Jerusalem Under Barak - Part 3
 
January 2001
 
(This report is published by the Palestinian Society for the Protection of Human Rights and the Environment.  It is a non-governmental organization dedicated to preserving human rights through legal advocacy.  It is affiliate to the International Commission of Jurists (ICJ), Fédération Internationale des Ligues de Droits de l’Homme (FIDH), World Organization Against Torture (OMCT) and Member of the Euro- Mediterranean Human Rights Network).

This is our third and final Brief looking at human rights violations in East Jerusalem since Ehud Barak came to power. This Brief takes as its foil, the violent incidents that occurred on the Haram al Sharif on the 29 September 2000 and sets the incident within the context of international humanitarian and human rights law.

The Al-Aqsa Shootings

It is widely believed that the recent disturbances in the Occupied Palestinian Territories was sparked by the provocative visit to the Haram al Sharif by Likud head Ariel Sharon.[1] On the day of the visit, the 28 September 2000, initial disturbances led to the injury of five Palestinian civilians. On the 29 September 2000, according to information garnered by LAW, large numbers of Israeli security personnel were deployed from the early morning in the vicinity of the Haram compound. Israeli security personnel established a number of makeshift checkpoints around the compound and a number of them were positioned on the rooftops of adjacent houses.

The disturbances on Friday 29 September started just before the end of afternoon prayers. In response to Palestinian protests at Ariel Sharon’s visit the previous day, Israeli security personnel initially fired rubber coated metal bullets into the crowd of worshippers but eventually used live ammunition. Four people were killed as a result. Eyewitnesses reporting that another individual was shot dead outside East Jerusalem’s al Maqased hospital after Israeli security forces fired on a group of stone throwing Palestinian demonstrators. In the incidents in question, firing was often  excessive and indiscriminate, which led to the deaths cited above. Those killed on the 29 September were: 

Haithem Awilah Skafi from Thuri 

Nizar Ibrahim Shawiki from Silwan in Jerusalem

Osama Mohamed Jidah from Jerusalem’s Old City

Yehyah Hasdan Farraj from Beit Safafa in Jerusalem

Bilal Afaneh from Abu Dis

It is estimated that 220 people were injured in the incidents on 29 September in Jerusalem with an estimated 32 people sustaining serious injuries. It should be noted that on the 29 September 2000 not one shot was fired from the Haram compound at Israeli security officers and most officers were suitably protected by riot gear to ward of injuries that could be inflicted by stones or Molotov cocktails. It is inconceivable that the actions of the demonstrators warranted such a lethal, excessive and indiscriminate response. Shooting at civilian protestors is permissible only in life threatening circumstances. Any action under taken by the security forces must be proportionate to the level of threat and must in no way be indiscriminate. The events that unfolded on the 29 September seem to indicate that the Israeli security forces failed to take these stipulations into account.[2]

The Alqsa Shootings: The Legal Context

The events in the Haram compound raise many questions regarding the obligations and responsibilities derived from international legal instruments, which govern the conduct of an Occupying Power in relation to a civilian population. Central and of utmost importance to any relation between the Israeli security forces and the Palestinian civilian population is the protection of the right to life. The recent events have illustrated that Israel, the Occupying Power, has clearly acted outside the permitted legal framework.

The main international obligations aimed at the protection of the right to life the Israeli security forces should have complied with are set down in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Fourth Geneva Convention. These legal instruments must be seen in close conjunction with and inseparable from the internationally recognized guidelines for the use of force. Both the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate standards that are intended to minimize the risk to life and limb.

In both international humanitarian and human rights law, the right to life is guaranteed the highest degree of protection. The Universal Declaration of Human Rights unequivocally states that “everyone has the right to life, liberty and security of person,”[3] and the International Covenant on Civil and Political Rights states, “no one shall be arbitrarily deprived of his life.”[4] Moreover, every human rights instrument provides that the right to life and security of the individual does not allow for any derogation,[5] and must be upheld and respected without exception in all circumstances, including times of emergency and internal unrest.[6]

The obligation to safeguard the rights of the occupied civilian population is at the very core of the protective objectives of the relevant provisions of the Fourth Geneva Convention. The Convention states, “protected persons are entitled to respect for their persons”[7], which covers all the rights which are inseparable from the human being by the very fact of his or her existence, especially the right to life and physical integrity. The right to physical integrity prohibits acts impairing individual life or health which is reinforced by the stipulation that prohibits states “from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands…not only to murder…but also to any other measures of brutality whether applied by civilian or military agents.” [8] Israel, the Occupying Power, is obliged to respect the obligations and restraints of international humanitarian law and prevent and abstain from any action that endangers the right to life and physical integrity of protected persons. As those killed on the 29 September in East Jerusalem did not pose an immanent life threatening danger to members of the Israeli security forces, these were willful killings, which is a grave breach of the Fourth Geneva Convention. Grave breaches of the Convention are set out in articles 146 and 147. Grave breaches are war crimes, and the Convention provides for the prosecution of those who commit this level of violation of the laws and costumes of war. The rules of the laws and costumes of war are valid even in circumstances of prolonged occupation.

The International Covenant on Civil and Political Rights stipulates that the right to life “shall be protected by law.[9]” With regards to the use of force and firearms by law enforcement officials, the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide the main principles and obligations aimed at the protection of the right to life.[10] Whenever force is used, the principle of proportionality must be strictly applied without exception. The restrictions of the principle of proportionality oblige every law enforcement official to “act in proportion to the seriousness of the offence and the legitimate objective to be achieved,”[11] and “use force only when strictly necessary.”[12] Generally, in the performance of their duty, law enforcement officials are always required to “respect and protect human dignity and maintain and uphold the human rights of all persons.”[13]

The use of force and firearms by law enforcement officials must be seen as exceptional. Accordingly, governments and law enforcement agencies “should develop non-lethal incapacitating weapons for use in appropriate situations”, in order to “increasingly restrain the application of means capable of causing death or injury to persons.”[14] In the case of dispersing violent assemblies, law enforcement officials “may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary.”[15] It is inherent in the high degree of responsibility required by law enforcement officials to protect the right to life that non-violent means must be applied before resorting to the use of force and firearms can be justified.[16]

The use of firearms is regarded as an extreme measure. This implies that every effort must be made to exclude the use of firearms. Thus, firearms shall only be used “in self-defense or defense against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life…and only when less extreme means are insufficient. Furthermore, “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”[17]

If the right to self-defense is invoked, two concepts, necessity and proportionality are to be considered. Necessity means that no choice of means and no moment for deliberation is left. Moreover, before self-defense becomes legitimate, the action taken in pursuance must also be proportional, implying that it must not be unreasonable or excessive, “since the act, justified by the necessity of self-defense must be limited by that necessity, and kept clearly within it.”[18]

The use of fire arms by the Israeli police is regulated by police Directive 06.02.14. The Directive states that “the use of firearms is permitted where there is an actual fear of immediate injury to the life or body of the police officer or others, and no other way exists to prevent injury…The harm that may be caused shall be weighed against the damage intended to be prevented.” The Directive also explicitly states that when dispersing riots, police units are only allowed to fire in the air. It is clear that the Israeli security forces did not adhere to their own open fire regulations when dealing with the recent disturbances involving Palestinian civilians.

Moreover, whenever the use of force or firearms are applied to disperse demonstrations, the risk of endangering uninvolved persons must be minimized. This is a simple conclusion a majori ad minus, confirmed by the principle stating that even in the case of non-lethal incapacitating weapons, their development and deployment “should be carefully evaluated in order to minimize the risk of endangering uninvolved persons.”[19] This clearly indicates that any indiscriminate use of force or firearms is prohibited.[20]