The IDF has adjusted its approach to the use of live fire when confronting protesters on the Gaza border in recent weeks, the state told the High Court of Justice on Monday.
The statement was made at a high-stakes hearing regarding a petition by a group of human-rights groups asking the court to declare that the rules of engagement used by the IDF in confronting the protesters violate international law.
IDF Operations Commander Maj.-Gen. Nitzan Alon, Deputy Attorney-General for International Affairs Roy Schondorf and IDF International Law Department director Col. Eran Shamir-Borer all attended the hearing personally, emphasizing the stakes for the state as they usually would have sent lower deputies.
There were several heated moments when the debate focused on why more than 40 Palestinians have been killed and around 1,500 have been injured by live fire shot by the IDF, as well as regarding the question of how involved Hamas is in the protests.
Michael Sfard, representing the petitioner Yesh Din – Volunteers for Human Rights, slammed the IDF and the state for what he described as “inventing” new rules of international law to justify the massive number of casualties that are giving it a black eye in world opinion.
He said that the IDF was justifying shooting individual Palestinians in cases when two cardinal conditions of international law for using lethal force were absent: the targeted individual poses a danger and the danger is immediate.
In contrast, he said the IDF was shooting at individuals who pose no danger – generally or immediately – solely because of the broad theoretical danger that a group of protesters in a specific spot might be able to overwhelm IDF forces guarding the wall.
He also protested the IDF’s aggressive rules for opening fire in light of its admission that the majority of Gazans were not considered to be “directly participating in hostilities” – a legal category that can permit targeting non-uniformed persons who otherwise must be treated as civilians.
Justice Hanan Melcer pressed Sfard to “give an example where another country’s courts” interfered with its army’s rules “mid-battle” – since the protests are ongoing – as opposed to dealing with alleged violations “after-the-fact.”
Sfard said there was a case regarding Cyprus that came before the European Court of Human Rights, which was comparable and helped prove his point that the IDF’s open-fire rules were too aggressive.
Melcer also asked: “How would you have the IDF deal with the issue?”
Sfard did not have a specific answer, but he said by using “all the other [non-lethal] methods” that could be used.
Further, Sfard said that the Israeli government in the past has complimented itself by saying it follows the Havana Rules regarding the treatment of lawbreakers, but that in the Gaza border context – where following those rules is inconvenient – the state said it is not bound by them.
THE GOVERNMENT’S lawyer rejected each point.
He said that the IDF had not invented anything and that the debate needed to get out of the clouds and down to the ground of what was is really happening in Gaza. The NGO petitioners, he argued, did not really know what was happening on the ground or how dangerous and dynamic the situation was with the protesters, some of whom are violent.
Earlier at the hearing, the state had requested to allow Alon – an unusually high-level IDF official – to present to the court a classified intelligence briefing regarding those dangers out of the presence of the petitioners.
The petitioners had protested and were only willing to consider agreeing to him presenting information about the application of the rules of engagement alone. However, since the state and the petitioners did not reach a compromise, Alon was not permitted to present the briefing and eventually left mid-hearing.
The government lawyer said that without hearing Alon’s intelligence information the court would not have a full picture of the dangers.
The court also emphasized this point to the petitioners, with Supreme Court President Esther Hayut issuing a thinly veiled threat that the court might rule against their petition if they blocked it from hearing all of the facts.
Hassan Jabareen, a lawyer for the petitioner Adalah – The Legal Center for Arab Minority Rights in Israel, shot back at the court, saying that, since the state had only made general arguments and had not addressed any of the specific incidents and international-law violations alleged by the petitioners, the court could not decide the case against petitioners solely based on the intelligence issue.
MELCER PRESSED the government and the IDF, saying that in light of the large number of casualties and the repetition of the protests every Friday, even if the original IDF strategy was arguably sound in theory, adjustments should be made.
Shamir-Borer said that the rules of engagement being used on the Gaza border were the same as at any time on a border against a hostile force, including the borders with Syria and Lebanon. However, he said, the instructions about from what range to fire and how to size up and define a dangerous situation were continually evolving, as the IDF has been learning from each round of protests.
Likewise, the IDF international law department chief said that sometimes they did not know if someone was a Hamas operative or not and he might be treated using law enforcement rules, whereas if the IDF knew someone was a dangerous Hamas operative, they would treat him as a combatant.
The government lawyer also said that international law permitted firing at a protest organizer – the implication was at his legs – in order to disperse the crowd once the danger of being overwhelmed rose to a certain point.
Regarding the Cyprus case and another case relating to Italy which the NGOs said were analogous to the Gaza border crisis, the state’s lawyer rejected the analogy.
Rather, he said that the NGOs were engaged in a “campaign of disinformation” and that there were no comparable cases where a country had to cope with a partially nonviolent protest mixed in with a terrorist group like Hamas which is in an ongoing state of conflict with Israel.
Hayut expressed sympathy with the rank-and-file IDF soldier, saying: “Sometimes our soldiers are put in impossible situations.”
Both sides will supplement their arguments with additional legal briefs in the coming days. A decision by the three-justice panel, including Neal Hendel, is expected before May 15 – the expected climax of the protests.