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27.5.2018

The High Court of Justice has permitted the continued use of live fire at Palestinian protestors: the Court rejects the petitions against the rules of engagement in the Gaza Strip

On May 24, 2018, the High Court of Justice (HCJ) rejected the petitions of six human rights organizations (Yesh Din, the Association for Civil Rights in Israel, Gisha, HaMoked, Adalah and Al Mezan) in which they demanded the revocation of the rules of engagement permitting the use of live fire at protestors along the fence between Israel and the Gaza Strip, even if they do not pose an immediate mortal threat. The petitions were submitted due to the high number of casualties in recent protests, with many protestors killed at a substantial distance from the fence, when they posed no immediate threat to human life or to security forces.

In the judgment, the Court accepted the state's claim that the events taking place near the fence are not civilian in nature, but rather, they are riots organized by Hamas which "intermittently create a real and immediate threat to the life and bodily integrity of Israeli security forces and residents". As such, the Court ruled, the use of lethal force as a method of last resort for dispersing the protests is legitimate.

Additionally, the Court accepted the state's flimsy legal claim regarding the existence of two paradigms in the international law of war – the Conduct of Hostilities paradigm and the Law Enforcement paradigm – though it recognized that "the paradigm of Law Enforcement in times of war is not widely regulated in written sources". The Court also ruled that, in light of the complex situation in the Gaza Strip, it is difficult to class the events – during which "acts of aggression in armed conflict" are mixed with other activities – under one paradigm alone.

Further, the Court emphasized that its remit for intervention in decisions made based on operational considerations "is limited and extremely narrow". Chief Justice Hayut noted that "the place for examining claims regarding harm caused to people belonging to the categories of "major disturbers of the peace" or "key agitators" is in operational and other inquiries… which are taking place and will continue to take place retrospectively, regarding the application of the rules of engagement".

Thus, the HCJ has refused to discuss the conduct of the military during an ongoing series of events, which have resulted in over one hundred Palestinian casualties and thousands of injured protestors, in a manner that would enable real time curtailment of unnecessary loss of human life. Instead, the Court decided to give the military free reign to treat Gaza protestors as it sees fit, without being subject to any real time judicial review of its conduct.
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