Under international humanitarian law, Israel’s response to the recent Gaza protests may amount to war crimes. Public statements made by the Israel Occupying Force (IOF) and other Israeli officials indicate that the IOF intentionally fired on unarmed protestors, journalists, paramedics, women, and children.  Israeli authorities’ statements indicate that their intent began even before the Great March Protests started.  IOF Lieutenant-General Gadi Eisenkot told reporters on 28 March that the IOF had deployed “more than 100 sharpshooters…from all of the military’s units, [but] primarily from the special forces.”[3] Eisenkot added that the IOF had been instructed to use “a lot of force.”[4] Specifically, the IOF told soldiers they had “permission to open fire”[5] and to “shoot anyone breaching the fence.”[6]  Israeli Defense Minister Avigdor Lieberman explicitly foretold the killing of Palestinians on 30 March, regardless of Palestinians’ activities, when he said, “Anyone who comes close to the fence today puts himself at risk.”[7]

After the 30 March protests, in which the IOF killed 11 Palestinians,[8] Israeli officials confirmed that IOF soldiers did exactly what they were told -  shoot Palestinians.  The IOF tweeted that “everything was accurate and measured, and we know where every bullet landed.”[9]  For their part in killing civilians, Eisenkot stated that IOF soldiers “deserve[d] a medal.”[10]  He continued, “I think the [IOF] operated exceptionally well…and I have no doubt that we will continue to act in the same way in the days to come.”[11] Israeli Prime Minister Benjamin Netanyahu congratulated the soldiers, saying, “Well done to our soldiers.”[12]

Eisenkot was not alone in his support of the IOF’s continued use of live fire against non-violent Palestinian protesters.  Israeli Defense Minister Avigdor Lieberman made clear that the IOF would continue to use live ammunition against protesters saying, “Anyone who comes close to the fence will endanger their lives.”[13]  Lieberman made clear that it would be business as usual for the IOF during the next round of protests: “We have a very clear set of rules and we have no intention of changing them…there can be no compromise on this issue, no flexibility.”[14]

Worryingly, the Israeli government’s response to the killing of Palestinians was not to reassess their disproportionate and illegal use of force, but to increase its use: “[We] can respond much more harshly next time [and would not] hesitate to use everything we have.”[15]  Indeed, Israeli authorities promised that they “[wouldn’t] take any chances”[16] and that “there will be a reaction of the harshest kind like last week.”[17]  In an attempt to justify the killing of civilian protesters, Israel claimed “there were no innocent civilians; they were all Hamas members;”[18] “[t]here are no innocent people in the Gaza Strip.”[19]

Further evidence of Israel’s determination to kill Palestinians comes from Israel’s use of Egypt to pass warnings along to Hamas and other protesters in Gaza.  Prior to the May 14th massacre of 52 Palestinian civilians, Egypt told Ismail Haniyeh that “Israel will respond [to the continuation of the Great March of Return] and take far harsher steps”[20] than those that had already left 49 Palestinians dead and thousands more injured.[21]

The IOF publicly confirmed its specific targeting of civilians through the use of intentional language such as “determined,”[22] “fired…selectively,”[23] and “targeted fire”[24] to describe its use of force against Palestinian protestors.  The IOF’s language indicates that the IOF willfully and intentionally targeted non-hostile protestors.  That targeting is a clear and blatant violation of international human rights law, which requires that “No one shall be arbitrarily deprived of his life”.[25]

In addition to the above public statements, the IOF dropped the following leaflets in Gaza during the Great Return March:

Legal Anlaysis

Article 8(1) of the Statute of the International Criminal Court (the Rome Statute) provides that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”.  Under international criminal law, Israel’s response to the recent Gaza protests may amount to the war crimes of wilful killing and  wilfully causing great suffering, or serious injury to body or health, both grave breaches of the Geneva Conventions.[31]  Palestinians are protected persons under Article 5 of the Fourth Geneva Conventions of 1949 and the wilful killing of a protected person amounts to a grave breach, prosecutable at the International Criminal Court (ICC) under Article 8(2)(a) of the Rome Statute.  Specifically, the ICC Elements of Crimes for Article 8(2)(a)(i) require that the perpetrator killed or caused the death of one or more persons. In this respect Israel has killed 129 Palestinians since the Great Return March began; secondly those killed were protected by the Geneva Conventions of 1949 and the perpetrator was aware of that protected status. The latter is evident from the prolonged nature of the occupation now in its 51^st year; and the killing was connected to an international armed conflict or military occupation.[32] Finally, the fourth element is met because the IOF’s actions were carried out in response to civilian protests to its occupation of Palestine; therefore, its actions were connected to a military occupation.  Because all four elements of the war crime of wilful killing have been met, Israeli government and military leaders, may be held individually criminally accountable for the crime. On 22 May 2018, the State of Palestine submitted a referral to the Office of the Prosecutor in accordance with Article 14 of the International Criminal Court. Al-Haq believes that there is a reasonable basis to proceed with the investigation and urges the Prosecutor to complete the preliminary examination and open an investigation. It is critical that senior Israeli government and military leaders are held accountable for ordering the killing of protected Palestinian civilians in Gaza.

[1] “30 March: 15 Palestinians Killed, More Than A Thousand Injured, as IOF Violently Suppress Palestinian Protestors in the Gaza Strip” (Al-Haq, 31 March 2018), available at: http://www.alhaq.org/advocacy/topics/gaza/1206-30-march-15-palestinians-killed-more-than-a-thousand-injured-as-iof-violently-suppress-palestinian-protestors-in-the-gaza-strip (hereafter “Al-Haq 30 March”).

[2] “Israeli Forces Kill Paramedic and Injure 100 Palestinians as Great Return March Enters 10th Week” (Al-Haq, 3 June 2018), available at: http://www.alhaq.org/advocacy/topics/gaza/1266-israeli-forces-kill-paramedic-and-injure-100-palestinians-as-great-return-march-enters-10th-week.

[3] Alex Fishman and Yossi Yehoshua, “Eisenkot says Israel deployed 100 sharpshooters on Gaza border for Palestinian protests” (Ynet News, 28 March 2018), available at:  https://www.ynetnews.com/articles/0,7340,L-5204745,00.html (hereafter “Eisenkot Says”).

[4] “Israel army ordered to shoot as Palestinians plan protest at Gaza border”(Daily Sabah, 28 March 2018), available at: https://www.dailysabah.com/mideast/2018/03/28/israel-army-ordered-to-shoot-as-palestinians-plan-protest-at-gaza-border.

[5] “Eisenkot Says” (n 3).

[6] Yaniv Kubovich, “’Shoot Anyone Breaching the Fence': Israeli Army Gears Up for Gaza Mass Protest” (Haaretz, 29 March 2018), available at: https://www.haaretz.com/israel-news/.premium-israeli-army-gears-up-for-gaza-mass-protest-1.5957896.

[7] Yaniv Kubovich, “Lieberman Warns Gaza Protesters: 'Hamas Is Playing With Your Lives'” (Haaretz, 30 March 2018), available at: https://www.haaretz.com/israel-news/.premium-lieberman-warns-gaza-protesters-hamas-is-playing-with-your-lives-1.5962232?=&ts=_1527084396406.

[8] “Al-Haq 30 March” (n 1).

[9] Id.

[10] “Israeli defense official threatened owners of Gaza bus companies in days before protest” (Al-Monitor, 1 April 2018), available at: https://www.al-monitor.com/pulse/originals/2018/04/israel-gaza-liberman-hamas-abbas-violence.html.

[11] Judah Ari Gross, “IDF shoots, kills Palestinian who broke through Gaza fence (The Times of Israel, 3 April 2018), available at: https://www.timesofisrael.com/palestinians-say-man-shot-dead-by-israeli-troops-on-gaza-border/ (emphasis added).

[12] Benjamin Netanyahu, @netanyahu (Twitter, 31 March 2018), available at: https://twitter.com/netanyahu/status/980127309264031745 (translation from: Andrew Buncombe, “Benjamin Netanyahu praises Israeli troops day after they ‘kill 16 Palestinian protesters’ in border clashes” (The Independent 31 March 2018), available at: https://www.independent.co.uk/news/world/middle-east/benjamin-netanyahu-praises-israel-army-palestinians-dead-gaza-clashes-a8283311.html).

[13] Tovah Lazaroff, “Liberman: Israel will continue to fire at Palestinians close to Gaza fence” (Jerusalem Post, 3 April 2018) available at: https://www.jpost.com/Arab-Israeli-Conflict/Liberman-Israel-will-continue-to-fire-at-Palestinians-close-to-Gaza-fence-547791.

[14] Id.

[15] “Liberman warns of ‘much harsher’ Israeli response to continued Gaza violence” (i24News, 1 April 2018), available at: https://www.i24news.tv/en/news/israel/diplomacy-defense/171265-180401-idf-said-bracing-for-escalation-possible-rocket-attacks-amid-gaza-protests; see also IOF General Ronen Manelis’s statement: "If [the protest] continues, we shall have no choice but to respond inside the Gaza Strip against terrorist targets which we understand to be behind these events," “Gaza-Israel violence: Israel warns of action inside Gaza” (BBC News, 31 March 2018), available at: http://www.bbc.com/news/world-middle-east-43603199.

[16] “Israeli Defense Minister Avigdor Lieberman defends use of force against Gaza protests” (DW, 8 April 2018), available at: http://www.dw.com/en/israeli-defense-minister-avigdor-lieberman-defends-use-of-force-against-gaza-protests/a-43298829 (hereafter “Lieberman Defends”).

[17] “Israel says open-fire rules for Gaza protest unchanged, one Palestinian shot dead” (Arab News, 5 April 2018), available at: http://www.arabnews.com/node/1279396/middle-east.

[18] Shoshana Kranish, “Liberman slams calls to probe death of Gaza journalist covering protests” (Jerusalem Post, 8 April 2018), available at: https://www.jpost.com/Arab-Israeli-Conflict/Liberman-slams-request-to-investigate-death-of-Gaza-journalist-covering-protests-549135.

[19] “Lieberman Defends” (n 16).

[20] Nidal al-Mughrabi and Dan Williams (Reuters), “ Israel said Hamas backed off Gaza protests after a warning from Egypt” (Business Insider, 16 May 2018), available at: http://www.businessinsider.com/israel-said-hamas-backed-off-gaza-protests-after-a-warning-from-egypt-2018-5.

[21] See, e.g., “11 May 2018: IOF Commit Wilful Killings of Two Palestinians, including a Child, and Injure Hundreds as Gaza Protests continue into Seventh Week” (Al-Haq, 13 May 2018), available at: http://www.alhaq.org/advocacy/topics/gaza/1235-11-may-2018-iof-commit-wilful-killings-of-two-palestinians-including-a-child-and-injure-hundreds-as-gaza-protests-continue-into-seventh-week.

[22] Israeli Defense Force, @IDFSpokesperson (Twitter, 15 May 2018, 5:19 PM), available at: https://twitter.com/IDFSpokesperson/status/996032290668077056.

[23] Israeli Defense Force, @IDFSpokesperson (Twitter, 15 May 2018, 8:21 PM),  available at: https://twitter.com/IDFSpokesperson/status/996440547249225732.

[24] Israeli Defense Force, @IDFSpokesperson (Twitter, 15 May 2018, 5:33 PM), available at: https://twitter.com/IDFSpokesperson/status/996398198716600320.

[25] International Covenant on Civil and Political Rights art. 6, 19 December 1966, available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf (adopted by UN Doc. A/RES/21/2200, 16 December 1966, available at: http://www.un-documents.net/a21r2200.htm.

[26] “IDF planes drop leaflets over Gaza warning residents not to enter the buffer zone along the security fence” (BT News, 25 March 2018), available at: https://goo.gl/images/34xuEV (original page since removed: https://btnews.online/2018/03/25/idf-planes-drop-leaflets-over-gaza-warning-residents-not-to-enter-the-buffer-zone-along-the-security-border-fence/) (emphasis in original).

[27] Judah Ari Gross, “IDF gears up for mass Gaza riots, warns that Hamas plans to ‘massacre’ Israelis” (Times of Israel, 13 May 2018), available at: https://www.timesofisrael.com/idf-gears-up-for-mass-gaza-riots-warning-hamas-plans-to-massacre-israelis/.

[28] Jonathan Conricus, @LTCJonathan (Twitter, 20 April 2018, 7:43 AM), available at: https://twitter.com/LTCJonathan/status/987190060146708480.

[29] Israeli Defense Forces, @IDFSpokesperson (Twitter, 14 May 2018, 7:28 AM), available at: https://twitter.com/IDFSpokesperson/status/995883451629924352/photo/1.

[30] Israeli Defense Forces, @IDFSpokesperson (Twitter, 14 May 2018, 7:28 AM), available at: https://twitter.com/IDFSpokesperson/status/995883451629924352/photo/1.

[31] Rome Statute of the International Criminal Court arts. 8(2)(a)(i) and 8(2)(a)(iii), 17 July 1998, U.N. Doc. A/CONF. 183/9, available at: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf; see also, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., at 13 n.34, ICC-ASP/1/3 (3-10 September 2002), available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N02/603/35/PDF/ N0260335.pdf? OpenElement [hereafter “ICC Elements of Crimes”].

[32] “ICC Elements of Crimes” (n 31), at 5.