Rafah camp bombing: How Israel may have breached international law
Attack
on displaced Palestinians occurred in Israeli-designated 'humanitarian
zone' and came after a World Court order to halt the Rafah assault
Palestinians
search for food among burnt debris in the aftermath of an Israeli strike
on an area designated for displaced people, Rafah, southern Gaza Strip,
27 May 2024 (Reuters/Mohammed Salem)
Published date: 27 May 2024
Israel's deadly attack on a
Palestinian
displacement camp in southern Gaza on Sunday amounts to a war crime and
a breach of the binding decisions of the International Court of Justice
(ICJ), according to legal experts.
At least 45 people were killed and nearly 250 more wounded when overnight Israeli air strikes targeted a centre for displaced people in the Tel al-Sultan neighbourhood in northwestern Rafah.
According to the Palestinian ministry of health, the fatalities
include 23 women, children and elderly people killed after eight
missiles were launched at makeshift shelters, setting them ablaze.
Videos posted on social media showed fires raging through makeshift
tents while survivors tried in vain to extricate those caught in the
flames.
Thousands of people have been taking shelter in the targeted area
after many fled other parts of Gaza, including eastern Rafah where
Israeli forces began a ground offensive earlier this month.
The air strikes came just two days after the International Court of Justice ordered Israel in
a legally binding decision to halt its military offensive in Rafah,
which may violate its obligations under the Genocide Convention.
The Sunday attack took place in an area that is part of the Israeli-designated "humanitarian zone", which it advised civilians to shelter in.
It was also in the vicinity of warehouses belonging to the UN refugee agency for the Palestinians, Unrwa.
Distinction and proportionality
Parties to the conflict between Israel and Palestinian groups are obliged under international law to respect the principles of distinction and proportionality,
both of which have been recognised as part of customary international
law by the International Committee for the Red Cross (ICRC).
According to the principle of distinction, parties to the conflict
are only permitted to target combatants and must not target civilians.
Additionally, proportionality prohibits both parties of an armed
conflict from launching an attack "which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage anticipated."
The Israeli military said the attack was based on "precise
intelligence" that resulted in the deaths of two members of Hamas'
military wing, Yassin Rabia and Khaled Najjar. The Palestinian group has
yet to confirm the deaths of its members.
'My opinion is that this attack would contravene the [ICJ] order'
- Alonso Gurmendi, lawyer
Alonso Gurmendi, an international lawyer and academic, said
while Israel might argue that the scale of civilian casualties was
unforeseeable at the specific time of the attack, it is unlikely that
this was the case.
"It is highly doubtful that this would be the case, considering the
warning from Israel's closest allies, most humanitarian actors on the
ground, and the ICJ - all stated that an attack on Rafah would lead to
disastrous consequences and mass deaths," he said.
Gurmendi added that the Tel al-Sultan air strikes contravened the
ICJ's latest order for Israel to halt its Rafah military ofensive.
"While a minority of scholars and judges have argued that the court
only ordered Israel to halt operations that would subject Palestinians
to conditions of life that would lead to their destruction as a group,
my opinion is that this attack would contravene the order under either
interpretation," he told MEE.
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"I think it is important that this strike be
thoroughly and independently investigated by the prosecutor of the
International Criminal Court (ICC), as part of its investigations into
the situation in Palestine," he added.
Itay Epshtain,
an international lawyer and humanitarian law expert, said that the
assault "tragically demonstrated Israeli rejection of the laws of armed
conflict (including distinction, proportionality and precaution in
attack).”
Francesca Albanese, an international lawyer and the United Nations'
special rapporteur for the occupied Palestinian territories, said the
attack was a "blatant defiance of the international law and system".
"The Gaza Genocide will not easily end without external pressure:
Israel must face sanctions, justice, suspension of agreements, trade,
partnership and investments, as well as participation in international
forums," she wrote on X.
As of Monday, the Israeli onslaught on Gaza, which started in
October, has killed more than 36,000 Palestinians and wounded at least
81,000, according to the Palestinian health ministry.
Call for more ICC arrest warrants
The Palestinian presidency accused Israel of deliberately targeting the centre for displaced people.
"The perpetration of this heinous massacre by the Israeli occupation
forces is a challenge to all international legitimacy resolutions," the
presidency said in a statement, accusing Israeli forces of "deliberately
targeting" the tents of displaced people.
Israel expanded its invasion of the Gaza Strip by sending tanks and
troops into Rafah in early May despite widespread opposition over
concerns for civilians sheltering there.
Sunday's air strikes were carried out hours after Israel said it intercepted eight rockets by Hamas from Rafah onto Tel Aviv.
Hamas's armed wing said in a post on Telegram it had targeted Tel
Aviv "with a large rocket barrage in response to the Zionist massacres
against civilians".
Last week, the ICC's prosecutor Karim Khan
applied for arrest warrants for Israel's prime minister and defence
minister as well as Hamas leaders for alleged war crimes and crimes
against humanity committed since 7 October.
Daniel Machover, an international lawyer, said the ICC should issue more arrest warrants following the Tel al-Sultan attack.
“Additional applications needed urgently to the chamber of the ICC by
Prosecutor Karim Khan for arrest warrants for the Israeli chain of
command for these well documented international crimes,” he wrote on X.