In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. [It is important to note that all remarks in this post are based on unofficial and non-professional translations of the decision, which for now, is only available in Hebrew.]
A Law Enforcement Paradigm enshrined in the Law of Armed Conflict?
In line with its earlier case law, the Supreme Court once again stated that Israel is in an international armed conflict with Hamas as a non-state actor and that the Gaza Strip has not been under belligerent occupation since Israel’s withdrawal in 2005. Although disputed, the Court’s conclusions in that regard are not new. The discussion regarding the normative framework applicable to the protests that follows is nevertheless quite confusing. Most scholars would agree that there are two different normative frameworks for the use of force: the active hostilities framework which is regulated by international humanitarian law (with international human rights law (IHRL) informing and supplementing certain rules) or the law enforcement (or security operations) framework that is based primarily on human rights law (cf. Murray et al, Practitioners Guide to Human Rights in Armed Conflict (OUP 2016)). The Israeli government, however, continues to deny the applicability of IHRL alongside international humanitarian law (IHL) during armed conflict. Although not making any specific statements about the applicability of IHRL to the demonstrations along the Gaza border fence as such, Justice Melcer commented on the ECtHR case Issak v Turkey, on which the petitioners had relied, and distinguished between the two situations. Following this refusal to consider the actual application of IHRL to the border demonstrations, the Court then somehow invokes a separate ‘law enforcement paradigm’ that is grounded in IHL itself without being able to point to a concrete normative source for such argument (except for Art 42 GC III and Art 43 of the IV Hague Convention, Lead Opinion of Justice Melcer, para 40).
It seems that Court considers the demonstrations as part of the ongoing armed conflict between Hamas and Israel described above. It further analyses three different types of targets that are apparently listed in the IDF’s rules of engagement. The first ones are Hamas operatives, who, under the protection and disguise of the protests, carry out terrorist attacks. These individuals, according to the Court, are actively participating in hostilities and can therefore be targeted based on their status under the ‘active hostilities’ paradigm (President Hayut, para 11). As mentioned by Cohen, the Court interestingly refrained from directly invoking the ‘continuous combat function’ as developed in its famous Targeted Killings case (Public Committee Against Torture v. Gov of Israel, HCJ 769/02) but made several in-depth references to the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities (Melcer, para 45). However, the repeated notion that most of the demonstrators killed were members of Hamas military wing somewhat implies a similar approach. The IDF’s Rules of Engagement, however, apparently contain instructions for two additional categories of individuals: a.) leaders and central instigators of the demonstrations and b.) other participants in the demonstrations. According to the IDF rules, these ‘central instigators’ may be neutralized through ‘accurate shooting at the legs’ as a last resort. The Court seems to accept such approach although President Hayut acknowledged in her concurring opinion that this kind of special treatment of ‘central instigators’ has no basis in international law (Concurring Opinion of President Hayut, para 12). The Court, however, emphasized that the use of lethal force under the law enforcement paradigm must at all times be proportionate and is only acceptable where there exists real danger to life, or bodily integrity (Melcer, para 40) Although these statements would, at a first glance, imply conditions for the use of lethal force that are equal to those actually required by IHRL, one fundamental question, discussed below, remains unanswered.
The Existence of an Imminent Threat
The Court noted several times that a threat that would allow for the use of lethal force must be ‘immediate’ or ‘imminent’ (Melcer, para 46). Nevertheless, the Court failed to demonstrate that such immediacy was present. Justice Melcer noted that it was the intention of Hamas to inspire the masses to breach the security fence and subsequently carry out attacks against Israeli soldiers and civilians (Melcer, para 54). In light of these arguments, a threat to life and limb would have only been present once the fence had actually been breached. The Court on the other hand seems to consider the breach of the security fence as such as a threat sufficient to allow for the use of lethal force (Melcer, para 56; President Hayut, para 6). The breach of the fence, however, would be, at least, one causal step removed from the actual harm to life and limb of Israeli civilians or IDF soldiers. Melcer even acknowledges that the threats described above have not fully materialized (Melcer, para 55). Contrary to its own notion about the requirement of immediacy the Court therefore seems to accept the respondents’ argument, who had argued that a threat can be addressed with lethal force somewhat preventively before it materializes (consider Eliav Lieblich above). In support of this argument the Court referred to its prior case law in in Al-Masri v. The Military Advocate General (HCJ 15/1971) which dealt with a similar situation, namely IDF soldiers firing on Palestinian protesters trying to cross the Israel-Lebanon border on the occasion of Nakba day in 2011, and Anconina v. The Chief Military Prosecutor (HCJ 88/48). However, such definition of immediacy can certainly not be reconciled with the requirements of IHRL (the application of which the Court seems to deny from the outset.) This would imply that the requirement of an “imminent threat” under the ‘LOAC law enforcement paradigm’ invoked by the Court must somehow be interpreted differently than under IHRL.
This judgment remains obscure in many parts and would certainly require further in-depth analysis. It is important to note that the Court takes a very restrictive approach to the justiciability of ongoing military operations and has referred to the ongoing examinations before the IDF’s impartial investigation mechanism that was implemented due to the recommendations of so-called the Turkel Commission. In addition, a major obstacle to the proceedings was that the petitioners refused to have the Court review the actual rules of engagement (which are classified) in camera with only the respondents present. It is therefore not impossible that further petitions and claims will make their way before the Court once the operations on the ground have ended.