Death toll from Israeli hostage rescue adds to legal scrutiny of Gaza war

JERUSALEM - The human toll from Israel’s hostage rescue on Saturday has renewed questions about whether the country is doing enough to protect civilians in its war against Hamas in Gaza.

The daytime raid in the Nuseirat refugee camp freed four Israeli hostages and killed at least 274 Palestinians, according to the Gaza Health Ministry, and injured hundreds more.

It was not clear how many of the dead were combatants, or how many were killed by Israeli fire, but they included “many” women and children, the Health Ministry said, as well as civilians recently displaced by Israel’s military offensive in the southern city of Rafah.

Eyewitnesses said they were shocked at the scale and intensity of the Israeli assault, even after eight months of punishing war, and the carnage overwhelmed Gaza’s broken hospital system.

The Israeli captives were held by Hamas under armed guard in the densely populated refugee camp, apparently in family homes, consistent with testimonies from former hostages released during a short-lived cease-fire in November. In this instance, and throughout the war, Israel has said militants are responsible for the deaths of innocents, a consequence of hiding prisoners and military infrastructure in civilian areas.

“Every civilian life lost in this war is a result of how Hamas has operated,” Israel Defense Forces spokesman Peter Lerner told ABC on Sunday.

But Hamas’s tactics do not excuse Israel from legal culpability, according to experts in international law, which requires militaries to take all possible precautions to prevent civilian harm. The principle of proportionality prohibits armies from inflicting civilian casualties that are excessive in relation to the direct military advantage anticipated at the time of the strike.

[Aid groups warn they face looting, danger in Gaza after raid that freed hostages]

“The fact that your adversary is breaking international humanitarian law does not change your obligations,” said Adil Haque, a law professor at Rutgers Law School. “The foreseeable harm to civilians was disproportionate to the legitimate aim of rescuing the four hostages.”

The IDF did not respond to questions about the measures taken to prevent harm to civilians during the operation. A spokesman for the Israeli police, whose counterterrorism units played a key role in the raid, referred The Washington Post to the IDF.

Surprise attack

The full extent of the destruction in Nuseirat is still emerging, as Palestinian eyewitnesses share more details about the chaos of that day.

Omar Mutwawa, 22, was at home on Saturday when he heard the first strikes, his brother, Nasrallah, 30, told The Post by phone Monday. Omar, a mechanic, rushed out to help the injured, Nasrallah said.

“We did not know that the security situation was so dangerous,” Nasrallah said.

Tanks, jets and drones raged outside, part of what a former Israeli commander described as a “wall of fire” - meant to provide cover to the military unit trying to ferry three male hostages to safety.

“Aircraft struck dozens of military targets for the success of the operation,” the IDF said in a statement.

About an hour later, during a relative lull, Nasrallah said he went to look for his brother and found his flip flops first. Omar had been blown to pieces, he said, about 300 yards from his home.

Abdel Hamid Ghorab, a 33-year-old paramedic, was working his Saturday shift at al-Awda, a maternity clinic that staff have converted to a makeshift hospital, home to both patients and displaced families.

He described “random and continuous bombing in the vicinity of the hospital with unprecedented intensity.”

In furtive busts, he said, people hurried out to retrieve the injured.

Ghorab said he helped move more than 100 seriously wounded patients - including children with missing and damaged limbs - to the larger Al-Aqsa Martyrs Hospital, where amputations could take place.

“All they cared about was carrying out the operation, even if it was at the expense of all these lives,” he said.

IDF officials said they only resorted to immense firepower when one of the rescue teams came under fire from Hamas, and after an Israeli officer had been injured in a gun battle with militants. He later died of his wounds.

“In every war you have cases that forces are going to find themselves in a situation where they are stuck,” said Pnina Sharvit Baruch, a former adviser to the Israeli military on issues of international law. “It’s not a war crime to get yourself out of such a situation.”

But it was evident, Haque said, that commanders were prepared for a worst-case scenario.

“Clearly they planned for this contingency, they had air support ready to go, they had ground support ready to go,” he said. “This was not unexpected.”

‘A real battlefield’

The IDF chose to carry out the raid during the day to maximize the element of surprise, officials said. That also meant that Nuseirat’s narrow streets were packed with civilians.

Among them was Khaled Abu Toyur, 57, who worked with his nephew, Mouath, and son, Mosab, at a jewelry repair shop in Nuseirat’s dense market area.

“Suddenly we felt as if we were on a real battlefield,” Mouath said.

Mouath raced to his house nearby but said Khaled and his son lived closer to where the raid was unfolding and decided to take a different route home. On the way, they passed a building as it was struck, sending shrapnel flying. Khaled was hit in multiple places and killed, Mouath said, while Mosab survived but had fractured feet and internal bleeding.

As Israel carries out its military offensive in the south, thousands of families have fled to central Gaza, including Nuseirat, hoping to find safety. One 30-year-old resident of the camp, speaking on the condition of anonymity for security reasons, had recently returned from Rafah to her family home.

She and eight relatives huddled together in the kitchen during Saturday’s attack, she said, stealing occasional glances out the window. She described seeing a white car inching along the road.

“The family seemed to be fleeing from an area where there was bombing,” she said. “They did not seem to know that they were going to the most dangerous area.”

The car slowly turned right, she said, then burst into flames. She thought it had been hit by a missile.

Inside the car were Emad Lubad, 59, his wife Saher, 54, and their son Ahmed, in his early 20s, according to a relative, Nur Balusha, living in Brussels.

The resident’s brother found Emad and Saher’s bodies hours later in the smoldering wreckage of the vehicle, she said. A picture of the scene circulating online and shared by Balusha showed what she said was Ahmed lying dead in the road.

“The number of casualties is enough to raise questions about whether the use of fire was indiscriminate,” said Michael Sfard, an Israeli lawyer specializing in international humanitarian law. “But we need to know exactly what happened.”

The main question, he said, “is whether the targets were legitimate targets - was the air power used on a prospected military objective, or was it a random, indiscriminate use of bombardment in a very densely populated area?”

It is a question unlikely to be answered until after the war, if ever, when investigators gain access to Gaza. But Israel is already under growing legal pressure over its conduct in Gaza. Last month, the chief prosecutor of the International Criminal Court announced he was seeking arrest warrants for Prime Minister Benjamin Netanyahu and Yoav Gallant for war crimes and crimes against humanity.

Netanyahu called the decision a “travesty of justice,” vowing that it would not stop Israel from “waging our just war against Hamas.”

“We tried international law,” said Maj. Gen. David Tsur, a former commander with Yamam, the undercover unit that played a leading role in the rescue operation. “We sent an email to Yehiya Sinwar to release the hostages,” he added, referring to the leader of Hamas in Gaza, “but unfortunately we didn’t get any answer.”

- - -

Harb reported from London and Morris from Berlin.