At the heart of the High Court of Justice’s denial of a petition against the Israeli army’s rules of engagement covering the use of live fire on the Gaza border, during recent demonstrations by Gazan protesters, is an assumption by Justice Hanan Melcer.
He believes that the large number of dead and wounded Gazans up to now – and the fact that, according to the petitioners, “many were wounded in the upper parts of their bodies, some of them in the back” – will lead to lessons being learned and the examination of alternate methods being used, nonlethal wherever possible, as well as a thorough investigation of what happened in recent weeks.
However, it is hard to believe this assumption has a basis in fact. It’s not enough to deny a petition while spouting such words in order to bring about the use of less lethal methods. As for conducting a more thorough investigation, experience shows that even investigations of serious cases of Palestinian civilian deaths at the hands of the Israel Defense Forces went nowhere.
The court’s words express conflicting messages: On the one hand, the petition is rejected based on the assumption that the IDF conducts itself according to Israeli law and the rules of international humanitarian law, while respecting the laws of war. On the other hand, the assumption that the high number of casualties will result in lessons being drawn regarding the use of alternative methods leads to a serious concern that the IDF is not fulfilling its obligations.
This duality finds further expression: The main legal issue presented to the High Court was whether the IDF’s rules of engagement are consistent with international law. During armed conflict, international law allows to target only combatants. It is also possible to target civilians who directly participate in hostilities, but only while they actually participate in the hostilities. In other situations, which fall under the law enforcement paradigm (rather than the armed conflict paradigm), international law allows the shooting of someone only if he poses a clear and imminent threat to the life (or body) of others.
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The IDF has recently claimed that it is permissible to shoot at “key inciters.” This is a dangerous policy that creates a new category of persons whose blood it is acceptable to shed. These are neither combatants nor civilians who are directly participating in hostilities, nor civilians posing an imminent danger to anyone’s life.
The High Court ruling illustrates that the IDF policy is indeed that it is permissible to shoot “key inciters” and even “key demonstrators” – although the directives here are to shoot at the legs, and only as a last resort. The court’s president, Esther Hayut, noted in her ruling (which was joined by Justice Neal Hendel) that the category of “key inciter” or “key demonstrator” is not anchored in international law. She added that the place to resolve the question of who belongs in these categories is in “operational and other investigations.”
One can accept the court’s ruling that it is hard for it to intervene in such cases, when it is asked to discuss the implementation of the rules of engagement in the absence of more concrete information. It is more difficult to accept the gap between Melcer’s concern regarding the high number of casualties hit in their upper bodies and backs, as well as the discomfort of Hayut regarding the creation of a new category of key “inciters and demonstrators” that are legitimate targets, with the bottom line: The lack of intervention by the court, while leaving the investigation of the factual questions – and in practice also of the legal ones – to be done retrospectively. Such an investigation will be conducted too late for those wounded and killed by IDF fire, and will be buried along with the victims.
Aeyal Gross is a board member of the Association of Civil Rights in Israel, which was one of the petitioners in the case.