The building where four relatives of a well-known Gaza doctor were killed during the Israel-Hamas war of 2009 contained weaponry not used by the Israel Defense Forces, indicating that the IDF may not have caused their deaths, the state said in a court brief.
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The brief was submitted last week in response to a 2010 lawsuit filed by the doctor, Izzeldin Abuelaish. On Wednesday, the Be’er Sheva District Court will hear evidence in the case.
Abuelaish’s daughters – Bessan, 20, Mayar,15, and Aya,14 – and his niece Noor, 17, were killed on January 16, 2009. Several other members of his family were wounded.
The army’s operational inquiry into the incident, conducted in 2009, concluded that the casualties were caused by two Israeli shells that hit the Abuelaish home. But in a court brief filed in 2011, the Defense Ministry argued that the shells weren’t necessarily the cause of the deaths.
A new brief filed last week outlined the testimony of the state’s key witnesses, including Lt. Col. Eran Tubal, head of the ground forces’ materials and chemistry laboratory. Tubal conducted two different sets of lab tests on six pieces of shrapnel extracted from two of the wounded, Shatha and Raida Abuelaish, who were hospitalized in Israeli hospitals.
His report on the tests’ results concluded that the building where the Abuelaish family lived contained a cache of weapons not used by the IDF.
The first set of tests, performed the day after the incident, showed that at least one fragment found in Raida’s body included an explosive called R-Salt. This substance is not used by the IDF, Tubal said, but is commonly used in improvised explosives in the Gaza Strip.
Moreover, he said, all six fragments contained a black powder he identified as potassium nitrate. This substance, too, isn’t used in IDF artillery, but is “a key element in the engines of improvised rockets like the Qassam,” a Hamas rocket, he wrote.
The fragments also contained traces of explosives used by the IDF. But these substances are used by terrorist groups in Gaza as well, so their source cannot be determined, Tubal added.
A month later, in February 2009, Tubal and his team were asked to test the shrapnel again, this time by comparing them to the specific IDF shells used in the incident. His report concluded that four of the fragments did not come from IDF ammunition, while a fifth “may have come” from an IDF shell. The sixth fragment wasn’t mentioned at all.
Additionally, Tubal wrote, two of the fragments bore a circular nick that doesn’t resemble anything produced by an IDF shell. But an improvised rocket he also examined contained steel rings which left nicks bearing “a certain similarity” to those on the shrapnel.
Abuelaish’s lawyer, Hussein Abu Hussein, told Haaretz on Monday that he first learned about the lab report’s existence last week. He has been representing Abuelaish for only about six months, but the plaintiff’s previous attorneys also told Haaretz they had never seen the report.
In response to Haaretz’s questions , the prosecution, representing the Defense Ministry, said that shrapnel was tested from only two people because none of the other wounded were treated in Israel, nor were any of the dead autopsied in Israel.
Regarding the contradiction between the operational inquiry and the defense brief, the prosecution said the inquiry “is classified by law, so we can’t comment on it.” It added that the state doesn’t deny that the IDF shelled the building, but does argue that the presence of other explosives in the building means the deaths and injuries might have been caused by those other explosives. Finally, it denied concealing Tubal’s report from the defense, saying it simply hadn’t completed the process of document discovery until two weeks ago.