UNRWA has not been given an opportunity to review the evidence but we have seen the explanation on the Israeli Military Advocate General’s website. In the circumstance it is therefore impossible for us to make specific comments about the way the case has been conducted.But the Secretary General report said quite a bit more than just that Israel was "targeting people passing on a motorcycle." It said:
According to the UN Secretary General’s Board of Inquiry, the incident took place at an UNRWA school which had been designated as an emergency shelter on 18 July. Between 2,700 to 2,900 people were sheltering there. The Israeli Army launched a precision-guided missile striking the road outside the school, which had opened its gates. 15 persons in the vicinity were killed, including a guard hired by UNRWA. As many as 30 people were injured. The Secretary General’s Board of Inquiry found that the missile was targeting people passing on a motorcycle.
We notified the Israeli Army on 33 separate occasions that this school in Rafah was being used to accommodate the displaced, the last time only an hour before the attack.
This raises serious questions about the conduct of military operations in relation to obligations under international humanitarian law and respect for the inviolability and sanctity of United Nations premises under international law.
The Government of Israel stated to the Board that an examination of the incident was being undertaken at the request of the Military Advocate General. IDF had fired an aerial-launched missile at the motorcycle, which had been carrying three militants belonging to Palestinian Islamic Jihad. By the time it became apparent that the strike would coincide with the moment the motorcycle would pass by the school gate, it was no longer possible to divert the missile.At least the UNSG was honest enough to note what the preliminary results of the IDF investigation showed. UNRWA didn't even give Israel that courtesy. Instead, it implies that the Israeli investigation was a whitewash:
UNRWA has consistently called for accountability. Investigations into such incidents are crucial and UNRWA has provided evidence in the process. We remain determined to ensure that incidents are thoroughly investigated.However, the Military Advocate General report on the incident - which UNRWA didn't even bother to link to, let alone quote - is detailed, and does not attempt to whitewash anything:
UNRWA itself is not a tribunal or a judge. We have called for accountability in this case and in others that took place during the 2014 war. Any indication that responsibility was being evaded would be a matter of grave concern.
The factual findings, collated by the FFA Mechanism [General Staff Mechanism for Fact-Finding Assessments] and presented to the MAG, indicate that the school was designated as a "sensitive site" on the relevant operational systems of the IDF. In accordance with the IDF's operational instructions, any military operation to be conducted in the vicinity of such sites requires the adoption of special precautions. The fact that the school was serving at the time as a shelter for civilians who had evacuated from their homes was also noted on the relevant systems.UNRWA is pretending that it is not trying to act as a judge, but this is exactly what it is doing by ignoring everything the exhaustive Israeli investigation uncovered and instead implying that the entire thing is a lie and that the MAG report was not a real investigation.
It was further found, that on 3 August 2014, the IDF observed three people riding on a motorbike, who were identified, on the basis of up-to-date intelligence information, as military operatives. From the moment that the decision to strike the operatives was made, the IDF carried out aerial surveillance on the motorbike's path, and surveyed a wide radius of the estimated continued route of the motorbike, in order to minimize the potential for harm to civilians on the route or in proximity thereto. The final destination of the military operatives was not known to the operational authorities. The strike on the military operatives was planned for execution by means of a precise munition, with a reduced explosive load, in a way that would allow for the strike's objective to be achieved, whilst minimizing the potential for harm to civilians or passing vehicles.
It was further found, that a period of time after the munition had been fired, and mere seconds before it reached its target, the motorbike entered a traffic circle with a number of different exits, and left it via one of them. The FFA Mechanism's findings indicate that with the means that were at their disposal, and under the visibility conditions prevailing at that time, the operational authorities were not able to discern in real-time the group of civilians that were outside the school, in proximity to the route along which the aforementioned motorbike was travelling. It was further found that, in any case, at the moment upon which the motorbike exited the traffic circle and started to travel along the road bordering the wall which surrounded the school, it was no longer possible to divert the munition which had been fired at the motorbike.
The strike on the motorbike riders occurred immediately after the motorbike passed by the gate of the school. As mentioned above, it is alleged that as a result of the strike between seven and fifteen people in the vicinity of the school's gate were killed (as indicated above, the number of fatalities varies from report to report). According to the findings of the FFA Mechanism, three military operatives were among the fatalities.
After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements.
The decision to strike was taken by the competent authorities, and the object of the attack was lawful – military operatives. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it (essentially, it was considered in real-time that the strike would only harm the military operatives targeted). This assessment was not unreasonable under the circumstances, in light of the fact that aerial surveillance of the routes which the motorbike was predicted to take, which had commenced when the decision to strike was taken, had not shown any civilian presence on those routes.
Moreover, the attack was carried out in conjunction with various precautionary measures, such as the selection of the munition used to carry out the strike, which aimed to mitigate the risk to civilians and passing vehicles. It was also found that under the circumstances, the operational authorities had not foreseen that that the strike on the motorbike would take place in the vicinity of the school, and that, in any case, at the time at which it became clear that the strike would occur in proximity to the school, they did not have the capacity to prevent the strike from taking place in that location. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a tragic and regrettable result, but does not affect the legality of the attack ex post facto.
In the wake of the incident, a number of operational lessons-learned were implemented by the IDF, as regards the methods for carrying out aerial strikes in similar circumstances, with the aim of minimizing the risk of reoccurrence of similar incidents in the future.
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