In the context of the imminent illegal dispossession and forcible transfer of Palestinian families in Sheikh Jarrah and Silwan, occupied East Jerusalem, it has been documented that Israel’s forces have been using excessive force against peaceful Palestinian demonstrators and also targeted Palestinian Red Crescent Society (PRCS) personnel. This blog explores the applicable legal framework and consequences.
The PRCS is an organisation whose mission is to provide humanitarian assistance to Palestinians, particularly emergency medical services, and it is protected under international humanitarian law. As reported by the PRCS, from May 7th, 2021 onwards, a number of Palestinian demonstrators were targeted while peacefully protesting. As of May 15th, 2021, PRCS teams dealt with 553 cases in occupied East Jerusalem, while the total number of cases in the occupied West Bank reached 4,363, including 7 fatalities. According to PRCS reports, Palestinian demonstrators suffered from rubber-coated metal bullet wounds, live ammunition, tear gas inhalation and brutal beatings.
In addition, PRCS teams reported violations by Israel’s forces against their medical teams and vehicles. The PRCS was ‘targeted’ as tear gas canisters were fired and skunk water sprayed at their medics, volunteers and ambulances. Furthermore, Israel’s military forces impeded PRCS in their mission of providing medical assistance by preventing their access to the areas where injured Palestinian demonstrators were located, depriving them of urgently required medical aid.
The status of Palestinian demonstrators and applicable legal framework
It is vital to emphasise that Palestinian civilians in East Jerusalem and the rest of occupied Palestinian territory under Israeli military occupation are entitled to legal protections under both international humanitarian law and international human rights law.
In the context of demonstrations, Palestinians protesting in East Jerusalem and the West Bank cannot be deemed lawful military targets under international humanitarian law. Rather, their most fundamental rights and freedoms shall be safeguarded by the international human rights law framework that specifically protects basic rights such as the right to life, the prohibition on cruel and inhuman treatment, and the right to freedom of peaceful assembly and association.
Palestinians participating in protests are exercising their basic right to freedom of peaceful assembly and association, as well as their right to freedom of opinion and expression, as enshrined by the International Convention on Civil and Political Rights.
These rights, however, have been evidently violated due to the latest array of incidents by the Israeli military forces aimed at suppression of protests, leading to violations of the most essential human rights protections, including the right to life. Corroborating PRCS reports, Amnesty International reported – relying upon eyewitness testimonies as well as videos and photographs documented by Amnesty International researchers in East Jerusalem – that Israeli military forces repeatedly deployed ‘’disproportionate and unlawful force to disperse protesters during violent raids on al-Aqsa mosque and carried out unprovoked attacks on peaceful demonstrators in Sheikh Jarrah.’’ Further, the UN High Commissioner for Human Rights expressed concern regarding the use of force by Israeli military forces, in particular regarding their reported use of live ammunition in the West Bank.
In terms of the applicable legal framework governing Israel’s use of force against Palestinian demonstrators, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials is considered to be the authoritative statement of international rules governing use of force in law enforcement operations.
The UN Basic Principles breached in its application to Palestinian demonstrations
The three main principles governing use of force in the UN Basic Principles are necessity, proportionality and precaution.
In relation to the use of force, the UN Basic Principles provide that officials shall “apply non-violent means before resorting to the use of force and firearms,” and that “whenever the lawful use of force and firearms is unavoidable, officials shall: (a) exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; and (b) minimize damage and injury, and respect and preserve human life.”
In relation to the use of firearms, the UN Basic Principles provide that “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury… and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
And, in the context of the provision of medical aid, the UN Basic Principles provide that law enforcement officials must ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.
It is apparent that there is substantial cause to believe that Israel’s military forces failed to apply the minimum requirements provided by the UN Basic Principles in relation to its resort to use of force and firearms. Similarly, these basic standards appear to be breached by impeding an international humanitarian organisation in its provision of urgently required medical assistance for injured demonstrators.
In carrying out their law enforcement operations, every State, including Israel, may place restrictions on the human rights of population concerned if imposed for the purpose of protection of national security, public health or safety, public order or protection of the rights and freedoms of others. However, in terms of Palestinian demonstrations, they cannot be deemed as a threat on any of the above-mentioned grounds; quite contrary, the demonstrations represent an attempt to exercise basic rights of freedom of expression and protest whilst living under occupation.
Unlawful Treatment of Palestinian demonstrators and International Criminal Law
The Fourth Geneva Convention defines a grave breach of the Convention as a use of force, “if committed against persons or property protected by the present Convention… willfully causing great suffering or serious injury to body or health… not justified by military necessity and carried out unlawfully and wantonly.’’
The International Criminal Tribunal for the Former Yugoslavia held that this grave breach “constitutes an intentional act or omission which causes serious mental or physical suffering or injury, provided the requisite level of suffering or injury can be proven’’, and that acts have to be directed at a ‘’protected person’’.
Palestinians, as an occupied people, are ‘protected persons’ under Article 4 of the Fourth Geneva Convention, and accordingly “shall at all times be humanely treated,” as enshrined in Article 27 of the Convention.
The repeated, unwarranted and excessive use of force by Israel’s forces, contrary to such legal protections, would appear to qualify as potential war crime(s) under the Geneva Convention and the Rome Statute of the International Criminal Court.
Furthermore, in the light of the above-mentioned provision as established by the International Criminal Tribunal for the Former Yugoslavia, since omission falls within the scope of willfully causing great suffering or serious injury to body or health, the reported obstruction of medical assistance to wounded Palestinian demonstrators without apparent military necessity by Israel’s forces may be considered as an additional potential war crime.
Investigating the legality of use of force and further steps
Following the above initial analysis, it is reasonable and justified for there to be a criminal investigation as to whether the apparent unlawful resort to use of force and firearms against demonstrators by Israeli law enforcement officials constitute war crime(s), and who shall potentially incur individual criminal liability accordingly.
Israel’s authorities should conduct a comprehensive and thorough investigation into allegations of violations of international human rights law and international humanitarian law. Both the legality of the policies and the practices in terms of the potential incidents of excessive use of force require immediate investigation. The relevant authorities, however, have an appalling track-record in this regard.
It appears clear that the resulting ongoing violence is possible only through the implementation of policies of suppression of protest through excessive use of force and systemic impunity enjoyed by Israel’s forces. The final question then to be asked is: if Israel fails to investigate alleged war crimes, who will safeguard Palestinian lives and dignity?
[Please also see LPHR’s letter to the UK Foreign Secretary, with Amnesty UK and War on Want, on this issue]