Nearly eight years since four boys were killed by Israeli missiles on a beach in Gaza, the Supreme Court is set to decide whether it will open a criminal investigation.
The Israeli Supreme court is set to decide on whether it will open a criminal investigation into the case of four children killed while playing on a beach in Gaza during the 2014 Israeli offensive dubbed Operation Protective Edge.
On Monday, Israel’s highest court heard a petition filed by three human rights organisations on behalf of the Bakr family to open a criminal probe, following the closure in 2015 of a military investigation and the subsequent rejection of an appeal.
The Gaza-based Al Mezan Center for Human Rights and Palestinian Center for Human Rights (PCHR), alongside Adalah – The Legal Center for Arab Minority Rights in Israel argued the Attorney General who rejected the appeal had failed to take into account the flaws in the military investigation, and evidence showing Israeli forces opened fire at the children without identification.
The court is set to rule on the case at a later, unspecified date.
As the court requested to review classified information that was not presented to the family and the appealing party, part of the hearing took place behind closed doors with only state representatives present.
“The court requested to see what type of intelligence material [the state is] holding in order to assess the zone was a zone controlled by militants,” Ari Remez told TRT World.
“The claim of the petitioners was that it’s irrelevant what the military assessment of the target or the perimeter was, because they didn’t shoot a perimeter. They shot directly at the children,” he added.
During the 51-day offensive on Gaza in 2014, Israeli forces fired missiles that killed four brothers and cousins from the extended Bakr family. Ahed, Zakaria, Mohammed and Ismail Bakr were aged 9 to 11 years and had been playing football on a fishing beach in Gaza city. The incident was witnessed by several international journalists staying at nearby hotels, generating widespread international attention and condemnation. A UN Independent Commission of Inquiry, with which Israel failed to cooperate, found in 2015 that Israel’s conduct in the case was a flagrant violation of international law.
In September 2014, the Military Advocate General ordered the Military Police Criminal Investigation Division (MPCID) to launch an investigation based on a reasonable suspicion that the attack violated the Israeli army’s own rules. But in mid-2015, Israel closed its investigation claiming the area was a “Hamas compound.”
Israel’s Attorney General endorsed the results of the investigation and rejected the appeal in 2019.
Lack of accountability
2,251 Palestinians were killed in Gaza in 2014, including 299 women and 551 children. To date, no criminal charges were filed for the killing of innocent civilians in Operation Protective Edge. More than 250 people including 66 children were killed in Gaza in the latest offensive in May 2020. Human rights groups say the Israeli army operates in a climate of “impunity” that facilitates the continued targeting of civilians.
They point out that it was the Military Attorney General that authorised the list of targets in Gaza in 2014, the same that later made the decision to close the investigation.
“The Military Attorney General cannot play the role of respondent and judge,” said the Palestinian Centre for Human Rights (PCHR) in a statement. “The Israeli judiciary is providing legal cover for the systemic, orchestrated commission of crimes by the Israeli occupation army against Palestinian civilians, of which the case of the Bakr children is the most flagrant example.”
The most appropriate way to ensure accountability, PCHR points out, would be taking the case to the International Criminal Court. But “domestic remedies” need to be exhausted before claimants can take a complaint to the ICC.
The International Criminal Court ruled in February last year that its jurisdiction extends to the territories occupied by Israel in 1967, paving the way for possible investigations into war crimes committed by Israel in Gaza and the West Bank. Hamas could also come under scrutiny for indiscriminate rocket fire into Israel.
According to the principle of proportionality under international law, the killing of civilians during an armed conflict does not automatically warrant war crime charges.
“This is the last stage of receiving remedy from the Israeli legal system,” Remez explained, adding that it is difficult to tell how long this part of the process will take. “They could send it back for reconsideration by the Attorney General, ask for clarifications, and they can also dismiss the case altogether.”