Recent Developments in Israeli Law
Recent Developments in Israeli Law
This issue of the Israeli Supreme Court Blog presents an abstract of the Supreme Court’s decision of May 24, 2018, addressing the lawfulness of the IDF’s rules of engagement during the recent events on the Gaza border (HCJ 3003/18), and refers to analyses of the decision by Prof. Amichai Cohen, Elena Chachko & Prof. Yuval Shany, and Prof. Eliav Lieblich.
In addition, we refer to an analysis by Prof. Alon Harel of the Government’s intention to amend Basic Law: Human Dignity and Liberty to allow the Knesset to override a Supreme Court decision to declare a statue void, and two new articles in The Israel Law Review. Also noteworthy, the enactment of a new law recognizing the contributions of the Druze community to the State of Israel.
Due to the importance of the decision in HCJ 3003/18, and in order to make an English abstract available in a timely way, we will not present other cases in this issue. The next issue of ISCP will present an abstract of the Court’s recent decision in regard to the lawfulness of the intention to demolish the Bedouin settlement Khan Al-Ahmar (HCJ 3287/16), as well as abstracts of decisions in regard to whether the heirs of a deceased accident victim can rely upon the doctrine of res ipse loquitur under sec. 41 of the Civil Wrongs Ordinance (LCA 7002/17), and whether a corpse constitutes a “person” in regard to the commission of an indecent act within the meaning of sec. 348 of the Penal Law (CrimA 7128/16).
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Avinoam Sharon, M.A., Adv.
Over the last few weeks, since Palestinian “Land Day” on March 30, 2018, tens of thousands of Palestinians staged large-scale, violent demonstrations in the area of the security perimeter between Israel and the Gaza Strip. At present, the perimeter is primarily composed of a simple fence about the height of a person, electronic sensors, and a row of concertina wire. Israel is currently working on upgrading the fence to include a concrete barrier that will extend some six meters above ground and will also extend below ground in order to prevent tunneling.
The organizers of the demonstrations named them “The Great Return March”, in which regard they called for a mass return of “Palestinian refugees” to the “homes of their ancestors” within the State of Israel. According to the Respondents, the demonstrations were planned over a significant period, and were organized and directed by a body called the “Return Committee, headed by Hamas, and comprising representatives of the Islamic Jihad, and the Popular Front for the Liberation of Palestine. The demonstrations included organized, intentional and significant confrontations with Israeli security forces, as well as attempts to damage security infrastructure. Terrorist attacks were also carried out under the cover of the confrontations. Many of the participants were Palestinian civilian protestors who were not involved in terrorist activity.
In preparation for the events, the perimeter was reinforced and the IDF forces in the area were provided with a variety of means for response, including equipment for broadcasting warnings and non-lethal means for crowd dispersal. The rules of engagement also permitted the use of lethal force as a last resort.
Primary Arguments of the Parties:
Six human rights organizations filed petitions against the IDF Chief of Staff and Military Advocate General challenging the IDF’s rules of engagement in the area of the security fence between Israel and the Gaza Strip.
The Petitioners argued that the rules of engagement comprised a directive permitting live fire at persons deemed “primary inciters” even when such persons did not present an imminent, actual threat to human life. They further argued that in accordance with the Israeli and international law governing law enforcement and maintaining public order, the use of potentially lethal force not required for frustrating an imminent, actual threat to life is prohibited. They also argued that even if the area of the demonstrations can be characterized as a combat zone, nevertheless, the current events on the Gaza border are “civilian” in character and therefore the law of armed conflict (LOAC) is not applicable. Rather such events are treated by international law under a law enforcement paradigm, even if the demonstrations include instances of life-threatening events. It was also argued that the rules of engagement are repugnant to the relevant norms of international law and to Basic Law: Human Dignity and Liberty.
In addition to a number of threshold arguments, the Respondents argued that the rules of engagement are consistent with Israeli and international law, as well as with the case law of the Supreme Court. The Respondents starting point was that the events formed part of an ongoing armed conflict between Israel and the Hamas terror organization, and that the applicable law is, therefore, LOAC, while making a distinction between the rules of engagement under a Conduct of Hostilities paradigm and rules of engagement under a Law Enforcement paradigm. According to the Respondents, the current events present a combination of the two. The Respondents argued that the rules of engagement were consistent with the law and with the conditions required under the two paradigms for the use of force in an armed conflict. They further maintained that the events were not subject to international human rights law (IHRL) and that the Havana Principles constituted “soft law” and that they were inapplicable to the current situation.
The Respondents asked to present the applicable, classified rules of engagement as well as classified intelligence and explanations ex parte and in camera. The Petitioners objected to such review by the Court, agreeing only that the rules of engagement themselves be presented with no additional explanations. The Court warned the Petitioners that their objection could result in a presumption of regularity in regard to the legality of the rules. The Petitioners maintained their objection and the Court was, therefore, not presented with “the rules of engagement and the accompanying explanations required to understand their application and the method of their employment, and the various alternatives that could be considered in various circumstances”(per Melcer, DP).
In denying the petitions, the Court (per Deputy President H. Melcer, President E. Hayut and Justice N. Hendel concurring) held:
- The Court has repeatedly held that there is an ongoing armed conflict between the State of Israel and the governing authorities in Gaza (the Hamas terror organization). That conflict is subject to the laws of armed conflict under international law.
- The international law of armed conflict presents two paradigms for the use of force in an armed conflict: The Conduct of Hostilities paradigm and the Law Enforcement paradigm. The conduct of hostilities paradigm relates to a situation in which the parties are actively engaged in fighting by various means, and addresses, inter alia, the attacking of “military objectives” and the legality of various types of weapons. As opposed to this, the law enforcement paradigm regulates the use of force in other situations that require taking action to preserve public order and security.
- Inasmuch as armed conflicts may involve different operational scenarios, both paradigms are always relevant. In determining which paradigm to employ, the circumstances of the concrete use of force must be examined, as it primarily derives from the question whether the use of force forms part of hostile activities. It can be difficult to classify complex events under one paradigm when hostile activities in an armed conflict are accompanied by other activities.
- The law enforcement paradigm of LOAC permits the use of lethal force only as a last resort, and subject to strict restrictions deriving from the principles of necessity and proportionality.
- The recent Al Masri decision (HCJ 1971/15 Al Masri v. Military Advocate General (July 18, 2017)) addressed the wounding of the petitioner during an attempt by hundreds of Palestinians and foreign nationals to cross the fences separating Israel and Lebanon on “Nakba Day”. Writing for a unanimous Court, Justice U. Shoham denied the petition, holding, inter alia, that “the fire in the direction of rioters who attempted to trample and breach the border fence – and thus created an actual threat to of the infiltration of attackers from an enemy state into territory of the state [of Israel] adjacent to Israeli communities – was carried out as a last resort, after the rioters did not comply with warnings to desist from their acts, and after the was no other practical possibility of using alternative means for crowd dispersal”. The Court’s conclusion in the Al Masri case as to the IDF’s fire being consistent with international and Israeli law would appear to apply a fortiori to this case, inasmuch as the threat to Israeli citizens and the security forces as a result of the violent disturbances on the Gaza border was more severe than that faced by the security forces and the Israeli citizenry in the Al Masri case.
- In the course of law enforcement operations in Haiti, the United States clarified that the use of lethal force is permissible as a last resort for riot control even where the rioters are unarmed civilians, and the US Army Field Manual permits the use of sniper fire and lethal force against “Leaders or Troublemakers”.
- If some of the demonstrators can be categorized as direct participants in the armed conflict between Israel and Hamas (armed attackers, members of terrorist organizations disguised as demonstrators, as well as participants who willingly act as human shields for terrorists) they lose their protection under art. 51(3) of the Fourth Geneva Convention.
- In light of the above, it would appear that potentially lethal force in the dispersal of mass disturbances that pose an actual and immediate threat to life is permitted in principle, subject to it being necessary and proportionate.
- The rules of engagement for the Gaza security perimeter are classified and were not presented due to the objection on the Petitioners. The Court was informed that the rules were approved by the Military Advocate General and by the Attorney General. According to the information provided to the Court by the Respondents, the rules of engagement permit “live fire” only for confronting violent disturbances that present an actual and immediate threat to IDF forces or Israeli civilians. Under the rules, confronting the threat requires first verbal warnings and the use of non-lethal means. Only when those measures do not remove the actual and imminent threat do the rules permit precise fire at the legs of a principal rioter or inciter in order to remove the foreseeable immediate and actual threat.
- In HCJ 9132/07 Albasiouni v. Prime Minister (Jan. 30, 2008), President D. Beinisch, writing for a unanimous Court, held that since the disengagement, Israel does not exercise “effective control” over the Gaza Strip.
- The Court cannot rule out the Respondents’ argument that the violent disturbances that are the subject of these petitions can, at times, present an actual, imminent threat to the IDF forces and Israeli civilians in communities on the Gaza perimeter. The intentions of the rioters who are the subject of these petitions, their huge number, the means at their disposal and the violence displayed would appear factually to distinguish these mass events from mere demonstrations and regular “civil” protests. Therefore, it would facially appear that the Havana Principles are not relevant. The legal status of the Havana Principles can, therefore, be left for examination on another occasion.
- The scope of the Court’s intervention in decisions based upon operational considerations is traditionally very limited and narrow (see, e.g: HCJ 3261/06 Physicians for Human Rights v. Prime Minister (Jan. 31, 2011); HCJ 8990/02 Physicians for Human Rights v. OC Southern Command (April 27, 2003)).
- The Petitioners argue that their petitions focus upon legal arguments, but I cannot see how the Court’s intervention at this stage would not deviate from the accepted scope of judicial review in such issues. Given that the rules of engagement, as such, meet the required criteria, the decision in regard to their implementation is given to the discretion of the commanders in the field, whereas the Court’s role is limited to judicial review of the fulfilment of the applicable rules of Israeli and international law, which the Respondents have declared that the state observes.
- The Court requested that the Petitioners agree to permit an ex parte examination of the relevant rules of engagement and all the accompanying classified material upon which the Respondents rely. The Petitioners made their assent contingent upon conditions that could not be accepted, inasmuch as the rules of engagement address a variety of situations in different ways, and those rules cannot be interpreted or examined without an understanding of the specific situations involved. The Court therefore warned the Petitioners that their refusal could lead to a presumption of regularity in regard to the Respondents’ actions, but they persisted in their refusal. For that reason, as well, I am of the opinion that the available data does not currently allow for any intervention, inasmuch as we lack concrete information in regard to the identity of the primary activists and inciters; the nature of their acts; their organizational association and involvement in terrorist activity or other hostile acts; and whether and to what extent they may have posed an immediate and actual threat.
- In conclusion, Melcer, DP was of the opinion that the Court could not examine the means employed by the IDF in response to the events, both because of the great restraint required in judicial review of military operations that are not prima facie unlawful, and particularly in circumstances in which the requested review is of the implementation of operational policy occurring in real time. Therefore, Melcer, DP also left the question of the extra-territorial incidence of Basic Law: Human Dignity and Liberty open, and did not address the standing issues raised by the Respondents.
President E. Hayut (concurring):
- Israel has been in a state of armed conflict with Hamas for some thirty years. It is an armed conflict that has unique characteristics. Although it is not an armed conflict between two states, the Israeli legal system characterizes it as an international armed conflict (see: HCJ 201/09 Physicians for Human Rights, IsrSC 63(1) 521 (2009); HCJ 769/02 Public Committee against Torture v. Government, IsrSC 62(1) 507, 549 (2006)) subject to the principles of international law and to the relevant Israeli law.
- The organizers of the events set an objective of breaching the security fence, infiltrating Israeli territory and committing terrorist acts against Israeli residents living on the other side of the fence. In the course of the events, the Palestinians indeed acted to undermine and breach the fence, inter alia, by burning tires to create a smoke screen. They also perpetrated terrorist acts that included throwing hand grenades and Molotov cocktails, planting and throwing explosive devices, and firing at Israeli forces. They also sent incendiary kites that caused widespread fires that destroyed fields and property. One incident resulted in the destruction of the Kerem Shalom border crossing that serves to transfer goods, fuel and gas from Israel to Gaza. As of now, the events reached their high point on April 14, 2018, when some 45,000 Palestinians gathered at 13 points along the fence to perpetrate the above described acts.
- These events present a complex challenge, primarily due to the intermingling of terrorist operatives among a civilian population that includes women and children. This intentional intermingling is meant to blur and create difficulty in identifying terrorist operatives among the crowds that participate, in order to permit those operatives to carry out terrorist activities under the cover of the civilian demonstrators. This intentional, methodical conduct was described by E. Rivlin, DP in HCJ 769/02 Public Committee against Torture v. Government. This activity makes it difficult to clearly categorize the incidents under one of the two paradigms, such that in the course of a single event the security forces must alternate between the different rules applicable under each of the paradigms.
- Because Israel does not have physical control of the area in which the events are taking place, the security forces do not have at their disposal such “policing and enforcement” means as arrest and interrogation that characterize addressing violent disturbances occurring in an area under belligerent occupation, unless the participants breach the fence. This, too, plays a role in the deciding upon the means to be employed by the security forces.
- In HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza, IsrSC 58(5) 385 (2004) the Court noted that “in such circumstances, the judicial review process is limited and suffers from the lack of adequate arrangements with which to ascertain the relevant particulars in order to examine them in real time and to grant effective relief for them”. The Court added that it is not the role of the Court to take a stand on how military operations are conducted, and that judicial review is intended only to examine the legality of such operations under international and Israeli law.
- The Petitioners added to the inherent difficulties faced by the Court by objecting to an ex parte hearing to obtain explanations and clarifications as may be needed, as well as classified intelligence, after the presentation of the classified rules of engagement. In view of that objection, decided law creates a presumption that the authority acted lawfully on the basis of the classified material that could not be presented.
- As opposed to an examination of the legality of the rules of engagement, which is within the purview of the Court, an examination of the manner in which those rules are implemented concerns professional aspects regarding which it is doubtful whether the Court has the means for carrying out an examination – particularly when the events are unfolding.
- This judgment is not a substitute for the examinations and investigations that the state must carry out after the fact (see, e.g: HCJ 4764/04, above).
Justice N. Hendel (concurring):
- It would seem that the focus is not upon the content of the rules of engagement themselves. Indeed, counsel for the Petitioners in HCJ 3250/18 was willing to assume for the sake of the hearing that “the written rules are the most exacting” but their implementation is problematic. The inherent difficulty of the examination of implementation in practice is all the more difficult in view of the Petitioners’ refusal to allow an ex parte review of the relevant classified material. A further complication is that the facts changed and developed in the course of the hearing of the petitions, and the necessary factual foundation for deciding was not presented.
- The two-part division of the paradigms can be misleading, not for a lack of logic in the distinction, but rather because reality trumps neatly organized categorization as if each paradigm resides in a separate drawer. The problem in identifying the relevant paradigm is not the result of chance. Hamas and the terrorist organizations intentionally seek to blur the borders between civilian protest and armed conflict, and to exploit LOAC by creating a reality of a dual character. One might say that “the voice is the voice of protest yet the hands are the hands of terror”.
- The Petitioners emphasized the results and pointed to the numbers. However, proportionality is not measured only in terms of results or a particular number. The full picture must be examined, and while the number of casualties is relevant, there is also significance to the number of people in the field, for example, the presence of 45,000 people, and the danger that the event may spin out of control, or be controlled by terrorist organizations seeking to use it as cover for taking human lives.
Articles of Interest
Elena Chachko & Yuval Shany, The Supreme Court of Israel Dismisses a Petition Against Gaza Rules of Engagement, on Lawfare
New Articles in Israel Law Review 51(1):
The question of Palestinian refugees has long been recognised as one of the core issues that would need to be addressed in any eventual Israeli-Palestinian peace agreement. This article examines compensation for property seizure and forced displacement, an aspect that has figured in every round of major peace talks on permanent status issues for the past quarter of a century. Drawing upon research, informal “track two” discussions and official negotiations, it highlights the challenge of crafting arrangements that would be both politically and practically feasible.
On May 28, 2018, the Knesset enacted the National Day Recognizing the Contribution and Achievements of the Druze Community Law, 5778-2018.
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