Israeli soldiers at the Israel-Gaza border near Khan Younis as Palestinians demonstrate opposite the fence on April 13, 2018. \ Eliyahu Hershkovitz

Israeli High Court Rejects Bid to Restrict Rules of Engagement on Gaza Border

The justices say they trust the government’s assurance that live fire is only used as a last resort and in self-defense

The High Court of Justice late Thursday unanimously rejected a petition against the army’s rules of engagement on the Gaza border, answering a petition by human rights groups after the army killed dozens of Palestinians during the violent demonstrations at the border since March 30.

The court said it trusted the government’s assurance that live fire is only used as a last resort and in self-defense. The court does not usually intervene in such issues, it added.

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“Some of the rioters have tried to trample or break through the border fence, creating a clear and present danger that terrorists will penetrate into the state’s territory, and this is happening in areas near towns on the Israeli side,” wrote Justice Hanan Melcer. The court’s president, Esther Hayut, and Justice Neal Hendel concurred.

“Among the rioters were some who threw rocks and firebombs at Israeli troops. Therefore, it seems that gunfire was employed to achieve a legal purpose – defending citizens of the state and Israeli soldiers,” Melcer wrote.

According to the state’s brief, live fire is only used when other crowd-control equipment would prove ineffective. “The state claims that only in this situation, as a last resort, was measured fire that complied with the rules of engagement used against terrorists and at the legs of key rioters who damaged the security barrier,” Melcer wrote.

But he added that it was hard to determine how the rules of engagement were being implemented because the petitioners rejected the state’s request to show the justices classified intelligence in an ex parte hearing. The petitioning organizations included the Association for Civil Rights in Israel, the Adalah Legal Center for Arab Minority Rights in Israel and Yesh Din.

“The existing data does not allow intervention of the type requested by the petitions at this time,” Melcer wrote. “This is because we have no concrete information about the identity of the key activists and inciters, the nature of their acts, their organizational affiliation, their involvement in terrorist activity or other forbidden hostile activity, or whether and in what manner they constituted a clear and present danger.”

Palestinian demonstrators near the Gaza border fence, May 2018. Ibrahim Abu Mustafa / Reuters

But given the violence of the demonstrations, in which Hamas played a key role, and their proximity to the fence, “we can’t rule out the state’s claim that at times there was a clear and present danger to the lives of Israeli troops and civilians in communities near Gaza,” he added.

Melcer even criticized the petitioners for calling the events along the border “popular protests,” because some of the participants were Hamas activists. He noted the affidavit submitted by Maj. Gen Nitzan Alon stating that dozens of the killed were members of Hamas’ military wing and Islamic Jihad.

“The violent disturbances were organized, coordinated and directed by Hamas, which is a terrorist organization in a state of armed conflict with Israel. As a result, it is possible to say that Hamas sought to generate a military benefit from a possible breach of the security barrier in a manner that could also help the attackers break into Israel,” Melcer wrote.

“To advance this goal, a not insignificant number of those participating in the violent incidents and of the wounded were activists in the Hamas organization, including its military services, and they were sent to disrupt order and security. They were instructed to inflame the masses and encourage an advance into Israeli territory, leading to a breach of the security barrier for terrorist attacks,” he added.

“Surely, therefore, the petitioners’ attempts to portray the events as ‘unarmed civil protests’ in which it seems there were violent incidents such as stone-throwing, tire-burning, attempts to damage the border fence and even incidents of shooting and firebomb-throwing distorts reality, to say the least.”

In her concurring opinion, Hayut discussed the atmosphere under which the Israeli army was operating at the Gaza border. She said the tens thousands of Palestinians taking part in the violent demonstrations “have been organized and funded by the Hamas organization and other terrorist organizations operating in the Gaza Strip.”

“These events present the Israeli security forces with one of the most important challenges they must deal with. This is because of the complex situation created on the ground – intentionally – by the Hamas organization and terrorist groups that are leading the events,” Hayut said.

“The complexity of the situation stems from the mixture of terrorists and the civilian population, with women and children among them taking part in the events. This intentional mixing is intended to make it difficult to locate terrorists among the masses of people taking part in the events."

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