“The Current Israeli Government Feels It Can Do Anything”

An Israeli human rights lawyer on the IDF’s lax live-fire rules, and how the government gets away with it.

Palestinian demonstrators run for cover from Israeli fire and tear gas during a protest against U.S. embassy move to Jerusalem and ahead of the 70th anniversary of Nakba, at the Israel-Gaza border in the southern Gaza Strip May 14, 2018.
Palestinian demonstrators run for cover from Israeli fire and tear gas during a protest against the U.S. Embassy’s move to Jerusalem, and ahead of the 70th anniversary of nakba, at the Israel-Gaza border in the southern Gaza Strip on Monday. Ibraheem Abu Mustafa/Reuters

On Monday, as the United States Embassy was moved to Jerusalem amid celebrations of Israel’s 70th birthday, at least 58 Palestinians were killed, and thousands were wounded, in the Gaza Strip. Since the end of March, protesters have been trying to breach the fence separating Gaza and Israel; the combination of the embassy move, the birthday, and the 70th anniversary, recognized on Tuesday, of the nakba (catastrophe), when thousands of Palestinians were expelled from their homes, has only intensified the violence. (The White House blamed Hamas for the deaths; human rights organizations have faulted Israel’s “live fire” tactics.)

To discuss what all this means, I spoke by phone with Michael Sfard, one of Israel’s leading human rights lawyers and the author of The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights. During the course of our conversation, which has been edited and condensed for clarity, we discussed what Israel could be doing to ensure more safety for protestors, how the Trump administration is exacerbating the situation, and whether this is the most extreme government in Israel’s history.

Isaac Chotiner: What is your biggest concern about the events in Gaza over the past 24 hours?

Michael Sfard: We—the human rights community in Israel—have been concerned and we issued warnings that the open-fire regulations, or what we know about the open-fire regulations, allow the use of lethal force against unarmed civilians who do not pose an imminent danger at the time they are being targeted. And that resulted, and will continue to result, in unwarranted killings and injuries. 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. And that is a terrible thing.

What is it about the regulations that you think are most flawed?

We know they include at least two permits to allow force that could be potentially lethal against individuals who do not pose imminent danger to lives at the time they are being targeted. One is individuals who are considered by the army as principal “agitators” or principal demonstrators, whatever that means. And if some conditions are met, they can be targeted. We know that in the list of conditions that have to be met, we know there is no demand that they present imminent danger, which is a departure. That is a deviation from the laws of use of force against civilians.

And the second deals with individuals who cross a certain line of distance toward the Gaza border fence and damage it. And again, damaging the border fence is an offense and it is an attack launched against a military installation. But it is not a capital-punishment offense, and it can and should be dealt with by nonlethal means. And unfortunately, what we see and what we know from statements from both generals and ministers, there is a permit to shoot to injure in these cases. Even if the intent is not to kill, but to injure or to stop, the legal implication of using lethal force, or force that potentially could be lethal, is enough for me to conclude that this is illegal and a grave violation of international law.

Let me put it in a sound bite: 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.

What do you say to people who argue that the protesters were trying to storm into Israel and some sort of force is the only appropriate response?

I accept, for the sake of argument, that this is what the protesters are trying to do. I still think that this attempt can be met with nonlethal force, with crowd-dispersement means. The IDF and the Israeli border police have ample nonlethal tools that can and should be used with demonstrators and rioters who storm the border fence. Live ammunition is the last resort—when there is danger to life, not anything else.

Do you think this Israeli government is particularly dismissive of human rights concerns compared to its predecessors?

There is no question about it, yes. The current Israeli government, given the uncritical backing of the American administration, feels that it can do anything. The prime minister can oversee the killing of [58] people and still call it a good day for peace, as he did at the opening of the American Embassy in Jerusalem. The current government is the most right-wing, nationalistic government Israel has ever had in 70 years of its existence. Some of its coalition members hold views, a worldview that I would even call racist and definitely undemocratic and illiberal, and I don’t think there has been any other government in the past that was as dismissive of the human rights of Palestinians and of dissenting voices in Israeli society as this government.

In this government, the process of peeling off democratic principles has accelerated to the degree that it is difficult to say today that Israel is an open and democratic society.

Such as? What principles?

Such as official incitement, governmental incitement against individuals and NGOs who are critical of governmental policy; legislation that is meant to curb political freedom of speech and impose sanctions on political rivals; the attempt to shut down the ability of dissenting elements to find funding; and most viciously, the incitement against the Arab minority in Israel, which was not something done by some peripheral member of Parliament, but by the prime minister himself and the minister of defense, who are both engaging in a politics of hatred against the minority.

You mentioned the American government’s willingness to go along with Israeli policy and encourage certain Israeli behavior. How important do you think that is to what is going on right now?

America today is the biggest enabler of what is going on. I think that a more critical administration, one that the Israeli government did not take for granted in its support for any use of force, would create a reality in which the government would curb itself. What we are seeing now is that the only reason for the government to stop doing even worse [things] than it does is internal. It doesn’t come from abroad. The weakness of the EU at the moment with Brexit and the refugee crisis, coupled with the blind Trump support for anything we do, creates a feeling of impunity that leads to a show of force like we saw yesterday.

What steps should Hamas and Israel both be taking right now?

Well, of course I would like to see Israeli forces adhere to international laws of the use of force and announce that they will not target individuals who are not directly and immediately endangering the lives of people. And Hamas: I don’t know exactly what is happening behind the scenes in Gaza where these demonstrations are, and whether this is a grassroots thing or orchestrated by Hamas. Hamas has a lot to account for, both in the sense of the means of its waging of its war with Israel, in its targeting of civilians with rockets and with suicide bombers and so on. Hamas has a lot to answer to, and one day Palestinian society will have to reflect on the way some of its militant groups have waged their war. It will also have to account and answer for what they did to their own people, if indeed they sent them knowingly to the front lines knowing that they would endanger the lives of women and children and innocent men.

It’s a very naïve answer, but I would hope Hamas would care for its own people and for their own lives enough not to push them toward the killing zone.