As knife-wielders are subdued, questions on ‘shoot first, ask later’
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As knife-wielders are subdued, questions on ‘shoot first, ask later’

Cellphone video lets everyone believe they're experts on who poses a threat. A real legal scholar weighs in

Judah Ari Gross is The Times of Israel's military correspondent.

Israel Police officers stand near the body of Fadi Aloon, a Palestinian who allegedly stabbed a 15-year-old boy outside the Old City of Jerusalem, before being shot and killed by police early Sunday morning, October 4, 2015. (Flash90)
Israel Police officers stand near the body of Fadi Aloon, a Palestinian who allegedly stabbed a 15-year-old boy outside the Old City of Jerusalem, before being shot and killed by police early Sunday morning, October 4, 2015. (Flash90)

In Israel, smartphones are ubiquitous, data plans are cheap and everybody knows somebody in the military or police. Within minutes of a stabbing attack or other incident, video of it has already been shared through the WhatsApp application, and posted to Twitter and Facebook.

From there, armchair analysts and wannabe legal experts immediately set about dissecting the shaky, grainy footage and pronouncing their verdicts to the world.

“The video clearly shows…” the tweets, Facebook statuses and news articles claim.

“But you have to be very careful about coming to legal conclusions based on one specific video, filmed from one specific viewpoint,” an actual legal expert, Prof. Amichai Cohen, told The Times of Israel.

The central issue being debated surrounding these videos is Israel’s rules of engagement, the official protocol that dictates when and how police officers and soldiers can open fire on a suspect. The problem with that protocol is that it is not black and white; it is highly subjective.

‘You only shoot at someone that poses a threat’

“The rules of engagement try to give responses to different kinds of situations,” said Cohen, a research fellow at the Israel Institute for Democracy and dean of the Faculty of Law at Ono Academic College.

There are also two distinct sets of rules for opening fire, he said. One set is used for “law enforcement situations” — Israel’s current situation in Jerusalem and the West Bank — while the other is used for “war situations,” he said.

“In a war situation, you shoot at the enemy in order to kill him. In a law enforcement situation, you are allowed to shoot only when there is a threat and, even then, only in order to stop them,” Cohen said. “You might call this the ‘war on terror,’ but legally speaking, this is law enforcement.”

Under those protocols, it is illegal for officers to shoot suspects as a form of retaliation or as a deterrence to others. “You only shoot at someone that poses a threat,” he said.

But that threat is determined by the person in the field, “who needs to evaluate the danger and the possibility of it happening, and then act,” he explained.

So Monday morning quarterbacks — to use an American phrase — watching a video online with perfect 20-20 hindsight vision are not the deciding voice for whether or not a police officer acted properly. The legal requirement is what a “reasonable person” in that situation would think, Cohen said.

Who poses a threat?

In some cases, the answer to the question of who poses a threat is clear.

If police captured someone, took the knife or pistol away, and that person is lying on the ground, “it is forbidden to hurt him. Anything like that is a crime,” Cohen, who lectures on international law, said.

“The gray zone,” he said, “is when someone who just stabbed someone has a knife in his hand, is shouting and threatens to attack — in that case does he pose a threat?”

15-year-old Moshe Malka seen at the Shaare Zedek Medical Center in Jerusalem on October 4, 2015. Malka was stabbed by a Palestinian terrorist outside Jerusalem’s Old City early Sunday morning. (Photo by Yonatan Sindel/Flash90)
15-year-old Moshe Malka seen at the Shaare Zedek Medical Center in Jerusalem on October 4, 2015. Malka was stabbed by a Palestinian terrorist outside Jerusalem’s Old City. (Yonatan Sindel/Flash90)

That gray zone came into play earlier this month, when a Palestinian man stabbed an Israeli teen outside Jerusalem’s Old City. A video posted online showed 19-year-old Palestinian Fadi Aloon, the suspected assailant, shot dead by police several hundred yards from the site of the attack, on the light rail tracks.

The Adalah Legal Center, which defends Arab rights, claimed the shooting was unjustified. “The officers in this case opted to use lethal fire as a first resort and not as a last resort,” an attorney for the group said in a statement.

“They deviated from the protocols that determine lethal fire to be used as a last resort, only after all other means have been exhausted, and only when there is a legitimate fear of immediate harm to another person, and when there is no other way to prevent injury,” the group said.

Though Cohen agreed with the center’s assertion that “the rule is to use the minimum force required,” he pointed out that, legally, it is still “hard to say what exactly that means in the field.”

“[The police shooting] was not an incident that was black and white,” Cohen said.

‘Are police not also people?’

Another video that has garnered both national and international attention shows an incident in the central bus station of the northern city of Afula on Friday, in which IDF soldiers and Israel Police shot an Israeli Arab woman who appears to be holding a knife.

Earlier, according to police, the woman had attempted to stab a bus station security guard. This, however, does not appear in the cellphone footage.

What the video does show is soldiers and police officers telling the woman in Hebrew and English to not move and put down the knife. After a few tense seconds, a police officer approaches the scene and the shooting begins.

https://youtu.be/5wmsd6nLU0k

In that case, the woman, a 30-year-old student from Nazareth, was shot in the lower body and moderately injured, not killed. But still, since she was surrounded by police officers, Border Police officers and soldiers, and appeared to pose no threat, critics of Israel argued that the shooting was unjustified.

“Israeli commandos don’t know how to take a knife from a girl without shooting her point blank?” one Palestinian Twitter user asked in response to the video.

They do, to answer the question, but approaching someone holding a knife carries with it inherent danger. Police officers are not required to put themselves at unnecessary risk any more than regular citizens are, Cohen said.

“Are police not also people?” he asked rhetorically. “That’s the difference from a war. Police are considered equal to civilians, they are not worth less than others. And so, defending their lives is just as important as defending the lives of others.”

Shoot to kill

The decision on whether or not law enforcement followed protocol will ultimately be decided not in the court of public opinion, but in a court of law. The decision will be made based not only on the video footage propagating through the Internet, but on eyewitness and material evidence.

However, the accusation that Israeli forces are becoming overly reliant on lethal means to stop attackers is not an unfounded one.

Officially — or at least publicly — the Israeli rules of engagement in cases like this have not changed in light of the recent wave of attacks against Israeli citizens and law enforcement. (There have, however, been changes to the protocols relating to rock and firebomb throwers.)

“There’s no order that I am aware of that says shoot them in order to kill them,” Cohen said.

Police near the body of a 15-year-old Palestinian stabber at the scene of an attack in the northern Jerusalem neighborhood of Pisgat Ze'ev on Monday, October 12, 2015 (Yonatan Sindel/Flash90)
Police near the body of a 15-year-old Palestinian stabber at the scene of an attack in the northern Jerusalem neighborhood of Pisgat Ze’ev on Monday, October 12, 2015 (Yonatan Sindel/Flash90)

But while, according to police and the IDF, no official order has been explicitly given to shoot to kill, comments made by the top brass and politicians have undoubtedly indicated that it is preferable to not leave attackers alive.

Following a stabbing on Saturday, in which officers shot and killed an Arab man who attacked two Jewish men, Jerusalem Police chief Moshe Edri praised the officers’ actions, and warned that anyone attacking civilians would face a similar fate.

“Policemen carried out their duties and arrived quickly. The terrorist was killed in under 90 seconds. Anyone who stabs Jews or hurts innocents — his due is to be killed,” Edri said, using the Hebrew word din, which also means “sentence.”

A few days later, the police chief again lauded two officers who shot and killed an Arab teenager who had seriously wounded a 13-year-old Israeli boy. The attacker who had been killed was 15 years old.

Even centrist politicians have encouraged police officers to shoot attackers with the intention of killing them.

Yesh Atid party leader Yair Lapid surrounded by policemen during a visit to the Lion's Gate in Jerusalem's Old City, the site of an attempted stabbing attack on October 12, 2015. (Hadas Parush/Flash90)
Yesh Atid party leader Yair Lapid surrounded by policemen during a visit to the Lion’s Gate in Jerusalem’s Old City, the site of an attempted stabbing attack on October 12, 2015. (Hadas Parush/Flash90)

“You have to shoot to kill whoever takes out a knife or a screwdriver or whatever,” Yesh Atid party leader MK Yair Lapid told the Walla news website on Sunday.

The chief rabbi of Safed, Shmuel Eliyahu, went so far as to say security forces should be obligated to kill attackers. “We need to prosecute police officers and soldiers that leave terrorists alive after an attack,” Eliyahu, who is known for ruling that Jews are forbidden from renting out apartments to Arabs, wrote on his Facebook page.

So while no official order has been given or at least made public, top police officials, politicians and even religious leaders are creating an atmosphere that encourages officers to shoot to kill.

“If there is such a thing, then it’s not good,” Cohen said.

And not only is it not good, it’s “not effective, it doesn’t help. [People committing these attacks] know that there’s a chance they will die,” he said. “If anything, it has the opposite effect. People will want to exact revenge. If the police have a better way to stop someone with less force, they should do that.”

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