Legal questions begin to swirl over Gaza violence

Some accuse Israel of using a disproportionate amount of force and violating international law.

Female Palestinian demonstrators react to tear gas fired by Israeli forces at during a protest in Gaza (photo credit: MOHAMMED SALEM/REUTERS)
Female Palestinian demonstrators react to tear gas fired by Israeli forces at during a protest in Gaza
The images and reports from the Gaza Strip protest on Monday depict a chaotic scene with many moving parts. Burning tires emitted thick black plumes of smoke that enshrouded protesters spread out along the border with Israel. At certain points, some ran to the security fence while others remained behind. According to reports, bursts of gunfire were heard from IDF soldiers and snipers.
On the Palestinian side, protesters set fire to several kites and released them into the air, hoping they would cause damage across the frontier. There were also reports of deafening booms from Palestinians who set off larger explosives, while the Israelis responded with tank fire and air strikes in the enclave.
Analysts are now trying to understand why the death toll rose so high. Gaza’s Health Ministry reported that 61 Palestinians were killed and according to local medics, more than 2,200 were injured by gunfire or tear gas.
What usually follows such confrontations is a legal reckoning: that is, a process of determining whether the protesters presented a credible threat and if Israel's response was proportionate.
To this end Arab envoys at the United Nations on Tuesday called for an investigation into the events; this, after the United States resisted a move by the Security Council to form its own probe. The UN Human Rights Council, which has the authority to set up an independent inquiry, is scheduled to convene on Friday in Geneva.
Israeli Prime Minister Binyamin Netanyahu laid the blame squarely on Hamas. In an interview aired Tuesday on CBS News he affirmed that “they’re [Hamas] pushing civilians—women [and] children—into the line of fire with a view of getting casualties.
We try to minimize casualties. They’re trying to incur casualties in order to put pressure on Israel, which is horrible.”
The IDF also recently issued a report detailing instances of Hamas terrorists dressed as civilians trying to storm the security fence in northern Gaza with the goal of infiltrating Israel. Some emerged from the crowd to attack IDF patrols. The army claims that many Hamas terrorists were among those killed Monday.
Professor Amichai Cohen, Director of the Center for Security and Democracy at the Israel Democracy Institute, told The Media Line that the IDF’s use of lethal force is justifiable only as a last resort in life-threatening situations.
“The Israeli government claims that some of the acts of the demonstrators, especially pulling down the fence, present such a light of the fact that under the cover of protesters crossing the border, terrorist could also cross.
The IDF," he elaborated to The Media Line, "does not claim that shooting a person who wants to cross the border is justified.
Crossing it might be a violation of the law, but it is not a reason to shoot that person. Lethal force [can be used] as a last resort if there is a specific danger that has been identified, such as a person carrying a weapon and attempting to shoot it."
According to Tahseen Elayyan, Program Director of Al-Haq, an independent Palestinian human rights organization based in Ramallah, the IDF's rules of engagement “exceed the proportionate use of force.”
He believes that the Israeli army is employing a "shoot-to- kill" policy that "can be inferred very clearly from the statements of Israeli officials who have said that they are ready to kill Palestinians. It is a planned campaign to suppress the mere thought among Palestinians of the right of return and the value of defending their rights mandated by international law.”
When pressed about Hamas’s purported attempt to use the demonstrators as cover to penetrate Israeli territory and perpetrate attacks, Elayyan stressed that the protests are civilian initiatives. “It is not Hamas that is standing behind these demonstrations. These are peaceful protests organized by grass-root initiatives, by the public, the people. If you look closely, you will notice that many families were there, including mothers, fathers, sons and daughters.
“It is clear that Hamas and other Palestinian factions are part of the political and social fabric of Palestine," he expounded, "but they cannot stop this wave of anger among the Palestinians in Gaza who have been under siege for about 11 years or more. People are demanding and calling for their rights. They are struggling to get out of this open-air prison.”
For his part, Professor Michael Lynk, UN Special Rapporteur on the issue of human rights in the Palestinian territories, told The Media Line that Israel’s actions may constitute war crimes. “The fourth Geneva Convention strictly prohibits willful killing.
That same language has been adopted in the 1998 Rome Statute, which was the international treaty that set up the International Criminal Court. It defined war crimes—among other things—as willful killing or the willful causing of great suffering or serious injury to body or health.”
Lynk nevertheless clarified that he is not in a position to determine if war crimes were in fact committed this week in Gaza. “But I suggest based on available evidence that they may have been committed to the point where they ought to be investigated," he stated.
"This is one of the foundational principles of international humanitarian and human rights law—to protect life and prohibit the killing of civilians, particularly unarmed civilians." Lynk noted that police or army personnel have a range of options to disperse crowds, including the use of water, tear gas or arresting people, tactics that should be used before live-fire.
When pressed about the IDF claim that Hamas was using protesters as cover in order to breach the security fence, Lynk said he has not seen such evidence from Israeli sources.
The IDF, on the other hand, recently released information claiming that its soldiers in the elite Maglan Unit engaged in a gun battle during the protests with armed Hamas operatives attempting an incursion into Israeli territory. The Israeli military claims that all eight of the attackers were killed.
“That could be true,” Lynk responded. “I have no evidence to confirm or dispute that.”
If IDF soldiers were being attacked with gun fire, he explained, it is no longer a question of unarmed demonstrators, but combatants. Lethal force can then be used.
“But from the evidence I have seen the vast majority of those who were either killed or wounded—over 100 killed and somewhere in the range of 12,000 injured, including a number by ammunition—were not posing immanent threats to the security forces, and were a long distance away from them.”
The onus, he made clear, is on the IDF to justify its actions.
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