Israel’s use of live fire in Gaza protests faces legal test
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Israel’s use of live fire in Gaza protests faces legal test

High Court begins hearing case as 6 human rights groups ask it to declare regulations as unlawful; defending its policies, state says it’s not facing civilian protests

Israeli snipers prepare for massive protests by Palestinians in Gaza and the potential for demonstrators to try to breach the security fence on March 30, 2018. (Israel Defense Forces)
Israeli snipers prepare for massive protests by Palestinians in Gaza and the potential for demonstrators to try to breach the security fence on March 30, 2018. (Israel Defense Forces)

The High Court of Justice on Monday heard the first legal challenge to the military’s open-fire rules, after over 40 Palestinians were reported killed and more than 1,500 wounded by Israeli fire during mass protests on the Gaza border over the past month.

The hearing came amid growing international criticism of Israel for its use of lethal force and a mounting casualty toll since the weekly protests, organized by Gaza’s ruling Hamas, began in late March. Organizers say the mass demonstrations are to continue for at least two more weeks, with some threatening a mass border breach.

On Saturday, the Israeli army released video footage showing what it said was a bid by hundreds of Palestinians to break through the fence with Israel. The confrontation, which drew IDF fire, was one of the most violent incidents yet in five weeks of protests.

The court is not expected to rule before next week, in what human rights lawyer Michael Sfard said is the first broad review of the army’s rules of engagement in almost three decades.

In this Tuesday, Dec. 17, 2013 photo, Israeli lawyer Michael Sfard talks to media after a court hearing at Israel’s Supreme Court in Jerusalem (photo credit: AP Photo/Dan Balilty)

Sfard said the IDF’s rules of engagement don’t meet international standards of law enforcement and that the laws of armed conflict don’t apply in this case. “Lethal force against unarmed civilians who do not pose danger is illegal,” he said. “This is the crux of the case.”

Israel argues that the riots, encouraged by Hamas, cannot be considered simple civilian demonstrations.

On Monday, five Israeli human rights NGOs and the Gaza-based Al Mezan Center for Human Rights asked the High Court to declare as unlawful any regulations that allow soldiers to open fire at unarmed civilians.

Lawyers for the groups said Israel’s response to the Gaza protests must follow the rules of engagement for law enforcement officers, who are barred from using lethal force unless they face imminent danger to “life and limb.”

Speaking in the packed Jerusalem courtroom Monday, attorney Suhad Bishara, representing Israeli rights group Adalah, said the facts indicated otherwise.

“The great majority of those shot were at a distance from the [border] fence,” she said. “There is systematic use of lethal fire with no justification.”

Palestinian demonstrators in Gaza attempt to sabotage the border fence with Israel, April 27, 2018. (IDF Spokesperson Office)

The Israeli military argues that the protests are taking place in the context of a long-running armed conflict with the Hamas terror group, and that open-fire regulations are subject to the rules of armed conflict. Such rules provide greater leeway for the use of lethal force than those governing law enforcement practices.

On Sunday, state attorneys defended the army’s use of live ammunition during clashes with Palestinian demonstrators on the border with the Gaza Strip, saying the rules of engagement are within Israeli and international law, and that the riots are not civilian protests.

The weekly marches, which are backed by Hamas, the terror group that rules Gaza, were originally described by their Palestinian organizers as nonviolent, but Hamas, which seeks to destroy Israel, publicly supported the protests and declared that their ultimate goal was to erase the border and liberate Palestine. Rioters have burned tires, hurled firebombs and rocks at Israeli troops, flown flaming kites over the border and repeatedly attempted to sabotage the security fence.

A Palestinian slings a shot by burning tires during clashes with Israeli forces across the border, east of Gaza City, in the southern Gaza Strip, on April 20, 2018. (Mohammed Abed/AFP)

The Israeli army says its troops only open fire at demonstrators who engage in violence, or who attempt to breach the barrier separating the territory from Israel. Palestinian videos have emerged that purport to show soldiers shooting protesters who did not pose a threat. The army has accused Hamas of fabricating video footage or releasing only partial clips.

The protests, dubbed the “March of Return,” are to culminate in a mass gathering on the border on May 15, a day Palestinians mark as their “nakba,” or catastrophe, to commemorate their mass uprooting during Israel’s 1948 independence war.

Hamas leaders have issued warnings about a possible border breach, but stopped short of specific threats. “Our steadfast national decision is to continue the March of Return and of breaking the siege,” Hamas leader Ismail Haniyeh said Monday. He said he hoped the idea would catch on in the West Bank and elsewhere.

Israel and Egypt have maintained a blockade on Gaza for over a decade, which they say is necessary to prevent Hamas from smuggling in weapons and material used for digging tunnels into the Jewish state. In the past decade, Israel and Hamas have fought three wars, which have severely harmed Gaza’s infrastructure, and reconstruction efforts have been slow.

Tents pitched by Palestinians are seen on the Gaza border with Israel, east of Jabalia, on March 29, 2018, ahead of a planned six-week protest camp. (AFP/Mahmud Hams)

In the weekly protests, thousands of Palestinians have been heading toward Gaza’s border area with Israel. A majority stay in or near five tent camps, each set up several hundred meters (yards) from the border fence. Typically, smaller groups move closer to the fence, throwing stones, burning tires and or hurling firebombs.

Soldiers, including snipers, are perched behind protective sand berms on the other side of the border.

Last Friday, hundreds of Palestinians converged on a stretch of fence, trying to burn and rip through it before drawing heavy Israeli fire. Three Palestinians were killed and dozens were wounded in the incident.

The rights groups that petitioned the high court said that even if protests turn into riots, lethal force against unarmed demonstrators can only be used a last resort — in the event of a life-threatening situation. The groups said that in several cases caught on video, protesters were targeted while standing dozens of meters from the fence, or while trying to take cover. Among those killed were four minors and two journalists.

Still from footage released by the IDF on April 29, 2018 that shows Gazans attacking the border fence on April 27, 2018. (IDF screenshot)

The Israeli military said Hamas has used the protests as cover to damage the fence and carry out attacks. On Sunday night, Israeli troops fatally shot two Palestinians who infiltrated from Gaza and attacked soldiers with explosives, the military said. A third Palestinian was killed during an attempted border breach, it said.

In its court brief, the army said Gaza militants have planted some two dozen explosives along the fence.

The European Union and UN chief Antonio Guterres have called for an independent investigation into the deaths, but the Jewish state has rejected the idea.

The United States, Israel’s strongest backer, has blocked moves for a probe at the United Nations.

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