Ethics of Death

Ethics of death

 

When is it OK to kill a demonstrator? That depends on who you ask.

The question elicits widely – one might say wildly – divergent responses, even among experts in international law, and especially when the demonstrators are Palestinians from Gaza.

On 30 March 2018, the people of Gaza began a series of demonstrations near the highly-fortified boundary with Israel. Their stated purpose was to demonstrate peacefully to assert their right of return (enshrined in UN resolution 194) to the land their families had fled or been driven from before, during or soon after the creation of the state of Israel. The “Great March of Return”, they asserted, would represent all factions in Gaza, with individuals deciding for themselves to participate, or not.

The Israeli Government disputed this, even before the event. No, it would not be a peaceful March but a 'dangerous provocation' to be organised by Gaza’s ruling party, Hamas, with the purpose of creating international sympathy through the deaths of its own people by using the demonstrators as 'cover' for terrorist attacks, in other words by exploiting them as 'human shields', an action prohibited under international law.

Israeli Defence Force snipers would be deployed, with orders to shoot at demonstrators approaching the boundary fence, and to shoot to kill if anyone tried to breach the highly-fortified and closely-guarded fence.

By the ninth week of demonstrations, 26 May, the Palestinian death toll was up to 118, with 13,900 injured (many disabled for life) and 7,111 hospitalised. 

The Israeli death and injury toll was nil.

Of those Palestinians killed or injured, at least 3,569 were victims of live ammunition – as reported by Al Jazeera on 26 May – including, doctors, paramedics, journalists, women, children and the elderly.”

The bloodiest day, with 60 dead, was 14 May, coinciding with the festive and controversial relocating of the US Embassy to Jerusalem, offering the chance for the two events to be juxtaposed in many international media, including the New York Daily News cover page headlining Ivanka Trump at the triumphal opening.

It seems that for many the blood and champagne didn’t sit well together.

So what are the questions to ask about the ethics of it all?

Civilian protection is a cornerstone of both International Humanitarian Law (IHL),

governing armed conflict, and International Human Rights Law (IHRL), governing the relationship between a state and its citizens.

However, the two operate in very different ways. IHL does not preclude the death of civilians but requires that they not be directly targeted and that the casualties be 'proportionate' to the attainment of military goals. IHRL, concerned with upholding individual rights at all times, is significantly more restrictive – prohibiting the use of lethal force except when it is unavoidable in order to protect life.

The laws relating to 'occupied territories', offer a different perspective again, spelling out a duty to ensure the ongoing welfare and human rights of occupants.

Also to be considered is the statement of the International Committee of the Red Cross, in determining applicability of the laws, that IHRL and IHL do not operate in isolation from one another. “While IHL applies only in the context of armed conflict, international human rights law is not a mirror-opposite that only applies in times of peace. In fact, international human rights law applies at all times, regardless of peace or war.”

So which sets of laws apply in Gaza, given that its status as occupied territory, conquered in the 1967 war, is challenged by the Israeli Government’s claim that it is now a separate entity, liberated by the withdrawal of settlers and military personnel in 2005 (though still under siege and subject to intermittent heavy bombing)?

This was being argued out in the Israeli High court even before the blood was dry.

The human rights lawyers who filed the petition to the High Court of  Israel (representing five Israeli and one Palestinian NGO) argued against the Israeli forces’ use of lethal force “unless the Gazans protesting near the fence posed an imminent and actual threat to human life” (as is laid down by IHRL).

The Israeli Government representatives stated in response that “The protests by the Palestinians on the Gaza border fall into the category of a state of war and thus human rights law does not apply to the rules of engagement.”

The petition against the Gaza rules of engagement was dismissed by the Supreme Court of Israel. However, the response of the United Nations was not in accord with this judgement. A few days earlier, citing a “wholly disproportionate response”, it had announced its intention to launch a war crimes investigation into Israeli forces’ shooting of protesters.

Two main justifications for the deaths had been signalled in advance by Israeli spokespersons. First, any killing or injuries would be in self-defence. Second, since Hamas was using the people of Gaza as human shields, the deaths and injuries would, in reality, be inflicted by Hamas, with Israeli Defence Force soldiers as the chosen weapon. The IDF would therefore not be responsible for the deaths.

The first justification had its integrity undermined (and any claim of 'proportionality' blasted) by the sight of young men and children (among them journalists and paramedics)

armed with nothing, or with stones and sling-shots, killed in their dozens, disabled in their hundreds and wounded in their thousands within their own territory by live fire from heavily-armed soldiers who emerged without a scratch.

The second justification was challenged by the sheer number of demonstrators, numbering around 30,000 on 30 March, the first day of the protests, and rising again to around 35,000 on 14 May when the US Embassy opened in Jerusalem. It is hard to imagine the coercive force of Hamas compelling the presence of 35,000 human shields. It is also demeaning to the tens of thousands of Gazans, with its assumption that they have no agency, no power of choice and no right to demonstrate.

This playing out of theory in action – as well as the widely diverging legal opinions – provide strong support for Judith Butler's argument that the laws intended to regulate conflict and keep civilians safe, such as the prohibition against using human shields, can be used and manipulated (by both sides) to deflect disapproval and to garner international media support.

When the civilian population is construed as a human shield, this allows it to be redefined as a weapon of war, which, as she points out, can work as part of a “war strategy” operating to “rationalise the destruction of that population”.

An examination of reports and opinions across the media, after the flurry of immediate news is over, may help to advance understanding of the ways in which manipulation of legal principles can be used to influence international opinion. However, the Guardian’s official editorial opinion, published on 22 April, did take a decisive stand: “This awful pummelling of a besieged population is not solely, as the Israeli military claim, to protect a border fence. It is to cow people into submission. The signs are that it will not.”