At least 129 people died in the Burj al-Taj 3, a residential building in Gaza City, when Israeli warplanes struck, claiming Hamas tunels were beneath the building (25 October 2023).

From the size of the crater,   GBU-31 guided bombs from the U.S. may have been used, which are usually mounted with Mk-84 warheads. Each bomb weighs just short of a ton, with half of that weight made up by explosive material. A UN report released in June also concludes that this type of bomb was likely used in the attack.

Israeli army had largely stopped warning residents by phone, text message or fliers prior to individual attacks. That they were ready to accept a significant level of collateral damage. And that they were relying on artificial intelligence for targeting.

The press office of the Israeli Defense Forces responded with just a single sentence to a detailed list of questions about the bombing of Burj al-Taj 3 sent by DER SPIEGEL: “In this location, an underground terror infrastructure belonging to the Hamas Terror Organization was struck, according to IDF standard protocols.

”The UN’s Office of the High Commissioner for Human Rights (OHCHR) in Geneva has also investigated the Israeli bombing of the Crown Tower residential complex as one of six incidents it believes may represent a violation of international humanitarian law due to the significant number of civilians who were killed. The report was published on June 19.
The OHCHR asked the Israelis for comment. The 12-page response does not provide details about the Crown Tower attack, citing the “sensitivity of the information.”

The response merely says that on October 25, the army attacked “several unique and high value Hamas military assets and infrastructure,” both above and below ground. The targets, the statement said, had been used by senior Hamas commanders. What is not said, however, is striking: It doesn’t specifically say that was the reason for the attack on Burj al-Taj 3.

“indicates that the IDF may have systematically violated the principles of distinction (eds. note: between military targets and civilians), proportionality and precautions in the attack.”

These are fundamental principles of international humanitarian law on the conduct of hostilities.

Does that make the bombing of Burj al-Taj 3 a war crime?
In the middle of May, the chief prosecutor of the International Criminal Court (ICC) in The Hague applied for arrest warrants for the Hamas leadership as well as for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. In the justification thus far made public, the prosecutor claims that Israel has “intentionally and systematically” deprived the population of the Gaza Strip of food, water and medicines. It does not mention specific attacks carried out by the Israeli military, even if subsequent investigations may ultimately focus on individual strikes. The problem, however, is that war crimes of that nature are difficult to prove.

Even if the extent of the destruction and the number of deaths has often been determined, it is difficult to legally establish which of the commanders is criminally liable,” says Wolfgang Kaleck, general secretary of the European Center for Constitutional and Human Rights (ECCHR). The lawyers who work for his organization frequently investigate possible war crimes.

That can also be seen from Israel’s response to the UN report, where it says: “Since the OHCHR has, at best, a partial factual picture, any attempt to reach legal conclusion is inherently flawed.” The sentence is in bold.

The difficulties come from the fact that while international humanitarian law prohibits attacks on civilians, it recognizes that civilians might be killed as collateral damage during attacks on military targets or combatants. International law isn’t quite as humanitarian as it might sound. It is more of a sober deliberation: Is the military benefit of the attack proportional to the loss of human life?

Given the high number of civilian victims, Kaleck, the human rights lawyer, believes it is justified to speak of the bombing of the Crown Tower as an “attack on the civilian population in violation of international law.” He adds: “This type of warfare, which systematically accepts attacks with significant damage to the civilian population, is morally and politically condemnable.”

Extensive report with witness account.