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IDF begins allowing troops to shoot at fleeing rock-throwers

Military says soldiers are still directed to first try to make an arrest without using deadly force, but experts raise questions about legality of new guideline

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

Palestinian demonstrators hurls stones at Israeli forces amid tear gas during clashes, as they protest Israeli Jewish settlements, in the Jordan Valley of the West Bank, Tuesday, Nov. 24, 2020. (AP/Majdi Mohammed)
Palestinian demonstrators hurls stones at Israeli forces amid tear gas during clashes, as they protest Israeli Jewish settlements, in the Jordan Valley of the West Bank, Tuesday, Nov. 24, 2020. (AP/Majdi Mohammed)

The Israeli military has revised its open-fire policies for the West Bank, officially allowing troops to shoot at Palestinians who had thrown rocks or firebombs at cars, even if the assailants no longer present an immediate threat.

The policy change was first reported by Israel’s Kan broadcaster on Sunday night, and was later confirmed to The Times of Israel by a military spokesperson, who said it had been in effect for the past month or so.

While the spokesperson described the change as a corrective to a situation that allowed suspects to evade justice, experts raised questions over the legality of using lethal force against a person who no longer poses a threat.

“A person who is fleeing does not present a threat, and unless you are in an active combat scenario and can deem them a combatant — which is certainly not the case today in [the West Bank] — the use of deadly force is truly irregular and a last resort measure,” said Liron Libman, a former chief military prosecutor who headed the international law department of the Military Advocate General’s Corps.

The military spokesperson said that, even under the new policy regarding what is formally known as a suspect arrest protocol — a multi-step process that begins with calls to halt, moves to verbal threats, then shots fired into the air, and ends with the use of deadly force, the military’s preferred outcome is still an arrest, not shots being fired. He also stressed that this policy refers only to rocks and firebombs that are being thrown at civilians, not those thrown at military personnel during riots.

Until now, the Israel Defense Forces’ official policy has been to allow soldiers to open fire only while trying to arrest a suspect if that person were still in the act of throwing rocks or Molotov cocktails at cars, but not after the fact. The spokesperson said this allowed suspects to flee the scene after such an attack with impunity.

Under the new policy, if soldiers see a Palestinian person throwing a rock or firebomb at cars, they are permitted to go through the arrest protocol in its entirety, including the use of deadly force if necessary, even if, by that stage in the process, the suspects no longer have firebombs or rocks in their hands.

A Palestinian hurls stones towards Israeli soldiers, not seen, during clashes in the West Bank village of Tekoa, near Bethlehem, Thursday, Oct. 1, 2015. (AP/Mahmoud Illean)

While the policy is new, the practice is not. There have been cases in the past of soldiers shooting rock throwers after they no longer presented an immediate threat and later being found to have acted correctly.

In one such case in 2015, an IDF colonel, Yisrael Shomer, opened fire at a Palestinian teenager, killing him as he ran away after throwing a large rock at the officer’s car. Though Shomer was censured for the incident, having a promotion delayed, that was not because he had opened fire after the suspect no longer presented an immediate threat, but because he shot the teen while running after him, instead of stopping in order to aim properly, which the military found led to Shomer shooting the suspect in the back instead of the legs.

The military’s chief prosecutor said Shomer’s use of deadly force “under the framework of the arrest protocol, was justified from the circumstances of the incident.”

Eliav Lieblich, a law professor at Tel Aviv University, said the new policy does not appear to fall in line with either of the two relevant branches of international law: the laws of armed conflict and human rights law, specifically those dealing with law enforcement.

“This certainly does not match the laws of armed conflict, if only because there is no active conflict in the West Bank. It certainly doesn’t sit with human rights law, because there is no way of demonstrating that the use of live fire like this matches the needs of self-defense or ‘absolutely necessary,” Lieblich said, referring to a tenet of human rights law that dictates that deadly force can only be used when there is no other recourse.

He also expressed doubt that this policy would be applied to Israeli extremists, who have in the past thrown stones at Palestinian cars, sometimes causing serious injuries, most recently on Sunday. While in some cases police have arrested Israeli rock throwers after the fact, there do not appear to be any cases of IDF soldiers shooting them.

Libman, who is currently a research fellow at the Israel Democracy Institute, agreed that the new policy does not appear to clearly match either the laws of armed conflict or those of law enforcement.

However, the reality on the ground in many modern conflicts generally and in the Israeli-Palestinian conflict specifically also creates hybrid situations that do not fit neatly into just one of these paradigms.

Libman stressed that he had not seen the written order and could therefore not give a more accurate assessment. He said that the new policy could potentially be justified. (The IDF said it could not release the written order as it is classified.)

“Throwing rocks is a serious crime, but the rule says that it should be dealt with using law enforcement tools, to arrest the criminals and try them. The use of potentially lethal force like live-fire is certainly irregular. Of course, if there’s a threat to life, you can shoot in order to prevent the threat to life if the firebomb or the rock is in their hands, that is before, not after the fact,” Libman told The Times of Israel.

The Palestinian Authority’s foreign ministry denounced the policy change, saying it allowed soldiers to conduct extrajudicial executions.

“The ministry considers these instructions to be very severe and believes they give a green light to commit more field executions of Palestinian citizens, in accordance with the whims, moods and estimations of the soldiers of the occupation army,” it said in a statement.

The window of a car broken by rock throwing in the southern West Bank on December 4, 2019. (Har Hebron Regional Council)

The military spokesperson said the policy dictated that troops only direct live fire at the suspect’s lower body, in order to injure and stop them, but not necessarily kill them. Legally speaking, however, there is no distinction between shots fired at the lower body versus center mass, as both soldiers can miss and strike the middle of the body accidentally and gunshot wounds to the legs, which contain major arteries, can also be fatal.

The IDF did not offer an explanation for the sudden policy change. The spokesman said it was not prompted by a significant increase in rock-throwing or firebombings.

Highways throughout the West Bank, particularly around Israeli settlements, are often attacked by Palestinian youths, who throw rocks, Molotov cocktails or paint at the passing vehicles. These attacks have caused injuries, including last month when a bus driver was hit by broken glass after his vehicle was pelted with stones outside Jerusalem, and last January when an Israeli woman was seriously injured when a rock hit her in the head near the settlement of Neve Tzuf.

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