State: Hamas admission invalidates NGOs’ petition

Due to Hamas’s admitted involvement in the Gaza border conflict, the High Court of Justice should dismiss a petition by human rights groups asking to declare the IDF’s rules of engagement there illegal, the state said on Thursday.

The petition was filed last month by Yesh Din – Volunteers for Human Rights, Adalah – The Legal Center for Arab Minority Rights in Israel, the Association for Civil Rights in Israel and other groups, asserting that the IDF’s rules had led to killing and wounding far too many Palestinians, over 100 have been killed to date, and that individual cases proved that war crimes were being committed.

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In a legal brief, including an update by OC IDF Operations Directorate Maj.-Gen. Nitzan Alon and signed by IDF International Law Department head Col. Eran Shamir-Borer, the state mentioned several points to prove its argument.

It noted the Hamas official who was interviewed on Palestinian radio this week admitting that 50 out of the 62 Palestinians killed by the IDF during Monday’s blowup on the border were members of Hamas.

Alon added that IDF intelligence has information to confirm that dozens of those 50 were not merely members of Hamas, but were military operatives.

The major-general gave new details about exact numbers of more dangerous incidents on the border coming from the Gaza side.

He said that on Monday there were at least four separate incidents of Hamas operatives opening fire on IDF border positions, including one major incident regarding which the IDF has already distributed video footage of eight Hamas operatives firing on an IDF position all at once.

Alon said that eight bombs were used against the IDF on Monday, as well as several more that were found lying nearby the next day.

He added that Palestinians sent 15 fire kites into Israeli territory, burning nearby fields.

His statement mentioned other similar violent actions by Gazans, though on a smaller scale, in some of the other confrontations in recent weeks.

Based on the violence, the idea that the IDF legal division and the Justice Ministry carefully ensure that the IDF’s rules of engagement follow international law, and the principle that courts should not try to second- guess complex war circumstances on the ground, the state said the petition should be dismissed.

ONE ISSUE the state did not specifically respond to was the human rights groups’ citation of a European Court of Human Rights 2008 ruling against Turkish-Cyprus for its rough and deadly handling of Greek-Cypriot protesters as a precedent for declaring the IDF’s conduct illegal.

The decision refers to a highly disputed 1996 incident in which a combination of Greek-Cypriot civilians, Turkish-Cypriot civilians and Turkish-Cypriot police came to blows, and according to some claims, led to opening fire.

One of the main claims which the Turkish-Cypriots made to defend the killing of one of the Greek-Cypriot protesters, aside from self-defense, was that their forces were acting to prevent a broader danger and riot and that the slain man was an organizer and inciter.

In some instances, the IDF and the state have appeared to argue that the danger of Gazans breaching the border fence and invading nearby villages could justify firing on some Gazans even if they did not necessarily represent an immediate danger.

Part of this justification has also been that particular persons were organizers or inciters, and the NGOs say that the Israeli High Court should take the 2008 European Court decision as guidance for rejecting the IDF’s rationale for allowing opening fire absent an immediate, specific danger.

It was unclear why the state did not reply to this argument, though at an April hearing before the High Court, the state’s general view was that there are no cases where other states have faced similar levels of violence and rioting on their border.

Earlier in the week, the NGOs also demanded that the High Court make its decision immediately, to avoid further Palestinian deaths, and appeared to upbraid the court for delaying its decision past Monday – the day that was correctly predicted to be the most deadly.

A court representative replied simply that the case was still pending and that the sides should wait for a decision.