Last Friday was a bloody day in Gaza as Israeli soldiers fired at Palestinians taking part in demonstrations within the Gaza Strip. Of at least 17 Palestinians killed that day, 12 were killed at the protests. Hundreds more were injured by live gunfire.
The use of live ammunition against unarmed persons who pose no danger to anyone is unlawful. It is even more blatantly unlawful in the case of soldiers firing from a great distance at demonstrators located on the other side of the fence that separates Israel from the Gaza Strip. In addition, it is impermissible to order soldiers to fire live ammunition at individuals for approaching the fence, damaging it, or attempting to cross it. Obviously, the military is allowed to prevent such actions, and even to detain individuals attempting to carry them out, but firing live ammunition solely on these grounds is absolutely prohibited.
Responses by Israeli officials clearly show that Friday’s grave outcomes were the expected, and indeed looked-for, implementation of a policy formulated beforehand. The military therefore enjoyed full backing for its conduct. As Defense Minister Avigdor Lieberman clearly stated, “the IDF soldiers warded off Hamas military branch operatives capably and resolutely, just as we expected of them. They have my full backing.”
Given the open-fire regulations as reported (in part) in the media ahead of last Friday, the high number of casualties was predictable and expected. The military knew in advance of the demonstrations planned for Friday. However, in line with the instructions given the civilian leadership, the preparation by senior military officials did not focus on attempting to minimize the number of casualties. Quite the contrary. The demonstration was framed in advance as an attempt to harm the safety of the State of Israel, as if this were a case combat. Accordingly, Israel made far-reaching threats, including stating that soldiers would use live fire against anyone going any nearer the fence than some 300 meters. In addition, bus companies in Gaza were warned not to transport Palestinians to the demonstrations; and a video clip was released showing a Palestinian being shot in the leg as he approached the fence, by way of a warning as to what would happen to people taking part in the demonstrations. Israeli officials also eschewed in advance any responsibility for the demonstrations, declaring the responsibility lay squarely on Hamas in the event that the military killed or injured Palestinians.
The preparations for the demonstrations planned for this Friday are very similar. At first, it was reported that the military had stated that it did not intend to change its open-fire regulations. Later, it was reported that the regulations had been changed, stating that unarmed demonstrators would not be permitted to come any nearer than 100 meters to the fence. The Minister of Defense also emphasized that “anyone who attempts to approach the fence is risking their life.”
Contrary to the impression given by senior military officers and government ministers, the military is not permitted to act as it sees fit, nor can Israel determine on its own what is permissible and what is not when dealing with demonstrators. Like all other countries, Israel’s actions are subject to the provisions of international law and the restrictions they impose on the use of weapons, and specifically the use of live fire. The provisions limit its use to instances involving tangible and immediate mortal danger, and only in the absence of any other alternative. Israel cannot simply decide that it is not bound by these rules.
As Prof. Mordechai Kremnitzer wrote after last Friday’s events: “If, for instance, using live fire to prevent unarmed civilian demonstrators from even approaching or vandalizing the border fence is seen as justified, this order is highly unlikely to be legal. The fence, even when it marks a border is not more sacred than human life, and that includes the lives of Palestinians living in Gaza.”
An order that permits live gunfire at unarmed civilians is blatantly unlawful. As Justice Benjamin Halevy ruled in the Kafr Qasem case back in the 1950s, the illegality of such orders “is not a question of form, nor is it imperceptible, or partially imperceptible.” On the contrary, it is a case of “unmistakable illegality patently evident in the order itself, it is a command that bears a clearly criminal nature or that the actions it orders are of a clearly criminal nature. It is an illegality that pains the eye and outrages the heart, if the eye be not blind and the heart be not callous or corrupt.”
The responsibility for issuing these unlawful orders and for their lethal consequences rests with the policy makers and – above all – with Israel’s prime minister, defense minister, and the chief of staff. They are also the ones who bear the obligation to change these regulations immediately, before this Friday’s planned protests, in order to forestall any further casualties.
That said, it is also a criminal offense to obey manifestly illegal orders. Therefore, as long as soldiers in the field continue to receive orders to use live fire against unarmed civilians, they are duty-bound to refuse to comply.