In Wake of Gaza Massacre, Israeli Leaders Should Be Prosecuted for War
Crimes
Friday, April 06, 2018
By Marjorie Cohn, Truthout | News Analysis
A Palestinian man wears a gas mask as he walks in the smoke during a protest
in the West Bank city of Ramallah on April 6, 2018. Clashes erupted on the
Gaza-Israel border Friday, a week after Israeli force killed 19 Palestinians
at similar demonstrations. (Photo: Abbas Momani / AFP / Getty Images)
On March 30, Israel Defense Forces (IDF) soldiers shot 773 unarmed
Palestinian protesters in Gaza, killing 17 and wounding 1,400. Twenty remain
in critical condition. The protesters were marching to demand the
internationally mandated right of return of refugees to their cities and
villages in what now constitutes Israel.
The Israeli leaders who ordered the massacre were in clear violation of
international law. They should be prosecuted for war crimes.
Premeditated Use of Deadly Force Against Peaceful Protesters
The use of deadly force against the peaceful protesters was premeditated.
The IDF deployed 100 snipers to the border fence between Gaza and Israel,
where 30,000 to 40,000 Palestinians had gathered for the Great March of
Return. In a damning tweet, later deleted, the IDF wrote, "Nothing was
carried out uncontrolled; everything was accurate and measured, and we know
where every bullet landed."
Jihad al-Juaidi, director of the ICU at the al-Shifa Hospital in Gaza, told
Al Jazeera that all of the injured people who came to the hospital were shot
in the head, pelvic joints or knee joints. "This shows that Israeli forces
were shooting-to-kill, or to cause disabilities," al-Juaidi stated.
B'Tselem, a Jerusalem-based human rights organization, characterized the
military orders as "shoot-to-kill unarmed Palestinians taking part in these
demonstrations."
"Israeli soldiers were not merely using excessive force, but were apparently
acting on orders that all but ensured a bloody military response to the
Palestinian demonstrations," Eric Goldstein, deputy director of Human Rights
Watch's (HRW) Middle East and Africa division, stated.
Senior IDF officers told Haaretz before the protest that a large number of
casualties was "a price we would be willing to pay to prevent a breach" of
the fence at the border.
Israeli leaders fostered the false narrative that Hamas was sponsoring the
protest. Jason Greenblatt, US envoy to Israeli-Palestinian negotiations,
followed suit, tweeting, "Hamas is encouraging a hostile march on the
Israel-Gaza border" and accused Hamas of "inciting violence against Israel."
To read more stories like this, visit Human Rights and Global Wrongs.
But the demonstration was actually organized by several Palestinian civil
society organizations. "No Palestinian faction, organization or group can
claim this march as its own. Hamas was simply riding the wave," Jamil Khader
wrote on Mondoweiss. Palestinian flags, not factional ones, were visible.
Conflating civilians with terrorists and framing the planned response as
protection against a security risk, Israeli authorities referred to Gaza as
a "combat zone."
Lethal Force Can Only Be Used if Imminent Threat to Life
It is illegal to shoot unarmed civilians under international humanitarian
law. Some protesters threw rocks and burned tires near the border fence. But
HRW found "no evidence of any protester using firearms or any IDF claim of
threatened firearm use at the demonstrations." No Israeli soldiers were
killed and "the army did not report any injuries to soldiers."
"Even if a Palestinian was throwing a stone, the chances that under these
conditions such an act could cause an imminent threat to life -- the only
situation that would justify the use of lethal force under international law
-- are infinitesimal," Yousef Munayyer, executive director of the US
Campaign for Palestinian Rights, wrote on HuffPost. "Indeed, even if
Palestinians were trying to climb the fence, that would not give Israel the
right to use lethal force."
Sarah Leah Whitson, Middle East and North Africa director of HRW, concurred,
stating, "Israeli allegations of violence by some protesters do not change
the fact that using lethal force is banned by international law except to
meet an imminent threat to life."
Indeed, the UN Basic Principles on the Use of Force and Firearms by Law
Enforcement specifies, "intentional lethal use of firearms may only be made
when strictly unavoidable in order to protect life."
"Senior Israeli leaders who unlawfully called for the use of live ammunition
against Palestinian demonstrators who posed no imminent threat to life bear
responsibility" for the deaths and injuries, HRW asserted in a statement.
That includes Israel's prime minister, defense minister and chief of staff.
B'Tselem, which has called for Israeli soldiers to disobey patently illegal
orders, described the legal duty to disobey unlawful orders: "It is also a
criminal offense to obey patently illegal orders. Therefore, as long as
soldiers in the field continue to receive orders to use live fire against
unarmed civilians, they are duty-bound to refuse to comply."
Prosecute Israeli Leaders in International Criminal Court
Israeli leaders responsible for the deaths and injuries on March 30 should
be prosecuted in the International Criminal Court (ICC).
Under the Fourth Geneva Convention, an occupying power has a legal duty to
protect the occupied. Grave breaches of the convention constitute war
crimes. They include willful killing; willfully causing great suffering or
serious injury; intentionally directing attacks against the civilian
population; and intentionally launching attacks with knowledge they will
cause incidental loss of life or injury to civilians The IDF committed all
of these grave breaches on March 30.
Furthermore, under international humanitarian law, the IDF failed to comply
with the principles of distinction and proportionality. Distinction requires
parties to a conflict to direct their attacks only against people taking
part in the hostilities. Proportionality prohibits an attack if the damage
to the civilian population will be greater than the military advantage
anticipated from the attack. The IDF violated both of those principles on
March 30.
An independent commission of inquiry convened by the UN Human Rights Council
to investigate Israels 2014 massacre in Gaza documented the deaths of 2,251
Palestinians, which included 1,462 civilian deaths and the injuring of
11,231 Palestinians. Six civilians and 67 soldiers were killed and 1,600
injured on the Israeli side. The commission concluded that Israel, and to a
lesser extent, Palestinian armed groups, had likely committed violations of
international humanitarian law and international human rights law, some
constituting war crimes.
Currently, ICC prosecutor Fatou Bensouda is conducting a preliminary
examination into the 2014 massacre. She should expand her inquiry to include
the events of March 30, 2018.
US Vetoes Security Council Resolution Calling for Investigation
UN Secretary-General António Guterres and European Union diplomatic chief
Federica Mogherini advocated independent investigations into the use of
deadly force by the IDF at the border fence on March 30. But the day after
the massacre, the United States vetoed a Security Council resolution that
called for an "independent and transparent investigation" and affirmed the
right of Palestinians to peaceful protest.
Avigdor Lieberman, Israel's defense minister, said the IDF soldiers "deserve
a medal" for protecting the border. "As for a commission of inquiry -- there
won't be one," he declared on Israeli Army Radio.
Israeli Prime Minister Benjamin Netanyahu praised his troops for "guarding
the country's borders" and permitting "Israeli citizens to celebrate the
[Passover] holiday peacefully," adding, "Well done to our soldiers."
Rabbi Alissa Wise, deputy director of Jewish Voice for Peace, noted in a
statement, "The Israeli military evidently believes that any time
Palestinians assert their basic rights in any way, they will be considered
violent, and met with deadly violence."
Meanwhile, the Palestinian protests are slated to last until May 15, the day
Palestinians commemorate the Nakba, or the "great catastrophe" of 1948-9,
when Israel expelled 800,000 Palestinians from their lands to create Israel.
Approximately 70 percent of the 1.3 million Gazans are refugees.
"I think the only way truly forward is to recognize that there is a root
cause: 70 years of Nakba," Wise said.
Copyright, Truthout. May not be reprinted without permission.
Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former
president of the National Lawyers Guild, deputy secretary general of the
International Association of Democratic Lawyers and an advisory board member
of Veterans for Peace. The second, updated edition of her book, Drones and
Targeted Killing: Legal, Moral, and Geopolitical Issues, was published in
November. Visit her website: MarjorieCohn.com. Follow her on Twitter:
@MarjorieCohn.
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