May 14, 2018 marked the deadliest day in Gaza in years, a culmination of six weeks of protests and clashes on the Gaza-Israel border in which over 100 Palestinians were killed by Israeli fire and thousands were injured. While Israel does not disclose its rules of engagement publicly, it is undisputed that live fire was used throughout the course of events. Snipers were deployed to stop people approaching the border fence and attempting to cross it, as well as against people designated by Israeli forces as “main agitators.” Indeed, videos circulating online depict the shooting of people who do not seem to pose real time threat to life themselves, and people not in the immediate vicinity of the border fence. On the other hand, videos distributed by the Israeli military portray some armed and violent activities undertaken by Palestinians in proximity to the demonstrations.
The events sparked international outcry and, once again, we see a clash of narratives familiar to those of us who follow – or experience – the Israeli-Palestinian conflict. To the Palestinians, their international sympathizers, and many in the human rights community, these are authentic, non-violent demonstrations, protesting Israel’s more than decade-long suffocating blockade of the Gaza Strip. In the eyes of mainstream Israelis, the protests are nothing but a ploy by Hamas: violent riots instigated by the organization and meant to further its operational goals. If the Gaza border will be breached by protestors, they believe, Israeli soldiers and civilians would be exposed to attack.
A petition brought to the Israeli Supreme Court by a group of prominent Israeli NGOs forced the state to disclose, on April 29th (and in a supplement on May 6), its legal position on the resort to force on the Gaza border. While claiming that the specific rules of engagement are privileged, the state submitted a 36-page response, including its understanding of the international rules applicable to the events in Gaza.
The aim of this essay is not to vindicate one narrative over the other or to pass judgment on specific factual claims, which must be thoroughly investigated. It also doesn’t deal with a much needed discussion of the ways legal discourse might legitimate force, rather than constrain it. It certainly does not touch upon the root causes of the crisis in Gaza and its possible solutions. Here, I wish only to analyze some of the more controversial legal arguments advanced by the Government.
The petitioners’ argument will be familiar to most international lawyers, so I’ll keep it short: The Gaza border demonstrations are simply that – demonstrations, regardless of their organizers, their ideology, and of any possible concurrent armed conflict between Israel and armed groups in Gaza. Even when turning violent, they should be countered by the familiar law enforcement paradigm – grounded in international human rights law (IHRL) – which allows the proportionate use of potentially lethal force only against a threat to life, as last resort, and strictly against a specifically threatening individual. To the petitioners, one cannot assume that even damaging the fence or crossing the border are in and of themselves such threats (albeit, in general, they don’t deny that Israel is entitled to stop such actions by other means).
The Government’s argument comprises several novel claims. In terms of facts, it argues, the border protests are part of the armed conflict between Israel and Hamas, because they display a high level of violence and are meant to further Hamas’s operational interests. Therefore, it claims, the applicable legal regime governing the resort to force, in this case, is the law of armed conflict (LOAC). Within LOAC, there are two regimes regulating resort to force: the hostilities paradigm, and the law enforcement paradigm. The latter is the “default” paradigm that controls the Gaza border events. “Default” because it is possible, as per the state, that some people would directly participate in hostilities during the demonstrations, and therefore these individuals would lose their protection (section 70 of the brief). In that case, it would flip from the default to the hostilities paradigm.
I gather that at this point, most international lawyers would read the last few sentences again, but this is not a mistake: The Government claims that there is a separate law enforcement regime that is embedded in LOAC, which is “inspired by,” but not similar to, the law enforcement regime familiar from IHRL. IHRL itself does not apply, as per the Government, because Israel is a “persistent objector” to the concurrent application of LOAC and IHRL during armed conflict. Unsurprisingly, as a fallback position, the Government argues that its use of force would be lawful even according to IHRL (claiming that potentially lethal force is permitted in order to quell a life threatening riot, by alluding to Article 2(c) of the European Convention on Human Rights). But since this is not the main line of argument I’ll set this aside.
The international legal source for this LOAC-based law enforcement paradigm is unclear. In my view, the very few sources cited by the Government do not support its existence. In a supplementary submission to the Court, the Government argues, in this context, that even prior to the conclusion of human rights treaties, armed forces conducted law enforcement operations during war – so there is nothing new in its position. Yet, in any case, it’s an extremely difficult argument to make that any pre-IHRL practice – from an era where military necessity was a supreme overriding principle – can provide permissions to use force that might differ from what IHRL allows. It is crucial to recall that nowadays, there is a consensus that the substantive content of human rights is universal, inalienable and indivisible.
No less clear than its sources, are the exact contents of this so-called LOAC-law enforcement paradigm. As the Government argues, this paradigm allows at least what IHRL does, but in situations where – as the state alleges is the case in Gaza (and which others unsurprisingly dispute) – demonstrations are organized by a belligerent party, take place in enemy territory, and are used by the belligerent party to further its hostile goals, the LOAC law enforcement paradigm must diverge from the IHRL-law enforcement paradigm. The state doesn’t tell us exactly how this paradigm diverges, but this can be deduced from the text itself.
The key to understanding the state’s conception of this paradigm is found in section 33 of the response (where literally, every word counts):
within the framework of the LOAC-law enforcement paradigm, potentially lethal force can be used when there is concrete threat to life or limb. This threat can be posed by a single individual, or by masses of individuals. Resort to force must be subject to several conditions: the use of non-lethal measures to address the threat has been exhausted… there is necessity to use potentially lethal force to address the threat (meaning, there are grounds to assume that use of force is required at the time to address the threat before it materializes, even if the danger itself is not immediate), [and force must be proportionate] … [my translation; emphasis added]
Applied to the situation in the Gaza border, the state claims that a
concrete, close and grave threat to life is posed from a rioting mob … the danger posed by a mob of thousands, is far greater than that posed by an individual or a small group of people. Moreover, this danger becomes immediate at the moment when the mass reaches its destination [presumably, soldiers on the border and Israeli towns and villages near the border], and averting it in such a later stage would require, operationally, a much wider use of live fire, which the state seeks to prevent. (section 84) [my translation, emphasis added]
Unfortunately, these paragraphs contradict two widely accepted principles governing the resort to force in law enforcement: the principle of individually determined threat to life, and the principle that threat must be imminent. First, by claiming that for the purpose of resort to potentially lethal force, a threat can emanate from individuals as well as masses, this approach adds a collective element to the resort to force in law enforcement. On this account, an unarmed person attempting to harm the border fence, or encouraging others to do so, can be fired at not necessarily because he or she is individually life-threatening, but because of the presumed actions of others. Second, this presumed action by others would take place in a later – even if close – point of time, which makes the use of force preventive.
Note the ex ante epistemic steps one has to make to accept this paradigm, in each case of resort to force: (a) that if the fence will be breached, in a specific instance, an uncontrollable mass of people will attempt to cross it; (b) that if such a crossing would be attempted, the use of non-lethal force will be ineffective in stopping it; or, alternatively, (c) that armed groups will use this breach to stage attacks; (d) that if a mass of people succeeds in crossing the border, they would pose a grave threat to life of soldiers or civilians; and (e) that there would be no effective way stop the specific people posing a grave threat in real-time, when it becomes imminent (for instance, if a mass of people decides to run towards a nearby Israeli village or approaches Israeli soldiers). While none of these scenarios are impossible, and Israel is certainly entitled to take measures to prevent them, their mere possibility cannot result in the ex ante liability to potentially lethal force of individuals who pose no immediate threat to life themselves. Simply put, in the vast majority of imaginable cases, the threat would not be certain, nor proximate, nor temporally close enough.
Importantly, by pushing this view, the state applies to the border events a logic that is somewhere between that of law enforcement and that of armed hostilities. It is “law enforcement” because as the state argues, it requires a force continuum before using potentially lethal force; but it is a step closer to “hostilities” because of the assumption of collective threat, and the preventive logic of the resort to force. As such, the purported LOAC-law enforcement paradigm results in a novel de facto category of individuals who are liable to potentially lethal force under international law. This group comprises not combatants, not members of armed groups, and not civilians directly participating in hostilities (categories with which international legal experts are familiar) – but instead it comprises those that enable a presumed threat by a large group of other individuals. This notion clearly pushes the envelope of permitted force under international law, at least as commonly understood.
It remains to be seen where the Court takes this. Indeed, it is rare – and to an extent commendable – that such a legal debate between states and NGOs concerning operational issues takes place in real time. However, what matters at the end of the day is not whether a legal debate takes place, but its outcome and effectiveness. Notably, the Court refrained from making any decision before the tragic events of May 14th, and a final decision might be rendered only after this particular episode of violence ends. To be sure, whatever happens, any legal decision will not solve, in itself, the untenable situation in Gaza, much less change the parties’ narrative concerning its causes.
Photo by Spencer Platt/Getty Images