Open-fire Regulations and Rules of International Humanitarian Law
Until the al-Aqsa intifada began in September 2000, the Open-Fire Regulations in the Occupied Territories were limited to law enforcement actions and conformed with the penal laws of the State of Israel. Live fire was allowed in only three types of situations: First, live fire was allowed in life threatening situations defined as “an actual threat of the loss of life or of serious bodily injury.” In such situations, shooting-to-kill was allowed, but only at the assailant, and only when no other way to defend against the threat existed. Second, live fire was allowed in situations involving the quelling of “violent disturbances” after less severe means such as stun grenades, tear gas, and “rubber bullets” were used and failed to achieve their objective. Third, live fire was allowed in situations involving the apprehension of a suspect, but in these cases soldiers were allowed only to shoot at the suspect's legs while he was committing a dangerous crime, and only as a last resort after giving warning and firing in the air, and only when there was no danger that bystanders would be hit.
Despite the existence of the Open-Fire Regulations, over the years there have been cases in which IDF soldiers killed and wounded innocent Palestinians. One main reason for this was the routine use of lethal gunfire in situations that were non-life-threatening either to soldiers or to civilians. Another reason was Israel's failure to acquire non-lethal means to disperse violent demonstrations, thus reducing the number of Palestinian casualties.
Israel has defined the violence that has taken place during the al-Aqsa intifada as armed conflict or, in other words, war. This definition ignores the reality in the Occupied Territories where a substantial portion of IDF activities - dispersing demonstrators, making arrests, restricting freedom of movement - are policing and law enforcement actions and were defined as such prior to the present intifada. The change in definition ostensibly justified the making of significant changes in the Open-Fire Regulations.
Unlike past practice, since the outbreak of the al-Aqsa intifada the IDF has not issued soldiers serving in the Occupied Territories booklets containing the Open-Fire Regulations. However, soldiers' testimonies to B'Tselem and information published in the media provide numerous examples of the changes in the Regulations which greatly increased the range of situations in which soldiers are allowed to use their firearms. Examples of the changes are:
- The term “life-threatening” is expanded to include situations not previously considered life-threatening, such as stone throwing;
- Firing without warning (at certain times and in certain areas) at any Palestinian bearing arms is permitted;
- Soldiers are allowed to fire live ammunition to enforce curfew;
- Soldiers are required to open fire whenever Palestinians enter places defined as “dangerous areas” (primarily around the Gaza Strip fence);
- The IDF is allowed to assassinate Palestinians suspected of having committed attacks against Israelis.
In addition, soldiers are allowed to use ammunition capable of killing at very long range. Such ammunition includes bombs weighing hundreds of kilograms which are dropped by aircraft, and flechette shells (composed of darts) which are fired by tanks.
These and other changes in the Open-Fire Regulations led to the killing of hundreds of Palestinians who were not taking part in the fighting. These killings violated IHL as it relates to occupied territory.
When fighting takes place in occupied territory, the occupying power must comply not only with the provisions of IHL dealing with occupation, but also with the laws of warfare - the other component of IHL. On the one hand, the laws of warfare expand the powers of soldiers beyond those of regular law enforcement actions.They allow them to initiate attacks against persons taking part in the hostilities. On the other hand, the laws of warfare limit the actions that soldiers can take, the objective being to protect to the extent possible civilians who are not taking part in the fighting. To accomplish this, the laws of warfare established two fundamental principles: the principle of distinction and the principle of proportionality.
The principle of distinction requires the sides to direct their attacks only against persons taking part in the hostilities and against objects that are used for military purposes. To ensure that this distinction is respected, international law provides that it is forbidden to mount an attack against an object that is not a specific military target, and that it is forbidden to use weapons that are incapable of distinguishing with sufficient precision between military and civilian objects. It should be emphasized that the presence of non-civilians among a civilian population does not deny the civilians the protections to which they are entitled, and the fact that one side breaches these rules does not release the other side from complying with them.
The principle of proportionality prohibits an attack even where the intended target is a legitimate object of attack if the damage to the civilian population will be greater than the military advantage anticipated in making the attack.
Application of these principles vis-a-vis Israel's military actions in a built-up area, particularly when the persons taking part in the hostilities on the Palestinian side do not distinguish themselves from the rest of the population, is complicated. However, these principles continue to apply. Furthermore, they require Israel to use special care in planning for these situations, and Israel must cancel certain operations because the casualties that are liable to result from the planned action are excessive.
Since the beginning of the al-Aqsa intifada, Israel has continuously violated the laws of warfare, primarily during its massive incursions into Palestinian cities. These violations include, inter alia, indiscriminate firing that has caused injury to bystanders, use of ammunition and means of warfare that are incapable of sufficiently distinguishing between persons taking part in the hostilities and those who are not, and extensive destruction of houses and other property in violation of the principle of proportionality.