A Year of Gaza’s Marches of Return: War Crimes and Crimes against Humanity Targeting Protected Groups
The independent international commission of inquiry on the protests in the Occupied Palestinian Territory, including East Jerusalem (OPT), recently released its report on possible international crimes committed by Israel within the context of the ‘Great March of Return’. The commission investigated the killing of 189 and maiming of 6000 Palestinians and paid special attention to protected groups, who are owed higher protection under international humanitarian law, such as children, persons with disabilities, journalists, and paramedics. The report found ‘reasonable grounds’ that international crimes, mainly crimes against humanity and war crimes, were committed against the Palestinian civilian population and even requested the United Nations High Commissioner of Human Rights to refer its findings to the Office of the Prosecutor of the International Criminal Court, where Palestine is currently under preliminary investigation.
The commission found that Israeli soldiers, in violation of international humanitarian law, intentionally shot and killed 35 Palestinian children, three paramedics, two journalists, and five persons with disabilities, who posed no imminent threat to soldiers. In an armed conflict, intentionally killing civilians who are not directly participating in the hostilities is a war crime under Article 8 of the Rome Statute. In the same vein, the commission also found serious human rights violations, including murder and other inhumane acts that inflict great suffering and serious injury on the Palestinian civilian population in violation of right to life, freedom of expression, and freedom of peaceful assembly. If such violations are committed in the context of widespread and systematic attacks against the civilian population and in pursuant of State policies, they amount to crimes against humanity under Article 7 of the Rome Statute.
The commission further contended that the protests are ‘civilian in nature’ and found no evidence that the protests are combative or a military campaign. Unlike the Israeli Supreme Court ruling that the protests must be dealt with under the ‘active hostilities framework’, the commission stipulated that the normative framework for the use of force against the protestors is the ‘law enforcement’ paradigm that is based primarily on human rights law. However, the rules of international humanitarian law, mainly the principles of distinction, proportionality, and precaution, continue to operate as lex specialis.
Essentially rejecting the aforementioned court ruling which propounded that targeting members of armed groups is lawful, the commission concluded that in the absence of arms, targeting individuals merely on the basis of their ‘membership … and not on their conduct at the time’ is impermissible and unlawful. It further rejected that Court’s classification of civilians as ‘main inciters’ which, according to the commission, is a category that does not exist in international law and undermines the threshold of imminent threat.
By corollary, the commission contended that Israeli forces can resort to lethal force only in cases of imminent threat and self-defense. Relying on the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,the commission asserted that a threat is deemed imminent when an ‘attacker … have no remaining preparatory steps and be in sufficient geographic proximity…should be understood to mean a matter of seconds, not hours’. Importantly, by pushing this legal analysis, the report renders Israeli use of lethal force disproportionate and unnecessary, therefore impermissible.
Most importantly, the report gives rise to state responsibility on the part of Israel, the Occupying Power. It reiterated that Israel is obliged, under international law, to investigate and prosecute international crimes committed by either those who employed the unlawful force or those who drafted and approved the Rules of Engagement. The commission also reminded Israel that victims are entitled to remedy, access to justice, reparation, and guarantee of non-repetition.
The end of this month will mark the first anniversary of the ‘Great March of Return’ protests that call for the end of 11 year Israeli blockade and the right of Palestinians to return to their ancestral homes. All indications point to the continued momentum of the protests, and therefore, the recommendations of the commission are of paramount importance for the protection of the rights of the Palestinian people.