Why Israeli soldiers must refuse to fire at unarmed Palestinian protesters

3 April 2018

Gaza protest, 30 March 2018. Photo by Amir Cohen, Reuters

Last Friday was a bloody day in Gaza as Israeli soldiers fired at Palestinians taking part in demonstrations within the Gaza Strip. Of at least 17 Palestinians killed that day, 12 were killed at the protests. Hundreds more were injured by live gunfire.

The use of live ammunition against unarmed persons who pose no danger to anyone is unlawful. It is even more blatantly unlawful in the case of soldiers firing from a great distance at demonstrators located on the other side of the fence that separates Israel from the Gaza Strip. In addition, it is impermissible to order soldiers to fire live ammunition at individuals for approaching the fence, damaging it, or attempting to cross it. Obviously, the military is allowed to prevent such actions, and even to detain individuals attempting to carry them out, but firing live ammunition solely on these grounds is absolutely prohibited.

Responses by Israeli officials clearly show that Friday’s grave outcomes were the expected, and indeed looked-for, implementation of a policy formulated beforehand. The military therefore enjoyed full backing for its conduct. As Defense Minister Avigdor Lieberman clearly stated, “the IDF soldiers warded off Hamas military branch operatives capably and resolutely, just as we expected of them. They have my full backing.”

Given the open-fire regulations as reported (in part) in the media ahead of last Friday, the high number of casualties was predictable and expected. The military knew in advance of the demonstrations planned for Friday. However, in line with the instructions given the civilian leadership, the preparation by senior military officials did not focus on attempting to minimize the number of casualties. Quite the contrary. The demonstration was framed in advance as an attempt to harm the safety of the State of Israel, as if this were a case combat. Accordingly, Israel made far-reaching threats, including stating that soldiers would use live fire against anyone going any nearer the fence than some 300 meters. In addition, bus companies in Gaza were warned not to transport Palestinians to the demonstrations; and a video clip was released showing a Palestinian being shot in the leg as he approached the fence, by way of a warning as to what would happen to people taking part in the demonstrations. Israeli officials also eschewed in advance any responsibility for the demonstrations, declaring the responsibility lay squarely on Hamas in the event that the military killed or injured Palestinians.

The preparations for the demonstrations planned for this Friday are very similar. At first, it was reported that the military had stated that it did not intend to change its open-fire regulations. Later, it was reported that the regulations had been changed, stating that unarmed demonstrators would not be permitted to come any nearer than 100 meters to the fence. The Minister of Defense also emphasized that “anyone who attempts to approach the fence is risking their life.”

Contrary to the impression given by senior military officers and government ministers, the military is not permitted to act as it sees fit, nor can Israel determine on its own what is permissible and what is not when dealing with demonstrators. Like all other countries, Israel’s actions are subject to the provisions of international law and the restrictions they impose on the use of weapons, and specifically the use of live fire. The provisions limit its use to instances involving tangible and immediate mortal danger, and only in the absence of any other alternative. Israel cannot simply decide that it is not bound by these rules.

As Prof. Mordechai Kremnitzer wrote after last Friday’s events: “If, for instance, using live fire to prevent unarmed civilian demonstrators from even approaching or vandalizing the border fence is seen as justified, this order is highly unlikely to be legal. The fence, even when it marks a border is not more sacred than human life, and that includes the lives of Palestinians living in Gaza.”

An order that permits live gunfire at unarmed civilians is blatantly unlawful. As Justice Benjamin Halevy ruled in the Kafr Qasem case back in the 1950s, the illegality of such orders “is not a question of form, nor is it imperceptible, or partially imperceptible.” On the contrary, it is a case of “unmistakable illegality patently evident in the order itself, it is a command that bears a clearly criminal nature or that the actions it orders are of a clearly criminal nature. It is an illegality that pains the eye and outrages the heart, if the eye be not blind and the heart be not callous or corrupt.”

The responsibility for issuing these unlawful orders and for their lethal consequences rests with the policy makers and – above all – with Israel’s prime minister, defense minister, and the chief of staff. They are also the ones who bear the obligation to change these regulations immediately, before this Friday’s planned protests, in order to forestall any further casualties.

That said, it is also a criminal offense to obey manifestly 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.

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Instead, they focus exclusively on lower-ranking soldiers and on the question of whether they acted contrary to these illegal orders. Moreover, while the protests were taking place, Israel’s Supreme Court heard petitions contesting the legality of the open-fire policy. The justices dismissed the petitions and allowed the military to continue employing this policy. However, it did not uphold the regulations being implemented in the field – as these were never presented to the Court. The Court only approved the regulations that the state claimed the military was following, ignoring the glaring disparity between the state’s claims and reality on the ground. By the time the petitions were heard, dozens of protesters had been killed and almost 2,000 injured. The military law enforcement system has fallen short of fulfilling even the limited role assigned to it – investigating “exceptional incidents” only. 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'Omar Abu a-Nil, shot in the neck by soldiers, being carried to an ambulance. Photo: 'Abd a-Rahim Khatib

The Gaza Strip

Israeli security forces fatally shoot ‘Omar Abu a-Nil (13) standing dozens of meters from Gaza perimeter fence during protest

On Saturday, 21 August 2021, a demonstration was held near the perimeter fence east of Gaza city, marking the 52nd anniversary of the al-Aqsa Mosque arson attack. The barrier, which Israel has been expanding in recent years, is reportedly made of a concrete wall starting dozens of meters underground. Above ground, in that area, it consists of a concrete wall several meters high topped by a metal fence. During the demonstration, some of the protesters burned tires, threw stones, and hurled explosives at members of the Israeli security forces standing on the other side of the fence, who fired live ammunition, rubber-coated metal bullets, and tear gas canisters at them, injuring 41 protesters, including 22 minors, according to figures provided by the Palestinian Ministry of Health. Two of the wounded died in the following days — Osama D'eij (31), a Hamas military wing operative from Jabalya Refugee Camp, died of his wounds on 25 August 2021, and ‘Omar Abu a-Nil (13) from Gaza City died of his wounds on 28 August 2021. Two days later, Bar’el Hadaria Shmueli (21), an Israeli Border Police officer from Be’er Yaakov who was shot during the demonstration by a Palestinian standing on the other side of the fence, died of his wounds. On the day of the demonstration, Abu a-Nil came to the area in the afternoon. At around 5:30 P.M., he went up to a distance of about 100 meters from the fence. While standing and watching the protest, he was hit by a live bullet in the neck. Abu a-Nil was taken by other protesters to an ambulance that took him to a-Shifaa Hospital, where he was treated until his death on 28 August 2021. Abu a-Nil is the 226th person killed in demonstrations near the Gaza perimeter fence since the March of Return protests began in March 2018, and the 48th minor. Israeli security forces' open-fire policy, which permits the use of live fire against protesters, the vast majority of whom are unarmed and who do not pose a risk to the well-protected forces on the other side of the fence, is unlawful and unjustified. Nevertheless, and despite the hundreds of people killed and thousands wounded by live fire, Israel continues to implement this lethal policy, which is likely to kill or injure many other Palestinian protesters. Abu a-Nil’s neighbor, Anas al-Ghafri (18), arrived at the demonstration at around 3:30 P.M. About an hour and a half later he advanced to a distance of about 100 meters from the fence, where Abu a-Nil joined him some 20 minutes later. In a testimony he gave B’Tselem field researcher Muhammad Sabah on 31 August 2021, al-Ghafri recounted: : About 20 minutes after I went towards the fence, my neighbor ‘Omar Abu a-Nil arrived at 5:30 and stood next to me. ‘Omar asked me, “Why are you afraid to go down?” I slapped him and told him to go back. He didn’t and even went a few more meters towards the fence while eating sunflower seeds. Suddenly, I saw him fall to the ground. I thought he’d tripped, but then I saw young guys and teens crowding around him and that he was bleeding. When they picked him up, I saw entry and exit wounds in his neck. About 20 minutes after I went towards the fence, my neighbor ‘Omar Abu a-Nil arrived at 5:30 and stood next to me. ‘Omar asked me, “Why are you afraid to go down?” I slapped him and told him to go back. He didn’t and even went a few more meters towards the fence while eating sunflower seeds. Suddenly, I saw him fall to the ground. I thought he’d tripped, but then I saw young guys and teens crowding around him and that he was bleeding. When they picked him up, I saw entry and exit wounds in his neck. The young guys took him to an ambulance, and I rode with him. On the way to a-Shifaa Hospital, he was resuscitated and given first aid. I called ‘Omar’s uncle and told him he’d been wounded. When we got there, they put ‘Omar in the ICU and tried to resuscitate him. Then his family arrived, and his father blacked out when he saw his son in the ICU. I stayed at the hospital until 10:00 P.M. and then went home. A.Z. (36), a resident of Gaza City, went to the demonstration in the afternoon to document it as part of his work as a freelance photographer. In a testimony he gave B’Tselem field researcher Muhammad Sabah on 28 September 2021, he described what happened: During the demonstration, hundreds of young men, teens, and children approached the fence to throw stones at the occupation forces. They pulled at the fence’s net and damaged it and then burned tires. The soldiers fired tear gas canisters, followed by warning shots in the air. When the stone-throwing intensified, the soldiers fired live rounds at the protesters. I saw two protesters wounded by the shooting and others suffocating from the gas. While I was standing and filming the protesters, I saw a teen fall to the ground in front of me, about 30 to 40 meters away from me towards the fence and about 100 meters from the fence. The young men picked him up right away and took him to an ambulance. I was in shock and didn’t manage to take his picture. He was hit in the neck and bleeding. I followed the young men who had taken him to find out how he was doing, and then he was taken to the hospital. I went back to the demonstration for a while, and saw my friend ‘Assem Shhadeh get hit in the right side of his jaw by shrapnel and fall. I took his picture. Meanwhile, I heard shots from our side towards the fence. It sounded like a handgun. Then I left the area. In a testimony she gave B’Tselem field researcher Olfat al-Kurd on 31 August 2021, ‘Omar’s mother, Iman (40), spoke about her son and his time in hospital: When I heard ‘Omar has been injured at the demonstration, I was at home. I thought he’d gone to the club in the afternoon because he’d never gone to demonstrations by the fence before. I went up to my sister-in-law’s apartment and collapsed on the floor, screaming. My sister-in-law and her daughter hugged me and helped me get home. I got dressed and went to my parents’ house, and from there continued to a-Shifaa Hospital. When I got to the hospital, I asked about ‘Omar at the desk and was told he’d been hit in the leg and that he was having minor surgery. I went up to the operating rooms and found my husband Hassan there with red, teary eyes. He couldn’t tell me how ‘Omar was doing. I immediately realized he hadn’t been injured in the leg. My husband told me he’d been hit in the shoulder, and I told him the injury was more serious. I felt weak and couldn’t stand the bad news, and started praying to Allah for strength. I stood on the operating room steps and waited. I didn’t talk to anyone. I was in shock and couldn’t even cry. At around 10:00 P.M., ‘Omar came out of surgery and was transferred, unconscious, to the ICU. The doctor left the room with a grim, hopeless expression. I asked my husband to tell our children that ‘Omar was in a bad state, so the news of his death wouldn’t shock them. I went home, hoping that the next day I’d come and find ‘Omar awake and in a better condition. The next day, I came to the hospital around midday and found 'Omar in the same state. The doctors told me he could maybe wake up in two days. We were constantly on edge, afraid of any phone call that might announce his passing. On Tuesday, 24 August 2021, at 9:00 A.M., I got a call from the hospital asking me to come and be present while ‘Omar underwent a CT. I went happily, because I thought it meant there was good news about his condition and that he’d woken up. But the tests showed there was no blood flow to the brain and that ‘Omar was in a state of clinical death. I collapsed to the floor and prayed to Allah. On Saturday, 28 August 2021, at around 1:00 A.M., we were informed that Omar had passed away. I went back to the hospital to say goodbye to him and hug him after he was disconnected from the machines. I hugged him, kissed him and touched his little body as I cried. I didn’t shed tears, but my heart wept. I went home without ‘Omar, forever. ‘Omar was the pillar of our home. He was the living spirit of the house, and suddenly, we lost him. He was my pampered baby, and we were very close. He only managed to attend four days of ninth grade before he was injured. In my heart, he’s still with us in the house, and his soul doesn’t leave me for a moment. When we eat, I look at his chair and say to myself that he’s still with us. My daughter Malek (6) asks where he is, and I say he’s gone to heaven.

28 October 2021