On April 6, for the third weekend in a row, Palestinian residents of Gaza clashed with the Israel Defense Forces near the fence separating the Gaza Strip from Israel. According to Palestinian sources, in total more than 30 Palestinians have died and hundreds have been injured, since the start of the clashes. (For an overview of events from a source with close ties to Israeli intelligence, see here.) Israeli sources Claim that most of the victims were men between the ages of 18 and 45 who were known members of Hamas.
During the clashes, the IDF used less lethal weapons and crowd control measures, such as tear gas and water cannons, as well as live ammunition. According to some reports, after warning shots were fired, snipers near the fence fired live ammunition at people who had passed through the first fence and were on their way to the second, the main security fence.
Did the Israeli military act appropriately and legally under international law? Answering this question requires determining what legal framework governs the conflict along the Gaza border. And in order to do that, we need to understand the situation between Israel and the Gaza Strip over the past ten years.
In the summer of 2005, Israel implemented its plan to disengage from the Gaza Strip, evacuating its civilian settlements from the area and withdrawing its military forces to pre-1967 lines established before Israeli forces took the area. in Egypt. Two years later, Hamas took control of the territory in a cut state directed against the Palestinian Authority – led by the Palestine Liberation Organization – which was established by the Oslo Accord. Since 2007, Israel considers the Gaza Strip to be territory controlled by a hostile terrorist entity and has tightened its control over the movement of people and goods to and from the territory. Israel’s position, approved by the Israeli Supreme Courtis that due to the lack of effective control on the ground, it is no longer the occupying power of Gaza as defined in international humanitarian law. Others felt that continued Israeli control over the airspace, maritime area and most land crossings in Gaza (Egypt controls the eastern border of the Gaza Strip and the Rafah crossing point) creates at least some residual obligations under the law of belligerent occupation. .
In the last ten years since Hamas took power, three major rounds of military escalation have taken place – in 2009, 2012 and 2014. These clashes have involved rocket fire from Gaza against Israeli population centers and Israeli airstrikes in the Gaza Strip, as well as temporary land. Israeli army incursions into Gaza, raids by Hamas operatives through the fence through underground tunnels, and improvised explosive devices (IEDs) laid by Hamas on and near the fence to target military patrols Israeli. Apart from these great waves of violence, armed incidents between the parties continue sporadically. For example, in February this year, four IDF soldiers on patrol were injured by a hidden IED when they stopped to remove a flag placed on the fence during previous protests. The IDF later attacked Hamas targets in Gaza and an Rocket fired from Gaza hits house in southern Israel.
In this context, what is the applicable legal framework? It seems to me that the continuing violence in and around the Gaza Strip supports the position that there is an ongoing armed conflict between Israel and Hamas and other Palestinian armed organizations in Gaza. Whether this conflict should be characterized as an international armed conflict or a non-international armed conflict is less important in the current context.
With regard to the rules of engagement governing the measures taken by Israel to stop the crossing of the border fence, the situation is more complicated. Public discourse in Israel tends to oscillate in this regard between two opposing poles: according to some, lethal force can be used against anyone attempting to cross the barrier from Gaza to Israel because Israel has the right to defend its sovereignty and because of terror existing cross-border threats. The opposing view states that a violent protest by civilians in Gaza should be treated like any other protest, even if it threatens to destroy parts of the security fence between Israel and a terrorist entity in a conflict area. , and although there is genuine concern that terrorist attacks will be launched among the demonstrators. In this law enforcement paradigm, lethal force can only be used against a person causing imminent risk to the lives of others, such as an armed person standing in the midst of protesters about to shoot. soldiers across the border.
I am of the opinion that the two opposing positions present an inaccurate description of legal and factual reality. To be clear, the use of indiscriminate fire against civilians, even if they cross a border or sabotage a military installation, is absolutely prohibited. Yet the idea that military forces defending the border should remain inactive because the risk to life is not imminent – even after less lethal means have been exhausted and amid the destruction of the border fence by a mob – is too strict and narrow an interpretation. of international humanitarian law.
The objective of IHL is to strike a balance between military necessity and humanitarian concerns during an armed conflict. Rules that ignore legitimate military needs are unlikely to be sustainable. In addition, a significant breach of the border fence could be exploited to plant IEDs or for the entry into Israel of terrorist squads or violent mobs aiming to attack Israeli civilians. Such developments present a serious and concrete danger to life, even if they are not of an imminent nature.
In an extreme scenario, rioting civilians, even unarmed, may be considered a direct participant in hostilities provided they engage in acts of violence specifically designed to support their side of the conflict and harm the enemy state. Such acts of violence may include destroying military equipment or diverting the attention of the armed forces to support an attack in another location. In fact, this opinion was expressed in a expert meeting convened by the International Committee of the Red Cross in 2012 on the use of force in armed conflict and the interplay between the conduct of hostilities and the law enforcement paradigm. (See page 26 of The report.)
Note, however, that this was not the dominant opinion of the experts present at the meeting. For this reason, as well as for practical and political considerations, military personnel defending in extreme situations involving violent civilians should focus their use of force on those who appear to be leading and inciting the rioters. Even then, the military should use the minimum force necessary to stop the harmful act.
This question of the limits on the use of force can be decided by the courts. Four Israeli human rights organizations have appealed to the Supreme Court to order the IDF to revoke any regulations allowing soldiers to fire live ammunition at protesters on the Gaza border who do not pose a substantial and immediate threat to the Gaza Strip. human lives.
Haaretz recently reported that the IDF had decided to launch a probe in the border clashes, which will be conducted by an investigative mechanism like the one put in place after the 2014 Gaza operation, known as Operation Protective Edge. This investigation is to determine whether extreme situations that could justify the use of lethal force actually occurred along the Israel-Gaza Strip line during the recent clashes, and the burden of proof should be on the military to justify its actions. actions. The investigation is also expected to determine whether the IDF undertook adequate preparations for the events, which came as no surprise. In addition, the investigation should examine whether the Israeli authorities had information to support the conclusion that terrorist groups were directing attempts to break through and destroy the fence with the intention of using the riots as cover or as a diversion to promote attacks. terrorists.
Launching an investigation is not an act of self-righteous hypocrisy or an admission of guilt. Rather, it is a necessary component of the rule of law. In addition, a rapid and effective investigation will allow the IDF to learn lessons and apply them in future clashes, including adjusting its regulations or deployment measures. If the investigation reveals crimes, it is better to try such wrongdoing through the Israeli justice system rather than subjecting the perpetrators to international criminal prosecution, which is a method of last resort, used when a state does not want it. not or is unable to assume primary responsibility.
The IDF should be competent to conduct the investigation itself: the Turkel Public Commission investigation, convened after the 2010 Turkish flotilla incident, asserted that Israel’s military law enforcement system is generally consistent with international legal standards for independent and effective investigations. Still, the Israeli state comptroller issued a report in March, noting some flaws in the effectiveness and timeliness of the fact-finding mechanism. Hopefully the IDF has learned the necessary lessons from this report.