Crossing the Syrian-Israeli Border: Acts of War or Disturbances?
The violent incidents that took place on the Israeli-Syrian border in June 2011 raise the question of how the Israel Defense Forces should deal with violent events that resemble disturbances while at the same time affecting important Israeli security interests. In this article, which was written especially for the IDI website, IDI Senior Fellow Prof. Yuval Shany offers his analysis of the Israeli response to these disturbances, and distinguishes between situations of war or armed conflict, on the one hand, and riots or disturbances, on the other.
The violent incidents that took place on Israel's border with Syria in the last few weeks, in which unarmed protesters from Syria tried to breach the border between the two countries and were killed by Israeli soldiers, raise the question of how the Israel Defense Forces should deal with complex situations of violence that resemble disturbances, on the one hand, but affect important Israeli security interests, on the other. In this respect, the events on the Syrian-Israeli Border can be seen as part of a series of recent events that challenge Israeli forces by pitting Israeli soldiers against civilians. These include the violent protests in Bili'in, in which attempts were made to damage the Israeli separation barrier; the international flotillas, which have been challenging Israel's maritime blockade of Gaza, and the infiltration of the Israeli-Egyptian border by refugees from Africa.
No one disputes that Israel, like any state, has a right to protect its borders and to use force to prevent the unauthorized entry of foreigners into its territory. In this respect, the fact that the conflict between Israel and the Syrians is taking place on the Golan Heights, which the world sees, by and large, as occupied territory, is irrelevant: an occupying army also may prevent unauthorized entry of people into the territory under its occupation. However, the permissibility of using lethal force to protect borders from being breeched by unarmed infiltrators or demonstrators is not unlimited. As in the other cases referred to above, in the case of the disturbances on the Syrian-Israeli border, Israel must adjust its response to the security risk involved in the breeching of its border or in the damage to the fence, and must choose the means that it employs accordingly.
In this context, it is important to distinguish between a situation of war or armed conflict, in which it is permissible to shoot to kill enemy combatants— including civilians taking a direct part in hostilities—and riots or disturbances, which must be handled with law enforcement tools (e.g., crowd control measures and the detention of law-offenders). In situations of riots and disturbances, the use of deadly force is permissible only when there is a direct threat to human life.
In my estimation, the disturbances on the Syrian border cannot be seen as acts of war or a situation of armed conflict. Although these events occurred in a sensitive military area, they were isolated events that were not linked to incidents in other areas of combat (such as Gaza). Moreover, these disturbances involved unarmed demonstrators who are not members of any military organizations. Under such circumstances, the Israeli security forces must employ proportional means to achieve their legitimate security objective: preventing demonstrators from entering territory that is under Israeli control.
In the absence of any indication that the protesters endangered the lives of Israeli soldiers—including soldiers who tried to prevent the crossing of the border—or of any residents of Israel, it is doubtful that the use of deadly force against them can be justified (this in contrast to the use of other measures, including firing warning shots).
War is war, and in war, it is permissible to kill enemy combatants. But riots and disturbances are different. Even if they occur near the Syrian border, disturbances are disturbances, and it is necessary to act with restraint when responding to them.
Professor Yuval Shany is a Senior Fellow at IDI and the Director of IDI's Terror and Democracy Research Program, and holds the Hersch Lauterpacht Chair in International Law at the Hebrew University of Jerusalem.