The Jerusalem Post

High Court declares conduct by IDF on Gaza Strip border legal

- • By YONAH JEREMY BOB

In one of the most important decisions it has made about the laws of war and human rights in years, the High Court of Justice declared late Thursday night that the IDF’s rules of engagement during the Gaza border crisis were legal.

The blockbuste­r decision will have an immediate impact on any protests that might occur on Friday, or on future protests for which the petitioner­s had hoped the IDF would be forced to adapt more restrictiv­e open-fire regulation­s.

Due to the high esteem in which the High Court is held overseas, the decision will make it more difficult for the Internatio­nal Criminal Court to declare the IDF’s conduct a violation of internatio­nal law.

While declaring the IDF’s conduct legal, the High Court’s panel of President Esther Hayut, Vice President Hanan Melcer and Justice Neal Hendel did send warnings to the IDF.

It said from the large number of killed and injured Palestinia­ns with wounds above the waist, the court expected: a) the IDF would immediatel­y make changes voluntaril­y to further reduce casualties, and b) possible individual violations of the laws of war by individual soldiers would be thoroughly investigat­ed.

The court also criticized the petitioner­s for refusing to allow it to see the full classified rules of engagement being used in a closed hearing without the petitioner­s, and having to settle with a paraphrase of those rules in open court.

Melcer wrote that the court could not evaluate the actions of a reasonable IDF commander as events are

ongoing without the full classified picture, and before probes of the more controvers­ial incidents expose a fuller picture.

When the issue came up in court, the petitioner­s had agreed to the court hearing the classified rules, but not to hearing classified intelligen­ce, saying the intelligen­ce could be used to unfairly sway the court, especially without the petitioner­s present to critique it. However, the state insisted on presenting all the classified issues together or not at all. The court then warned petitioner­s that blocking it from seeing the rules could have consequenc­es.

Moreover, the court took the IDF at its word that after the Gaza border crisis started in March, the IDF had already made adjustment­s and tried to use tactics to reduce Palestinia­n casualties.

A hearing in late April was attended by IDF Operations Commander Maj.-Gen. Nitzan Alon, Deputy Attorney-General for Internatio­nal Affairs Roy Schondorf and IDF Internatio­nal Law Department director Col. Eran Shamir-Borer, emphasizin­g the stakes for the state as these individual­s would usually have sent lower deputies in their stead.

There were several heated moments in that hearing when the debate focused on why more than 40 Palestinia­ns had been killed (the total is now over 100), as well as regarding the question of how involved Hamas is in the protests.

Michael Sfard, representi­ng the petitioner Yesh Din – Volunteers for Human Rights, slammed the IDF and the state for what he described as “inventing” new rules of internatio­nal law to justify the massive number of casualties that are giving it a black eye in world opinion.

He said that the IDF was justifying shooting individual Palestinia­ns in cases when two cardinal conditions of internatio­nal law for using lethal force were absent: the targeted individual poses a danger and the danger is immediate.

In contrast, he said, the IDF was shooting at individual­s who pose no danger – generally or immediatel­y – solely because of the broad theoretica­l danger that a group of protesters in a specific spot might be able to overwhelm IDF forces guarding the border fence.

He also protested the IDF’s aggressive rules for opening fire in light of its admission that the majority of Gazans were not considered to be “directly participat­ing in hostilitie­s” – a legal category that can permit targeting non-uniformed persons who otherwise must be treated as civilians.

Melcer pressed Sfard to “give an example where another country’s courts” interfered with its army’s rules “mid-battle” – since the protests are ongoing – as opposed to dealing with alleged violations “afterthe-fact.”

Sfard said there was a case regarding Cyprus that came before the European Court of Human Rights, which was comparable and helped prove his point that the IDF’s open-fire rules were too aggressive.

Melcer asked: “How would you have the IDF deal with the issue?”

Sfard did not give a specific answer, but said by “all the other [non-lethal] methods” that could be used.

Further, Sfard said the Israeli government in the past has compliment­ed itself by saying it follows the Havana Rules regarding the treatment of lawbreaker­s. However, in the Gaza border context – where following those rules is inconvenie­nt – the state said it is not bound by them.

Ultimately, the court did not accept Sfard’s arguments. It said it would not strike down the IDF rules because it found them to be too general prior to all cases being probed; in light of the IDF’s representa­tions that it modified its rules; and because of its inability to view the classified rules..

• officials on charges of bribery, fraud, breach of trust and forceful extortion.

The police statement had said that Katz, along with the senior officials, were taking advantage of their positions to use other workers for their own benefit. It also said that in return for assistance, the minister provided paid jobs for “his people” in and out of the IAI and that during his time as chairman, Katz used thousands of shekels worth of IAI resources and labor for his own personal use.

In response to the police recommenda­tions, Katz had said: “I did not expect otherwise from the police because they would never admit that the massive amount of resources that they put into this investigat­ion was for nothing.

“Every person with common sense knows what this investigat­ion is about and understand­s that it entails nothing, and the allegation­s [against me] are baseless,” Katz said. “I am certain that the state’s prosecutio­n people have integrity and honesty, and they will decide not to indict me in this case.”

Advocate Noit Negev of the Sheinman-Negev-Niv Law Office said in Katz’s name that “Minister Katz and Moti Ben-Ari [alleged to have shared insider trading informatio­n with him] have been close friends for years. Presenting the relationsh­ip between them as bribes is wrong and absurd. In all his activities as a member of the Knesset and as a minister, Haim Katz acted in a matterof-fact manner and in the public interest; matters will be clarified and proven.

“This is a law that was enacted in 2010... and was intended to correct an injustice,” she added. “The law protects the interests of small investors, protecting them from manipulati­ons that may be initiated by controllin­g shareholde­rs in companies. The attempt to use the law for impure motives is destined for failure.” •

“The fact is,” Stropnický continued, “Hamas [which he pointed out was considered a terrorist organizati­on by the EU] is fully responsibl­e for the form and objectives of the violent actions that have taken place on the border between Israel and Gaza for weeks.”

The Foreign Minister said a large number of the protesters were demonstrat­ing against conditions in Gaza caused by the government of Hamas.

He continued by saying Hamas was coming up with a number of “provocativ­e actions that no state in the world could accept.”

The “persistent effort of the attackers to break the border fence and enter Israel” can be considered an “act of terrorism,” Stropnický said, and other activities along the borders – such as burning tires and setting fields on fire – must also not be ignored.

Other small details that should not be overlooked, he said, were Hamas setting fire to the Gaza side of the Kerem Shalom Crossing, and sending minors under 18 to the fence so that Israel can then be accused of killing children.

What this all shows – he concluded in the statement headlined “Gaza: Telling things as they really are” – is that Hamas is not concerned about the people in Gaza, and that its actions will do nothing to contribute to the resolution of the Israeli-Palestinia­n conflict.

This statement is in stark contrast to many others that came out of European capitals last week, such as a statement put out by the French Foreign Ministry, which on the day of the heavy Gaza violence called “again on the Israeli authoritie­s to exercise discretion and restraint with respect to the use of force, which must be strictly proportion­ate. It affirms the duty to protect civilians, especially minors, and the right of Palestinia­ns to demonstrat­e peacefully.” •

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