The Distortion of International Law in Gaza
The Israeli organization B’Tselem recently called for Israeli soldiers to disobey orders on the Gaza frontier and refrain from using live fire against attempted infiltration and terrorist acts. A formal “opinion” published by the Israel Democracy Institute lends support to B’Tselem. Another organization filed a petition with the Israeli Supreme Court, alleging that the IDF rules of engagement permitting the use of live fire on the Gaza border are illegal under international law.
These three examples and others like them all share a similar premise: international law permits the use of lethal force only as a response to direct mortal peril or against armed targets. This categorical claim represents a radical and distorted interpretation of international law that directly contradicts basic concepts in the laws of armed conflict.
International law is of course ambiguous and complex, yet certain principles are easy enough to define. So what does the law actually say?
The law distinguishes between civilians and combatants. While enemy combatants can be targeted with very few limitations, civilians are protected by an array of provisions and restrictions. However, the law withdraws these protections and in effect defines a civilian as a “combatant” for all intents and purposes when a civilian engages in “direct participation in hostilities.”
This is a rather generic and obscure term, but its outcome is clear: a civilian who directly participates in hostilities loses their legal protection, becomes an enemy “combatant,” and thus serves as a legitimate military target.
Luckily, the International Committee of the Red Cross published a useful guide summarizing many aspects of this critical distinction with the catchy title of “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.” One would not suspect the Red Cross to be a lenient interpreter of the laws of war or easily relinquishing civilian wartime protections.
The Guidance details the circumstances required to consider a civilian as “directly participating in hostilities.” Indeed, if a civilian attempts to cause death or injury to a protected group (such as other civilians and civilian targets) they will obviously lose their status and protection as a civilian. Yet this is not an exclusive condition. The laws of war consider a civilian to be directly participating in hostilities when engaging in activity “adversely affecting the military operations or military capacity of a party to the conflict.”
Death or injury are not required to fulfil this condition, and the Guidance spells this out explicitly:
In this context, military harm should be interpreted as encompassing not only the infliction of death, injury, or destruction on military personnel and objects, but essentially any consequence adversely affecting the military operations or military capacity of a party to the conflict.
This definition includes a wide variety of scenarios. For instance, withdrawal of civilian protection is allowed “unarmed activities restricting or disturbing deployments, logistics, and communications” take place.
This seems a far cry from the narrow “armed only” interpretation by B’Tselem.
The reader is welcome to examine the original text directly:
For example, beyond the killing and wounding of military personnel and the causation of physical or functional damage to military objects, the military operations or military capacity of a party to the conflict can be adversely affected by sabotage and other armed or unarmed activities restricting or disturbing deployments, logistics, and communications. Adverse effects may also arise from capturing or otherwise establishing or exercising control over military personnel, objects, and territory to the detriment of the adversary. For instance, denying the adversary the military use of certain objects, equipment, and territory … would reach the required threshold of harm.
In all the above scenarios, the law considers a civilian engaging in such activities as a combatant for all intents and purposes, and immediately revokes the protections afforded to him or her. As such, the combatant may be targeted as any enemy soldier, including with the use of lethal force.
There are further conditions for a civilian to be considered a combatant, which are complicated but no less broad than the conditions above, and one can debate whether and how they apply to the situation in Gaza. Ultimately though, the law is clear: Being armed with a weapon is not an exclusive or necessary condition for targeting civilians. Posing a danger to human life is not an exclusive or necessary condition for targeting civilians.
It would seem that the above passages are sufficient to demonstrate just how false and absurd B’Tselem’s claim is, according to which any order to fire upon civilians who cross the border is “illegal.”
Make no mistake: I do not argue that firing upon any civilians who cross any security border is always permissible. In effect, B’Tselem’s claim is equally absurd as one that says “it is always permissible to use lethal force against any civilian who approaches the fence.” Both claims are bizarre and directly contradict international law.
Under the current circumstances, is a Gaza civilian who breaches the security fence directly participating in hostilities? The answer probably depends on the details of each individual case. One could certainly debate under which circumstances such activity (i.e. breaching the fence) would constitute “adversely affecting military operations or military capacity” (and therefore direct participation in hostilities). But it seems that B’Tselem would rather deny any possibility of such a debate in the first place.
B’Tselem’s statement portraying law and reality in black and white — and their ensuing call for soldiers to disobey orders — is severely misleading, distorts the legal reality, and corrupts related public discourse.
B’Tselem and their ilk are attempting to twist international law without conceding the complexity of the applicable rules and while preventing productive debate. In this instance, B’Tselem has demonstrated the degree of fanaticism and dogmatism in which they are immersed. Their statements lead to one inevitable conclusion: B’Tselem and the Israel Democracy Institute have no interest in international law, but rather prefer promoting a radical agenda at the expense of intellectual honesty and public safety.
Yonatan (Johnny) Green was born and raised in Israel to parents from the US and UK. He is a project manager for a leading Israeli technology company and a licensed attorney in both Israel and the State of New York.