It’s an accepted principle of international law that the exalted, fundamental and often also constitutional right to life requires conducting an investigation whenever state agents use lethal force outside of wartime. After all, how can we know a government agency displayed appropriate respect for the right to life without a focused, efficient investigation?
Even according to the army, some of the people killed in the Gaza Strip this weekend didn’t belong to terrorist organizations. Therefore, the circumstances which led to their deaths obviously require investigation, even if the probe finds everything was done legally.
Even if someone belonged to a terrorist organization, this isn’t decisive proof of the legality of using lethal force against him. What matters is what he did before our troops turned their weapons on him. Was he directly involved in hostile activity against us when he was hit? Did he pose a concrete danger to human life?
The obligation to investigate is doubly important because this was just the first in a planned series of events. Therefore a swift, serious probe is needed to ensure that any necessary lessons are learned, that the troops are instructed to uphold the law and that they in fact do so.
Yet this is not only a legal and moral obligation. Israel has a clear practical interest in not spilling the blood of Palestinian noncombatants.
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The rules of engagement, for one, must be scrutinized – how they’re written, how they’re relayed orally and how they’re interpreted by soldiers in the field. This is especially necessary with regard to complex incidents in which terrorists try to attack our forces while civilians demonstrate. Under these circumstances, anyone who wants to shed blood can easily describe the entire event as a terrorist assault on Israel, but the truth is more complicated.
If, for instance, using live fire to prevent unarmed civilian demonstrators from even approaching or vandalizing the border fence is seen as justified, this order is highly unlikely to be legal. It’s also not clear whether all nonlethal options for dispersing unruly demonstrations were exhausted before snipers were employed.
The importance of protecting life means that people acting in the state’s name may endanger life only if there’s no other choice, as a last resort, after all other alternatives have been exhausted. Anyone who prevents an investigation now will bear responsibility for what could and should be prevented in the future. But given the system’s opposition to a probe and the seal of approval it has already bestowed, no effective investigation can be done by the army itself.
An investigation is needed even though the important issue isn’t the army’s behavior, but the governmental failures that contributed to this popular uprising in Gaza and thereby saddled the army with an impossible job. Anyone who cares about the army must strive to preserve its moral fortitude under these difficult conditions. And if, heaven forbid, its moral fortitude can’t be maintained under such conditions, we need to know that.
A probe is needed precisely because Defense Minister Avigdor Lieberman employed the divisive politician’s doomsday weapon against those who demanded an investigation (the Meretz party) by excluding them from the country and declaring them part of the enemy camp.
Many who consider themselves liberals also faced a test, which they failed shamefully, by siding with Lieberman in opposing a probe. Are they committed to Lieberman’s values, or to international law and Israel’s humanist values as a Jewish and democratic state, first and foremost the sanctity of human life – a state that doesn’t dance on other people’s blood and isn’t intoxicated by tragic events that merely increase enmity toward Israel among Palestinians and other Arabs, while also undermining its international position?
Mordechai Kremnitzer is Haaretz's legal analyst