Israeli Supreme Court will hear the Bakr Boys case re: the closure of the investigation into their killing by the Israeli military during 2014 Gaza War
On Monday, 10 January 2022 at 11:30 am, the Israeli Supreme Court will hear a petition filed by the parents of four children from the Bakr family for the first time.
After reviewing secret evidence, outside of the presence of the lawyers for the petitioners, the Supreme Court stated that it was convinced that the Israeli military had sufficient intelligence to determine that the perimeter of the area was indeed a military target. Chief Justice Esther Hayut further stated that the military collected the intelligence shortly before the attack.
At the hearing, the petitioners refuted these claims and argued that the beach area was a civilian area, with children and with hotels nearby where many foreign journalists covering the War were staying, and who witnessed the killings firsthand.
The petitioners further argued that even if the military had intelligence indicating that it was a military area, they are obliged under international humanitarian law (IHL) to verify that the targets are combatants and not civilians and are not subject to special protection – such as children. In fact, the respondents did not argue that the Bakr boys were armed prior to or during the attack; there is no dispute that they were unarmed. These facts indicate that the military's attack violated the basic IHL duty of distinction – that the military must distinguish between civilians and combatants. For the military, it was sufficient that the area served Hamas in the past, to justify shooting at any persons entering or leaving that area, under the assumption that they are all combatants. This conduct violates international law, and the army did not respond to these arguments.A decision will be issued in an unspecified date.
A decision will be issued on an unspecified date.
On 16 July 2014, during the Israeli military offensive in Gaza termed "Operation Protective Edge", the Israeli air forces fired missiles that killed four children of the Bakr family while they were playing on the fishing beach west of Gaza City. After five years, on 9 September 2019, the Attorney General (AG) announced that he had fully adopted the Military Advocate General's decision to close the investigation. Following this decision, Adalah – The Legal Center for Arab Minority Rights in Israel, Al Mezan Center for Human Rights and The Palestinian Center for Human Rights (PCHR) filed a petition on behalf of the family demanding that the Israeli Supreme Court overturn it, and order the opening of a criminal investigation that will lead to the prosecution of those responsible for the killing. In the petition, the human rights organizations argued that the investigative materials show that the Israeli air force intentionally opened deadly fire at the children in serious violation of the laws of war and criminal law, since they aimed at the children directly without identification and without taking the necessary precautions.
The petition was filed by Adalah General Director, Attorney Dr. Hassan Jabareen and Attorney Muna Haddad.
Case Citation: HCJ 8008/20, Atef Ahad Subhi Bakr et al v. Military Advocate General et al
CLICK HERE to read the petition [Hebrew]
CLICK HERE for additional information concerning the killing incident and the sequence of events leading to the closure of the investigation.
The organizations argued in the petition that the AG's decision is extremely unreasonable, as it did not give due weight to the flaws in the probe conducted by the Military Police Criminal Investigation Division (“MPCID”) and the many contradictions in the testimonies and investigation materials. Adalah's legal team that examined the materials, including military video footage, which was censored, concluded that they do not confirm the military's version of the killings.
The petitioners further argue that the Military AG has a conflict of interest as he plays a dual role: he provides legal advice to the army before and during military operations, and at the end of the fighting, he also decides whether or not to open a criminal investigation and how to conduct it. To date, the Military AG and the AG have refused to conduct any criminal investigations that led to an indictment in cases in which civilians in the Gaza Strip have been killed. The petitioners argued that the conduct of the Israeli investigation mechanism, in this case, indicates a clear policy of total impunity for Israeli soldiers and commanders. The AG's approval of the Military AG's decision, in light of the serious questions raised by this incident, justifies the Supreme Court’s intervention, the petitioners stressed.
The killing of the four Bakr children received wide public attention, as it was witnessed first-hand and written about by numerous international journalists, none of whom were ever questioned by the Israeli military. This case is one of scores of civilian killings: According to a report by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), into the 51-day operation in 2014, 2,251 Palestinians were killed in Gaza, the vast majority of them civilians, including 299 women and 551 children. The extensive destruction left in Gaza following the operation includes 18,000 destroyed homes along with additional civilian property including hospitals and vital infrastructure.
The UN Independent Commission of Inquiry on the 2014 Gaza Conflict, with which Israel refused to cooperate, used the Bakr boys’ case as a case study. In its final report published on 22 June 2015, the UN Commission concluded that in this case, the Israeli military violated the principles of international humanitarian law.
Adalah stated:
"The decisions of the Israeli investigation mechanisms are all based on testimonies of soldiers who participated in the deadly attack, and not on legal tests. The AG approved the closure of the cases unreasonably, as the Israeli military has clear obligations under international law that have been unequivocally violated. This conduct shows that Israel is unable or unwilling to properly conduct proceedings concerning the criminal liability of those involved in this incident, as well as others, as the nature of the Israeli investigation mechanisms, to date, have not led to a single indictment for the killing of innocent civilians in Gaza by the Israeli military."
Al Mezan stated:
“With continued impunity for targeted military attacks against civilians, including children, this apparent policy will remain a key feature of Israel’s conduct against the Palestinian population in the Gaza Strip. Indeed, a resumption of this unlawful practice was clearly documented in Israel’s May 2021 offensive when scores of Gaza civilians were directly targeted, and 60 children were killed. The Bakr family deserves justice for the deadly attack against their children seven years ago; accountability must also be fully realized in order to deter the State’s continued policy to target civilians.”
The Palestinian Center for Human Rights (PCHR) stated:
“The Military Attorney General cannot play the role of respondent and judge; the person who gives the legal order legitimizing military targets cannot also act the part of investigator. It was the Military Attorney General who authorized Israel’s list of targets in the Gaza Strip, including the missile fire at the children of the Bakr family. 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 Israeli judicial system is whitewashing crimes perpetrated against Palestinian civilians, and consequently the proper source of accountability in such cases is the International Criminal Court.”
Image: Amir Schiby
