The judgment of the Supreme Court in the Yesh Din case is important in several respects: it is faithful to the traditional view of the Supreme Court that military activity of all kinds, while deserving deference, is justiciable.
On May 25th 2018, the Israeli Supreme Court rejected, in a unanimous decision of a three judge panel, a petition by a group of NGOs which challenged the legality of the Rules of Engagement (RoE) employed by the IDF in the violent clashes which took place near the fence separating the Gaza Strip and Israel between March and May 2018.
Background and Factual Framework
Beginning on March 30th 2018 and as recently as May 14th, mass demonstrations took place in the Gaza strip near the fence separating the Gaza strip from Israel. During the demonstrations some 100 Palestinians were killed by IDF sniper fire, thousands of others were injured by gunfire and “less-lethal weapons” used for riot control. The petition to the Supreme Court claimed that to the extent that the IDF’s RoE allowed for the use of lethal force against demonstrators those rules should be declared illegal. Alternatively, the petitioners asked the Court to order the IDF to implement effectively the relevant prohibitions on the use of lethal force in its RoE.
In its judgment, Justice Melcer, who authored the lead opinion, described the demonstrations as “violent,” and as organized by Hamas as part of its struggle against Israel. Justice Melcer also emphasized that the demonstrations included attempts to destroy security infrastructure (i.e., the fence) and to serve as a cover for the commission of terror attacks. However, Justice Melcer also acknowledged that the State representatives agreed that many of the participants in the demonstrations were civilians, not participating or intending to participate in any terrorist activity.
The framing of the case by Justice Melcer is, of course, not the only narrative which was presented in Court. The petitioners framed the situation as one of mass civilian demonstrations. True, these demonstrations sometimes turned violent, but this did not change their civilian nature, the petitioners submitted. The State, in its response, referred to the demonstrations as a Hamas operation (executed in cooperation with other terrorist organizations active in the Gaza strip) and designed to facilitate terror attacks against the IDF and, upon a breach of the fence, also against Israeli civilians residing in villages located a few hundred meters from the fence.
By adopting the factual framework presented by the State, the Court already went a long way toward rejecting the petition. Naturally, if the entire “demonstrations” are merely a backdrop to Hamas terrorist activity, then the amount of force the State would be allowed to use in order to stop this activity is much higher than if the confrontations were regarded as mere civilian demonstrations.
The legal framework
According to Justice Melcer the relevant legal framework for deciding the case was the law of armed conflict (LOAC). Once again, Justice Melcer accepted here the framework advocated by the State. The position of the petitioners—that even if an armed conflict exists between Israel and Hamas, this has no relevance to the demonstrations which invite a law enforcement response—was implicitly rejected by the Court. Justice Melcer also declared, according to a longstanding doctrine of the Israeli Supreme Court since the withdrawal of the Israeli military and removal of settlements from Gaza in 2005 (the Israeli disengagement from Gaza), that Israel is no longer the occupying power in the Gaza strip, and therefore the law of occupation is irrelevant to the situation.
Justice Melcer further adopted the specific position of the State that LOAC contains a law enforcement regime within it that allows the use of lethal force against civilians not taking direct part in hostilities but involved in mass disturbances, but only as a last resort and when they pose imminent danger (the definition of which is discussed below). He refrained from alluding to the applicability of international human rights law to the situation. The position of the State on the relationship between LOAC and law enforcement was analyzed at some length by Eliav Lieblich in a recent article at Just Security. Suffice it to say here that Justice Melcer accepted that the demonstrations are subject to a dual legal regime under LOAC: rules governing the conduct of hostilities and law enforcement.
The result of this analysis, further articulated by Justice Hayut, the President of the Supreme Court in her separate concurring opinion, is that participants in the demonstrations include three distinct categories:
(1) Hamas operatives who are direct participants in hostilities according to the conditions laid down by the International Committee of the Red Cross in its Interpretative Guidance on Direct Participation in Hostilities. The use of force against these is controlled by the conduct of hostilities framework of LOAC. The court did not explicitly discuss the status of members of Hamas and other organizations involved in a “continuous combat function” (terminology in the ICRC Guidance) presumably because the parties did not raise this issue.
(2) leaders and instigators of the demonstrations; and
(3) Participants in the demonstrations.
The use of force against members of the latter two groups (2 & 3) is controlled by the law enforcement-within LOAC paradigm.
Using Lethal Force
The use of lethal force by the IDF is controlled by the RoE. However, the ROE are classified, and were not submitted as evidence in Court. The judges emphasized that the court was willing, if the petitioners would have agreed, to review the RoE ex parte (i.e., at the presence of State representatives only), but the petitioners agreed to such a proposal only on condition that the State would not present additional intelligence information to the court ex parte. The Court rejected this condition, and expressed dismay at the position of the petitioners. As result of the inability of the Court to consider the text of the RoE, it assumed pursuant to Israeli administrative law their legal propriety. Still, the judgement does include a short discussion of the general approach taken by the RoE, as detailed by the State in its response. The legality of the general approach was evaluated by the Court.
At this point, the judgment becomes a bit opaque. According to Justice Melcer, the law enforcement paradigm does not prohibit the use of lethal force, as a measure of last resort, against instigators and leaders of the demonstration, in order to protect lives placed in danger. Justice Melcer also seems to accept the State’s position according to which a breach in the fence might be considered to create such a danger. However, Justice Melcer refused to go into a detailed analysis of the conditions for the use of lethal force, and the way in which they were used in events in the Gaza strip, citing concerns about the propriety of intrusive judicial review of operational military decisions.
Justice Melcer, as well as Justice Hayut, drew a distinction between the legality of the RoE and their actual implementation. They suggested that most of the claims made by the petitioners were really directed against the implementation of the RoE in specific conditions. The Court pointed out that it did not have enough facts before it to pass judgment on the application of the RoE and that all cases of lethal shootings were referred to the IDF’s “fact finding mechanism” – an independent military body with authority to recommend to the Military Advocate General to open criminal investigation in appropriate cases.
Preliminary Analysis and Discussion
In the response to the petition, the State raised the defense of “non-justiciability” of some of the claims raised by the petitioners, especially those regarding “effective implementation” of the prohibition on the use of lethal force. The Supreme Court did not accept this claim. Still, all justices accepted the alternative position of the State, according to which the Court’s authority to intervene in operational military matters is extremely narrow.
Applicability of International and Israeli Human Rights Law
In its response to the petition, the State emphasized that Israel does not accept the applicability of international human rights law to the situation in Gaza. As mentioned earlier, the State offered an alternative framework: “the law enforcement paradigm within LOAC.” In this regard too, the decision of the Court is less than clear. Justice Melcer discussed at some length differences between the European Court of Human Rights cases submitted by the petitioners, which seem to forbid any use of lethal force unless there is an imminent threat to life, and the situation in the Gaza strip. Justice Melcer also quoted the position of the State, according to which the Havana Principles on the use of force by law enforcement officials are irrelevant to the situation in the Gaza strip, and it seems that he was inclined to support this position (he did, however, reserve judgment on whether the Principles constitute hard law or soft law).
Significantly, the Court did not provide an alternative source to LOAC for the “law enforcement paradigm.” Granted, the court did say generally that, according to this paradigm, lethal force could be used only as a measure of last resort and under strict conditions of necessity and proportionality, but very little else is said about the contents of this law enforcement regime. Specifically, the Court did not offer clear guidance on the question of the exact circumstances in which “leaders and instigators” may be shot – the issue which seems to be at the heart of the legal disagreement between the petitioners and the State. Justice Hayut even goes as far as expressly stating that international law does not explicitly regulate this question. Of course, the position of Justice Hayut is accurate only if one accepts the non-applicability of international human rights law, and thus ignores the entire corpus of decisions by the European Court of Human Rights on controlling violent demonstrations. As indicated before, these cases allow for the use of lethal force only in cases of imminent threat.
The Implementation Issue
The Court emphasized in its judgment the difference between judicial review of RoE (which should be undertaken by the Supreme Court) and judicial review of the implementation of RoE (which the IDF should first investigate). Accordingly, Justice Hayut highlighted the importance of these investigations. I agree, of course, that investigations of violations of RoE are important, but I doubt whether this is really a major element in this case. As the State emphasized in its response, the use of lethal force in the Gaza Strip events was heavily controlled. Shots were fired only after they were approved by senior officers pursuant to the RoE. The question here is not of a “strategic corporal” violating his orders. Rather, the main point which the petitioners were making, and that the Court refused to address, was a challenge to the fundamental premise adopted by the State, according to which any breach of the fence presents an imminent threat to life and should therefore be stopped at almost any cost, including by using lethal force. The State, and the Court, were not willing to consider the question whether there is a plausible alternative to the use of lethal force in a situation of a breach of the fence (that is, after less-lethal alternatives designed to prevent a breach have failed).
The judgment of the Supreme Court in the Yesh Din case is important in several respects: it is faithful to the traditional view of the Supreme Court that military activity of all kinds, while deserving deference, is justiciable. It reinforces the importance of independent investigations of possible violations of LOAC.
However, the Supreme Court’s discussion on international law seems to raises some questions. On the one hand, the Supreme Court emphasizes that the IDF’s operations are limited by international law. The Supreme Court also adopts the ICRC’s position on direct participation in hostilities. In this respect, the judgment sends an important message of adherence to international law.
On the other hand, however, the court’s application of international law is problematic: the judgment leaves open the issue of the applicability of international human rights law to the Gaza clashes. It does not meaningfully clarify the concept of “law enforcement” in LOAC, a concept which Justice Hayut, at least, doubts whether it reflects international law. Moreover, the court does not challenge or even seriously discusses the position of the State that the attack is “imminent” and the lethal threat caused by breach of the separation fence.
It remains to be seen how these different positions taken by Court would affect the actual behavior of the IDF in future events in the Gaza strip, as well as the outcomes of future investigations into the many instances in which the IDF resorted to lethal force.
The article was first published in Just Security