Massacre will add to calls for Israelis to be prosecuted in the International Criminal Court, says legal experts
LONDON - Israel has been accused of breaching international law over the killing of more than 60 protesters in Gaza, but Israeli officials and soldiers are unlikely to face a UN investigation, international lawyers have said.
Senior UN officials have condemned the killings as an “outrageous human rights violation” and said it appeared that protesters approaching the fence were liable to be shot and killed by Israeli forces without warning.
“Lethal force may only be used as a measure of last, not first, resort,” said Rupert Colville, a spokesman for the UN high commissioner for human rights, on Tuesday
He told reporters in Geneva: “The mere fact of approaching a fence is not a lethal, life-threatening act, so that does not warrant being shot. It seems that anyone is liable to be shot dead.”
“How much threat can a double amputee be making from the other side of a large fortified fence,” he asked, in reference to an image widely shared on social media of a report that a wheelchair user was killed during the violence.
Israeli soldiers have killed 61 Palestinians on the Gaza perimeter as they protested about the right of return and the US opening of its embassy in Jerusalem, which comes with an insistence that Jerusalem is Israel's capital.
Gaza is occupied territory
Gaza is an occupied territory under the Fourth Geneva Convention which regulates the protection of civilians, Professor Nick Grief, a member of Kent Law School and barrister at the bar from Doughty Street Chambers, told Middle East Eye.
He said: “As the occupying power, Israel has a legal obligation to protect the people of Gaza, not to endanger or worse still take their lives.
"Although Israel has the right of self-defence, using lethal force in the absence of an immediate threat to life is wholly excessive, neither necessary nor proportionate, and thus a flagrant breach of international law.
"In particular, it violates Article 6(1) of the International Covenant on Civil and Political Rights (which the International Court of Justice has confirmed applies in the Occupied Palestinian Territory) which declares that 'No one shall be arbitrarily deprived of his life'.
"Furthermore, 'wilful killing' and 'wilfully causing great suffering or serious injury to body or health' are grave breaches of the Fourth Geneva Convention - war crimes."
READ MORE ►
Grief added that the violence in Gaza “underlines” the importance of a current preliminary investigation being conducted by the Office of the Prosecutor at the International Criminal Court (ICC).
He also said that it has “raised the question of international law’s effectiveness when powerful states refuse to comply”.
Since January 2015, the International Criminal Court (ICC) has been officially examining all Israeli uses of force, and according to Michael Sfard, a legal advisor for the Yesh Din rights group, recent Israeli actions will fall foul of international law.
“Let me put it in a sound bite: the international law allows endangering human life in order to protect human life, not any other thing. And what we are seeing here is a deviation from that very simple, very important principle,” he told Slate.
He added: “We haven’t had any inquiry or investigation into the killings and the injuries yesterday, but it seems very likely, given the open-fire regulations and given the experience of past weeks, that many lives could have been saved without endangering the security of Israel and Israelis."
Targeting of journalists
Campaign group Reporters Without Borders (RSF) called on Tuesday for the ICC to add the deaths in Gaza to the ongoing investigation into war crimes by the Israeli military.
The group said it had submitted evidence to ICC chief prosecutor Fatou Bensouda over its concerns that direct shots were fired by Israeli soldiers at some 20 Palestinian journalists.
“The Israeli authorities could not have been unaware of the presence of journalists among the civilian demonstrators, and therefore failed in the elementary duty of precaution and differentiation when targeting these protected persons with live rounds,” RSF secretary-general Christophe Deloire said.
“These deliberate and repeated violations of international humanitarian law constitute war crimes. While referring them to the International Criminal Court, RSF calls on the Israeli authorities to strictly respect international law.”
In London, shadow foreign secretary Emily Thornberry called on the UK to draft a statement to the UN Security Council calling for an "urgent, independent investigation into the violence in Gaza, to assess whether international laws have been broken and to hold those responsible to account".
Israel Defence Forces are acting very very well, acting by the open-fire protocols and it is all within the boundaries of judiciary and law.
- Geoffrey Corn, retired US army general
Speaking in parliament, she said there had been an apparent “calculated and deliberate policy to kill and maim unarmed protesters, who posed no threat to the forces on the Gaza border.
“Many of them shot in the back. Many of them shot hundreds of metres from the border, and many of them children.”
But the prospect of an international investigation under the UN Security Council seemed remote on Tuesday, after the US ambassador to the UN, Nikki Haley, threw Washington’s weight behind Israel, saying no country would show the “restraint” that Israel had.
Other legal experts though have also said a legal case against Israel is far from clear.
Geoffrey Corn, a retired US Army senior lawyer and professor at South Texas College of Law, told MEE: “It looks bad, but from a military law or international law perspective, I think this is another example of the real danger of drawing conclusive judgement based only on images.”
Corn added that it was not clear if all the dead Palestinian were protesters or whether some of them were “Hamas operatives cloaked as civilians”, and said it was not clear if international media had “full access” to the Gaza side of the fence.
But, he added, the Israeli army needs to be taking “every considerable, plausible less than lethal measure, to ensure that the resort to deadly force is a last resort".
And asked during an interview if Israel should be worried about facing censure at ICC in the Hague, Israeli Justice Minister Ayelet Shaked said that the troops had done “nothing illegal” in the face of demonstrators’ violence.
“Israel Defence Forces are acting very very well, acting by the open-fire protocols and it is all within the boundaries of judiciary and law,” Shaked told Army Radio.
She added: “Hamas is sacrificing its people for political purposes, but the IDF can handle the situation. I hope they got the message yesterday and things don’t get out of control”.