JERUSALEM, Nov. 28 (JTA) – Streams of words have been written and spoken about the Israeli-Palestinian violence that erupted in late September.
But none stand out as much as one phrase, “excessive force,” in describing how badly Israel’s international image has been tarnished.
Although the conflict evolved from popular Palestinian riots into a far more complicated guerrilla-style campaign, the debate over Israel’s use of force against Palestinian demonstrators and rioters is still on the international agenda. Since the beginning of the crisis, more than 200 Palestinians have been killed, including dozens of children.
The issue came up again Monday, when the U.N. human rights commissioner, Mary Robinson, accused Israel of using excessive force against the Palestinians. In a report to the U.N. General Assembly, she called for an “international monitoring presence” to be set up in the West Bank and Gaza Strip.
Along with the conflict itself, the “excessive force” discussion is heading into new territory. As Palestinian attacks intensify, and Israel’s ever-harsher retaliations expose the enormous imbalance of military power in Israel’s favor, questions are being raised about the legal limits of Israel’s response in a warlike conflict that falls short of an all-out war.
B’Tselem, the Israeli human rights group in the occupied territories, says it is better qualified than international organizations to investigate Israel’s human rights record during the current conflict.
“We have a better ability to see the complexity of the situation than international organizations,” says Tomer Feffer, spokesman for B’Tselem.
“We are not trying to say which side is right, but to examine from a human rights perspective how each side is violating or not violating human rights.”
The group’s reporting includes criticism of Palestinians for not keeping children away from flashpoints, and unequivocal support for the right of Israeli soldiers to shoot to kill any armed Palestinian firing at them.
Nevertheless, B’Tselem criticizes Israel for never having invested seriously in nonlethal methods of crowd control – such as water cannons – despite years of demonstrations and riots in the West Bank and Gaza.
It also says, based on extensive field work, that Israel’s widespread use of rubber-coated metal bullets is inappropriate for dispersing riots because the bullets are lethal ammunition and have caused the deaths of many unarmed Palestinians.
According to the Palestinian Red Crescent Society, 9,093 Palestinians had been injured in the conflict through late November, including 3,649 by rubber-coated bullets. B’Tselem says there are no official statistics on how many of the deaths were caused by rubber-coated bullets.
“Rubber-coated metal bullets do not disperse riots; they kill people,” says Feffer, adding that despite the problems Israel faces, it cannot fire freely at rioters.
“According to international law, it is forbidden to mix armed people with unarmed civilians since this endangers the unarmed people. However, the fact that there are gunmen in a crowd does not give Israel the right to fire indiscriminately into the crowd.”
Col. Daniel Reisner, head of the Israel Defense Force’s international law department, disputes B’Tselem’s criticism.
He says the army had developed nonlethal weapons to deal with the 1987-1993 Palestinian uprising, when riots were rarely accompanied by gunfire.
But these are inappropriate in the current situation, he says. Water cannons, for example, could not be used because the driver would be exposed to gunfire.
In recent weeks, military representatives have fruitlessly scoured the globe for long-range nonlethal riot control equipment.
“No such equipment exists anywhere in the world,” Reisner says.
Reisner defends the use of rubber-coated bullets, saying they are meant to cause harm, but not to kill, if used properly.
He admits that when they’re shot less than 150 feet from their target, they can be lethal.
But statistically speaking, Reisner argues, the damage inflicted by this ammunition may not be as bad as the raw numbers indicate.
According to the IDF, there have been 4,832 disturbances involving stone-throwing since the conflict erupted. Even compared with the Red Crescent’s figures of 3,649 injured by rubber-coated bullets, this amounts to less than one injury per incident.
“If that’s the ratio, then they are getting off lightly,” says Reisner. “The numbers do not coincide with the claim that the IDF is firing freely because if we were, the number should have been significantly higher.”
B’Tselem has not yet given its official opinion on the use of Israeli helicopter gunships to retaliate against Palestinian attacks.
It does, however, say that in anything short of a full-scale armed conflict between two sovereign states, the use of force must be proportional.
This would mean that, according to B’Tselem’s interpretation of international law, Israel would not be entitled to use helicopters to strike at lightly armed Palestinians.
The definition will be critical to determine what exactly constitutes excessive force.
“It is complicated to define, and we are taking advice from international legal experts,” says Feffer of B’Tselem.
Reisner agrees that this question is critical.
“We are now in a state of armed conflict short of war,” he says. “The modern definition of armed conflict is extremely wide. Helicopter gunship attacks are exactly one of the few changes we’ve made in terms of our outlook on the conflict.”
For Israel to justify its use of such methods in the international arena will depend in part on the intensity of the violence coming from the Palestinian side.
Ironically, says Reisner, a unilateral Palestinian declaration of independence could legally give Israel a freer hand to unleash more force, since it would technically be fighting a sovereign state.
But even the best lawyers Israel can buy will not help it win the battle for international public opinion that will likely become far more critical if Israel hits the Palestinians harder than it is now.