High Court declares IDF conduct on Gaza border legal

While declaring the IDF’s conduct legal, the High Court panel of Supreme Court President Esther Hayut, Vice President Hanan Melcer and Justice Neal Hendel did send warnings to the IDF.

IDF soldiers stationed near the Gaza border on May 15th, 2018. (photo credit: AMIR COHEN/REUTERS)
IDF soldiers stationed near the Gaza border on May 15th, 2018.
(photo credit: AMIR COHEN/REUTERS)
 In one of the most important decisions it has made about the laws of war and human rights in years, the High Court of Justice declared late Thursday night that the IDF’s rules of engagement during the Gaza border crisis were legal.
The blockbuster decision will have an immediate impact on any protests that might occur on Friday, or on future protests for which the petitioners had hoped the IDF would be forced to adapt more restrictive open-fire regulations.
Due to the high esteem in which the High Court is held overseas, the decision will make it more difficult for the International Criminal Court to declare the IDF’s conduct a violation of international law.
While declaring the IDF’s conduct legal, the High Court’s panel of President Esther Hayut, Vice President Hanan Melcer and Justice Neal Hendel did send warnings to the IDF.
It said from the large number of killed and injured Palestinians with wounds above the waist, the court expected: a) the IDF would immediately make changes voluntarily to further reduce casualties, and b) possible individual violations of the laws of war by individual soldiers would be thoroughly investigated.
The court also criticized the petitioners for refusing to allow it to see the full classified rules of engagement being used in a closed hearing without the petitioners, and having to settle with a paraphrase of those rules in open court.
Melcer wrote that the court could not evaluate the actions of a reasonable IDF commander as events are ongoing without the full classified picture, and before probes of the more controversial incidents expose a fuller picture.
When the issue came up in court, the petitioners had agreed to the court hearing the classified rules, but not to hearing classified intelligence, saying the intelligence could be used to unfairly sway the court, especially without the petitioners present to critique it. However, the state insisted on presenting all the classified issues together or not at all. The court then warned petitioners that blocking it from seeing the rules could have consequences.
Moreover, the court took the IDF at its word that after the Gaza border crisis started in March, the IDF had already made adjustments and tried to use tactics to reduce Palestinian casualties.
A hearing in late April was attended by 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, emphasizing the stakes for the state as these individuals would usually have sent lower deputies in their stead.
There were several heated moments in that hearing when the debate focused on why more than 40 Palestinians had been killed (the total is now over 100), 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 border fence.
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.
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 asked: “How would you have the IDF deal with the issue?”
Sfard did not give a specific answer, but said by “all the other [non-lethal] methods” that could be used.
Further, Sfard said the Israeli government in the past has complimented itself by saying it follows the Havana Rules regarding the treatment of lawbreakers. However, in the Gaza border context – where following those rules is inconvenient – the state said it is not bound by them.
Ultimately, the court did not accept Sfard’s arguments. It said it would not strike down the IDF rules because it found them to be too general prior to all cases being probed; in light of the IDF’s representations that it modified its rules; and because of its inability to view the classified rules.