. With such close proximity, of less than 200 yards, this is extremely challenging; nonetheless, there isn't a single clustering of strike sites inside that compound. The two clustering show were the intended targets were located - outside. With no clustering inside the compound that school was clearly not targeted, selected out of the targets list, and differentiated from its immediate surroundings. And with 99% survival rate among the sheltering population, the minimizing requirement was also met.

What HRW was trying to do was probably based on the misuse of rules 12, 13 and 71. Rule 12 defines the principle of definition of indiscriminate attack. There are basically three such definitions. From them the third concern, rule 12c, is the one relevant to this discussion. Rule 12c defines as follows an important aspect of indiscriminate attack, "which employ method or means of combat, the effect of which cannot be limited as required by international humanitarian law." According to HRW the effects of high explosive 155mm artillery shell cannot be limited to the military objective because of the error rang and the range of the dispersal of fragments, see above. The error range argument is disputed by the HRW account of the incident. As they describe it, not a single live shell hit the well-recognized, more easily identified, buildings of this school compound. Those were the places where most of the civilians were sheltering, and the IDF, as required by international law, kept all live munitions from hitting them.

As for the protection from the impact of fragments, these are not chemical weapons, not biological weapons, and not thermo-nuclear weapons. With commonly available means civilians and local authorities have the ability of protecting themselves from this threat. All that is needed is for something to halt the fragments as they spread. This can be done by the walls of buildings, with their windows reinforced with duct tape, of course. Sandbags are another known means of protection against fragments.  And there are also pre arrange shelters, and safety procedures, such as escorting the populace to the more secure parts of the buildings, and more. Since the attacking side is not located on the ground with those civilians it cannot provide those means. This is simple logic, and logic is how international law expects rule 12c to be implemented, see the explanation in ICRC database. This is reinforced by rule 22 which stipulates, "The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effect of attack." Whether or not this part of international law applies to a neutral party such as the UN is a matter of interpretation. What this does show is that as far as international law is concern, there is a limit as to how much responsibility can be placed on the attacking side. This is a limit that does not exclude the attacking side from doing what is feasible from its end in order to minimize civilian harm, but it shows that the defending side is not expected to do nothing. With 99% survival rate the IDF met the demand of international law. Whether the authorities on the ground had done the same is unclear, if not disputed.

Israel's adherents to international law also include abiding by rule 12c.  The advance warning, gives civilians and local authorities time to prepare and implement their means of protection against the effects of an attack. Therefore the advance warning, known as 'knock on roof,' is not just an implementation of rule 15, which specify such an action, it is also an implementation of rule 12c.

Rule 13 deals with a situation called area bombardment, when a large area is bombarded from the air or by artillery. In situations such as these there is a need to make a distinction between military and civilian objects in that area. But there is no clear description in international law of what is the distance that can make a clear distinction possible. One possible reason for that are the technologies available. Accuracy is a product of technologies; they can determine our ability to make such distinctions. And if such a clarification was to exist based on the technologies of the past, it would constitute a license for murder under the current technologies. On the other hand ignoring this requirement altogether is a license to use human shields. The former is a violation rule 1, the principle of distinction between civilians and combatants. As well as rule 89, that forbids murder. The latter is a violation of rule 97, which forbids the use of human shields. It says, "...using the presence (or movement) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations." While the international community avoided these two traps by not clarifying this criterion. HRW fell right into it, adopting an interpretation that makes the use of human shields legal. Israel on the other hand tried to implement this rule, in spite of the challenging circumstances. A short bombardment lessened the chances of live shells hitting known concentration of civilians – the buildings. And the clustering of strike sites outside that school show that a distinction between the school, and targets less than 200 yards away from it, was made.

Rule 71 forbids the uses in populated areas of weapons that are by nature indiscriminate. However, artillery of 155mm shells is not listed as one of them. And those that are listed do not enjoy a sufficient consensus in the international community.  Since the IDF was able to use this weapon discriminately, and save the lives of thousands of Palestinian civilians, Israel did obey this rule.

HRW remaining legal argument is that Israel did not provide any evidence or information confirming its claim. The claim of attacking enemy mortar positions located 200 yards from that school. Israel is not obligated to give that kind of information to HRW, or to any other human rights organization. This does not constitute a proof of guilt. Moreover, this is an incomplete argument. In order to prove that Israel did not attack military positions near that school compound, they must also demonstrate that Israel did not behave as a party that is attacking closely located military positions. But this part of the argument was not even taken. Instead this was done by this review. And what this review had showed is that from their own information and that of the NYT, the IDF did behave as a military force attacking mortar positions close to this UN compound. Smoke shells to blind the spotters, lamination shells to better detect the targets and avoid hitting the shelter and other civilian objects, clustering of strike sites outside that school – at proximity of 200 yards or less. Along with the successful effort to minimize civilian harm, the facts, evidences, and testimonies that they have gathered, show that the IDF did act as if it is attacking adjoining mortar positions. Now, why would someone who is not attacking military positions act as if it does? Why bother going throw all that meticulous effort, to differentiate between targets, minimizing civilian harm, and abiding by international law, in order to attack something that has no military value?  Along with its misuse and misinterpretation of international law, this account is another incomplete investigation.

There is no question that the case being made here is disturbing. Even neutrals will have problems with it. And there is nothing wrong with that, it is a perfectly human emotion, one that is based on empathy for dead and wounded, and their families.  It is certainly, and understandably disturbing to accept that those 20 deaths will be left unanswered for, with no sense of justice. It is perfectly normal not to feel right about it. It is a part of our natural repulsion from war. Something we must always encourage. It is also understandably difficult to accept this review critique of HRW. After all, why would a respected human rights organization act as such a counter-productive force in the cause of human rights? Why would it be a force that undermines the very integrity of the practice of international law, and advocates interpretations that put more lives at risk, rather than protecting them?

Sadly it is easier to answer the second tormenting question, than it is to answer the first one; painfully easy. As mentioned in the opening segment of this review, a strange pattern had been evolving among human rights critique of Israel's military actions, especially with regards to HRW. It is a pattern where the dilemma of modern warfare is absent; a dilemma where decisions of life vs life must be taken on a constant basis. When you ignore this dilemma you also disconnect yourself from its cause, from the reason it exists, the value of human life. Only people committed to the value of life will be torn by the need to make life vs life decisions. When one is ignoring the existence of such dilemmas in times of war, one immediately disconnects oneself from the cause of these dilemmas, the value of life; all lives. Whatever the criterion implemented may be? It will not be the value of life. This may not have been their intention, but once they made that decision this is where Human Rights Watch ended up at. On a slippery slope that lead to an unavoidable collision with everything that is based on the value of human life. This includes Israel's action as evidenced in the accounts given by them and the NYT, and international law itself. Both are guided by that concern. And when they adopted and advocated an interpretation of international law that legalizes the deaths of more civilians from both sides, they collided with the value of life itself. It is a downward course; once taken it can only get worse.

Providing a sense of justice to those who had died is more difficult. These are men, women, and children, unarmed civilians who had no businesses dying in the first place. Life must matter, that is the guideline we follow if we believe in the value of life. However, punishing Israel for the life it failed to save, means punishing Israel for the life it did save, and protected, close to 3,200 of them. And it is stating the obvious that punishing someone for saving lives is the exact opposite of adopting the value of life. Such a course of action will not only be contradictory to the value of human life, it will be contradictory to international law, which encourages the minimizing of the death and suffering that all wars inflict on unarmed civilians. Worse than that, such an action will be nothing more than political retribution. It will not be a part of a peace process, or a human rights process. It will simply be a part of the conflict, a part of the process that includes wars and deaths in its dynamics. Needless to say, justice for the dead will not be served by more deaths. No one will benefit, especially not those who needs it the most; the most vulnerable parts of the society, the unarmed civilians.  Seeking their wellbeing does not require political retribution. It certainly does not require the misuse and abuse of international law, as preformed here by HRW. As said here before, all it requires is for all to do their part - even if they hate each other. What we all must understand is that clearing the IDF from wrongdoing is not a license for the IDF to kill civilians. It is not a reason for the scrutiny to stop, and it is not meant to be that. This is a matter all sides of the debate must internalize. If we wish to contribute to the saving of innocent lives, then this scrutiny must continue. But for it to be productive it must also include the Palestinian side, the various agencies of the UN working on the ground, and the human rights organizations reviewing the actions of the combatants.  Only this way more will be saved should war comes knocking the next time. The down side of this course of action is that it will give us a glimpse of that tormenting filling when lives vs lives decisions must be taken. But without going through this torment we won't be able save anyone. Worse than that, we might contribute to the suffering and misery of many more.

Is that justice? It is in the sense that preventing needless deaths prevents injustice. But the politically motivated critics will undoubtedly disagree strongly.  The bottom line is simple as it is painful, as we do more and more to save life, and succeed in it; we are left with those only the end of the conflict can save. Peace, that lofty, elusive goal, which few believe it can be achieved.  The idea that we should leave some of the lives needed to be saved for the peace process, is something many will find infuriating. The argument, this is war and people die in it, is an argument we must never surrender to. Whatever measure of humanity we can bring to this monstrosity called war, we should and we must. But when such efforts and concerns are crushed by the reality of war, the course of action must never be the undermining of the ideal of human rights. This is precisely what HRW is offering in their interpretation of international law, as presented here. This is a choice between the unbearable and the immoral. An interpretation of International Law that allows the use of human shields, and prevents a country from properly and effectively defends its citizens, is immoral. It neglects the human rights of both Palestinians and Israelis. Unbearable, is the filling we all have when we come face to face with those we cannot save; those who perished in spite of all our efforts, and those of others. This is not a splendid place to be. The reality needed to be changed here is not a splendid one, far from it. But when we choose an immoral path, what good are we to anyone? If, however, we choose the unbearable path; its unbearableness might be the push we need, all of us, regardless of our political and ideological convictions, to bring about this elusive peace. This is not the most noble motive for peace making, but what has the noble lofty ideals had done for peace making so far? All they did was to become hollow words, with no relevance and credibility to either party. Much like this conflict, peace makers, and human rights activists carry their own open wounds with them. But they are not supposed to inflict them. When they do that, they have no right to preach to others on these issues. More than that, they do not have the credibility to do so. Their word has lost its value. And all the good causes, of peace and human rights, become even more unattainable.

     

I am not asking anyone to cheer the IDF over this horrific tragedy, not of those who support Israel, and not of those who oppose it. People died; there is no room for cheering. Like it or not; there is also no room for condemnation.  The IDF did set out to save lives, and lived where saved. The choice is yours, the readers, carry the open wounds of this conflict with you, or inflict them on unto others, from both sides. Accept the unbearable conclusion that the deaths of these 21 victims could not have been prevented by the IDF. Or share your cause with an ethically bankrupt human rights organization. The second choice will make you fill great with yourself. It will reward you with compliments made up from all the words and phrases that exist in the lexicon of human rights activism. But should this path get implemented… it will require you to be deaf and blind to the suffering of more people, from both sides; people who otherwise could have been saved and protected by international law and those who follow it, like the IDF.  And if this tares you apart, sends your emotions into turmoil, well…, that is good! This means that the value of life is alive within you, powerfully so.



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

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