The Israeli Supreme Court’s recent ruling on the legality of lethal force the Israeli army used against Palestinian protesters in Gaza was unambiguous in its final decision: to reject the petition from a group of human rights organizations challenging the rules of engagement. But the arguments of the judges — Court President Chief Justice Esther Hayot and of Justices Hanan Meltzer and Neal Hendel — for how they arrived at that conclusion create confusion on important factual and legal points.

In the judgment published on May 24th and available in Hebrew, the Supreme Court took the position that the question of how armed force had been applied on the ground was something that should be the subject of internal investigations rather than be decided by the judges.

But the Court’s arguments are muddled. In terms of factual issues the big question is what exactly constitutes the petition’s subject-matter. Arguably, the petition calls for overturning the army’s engagement rules to the extent that they include the use of live fire against protestors. Yet, because the rules of engagement are classified, neither the petitioners nor the Court actually had an opportunity to see these rules. The petitioners’ claim is being brought, as Justice Meltzer noted, ‘to the best of their knowledge.’

Equally, the petitioners denied the Court’s request to view the classified information outside their presence. The Court hinted at how important it would be for such information to have been presented. Suggesting the impact on the final judgment, Justice Meltzer eloquently reprimanded the petitioners by stating that:

“the respondents underlined, over and over again, that the presentation of the full picture of the events to the courts requires the revelation of the classified information they possess outside the presence of the other party and that such information is not presented to the court only because of the petitioners’ stance on the issue.” [my translation, emphasis added]

Similarly, Justice Hayot noted:

“The petitioners added more difficulties in the case by objecting to a hearing taking place without their presence during which we would have been able to get from security forces explanations and clarifications as required, including classified information and comprising also the orders according to which the Army acted in the specific events” [my translation, emphasis added]

Without the ability to peruse the actual engagement orders given, the Court resorted to the content of the general, unclassified Israeli army engagement policy. The Court noted (Chief Justice Hayot) that this policy requires basing the use of force on the severity of the assessed threat. Along these lines, the Court concluded that the policy did adopt a proportionality-based approach in the treatment of possible threats as required by international law. Moreover, both Justice Meltzer and Chief-Justice Hayot hailed to add in their opinions that in the case of the Gaza riots the engagement rules had been asserted both by the army’s Military Prosecutor as well as by the government’s Attorney-General. In that sense, the Court assumed that since the army’s engagement rules do not generally negate international law in principle and since the specific rules regarding the protests at the Gaza border were sanctioned by senior Israeli law officials, the engagement orders must have followed the general pattern in this case as well. Yet, the question remains whether courts can review administrative acts such as, military rules of engagement, without knowledge of their actual text.

Moreover, whereas the petition intended to focus on the legality of the engagement rules and whether or not they conform with international human rights law (IHRL), the absence of the actual text meant the focus turned to the application of the rules instead. The judges opted to rely on a statement by the applicant’s attorney during the oral proceedings that “even if the engagement orders were deemed to comply with international law, the applicants were addressing the legality of the way these orders had been actually applied.”

On these grounds, and citing factual hurdles in assessing whether each person against whom lethal force had been used, posed a deadly threat to the shooting soldiers, the judges dismissed the petition. Indeed, the absence of sufficient facts makes it difficult to reconstruct the circumstances of each death and the Court certainly does not have the tools to undertake such an empirical mission. Yet, the question at the center of the petition was doctrinal, not empirical — namely whether or how IHRL applies. The judges did not outline any grounds for converting the subject from a doctrinal to an empirical one and ultimately dismiss it.

The decision is equally confusing on a legal basis. Most notably this relates to the duty to investigate civilian deaths under the law of armed conflict (LOAC) “law enforcement paradigm” endorsed by the Court.

In its response to the petition, the State claimed that LOAC should be seen as the applicable regime governing the use of force in this particular case. Specifically, the State argued, and the Court concurred, that the use of force under LOAC should be seen as encompassing two scenarios: 1) when hostilities take place 2) when the army uses force to restore law and order. The Gaza riots should fall under the second case. Justice Meltzer held that although such a sub-category of use of force classification does not exist in any of the international law provisions, it can be deduced from the major LOAC documents, such as The Hague Regulations and the Geneva Conventions. In the same paragraph of the judgment, Justice Meltzer went on to note:

“In the realms of the law-enforcement paradigm inside the laws of war, it is possible to resort to potentially lethal force only as a means of last resort and subject to stringent conditions that stem from the principles of necessity and proportionality, in other words it is possible to resort to such force only when there is an actual danger to a person’s life or to the person’s bodily integrity. This danger can come either from one person or from group action.” [my translation]

The LOAC “law enforcement paradigm” is a LOAC-IHRL hybrid that is highly problematic because, as noted, it widens the scope of the persons who can be targeted to include civilians in a crowd even if these civilians do not actually engage in hostilities. In addition, the creation of such a hybrid raises also questions of how it is meant to interact with duties, like the duty to investigate, to which the LOAC and IHRL normally relate. Under LOAC, investigations are opened for possible war crimes in situations similar to the discussed incident when civilians are deliberately targeted or the number of civilian casualties disproportionately exceeds that of the militants. Under IHRL, an investigation should be opened for every death in which there is a dispute over whether the shooting officer was indeed in lethal danger.

In the case of the Gaza riots, if the LOAC paradigm applies as held by the Court, it is hard to see how any investigations would be opened in this case. The fact that both Hamas as well as Israeli officials say that a large number of the persons killed appear to have been Hamas militants, seems to indicate that the Israeli forces did not intentionally target only civilians nor were civilian casualties disproportional to support a claim that war crimes took place. Still, it can be argued that the considerable number of Palestinian casualties and injuries demonstrates that IHRL violations did take place. On this account, an all-encompassing investigation should be conducted for each incurred death or injury, rather than a general, selective investigation of some incidents.

On the subject of the duty to investigate, the Court was not clear which path should be followed: the ‘LOAC-no investigations’ route or the direction of the ‘IHRL-investigations in each case.’ Chief Justice Hayot seemed to lean towards the LOAC option. She thus referred to the need for the State to open investigations in select cases so that the chief military prosecutor can determine whether criminal charges are warranted. Yet, she did not refer at all to the question of whether given the parameters discussed above, any war crimes charges could be pressed in the first place.

In contrast, Justices Meltzer and Hendel seemed to lean more towards the IHRL approach on the duty to investigate. Justice Meltzer held that “the role of these investigations is to clarify in an encompassing way the events…”  and Justice Hendel refers to “an examination of case by case.”

In that sense, the Court did not say much about the role played by the duty to investigate within the LOAC “law enforcement” framework. Does the duty refer only to cases where there is suspicion that war crimes have taken place? If so, why should investigations be opened in the particular case of the Gaza deaths? Does this duty converge with that under IHRL to investigate all deaths in which the shooter was not under deadly threat? If yes, what is the added benefit of the duty under the LOAC “law enforcement paradigm”?

If we want to attempt to reconstruct the Court’s rationale, we could argue the Court determined that, due to the factual difficulties in establishing the circumstances under which the Palestinian demonstrators’ deaths occurred, it is not possible for the State to conduct an investigation on how each separate person died as IHRL requires. On these grounds, the duty to investigate is applicable in essence only in some cases where the use of force raises more conspicuous questions of legality.

Yet, international law does not endorse such an a-la-carte approach to the duty to investigate. To the extent that it mirrors both LOAC and IHRL as an in-between regime and both of these require investigations, it wold be wrong to view the LOAC “law enforcement regime” as permitting exemptions.

Rather on the question of whether the duty to investigate should mimic more the rules applicable in LOAC or IHRL, it is plausible to assume that the latter should be the case. In law enforcement situations where the objective is to restore order and law and to end the chaos, the assumption is that there are no combatants. Nor is a military rationale to assess civilian casualties alongside those of combatants. So, the question of whether individuals have been killed lawfully should be seen under IHLR.

Moreover, assuming as the Court did, that the LOAC “law enforcement paradigm” broadens the military’s discretion and targeting scope, the rule of law would be safeguarded more efficiently if the army’s actions were reviewed under the more encompassing IHRL framework. The fact that such investigations will not be able to proceed in some cases due to the difficulty in establishing the circumstances of a person’s death, does not negate the need for them to open in the first place. Time will tell whether the Israeli Supreme Court, if it decides to stick to the LOAC “law enforcement” construction, will come to also acknowledge the application of IHRL in warfare.

Image:  An injured protester is carried to an ambulance at the border fence with Israel on May 15, 2018 in Gaza City, Gaza. Photo by Spencer Platt/Getty Images