Catherine Connolly is a Teaching Fellow at the School of Law and Government in Dublin City University, where she recently submitted her PhD thesis in international law and politics. Catherine’s research lies at the intersection of international security and international law. Her doctoral thesis addressed the lawfulness of the US targeted killing programme and the use of armed drones, as well as examining questions of US national identity and security policy. Significant aspects of Catherine’s doctoral research can be read in the Journal of Conflict and Security Law.
A fully referenced article is available here.
In 2018, Israeli security forces killed 290 Palestinians, 55 of whom were under the age of 18. The majority of these individuals were killed as a result of Israel’s longstanding ‘open-fire policy’. According to the Israeli NGO B’Tselem, Israel’s open-fire policy specifies that:
live ammunition may be fired in two situations only. First, shooting to kill is permitted when members of the security forces or other individuals are in life-threatening danger. Even then, the use of firearms is permitted only if there is no other way to avert the danger and only against the assailants themselves. Second, members of the security forces may only shoot at a person’s legs, as the last phase in an attempt to arrest the person in question, only after they have given warning and fired in the air, and only when no one else is in danger of getting hurt.
Having been a witness to the shooting of a Palestinian teenager in August 2017, I can confirm the veracity of reports which state that the above stipulations are routinely and recklessly ignored by Israeli security forces. Furthermore, the Israeli security forces’ official open-fire policy has a clear relationship with Israel’s unofficial ‘shoot-to-kill’ policy. This ‘shoot-to-kill’ policy is supported and encouraged by many leading political figures in Israel, despite its blatant illegality under international human rights law. Equally concerning is the almost complete lack of accountability for Palestinians killed by Israeli security forces, whether as a result of the open-fire policy or otherwise.
The Right to Life under International Law
Israel’s unofficial ‘shoot-to-kill’ allows security forces to use lethal force against any individual considered a ‘danger to police and civilians’, rather than requiring that security forces use nonlethal force against such individuals. Such policy is in direct contravention of Article 6 of the International Convention on Civil and Political Rights (ICCPR). Article 6 of the ICCPR recognises and protects the right to life of all human beings: ‘[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’
It is also noted in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials that non-violent means should be used, as far as possible, before force or firearms are used in a law-enforcement operation. This is the well-established international human rights law principle of use of force as a last resort. When attempting, for example, to prevent an individual from committing a crime, non-violent means must be the first option employed; force should always be at the minimum level possible if force is used, and lethal force should only be used when strictly unavoidable. This is further underscored by General comment Number 36 on ICCPR Article 6, which states the following:
The use of potentially lethal force for law-enforcement purposes is an extreme measure, which should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat… The intentional taking of life by any means is permissible only if it is strictly necessary in order to protect life from an imminent threat.
General comment Number 36 further notes that ‘all operations of law enforcement officials should comply with relevant international standards, including the Code of Conduct for Law Enforcement and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.’
As discussed in the 2018 report of the Office of the UN High Commissioner for Human Rights (OHCHR) on the situation in Palestine, in many of the instances monitored by that office, ‘it appeared that the use of firearms was not limited to a measure of last resort in situations posing imminent threat to life or serious injury, as required by international law.’ While Israel continues to deny its human rights responsibilities in the Occupied Palestinian Territories (OPT), its human rights obligations to the OPT under the ICCPR have been strenuously affirmed by numerous bodies, including by the UN General Assembly itself.
Unlawful killings and the Accountability Vacuum
Accountability concerns are another major issue with regard to such incidents. For example, 169 Palestinians were killed between September 2015 and October 2016 by Israeli security forces following an attack or alleged attack. According to the 2016 ‘Report of the Secretary General on the Human rights situation in the Occupied Palestinian Territory, including East Jerusalem’, as of the 31st October of that year, only two of those 169 cases had led to an indictment and subsequent conviction. One such conviction was that of Elor Azaria, an Israeli soldier who shot Palestinian Abdel Fatah-al-Sharif in the head while he lay wounded on the street in Hebron in March 2016. Azaria was convicted of manslaughter in February 2017 and sentenced to 14 months in prison, amidst protests from Israeli politicians and civilians that he was convicted at all. Azaria was released after serving only 9 months of his 14-month sentence. This lack of accountability for the unlawful killing of Palestinian civilians is made all the more concerning by recent reports indicating that many such incidents are not investigated at all. In its 2018 report, the OHCHR notes Israel’s ‘consistent failure to investigate and prosecute’ those responsible for unlawful killings and excessive uses of force – a failure which is indicative of ‘a permissive policy towards such practices.’
Speaking on General comment Number 36 in February 2019, Christof Heyns and Youvel Shany note that a failure to investigate a potentially arbitrary deprivation of life, even in an armed conflict situation, could render that deprivation of life unlawful. Furthermore, General comment Number 36 states that ‘investigations and prosecutions of potentially unlawful deprivations of life should be undertaken in accordance with relevant international standards…' It further specifies that violations of article 6 should not be addressed ‘merely through administrative or disciplinary measures’, but through a criminal investigation. That Israel is failing its international obligations under Article 6, both in respect to the right to life in the first instance, and in respect to its duty to investigate unlawful or arbitrary deprivations of life in the second instance, cannot be doubted.
However, Israel’s occupation of Palestine would not be rendered any more just even if all uses of force by Israeli security forces were found to be lawful, and if every killing of a Palestinian was found not to amount to an arbitrary deprivation of life. While respect for and compliance with the relevant rules of international human rights law must not only be encouraged but demanded, such compliance still fails to address the ignominy of the occupation’s very existence. Even if Israel’s conduct was to comply with every relevant rule of international human rights law, this would not address Israel’s continued, unabated and illegal expansion into Palestinian territory. Nor would it address the original fact of indefinite occupation which, in and of itself, ‘necessarily constitutes an assault on both sovereign integrity and fundamental human rights.’
In 1991, the American poet and essayist Adrienne Rich wrote that war is the ‘absolute failure of imagination.’ So too is Israel’s occupation of Palestine. With the occupation now in its 52nd year, it is well past time for Israel to imagine a new way of being.
Is mise le meas,