1. Introduction                                                                                                      

Between 29 September and 29 October 2015, the Palestine Red Crescent Society documented 61 killings^[1] and the injury of 7,296 Palestinian civilians^[2] in the OPT by the Israeli Occupying Forces (IOF). According to Al-Haq, 23 of the Palestinian victims were killed in demonstrations across the Occupied Palestinian Territory (OPT).^[3] Another 35 Palestinians were killed in alleged attacks against Israelis. Of these, 3 incidents were alleged knife and shooting attacks, in one incident the IOF claimed that the attacker was trying to steal a soldier’s gun and in 31 incidents the IOF alleged knife attacks.^[4] Most concerning, Al-Haq has noted a trend where the IOF that are in a position to safely disable handheld objects and have controlled and subdued the alleged attacker proceed to fatally shoot the Palestinian at a close proximity.^[5]

At the heart of the deadly escalation of violence is Israel’s recent relaxation of policing regulations whereby police may liberally open fire on stone throwers when they believe there is danger to any life as opposed to the narrower grounds of self-defense.^[6] Within these parameters, the IOF has used lethal force against Palestinians in violation of Palestinians’ right to life. This legal brief provides a legal analysis of the unlawful killing of Palestinians during a situation of occupation that does not rise to the level of armed hostilities.

2. Law Enforcement during Occupation

Article 43 of the Hague Regulations, which is reflective of customary law, provides that Israel as the Occupying Power has a duty to restore public order and safety in the OPT. In fulfilling its duty, Israel must resort to law enforcement that is governed by international human rights law.^[7] As such, the human rights based norms of law enforcement operate within the framework of international human rights and international humanitarian law during belligerent occupation.^[8]

On this note, it is important to stress that it is generally accepted that international humanitarian law and human rights law both apply in a situation of armed conflict and occupation.^[9] Consequently, several United Nations treaty bodies have repeatedly stressed that Israel has human rights obligations towards the occupied Palestinian population.^[10]

3. International Human Rights Law

The law enforcement paradigm includes the right to life as provided in Article 3 of the Universal Declaration of Human Rights (UDHR).^[11] Furthermore, Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) guarantees that, “every human being has the inherent right to life [and that] no one shall be arbitrarily deprived of his life.” Notably the right to life is non-derogable.^[12] In addition to binding human rights treaties protecting the right to life, law enforcement is regulated by the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Although the latter are soft law instruments, the provisions governing use of force represent universally binding customary international law.^[13]

The types of measures resulting in ‘arbitrary deprivation of life’ are not specifically outlined in the ICCPR. International law limits the use of intentional lethal force during law enforcement operations to situations necessary to protect life. The state obligation is to not kill or attempt to kill arbitrarily.^[14] In this vein, Article 2(2) of the European Convention on Human Rights explains that force used should be ‘no more than absolutely necessary’ to defend any person from unlawful violence, to effect the lawful arrest or prevent the escape of a person lawfully detained, or lawfully quell a riot or insurrection.[^15] Generally excessive force in arrest situations results in arbitrary deprivation of life while indiscriminate use of force results in arbitrary deprivation of life during demonstrations.^[16] However the benchmark is the application of the tests of necessity and proportionality.

In order to ensure restraint in law enforcement operations, states must adhere to the principles of proportionality and necessity.^[17] Notably “police may shoot to kill only when it is clear that an individual is about to kill someone (making lethal force proportionate) and there is no other available means of detaining the suspect (making lethal force necessary)”.^[18]

3.1 Necessity

The necessity requirement limits the overall threshold of force before the proportionality assessment is applied. For example, is there any other lesser means of force that can be used? Alternatively the IOF could opt to shoot a suspect in the leg or hand to incapacitate them rather than use lethal force. The rule of thumb is to use the least amount of force and work upwards according to the level of threat encountered.^[19] Killing in circumstances where state forces are not under attack is clearly not absolutely necessary and does not therefore constitute self-defense.^[20] Continued shooting by IOF forces after a suspect has been incapacitated amounts to an arbitrary use of force that fails the necessity threshold in violation of Article 6 of the ICCPR. Continued shooting of incapacitated Palestinians during law enforcement operations has been a hallmark of the recent attacks. For the purpose of crowd control of unarmed protestors the shooting live fire rounds into the crowd would represent an excessive use of force.^[21]

3.2 Proportionality

Proportionality deals with the amount of force that is permissible. The government authorization for law enforcement to use live fire Ruger sniper rifles to disperse stone throwers instead of less powerful weapons such as water canon, riot shields and rubber bullets cannot be considered proportionate to the legitimate aim of crowd control being pursued.^[22] In the words of the European Court of Human Rights “the lack of such equipment is all the more incomprehensible and unacceptable… in a region which a state of emergency has been declared, where at the material time disorder could have been expected”.^[23]

Killing persons on mere suspicion of carrying a knife alone represents an indiscriminate use of force. The use of force must be proportionate to the legitimate objective to be achieved.^[24] As in the case advanced by Israel, the belief by the IOF that there is a danger to any life is not enough to satisfy the proportionality test. The belief should be premised on “‘good reason’ in light of the information available at the relevant time”.^[25] In addition, law enforcement should establish whether there is any other means that may reasonably be taken to neutralize the threat posed.^[26] As such a balancing measure is used to ascertain whether the “consequences for the suspect of applying a higher level of force would ‘outweigh’ the value of the objective”.^[27] Such alternative for example, could be a light injury to disable a knife in order to conduct a lawful arrest.

Additionally, Israel has an obligation to ensure that persons arrested and detained are brought promptly before a judicial power and to trial within a reasonable time.^[28] The arbitrary killing of suspects in the OPT and Israel, denies suspects their due process rights to a fair trial guaranteed by Article 14 of the ICCPR. In particular, the presumption of innocence represents a fundamental human right that Israel appears to have ignored.^[29]

4. International Humanitarian Law

Although human rights norms govern law enforcement during belligerent occupation, the overarching legal framework for the belligerent occupation is international humanitarian law.^[30] In this vein, Article 27 of the Fourth Geneva Convention has been interpreted by the ICRC to imply the right to life on the basis that “there would be no reason for the other rights mentioned” in the convention.^[31] Similarly, Article 46 of the Hague Regulations provides that “the lives of persons” shall be protected.^[32]

Consequently, the ICRC Commentary on Rule 89 on Violence to Life, establishes that “prohibition of ‘arbitrary deprivation of the right to life’ under human rights law, however, also encompasses unlawful killing in the conduct of hostilities”.^[33] Accordingly, arbitrary killing of protected persons in the OPT during law enforcement operations may amounts to wilful killing, a grave breach of the Geneva Conventions and war crime prosecutable under Article 8 of the Rome Statute of the International Criminal Court.^[34] Furthermore, a policy or plan of attacks by law enforcement as evidenced from the liberal shoot to kill policy employed by Israel may reach the threshold prosecutable as a crime against humanity under the Rome Statute where killing is committed as part of a widespread or systematic attack against the civilian population with knowledge of the attack.^[35]

5. Duty to Investigate

Authoritative human rights treaty bodies have repeatedly stressed that state authorities have a duty to investigate cases where lethal force has resulted in deaths.^[36] Similarly, state authorities have a duty to investigate violations of international humanitarian law.^[37] As such, Israel must ensure that there is no impunity for violations of international human rights and humanitarian law.^[38]

Inherent to the duty to investigate are the substantive standards of promptness, independence, effectiveness, and transparency.^[39] Israel must conduct a full prompt, exhaustive and impartial investigation into the deaths of Palestinians killed during law enforcement operations in the OPT and Israel. Protection of the right to life procedurally requires that full impartial investigations are conducted into the deaths of Palestinians and that those responsible for their killing are brought to justice before an independent, competent and impartial tribunal. In this regard the 2015 report of the United Nations Commission of Inquiry identified serious shortcomings in Israel’s ability to adequately investigate and hold perpetrators accountable for human rights and humanitarian law violations. A broad categorization of ‘military objectives’ by the Military Advocate General means that criminal investigations are rarely conducted.^[41] In practice this has meant blanket impunity for unlawful killings of Palestinians by Israeli State agents.

Under general customary international law and human rights treaty law Israel must pay reparations in the form of compensation or just satisfaction for the unlawful killing of Palestinians during law enforcement operations.^[42]

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