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Published online by Cambridge University Press: 09 April 2019
In Yesh Din v. Chief of General Staff, IDF, the Israeli Supreme Court (Court) unanimously dismissed two petitions by six human rights NGOs who challenged the rules of engagement (RoE) governing Israel Defense Forces (IDF) activities in clashes near the fence separating the Gaza Strip and Israel between March and May 2018. The decision discusses several controversial international law issues relating to the use of force in response to cross-border mass demonstrations. In addition, it provides a closer look at the application of international law by a domestic court that is conscious of a potential International Criminal Court (ICC) investigation.
1 HCJ 3003/18 Yesh Din – Volunteers for Human Rights v. Chief of General Staff, IDF (May 24, 2018) (Isr.), at https://supreme.court.gov.il.
2 See, e.g., Amnesty International, Israel/OPT: Stop the Use of Lethal and Other Excessive Force and Investigate Deaths of Palestinian Protesters (Mar. 31, 2018).
3 International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Regarding the Worsening Situation in Gaza (Apr. 8, 2018), at https://www.icc-cpi.int/Pages/item.aspx?name=180408-otp-stat.
4 Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, para. 12, UN Doc. CCPR/C/GC/36 (Oct. 30, 2018).
5 HCJ 1971/15 Al-Masri v. The Chief Military Advocate General (July 7, 2017) (Isr.), at https://supreme.court.gov.il (mass demonstrations near the border between Lebanon and Israel).
6 International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009) [hereinafter Interpretive Guidance].
7 See Laurie Blank & Benjamin R. Farley, Determining When the Armed Conflict with Al-Qaeda Started, Just Security (Mar. 11, 2016), at https://www.justsecurity.org/29898/determining-armed-conflict-al-qaeda-started.
8 HCJ 769/02 Public Comm. Against Torture in Israel v. Gov't of Israel, para. 18, PD 62(1) 507 [2006] (Isr.). [hereinafter Targeted Killings case].
9 The State of Israel, The 2014 Gaza Conflict: Factual and Legal Aspects, at para. 233 (2015) [hereinafter Gaza Conflict Report].
10 See, e.g., Eliav Lieblich, Collectivizing Threat: An Analysis of Israel's Legal Claims for Resort to Force on the Gaza Border, Just Security (May 16, 2018), at https://www.justsecurity.org/56346/collectivizing-threat-analysis-israels-legal-claims-resort-force-gaza-border; Elena Chachko & Yuval Shany, The Supreme Court of Israel Dismisses a Petition Against Gaza Rules of Engagement, Lawfare (May 26, 2018), at https://www.lawfareblog.com/supreme-court-israel-dismisses-petition-against-gaza-rules-engagement.
11 Hannes Jöbstl, Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations, EJIL: Talk! (June 4, 2018), at https://www.ejiltalk.org/lost-between-law-enforcement-and-active-hostilities-a-first-glance-at-the-israeli-supreme-court-judgment-on-the-use-of-lethal-force-during-the-gaza-border-demonstrations.
12 See, e.g., Daniel Bethlehem, Self-Defense Against an Imminent or Actual Armed Attack by Non-state Actors, 106 AJIL 769 (2012).
13 Marty Lederman, The Egan Speech and the Bush Doctrine: Imminence, Necessity, and “First Use” in the Jus ad Bellum, Just Security (Apr. 11, 2016), at https://www.justsecurity.org/30522/egan-speech-bush-doctrine-imminence-necessity-first-use-jus-ad-bellum.
14 HCJ 5100/94 Public Committee Against Torture v. Israel 53(4) IsrSC 817, para. 34 to the Opinion of Chief Justice Barak (1999) (Isr.).
15 HCJ 9018/17 Tbeish v. Attorney General, para. 43 to the Lead Opinion of Justice Elron (Nov. 26, 2018) (Isr.), at https://supreme.court.gov.il.
16 Response of the Government, HCJ 3003/18 Yesh Din – Volunteers for Human Rights v. Chief of General Staff, IDF, para. 83 (Apr. 29, 2018) (Isr.), available at https://www.acri.org.il/he/wp-content/uploads/2018/04/bagatz-3003-18-Gaza-shooting-meshivim1-2-0418.pdf.
17 Lieblich, supra note 10.
18 Shereshevsky, Yahli, Targeting the Targeted Killings Case – International Lawmaking in Domestic Contexts, 39 Mich. J. Int'l L. 241, 261–66 (2018)Google Scholar.
19 Rome Statute of the International Criminal Court, Art. 17, July 17, 1998, 2187 UNTS 90.
20 Id.
21 See, e.g., Burke-White, William W., Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. F. 59, 70 (2008)Google Scholar.
22 ICC Office of the Prosecutor, Policy Paper on Preliminary Examinations, paras. 93–94, 100–01 (Nov. 2013), available at https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf.
23 Human Rights Watch, Pressure Point: The ICC's Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom (2018), available at https://www.hrw.org/sites/default/files/report_pdf/ij0418_web_0.pdf; Elizabeth Evenson, Balkees Jarrah, Elise Keppler, Juan Pappier & Param-Preet Singh, The ICC's Impact on National Justice: Can the ICC Prosecutor Catalyze Domestic Cases?, EJIL: Talk ! (Dec. 6, 2018), at https://www.ejiltalk.org/the-iccs-impact-on-national-justice-can-the-icc-prosecutor-catalyze-domestic-cases.
24 See, e.g., Thomas Obel Hansen, Complementarity (In)action in the UK?, EJIL: Talk! (Dec. 7, 2018), at https://www.ejiltalk.org/complementarity-inaction-in-the-uk; Sharon Weill, The Situation of Palestine in Wonderland: An Investigation into the ICC's Impact in Israel, in Quality Control in Preliminary Examination: Vol. I, at 493, 507–19 (Morten Bergsmo & Carsten Stahn eds., 2018).
25 Supra note 3.
26 ICC Office of the Prosecutor, Report on Preliminary Examination Activities, paras. 262–66 (Dec. 5, 2018), available at https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf.
27 Shereshevsky, supra note 18, at 257.
28 See Obel Hansen, supra note 24; Weill, supra note 24, at 509–10.
29 For house demolitions, the potential war crimes under the Rome Statute include, among other crimes, (depending on the classification of the conflict) Articles 8(2)(b)(xiii) and 8(2)(e)(xii); for the use of lethal force against individuals in the context of an armed conflict the potential crimes include Articles 8(2)(b)(i) and 8(2)(e)(i).
30 This is relevant even to preliminary examinations by the ICC. See, e.g., ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2017) – Colombia, paras. 130–35 (Dec. 4, 2017), at https://www.icc-cpi.int//Pages/item.aspx?name=2017-otp-rep-PE-Colombia.
31 The one exception is the decision of the Court to order the government to return the bodies of Palestinians who committed attacks to their families. This exceptional case, which is the subject of additional hearing at the court, involves an international humanitarian law norm that does not constitute a crime under the Rome Statute and thus the logic of positive complementarity does not lead to deference in this specific case. See HCJ 4466/16 Muhammed Eliyan v. Commander of the Israeli Army in the West Bank (Dec. 14, 2017) (Isr.), at https://supreme.court.gov.il.
32 Naz K. Modirzadeh, Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance, 5 Harv. Nat'l Sec. J. 225, 257–58 (2014).
33 See, for example, paragraphs five and forty of Deputy Chief Justice Melcer opinion and paragraphs nine and thirty-three of the government response, supra note 16.
34 Compare Targeted Killings case, supra note 8, para. 35; Interpretive Guidance, supra note 6, at 35, 56.
35 Gaza Conflict Report, supra note 9, para. 268; Schmitt, Michal N. & Merriam, John J., The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, 37 U. Pa. J. Int'l L. 53, 113–14 (2015)Google Scholar.
36 Amichai Cohen, Analysis of Israel's Supreme Court Decision Allowing Lethal Force in Gaza, Just Security (May 27, 2018), at https://www.justsecurity.org/57033/analysis-israels-supreme-court-decision-allowing-lethal-force-gaza. See also Jöbstl, supra note 11.
37 Another example of limited expertise is Chief Justice Hayut's statement that Israel and Hamas have been involved in an armed conflict for thirty years. This statement does not rely on the argument of the parties, is not supported by the references in the judgment, and does not have support in the international law literature on the conflict. The only reasonable explanation for this statement is that Chief Justice Hayut used “armed conflict” as a colloquial phrase rather than legal term of art with significant potential implications.
38 Roberts, Anthea, Comparative International Law? The Role of Domestic Courts in Creating and Enforcing International Law, 60 Int'l Comp. L. Q. 57, 63 (2011)CrossRefGoogle Scholar.
