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IDF Probe Into Gaza Killings: An Opportunity to Rethink Open-fire Policy

The ultimate test of an order is not what’s written in it but how it's implemented – and when it comes to the Gaza border protests, there's reason for concern

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Protesters run to cover from teargas fired by Israeli troops during a protest near the southern Gaza Strip, Friday, Aug. 17, 2018.
Protesters run to cover from teargas fired by Israeli troops during a protest near the southern Gaza Strip, Friday, Aug. 17, 2018. Credit: Adel Hana/AP Photo

The decision by the military advocate general to order a Military Police investigation of two incidents in which Palestinians were shot dead on the Gaza border, in possible violations of open-fire orders, is an opportunity to reexamine the orders themselves; and no less important, how they are understood by commanders and soldiers.

Relevant to this issue are the various incarnations of the Hannibal directive. In 1986, the Hannibal directive morphed from a verbal order to a written one, whose essence was that the kidnapping of a soldier should be prevented even if it means harming him. The legality of this directive was debated a number of times without result. It was only years later that the attorney general approved it.

>> Read more: Israeli military opens criminal probe into border killings of two Gaza teens ■ Analysis: Closing of probe Into 2014 Gaza war's 'Black Friday' lacks touch with reality

But then it turned out during Operation Protective Edge that there was the General Staff version of the order, the Southern Command version and the Gaza Command version, and they were not identical to one another. What’s more, the soldiers’ and commanders’ understanding of the order differed from all three versions. There were those who believed that the unequivocal preference was to prevent the capture of a soldier, and therefore, if there was no other way, the soldier should be killed. Such an order, like an order that exposes a kidnapped soldier to serious risk to his life, is morally shocking and totally illegal. Nevertheless, this perception was not firmly countered until 2016, when the chief of General Staff ordered the Hannibal directive canceled.

The way the Hannibal directive was handled shows one cannot assume that open-fire orders are clear and unambiguous. What’s more, the ultimate test of an order is not what’s written in it but how it is understood and implemented, and here there can be substantial gaps. The understanding of orders is influenced by the general public atmosphere, including remarks by public officials.

Given all this, there is reason to be concerned about how the open-fire orders are understood by IDF snipers and their commanders regarding the rioting demonstrators on the Gaza border. There’s a big difference between two pertinent situations: The first, firing at a person (or a small number of people) just because he is approaching the fence with the intent to damage it and cross it. As per remarks by the defense minister, this permits harming him just because he is undermining our sovereignty, even though there is no concrete and tangible danger to human life. The second scenario involves shooting people on the basis of a concrete assessment that a large number of adults, in particular armed men, are liable to cross the fence and that this crossing poses an immediate risk to our forces’ lives, health or freedom.

Only the second scenario justifies shooting, which should not even be considered in the first. It should be noted that the orders do not permit shooting at a person just because he is standing in the buffer zone or is present near the perimeter fence. Standing and presence are specifically mentioned. But moving toward damaging the fence is not mentioned. What can we learn from this? That the order is not clear. This lack of clarity puts human life at risk, particularly given the defense minister’s comments.

The court was presented with a policy under which it is permissible to fire at key instigators. Although this permit is limited to a situation in which there exists a real and imminent threat to the IDF or Israeli civilians, the danger involved does not have to be immediate (a point the court paid no attention to). It can be a danger posed by the disturbance itself, and not specifically by the persons at whom it is permissible to fire; they themselves are not required to constitute a tangible and immediate danger to human life.

It is not clear how the ban on shooting at a person solely because of his participation in a violent demonstration becomes a permit with regard to the main instigator. It is hard to shake off the impression that this is a sweeping permit to fire at those who disturb the peace, but because such an order would be illegal, it pretends to be selective and not arbitrary by using the term “central” instigator. But how can one distinguish between the “central” rioters and instigators and those who aren’t “central”?

It emerges that a permit has been given to shoot a person or an instigator not because he himself poses a risk but because shooting him might deter others. It isn’t clear how such a move can be reconciled with the rights to life, bodily integrity, and human dignity that even Gaza rioters have. One hopes this policy will be reevaluated immediately.

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