The video of 18-year-old Palestinian Abed el-Fatah Abed e-Nabi being shot in the back by Israeli soldiers as he runs away from the border fence with Israel back towards Gaza is only one reason to suspect that the use of force employed on the border Friday – which led to the death of 15 Palestinians and the wounding of hundreds more – was unjustified.
Even the Israel Defense Forces spokesperson’s statements, according to which key agitators were shot, testify to the fact that there is some concern that gunfire was initiated not only when there was a specific and concrete danger from Palestinians, but was also aimed at specific individuals.
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In an analysis published by The Israel Democracy Institute, the three legal experts – Prof. Yuval Shany, Prof. Amichai Cohen and Dr. Eliav Lieblich – warned that the means given to a state to defend its borders are not without restrictions. Live fire against civilians, they caution, is only permissible if and when civilians directly participate in hostilities.
An attempt to cross the border – in this case between Gaza and Israel – does not constitute direct participation in hostilities. Shany, Cohen and Lieblich claim, therefore, that Israel should use only law enforcement measures against those attempting to cross the border, like those measures used to disperse an illegal protest or riot. Those who cross the border can be arrested, but live fire should not be used – except in instances in which there is a specific and concrete threat to life posed by a specific individual. Approaching the border, crossing it and even “incitement” do not justify using live rounds if there is no specific danger to life.
The images from Gaza, much like the army’s statements, call into serious question whether these rules were respected. An order to open fire at civilians who do not pose a real threat to life is a blatantly illegal order, which has what the Israeli courts call a “black flag” flying over it.
But one additional perspective should be added to this analysis. Many, including those who are critical of the Israeli army’s conduct on the border and condemn the killing of civilians, accept and stress that Israel has the right to defend its borders. Surprisingly, when the case is Gazans approaching the border, everyone suddenly sanctifies this border and the sovereign state’s right to defend it.
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However, it is worth noting that Israel does not really respect this “border” between itself and the Palestinian territory. Israel continues, even after the 2005 disengagement from Gaza, to hold absolute control of Gaza’s airspace and territorial waters and, in many respects, to control numerous aspect of life within the Strip.
Israel has imposed a blockade on Gaza for many years, in which it has decided who and what can go into Gaza and come out of the Strip. Israel invades Gaza whenever it desires.
While Gaza is no longer home to settlers, in the West Bank Israel erects cities and communities where hundreds of thousands of Israeli citizens live. Israel has never respected borders or “sovereignty.”
But suddenly, when Palestinians go near the border, the mere act of approaching it is considered a horrendous threat. Suddenly, the fence between Gaza and Israel is the border of a sovereign state that needs to be respected.
What we can learn from recent days is that Israel, once again, is showing disregard for the lives of Palestinians and uses excessive and unjustified force towards them.
Moreover, Israel continues to maintain a one-sided border between itself and the Palestinian territories. A border it can breach as it pleases, whether it is to establish settlements or to continue to maintain different forms of control.
Meanwhile, the border with Gaza is a hermetically sealed one, blocked by Israel. A Palestinian from Gaza who wants to go to the West Bank to visit family, receive medical care or for any other reason – is beholden to Israel’s goodwill. A Palestinian from Gaza who approaches the border, the one Israel breaches whenever it wants to, can find himself shot to death by the IDF.