II. Summary of cases transmitted and replies received
1. Communication sent on 3 April 2009 jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions
(a) Allegations transmitted to the Government
4. The Special Rapporteurs brought to the attention of the Government information they had received regarding Mohammed al-Tanani, Sa'id Salah Battah, Ahmed Isma'il al-Buhdri, Ahmed Tubail, Omar 'Abdul Hafez al-Seelawi, Hani Mohammed al-Seelawi, Abdul Rahman al-Masamha, Ra'ed 'Abdul Rahman al-Masmha, Rajeh Ziada, Mohammed Mousa al-Seelawi, Bahaa' al-Ashqar and Hassan Hijju who have reportedly been killed during air strikes against the Ibrahim al-Maqadna mosque in Jabalya town in the northern Gaza strip.
5. On 3 January 2009, at approximately 5.20 p.m., while dozens of Palestinian civilians were doing their evening prayer, the Israeli army fired a missile at the entrance to the Ibrahim al-Maqadna mosque near Kamal Adwan Hospital in Jabalya town in the northern Gaza strip. Reportedly, the Israeli army suspected that the mosque was housing militants.
6. As a result, twelve Palestinian civilians, including four children and a man as well as his son, were killed and thirty others were wounded. Later, three of the wounded died of their wounds, so the number of deaths mounted to fifteen. The twelve victims who were killed instantly were Mohammed al-Tanani (aged 18), Sa'id Salah Battah (aged 22), Ahmed Isma'il al-Buhdri (aged 23), A. T. (aged 16), Omar 'Abdul Hafez al-Seelawi (aged 35), H. M. al-S. (aged 10), Abdul Rahman al-Masamha (aged 47), Ra'ed 'Abdul Rahman al-Masmha (aged 21), Rajeh Ziada (aged 18), M. M. al-S. (aged 10), Bahaa' al-Ashqar (aged 20) and H. H. (aged 14).
7. In addition to the above incident, many other mosques were allegedly completely or partially damaged in the governorates of Rafah, Gaza, Khan Younis, Dier El Balah during the recent conflict in the Gaza strip.
8. The Special Rapporteurs referred to the Government’s treaty obligations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and also the relevant rules applicable to all armed conflicts under international humanitarian law and human rights law. Both the treaty obligations of the Government and applicable customary rules of international humanitarian law governing the conduct of hostilities include prohibitions on attacks against the civilian population and civilian objects, and require respect for the principles of proportionality and precautions in attack. Civilians are all persons who are not members of the armed forces of a party to the conflict and are protected against attack unless and for such time as they take a direct part in hostilities. Civilian objects, including places of worship, are also immune from attack, unless their nature, location or use, make an effective contribution to military action and whose destruction offers a definite military advantage. In addition, during military operations, special care must be taken to avoid damage to buildings dedicated to religion.
9. The Special Rapporteurs emphasized in their communication that, in the event of a lawful attack on a military objective, the principle of proportionality prohibits such attacks when it can be expected to cause incidental loss of civilian life or injury to the civilians which would be excessive in relation to the concrete and direct military advantage expected. Compliance with this rule should be assessed for each attack taken individually and not for an overall military operation. The Special Rapporteurs noted that this approach was also reflected in the Judgment of the Israeli Supreme Court of 14 December 2006 (The Public Committee against Torture in Israel et al. v. The Government of Israel et al.; HCJ 769/02), which observed that “when the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.”
10. The Special Rapporteurs indicated that the obligations to take all necessary precautions to spare the civilian population and to limit to the maximum extent any incidental civilian loss of life include taking all appropriate measures to ensure: that the target of the attack is indeed a military objective; that the chosen means and methods of warfare will avoid civilian loss of life or limit incidental civilian loss of life; and, that a careful assessment of the conformity of the attack to the principle of proportionality is made. The timing of an attack should also be taken into account when assessing the conformity of the attack with the principles of distinction and proportionality.
11. The Special Rapporteurs asked the Government if a complaint had been lodged on behalf of the victims mentioned above and requested details and where available, the results, of any investigation or inquiries carried out in relation to this case. Furthermore, the Special Rapporteur asked the Government to explain how the principle of precaution was respected in the case of the targeting of the Ibrahim al-Maqadna mosque, on 3 January 2009, in particular the launching of the attack during evening prayers and the assessment of conformity of the attack with the principles of distinction and proportionality.
(b) No response received from the Government
(c) Observations by the Special Rapporteur
12. The Special Rapporteur regrets that she has so far not received a reply from the Government of Israel concerning the above mentioned allegations. She would like to recall that the General Assembly, in its resolution 63/181, urges States “to step up their efforts to protect and promote freedom of thought, conscience, religion or belief, and to this end, […] to exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights law, to ensure that religious places, sites, shrines and symbols are fully respected and protected.”
13. Furthermore, the Special Rapporteur would like to refer to her report submitted to the 61st session of the Commission on Human Rights (see E.CN.4/2005/61, paras. 49-50), in which it was pointed out that members of religious or belief communities, whenever they find themselves in places of worship, are in a situation of special vulnerability given the nature of their activity. More generally, as mentioned, inter alia, in paragraph 4 of the Human Rights Committee’s general comment no. 22, places of worship are an essential element of the manifestation of the right to freedom of religion or belief to the extent that the great majority of religious or belief communities need the existence of a place of worship where their members can manifest their faith. Moreover, attacks or other forms of restriction on places of worship or other religious sites and shrines in many cases violate the right not only of a single individual, but the rights of a group of individuals forming the community that is attached to the place in question.