The unusually high death toll in Gaza this week has reignited the debate over the Israeli army’s rules for opening fire and whether they are too trigger-happy.
At least 60 Palestinians were killed in the violent demonstrations at the Gaza Strip-Israel border on Monday, most of them by sniper fire, while thousands of others were injured.
It was the largest number of Palestinian fatalities in a single day since the Gaza war in the summer of 2014. Some 40,000 Palestinians participated in the protests, which coincided with the official opening of the U.S. Embassy in Jerusalem and Nakba Day, when the Palestinians mark the “catastrophe” of the formation of Israel.
Were Israeli soldiers engaging in war crimes or acting in self-defense?
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Experts say it depends on how the situation at the Gaza border is defined.
Should it be treated like a civilian protest – as some argue – in which case opening fire is justified only when there is an imminent threat to life? Or should it be treated like an armed conflict, in which case soldiers have far more leeway when pulling the trigger?
To frame it in legal terms, do the laws of human rights or the laws of war apply in this often violent, cross-border situation?
Most experts agree that the situation in Gaza defies standard classification.
While the majority of protesters at the border in recent weeks have not been armed, neither have these been purely peaceful demonstrations. On numerous occasions, protesters have hurled rocks, grenades and Molotov cocktails at soldiers on the other side of the border. They have tried to breach and damage the fence, and they have sent flaming kites across the border to burn agricultural fields.
Despite that, prominent Israeli human rights lawyer Michael Sfard holds that the laws of war do not apply in this situation and that if the laws of human rights are to apply instead, then the Israeli army has clearly violated them.
“The state and army argue that the use of potentially lethal force against unarmed civilians is permitted even in circumstances where they do not impose an imminent danger to the lives of others,” he says.
“It seems to me that the huge number of casualties we have seen in recent weeks is a direct result of this legal thesis, which is completely baseless. It contradicts the most fundamental principles of laws governing the use of force, which adhere to the formula that endangering the lives of civilians can only be done to defend life – and nothing else.”
Sfard is one of several lawyers representing half a dozen human rights organizations based in Israel and the Gaza Strip that have petitioned the Israeli High Court of Justice against the army’s rules of engagement, claiming they violate international law.
They have also demanded that the army make public the detailed list of rules, which are classified.
In its response to the petition earlier this month, however, the state did provide some insight into its “standard operating procedures.” Sfard says that is how he learned, for example, that soldiers have permission to fire on protesters breaching the border fence, even if they are unarmed and pose no imminent danger.
He has been able to piece together other bits of information about the army’s rules of engagement, he says, from public statements issued by members of the defense establishment.
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“Whether it’s through tweets or posts or interviews they’ve given, we know that there is authorization to use live fire against those considered ‘key agitators,’ even if these ‘key agitators’ are not endangering any lives – and that is also a violation of international standards,” Sfard says.
Even after Monday’s bloody events, which drew widespread international condemnation, the human rights lawyer does not believe the army will revisit its rules of engagement unless forced to do so by the High Court.
“This is a classic situation in which the judiciary is one of the only institutions that can do something,” Sfard says. “Diplomacy, external pressure and internal moral backbone have all failed here, and I hope the judiciary will not.”
Amnesty International, the global human rights organization, believes that the protests in Gaza, as violent as they are, should be treated as a public assembly and, therefore, subject to law enforcement rules rather than the rules of armed conflict.
Its guidelines on the use of force in such situations stipulate that “in the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimal extent necessary.”
When using force in response to violence, the guidelines urge those in charge to “distinguish between the individuals who are engaged in violence and those who are not (e.g. peaceful demonstrators or bystanders) and carefully aim such force only at those engaged in violence.”
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This position is also endorsed by the International Committee of the Red Cross, which stipulated in a 2015 report on the application of international humanitarian law to contemporary armed conflicts that “if a civilian demonstration against the authorities in a situation of armed conflict were to turn violent, a resort to force in response to this would be governed by law enforcement rules.”
Dr. Eliav Lieblich, a member of the faculty of law at Tel Aviv University, is concerned that Israel has embraced “some sort of hybrid law enforcement paradigm” that permits excessive use of potentially lethal force even though it does not define the demonstrations as acts of hostility per se.
“International law, as generally understood in such cases, requires that unless somebody is a combatant on the other side, resorting to lethal force is only acceptable if that person is an imminent threat to life or limb,” says Lieblich, an expert on the legal aspects of the use of force.
“Based on an examination of the state’s submissions to the High Court, we’re seeing a widening of this perception to include also persons not directly threatening life themselves but enabling a threat to life by others – for example, through mass demonstrations. Most international lawyers would not agree.”
Prof. Amichai Cohen, a professor of international law at the Ono Academic College near Tel Aviv, says he lacks important information from the field to determine whether the army is, in fact, in violation of international law, “but the number of dead people should raise a red flag.”
He continues: “To me, it is clear – and I’m sure even the army wouldn’t deny this – that not everyone shot was intending a terror attack.”
The large casualty rate on Monday is proof, he says, that the current rules of engagement are “operationally a failure.
“You shouldn’t have these numbers, and we need to draw conclusions from this experience and try something different,” says Cohen.
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In fact, on Tuesday, a senior IDF spokesman acknowledged in a briefing with North American Jews that some of the protesters had been hit by mistake and, while defending the IDF’s response, recognized that the army had failed in its attempt to minimize Palestinian casualties.
Shurat HaDin Israeli Law Center, a nonprofit that sees its mission as “utilizing court systems around the world to go on the legal offensive against Israel’s enemies,” says that if anyone is in violation of international law, it is Hamas.
“They use civilians – women, children and old people – to come and risk their lives against live fire,” says Nitsana Darshan-Leitner, the center’s founder and director.
Given this situation, in her view Israeli soldiers have no choice but to open fire.
“There are those who’d have you think that what we’re witnessing are civil demonstrations – like the type you see in the heart of Tel Aviv,” she says. “But this isn’t the case. The case is that we’re in a war because the intention of Hamas militants is to break through the border into Israel and then to carry out attacks and harm Israeli civilians. Therefore, the job of the military is to stop them, and to stop them at any cost.”
Daphne Richemond-Barak, an expert on law and security at the International Interdisciplinary Center in Herzliya, also supports a more hard-line position.
“We’re not in a situation of purely human rights law application here from a legal standpoint,” she says. “We are in a conflict with Hamas, which is in control of the Gaza Strip. And when we are in conflict, there is another body of law that applies, which is the rules of armed conflict, and these rules typically [grant] more authority to use lethal force against the enemy.”
The High Court ruling in the petition against the army, she predicts, will become a “landmark” case internationally.
“As we’ve seen in the past, the threats that face Israel circulate around the world and are faced by other countries as well,” she says.
Asked to comment, the IDF Spokesperson’s Office referred Haaretz to the state’s response, submitted late last month, to the High Court petition.
The procedures used during the protests “are those that apply regularly to IDF activity along the security infrastructure dividing Israel and the Gaza Strip,” the response said. “These rules conform to international law as well as Israeli law, including the High Court’s jurisprudence.”
In addressing “violent riots,” the state said in its response, “the standard operating procedures allow the use of live ammunition only as a last resort, when there is a real and imminent danger to IDF forces or Israeli civilians, and only after the use of nonlethal means has been exhausted.”
It emphasized that the rules “do not permit shooting a person on the mere basis of their participation in violent riots or their approaching the fence.”
At the same time, it noted that “it is not possible to address the violent events in the areas of the security infrastructure – occurring in enemy territory, involving a wide range of hostile and harmful activities – in the same manner civil disorderly conduct is addressed within a state’s territory.” Therefore, there is “no basis” for applying legal rules and methods of control that are relevant for internal state policing.
The response said that following recent violent events, “an orderly procedure for drawing lessons learned, as well as for their implementation, has been conducted.”
It said that IDF troops have been provided with “different points of emphasis” aimed at reducing casualties.