This article was first crossposted in July 2018.
Since the overwhelmingly nonviolent demonstrations in Gaza began on March 30, 2018, the international community has strongly condemned Israel’s armed attacks.A UN General Assembly resolution “deplore[d] the use of any excessive, disproportionate and indiscriminate force by the Israeli forces against Palestinian civilians,” while the UN Human Rights Council denounced Israel’s “disproportionate and indiscriminate use of force.” After Israeli snipers killed Razan al-Najjar, a twenty-one-year-old unarmed Palestinian paramedic, the UN special coordinator for the Middle East peace process warned Israel that it “needs to calibrate its use of force.” In a devastating report, Human Rights Watch concluded that “Israeli forces’ repeated use of lethal force in the Gaza Strip … against demonstrators who posed no imminent threat to life may amount to war crimes.”
Welcome as these condemnations are, the question nonetheless remains whether they go far enough. Simply put, does Israel have the right to use any force under any circumstances against the people of Gaza?
The current legal debate has focused on a pair of interrelated questions:
- Did Israeli snipers resort to “excessive” or “disproportionate” force against demonstrators (as critics allege), or was the amount of force they deployed necessary to prevent protesters from breaching the perimeter fence (as Israel alleges)?
- Is Israel’s conduct toward the Gaza protests governed by human rights law (as critics allege) or by international humanitarian law (as Israel alleges)? International humanitarian law applies in situations of armed conflict, whereas human rights law regulates domestic law enforcement. The difference matters, as human rights law imposes more stringent constraints on the use of force.
All parties to both these controversies proceed from a common premise: that Israel has the right to use force in order to prevent Gazans from breaching the fence. The dispute comes down to: how much? Critics who allege “disproportionate” or “excessive” force tacitly legitimize Israel’s use of “proportionate” or “moderate” force, while those who insist upon the applicability of human rights law acknowledge that Israel’s resort to force is legitimate if demonstrators pose an “imminent threat” to a sniper’s life.
This presumption holds even at the most critical pole of the debate on Gaza.