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The laws of armed conflict and the Gaza Strip
By YONAH JEREMY BOB
06/03/2014
Does the IDF have different standards for patrolling the border of Gaza than it does the West Bank?
 
From January to mid-December 2013, only one Palestinian was killed near the Gaza security fence by IDF gunfire, B’Tselem says.

From mid-December 2013 until now five Palestinians have been killed by IDF gunfire, the organization said.

The NGO described each of the cases in detail, arguing that none of the five persons who were killed presented a security threat. Amneh Qdeih, 57, reportedly mentally ill and not necessarily understanding her actions, who was killed on February 28, was possibly the most extreme case, B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories said.

While the IDF usually does not publish its classified rules of engagement, the record indicates that the IDF applies a more aggressive standard in allowing soldiers on the Gaza border to open fire than it does in the West Bank.

In other words, Palestinians approaching or even illegally crossing the West Bank border are arrested and not shot at, even if they are unidentified. Chances are they would only be shot at if there was reason to believe that the Palestinian was a dangerous terrorist.

In Gaza, there appears to be a presumption that those approaching the Gaza border are dangerous unless proven otherwise, with Gazans given, at most, a short warning before the IDF opens fire. In the West Bank, the assumption appears to be that Palestinians are not dangerous unless proven otherwise.

The IDF has in the past disclosed that, for limited periods, it gave soldiers on the Lebanese and Syrians border permission to shoot protesters approaching the border in the legs to prevent a large group from overwhelming the border fence, while not killing them.

According to B’Tselem and other reports about the army’s responses to incidents at the Gaza border, each fatal incident involved either a Gazan trying to cut through the border fence or an unidentified person approaching the border and ignoring warnings to halt, like Qdeih.

B’Tselem’s interviews of bystanders who were present during some of the shootings indicated the army had issued no warnings.

Although part of the army’s position remains classified, its legal position on treating the Gaza border more aggressively than the West Bank border is clear.

There is an ongoing armed conflict between the IDF and Hamas in Gaza, which is, at best, temporarily alleviated by a general truce.

The IDF says Hamas and other terrorist groups in Gaza regularly ignore the truce by firing rockets, digging tunnels to carry out kidnapping operations and encouraging civilians and activists to approach the border to undermine or violate nearby IDF security zones.

Although there may be days or weeks when the border is quiet and there have been no general hostilities since Operation Pillar of Defense in November 2012, the IDF believes the current state of conflict leaves it no choice but to assume anyone approaching a declared no-go zone is dangerous.

Many international jurists argue that people viewed as dangerous approaching a disputed area in an armed conflict can be fired upon, even absent general hostilities, as long as there is no peace treaty and the terms of the truce do not prohibit such firing, as is the case in Gaza.

The IDF would likely add that it has the right to fire on Palestinians approaching the West Bank border, due to the level of terrorism occasionally coming from the West Bank, though it is presumed not to be sponsored by the Palestinian Authority.

However, the army might add that as a matter of policy, because the PA in the West Bank is not itself involved and the threat level from there is far less than from Gaza, it has voluntarily taken a less aggressive approach. Israel’s critics might counter that the laws of armed conflict require confirmation that an individual is dangerous before opening fire, especially when there is no general war, and that merely approaching a border and ignoring warnings would justify the IDF trying to arrest the person using the least force necessary.

Critics might add that this is doubly true where there is only one or a small group of individuals approaching the fence as in some of the reported incidents.

The IDF could reply that it does not have an easy capability for entering the no-go zone in Gaza because of Hamas’s control over the area and that trying to arrest such an individual could play into a Hamas ambush, is too risky and is not required by law.

It has been noted in the past that some civilians may be encouraged to go to the border to defeat the Israeli no-go zone and make it easier for Hamas fighters to approach – almost as if the civilians are being used as human shields to wear down IDF resolve.

The best solution would be for Hamas to prevent civilians from approaching the border on its own.

In lieu of that, while the army might be able to improve its warning procedures, the real dangers presented by the Gaza border probably mean that Qdeih’s death will not be the last unfortunate incident in the broader conflict between Israel and Hamas.
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