Aside from jurisdictional issues and in addition to the 2014 Gaza War, on 20 December 2019, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced that the ICC would be investigating war crimes allegedly committed by Palestinians in Gaza and by Israeli personnel purportedly deliberately attacking Palestinian civilians. I will focus only on Israeli alleged crimes in what is called the 2018-2019 Gaza Border Protests.

As a result of ICC reports, Bensouda had concluded that she was satisfied that war crimes had been committed in the Gaza Strip. Unlike the Gazans, Israel does have a mechanism in place to investigate such allegations. Nevertheless, in April 2020 Bensouda reconfirmed ICC’s intention to investigate Israel. The launch was authorized by a panel of three judges in March of 2021 by a vote of 2:1. Peter Kovacs was the dissenter. On 3 March 2021, Israel was sent a letter from the ICC laying out its intention to investigate the 2018-2019 Israeli actions in the border protests in addition to the 2014 Gaza War and Israeli settlement activities. Israel was given 30 days to respond. To the best of my knowledge, Israel has not yet responded or even requested an extension.

In 2018, three years ago, Hamas announced on Land Day (30 March 2018) what it called, “the Great March of Return”. Demonstrations were scheduled every Friday at the northern border with Israel for six weeks until Nakba Day (15 May). The protesters demanded that the refugees from the 1948 war with Israel and their descendants be allowed to return home under the principle of the right of return that had been affirmed by the United Nations. They were also protesting the blockade of Gaza and the US decision to move its embassy to Jerusalem.

The Israeli Palestinian journalist, Khaled Abu Toameh, reported that, “Hamas vows Gaza protests last until Palestinians return to all of Palestine.” (The Times of Israel, 9 April 2018) “The protests are an uprising for Jerusalem, Palestine, and the right of return,” The six weeks of protests stretched out for eighteen months. By the end of six weeks, the protests had spread east of Jabalya, Gaza City, Khan Yunis, and even Rafah.

The numbers protesting started at 30,000, grew even larger in April and May and then declined to an average of ten thousand protesters every Friday. There were small protests that continued through the week. Most protesters demonstrated peacefully and kept their distance from the fence. However, smaller groups left the main body of protesters and not only approached the fence, but threw rocks and Molotov cocktails at the Israeli guards. Others launched kites with incendiary materials while still others set out to damage the fences. Israelis charged the Palestinians with using non-violent protests as a cover for violence. Palestinians charged the Israelis with using excessive force in responding.

Israeli border guards used tear gas and live ammunition to repulse the protesters from their assaults against the fence. In the first six weeks, 110 Palestinians, mostly members of Palestinian militant groups, were killed by the Israelis. An “independent” UN Commission determined that 183 had been killed and that only 29 had been militants. According to Robert Mardini, head of Middle East for the International Committee of the Red Cross (ICRC), a traditionally highly respected source for such data, by 19 June, over 13,000 Palestinian youth had been wounded, some with multiple bullet wounds.

By the pinnacle of the protests on 14 May 2018, not one Israeli border guard or soldier had been seriously wounded while on that day alone, 60 Palestinians, 50 members of Hamas’ militant wing, had been killed by live ammunition. On that day, instead of just small groups, thousands had charged the fence. B’Tselem, the Israeli human rights organization, in its report, “Soldiers Hold Your Fire: On unlawful gunfire against protesters in the Return Marches in Gaza,” labeled these “manifestly unlawful open-fire orders.”

Was Israel’s use of deadly force to repulse the protesters who attacked the fence a war crime? Amnesty International and Human Rights Watch (HRW) echoed B’Tselem’s claim. HRW charged that Israeli repeated use of lethal force in the Gaza Strip since March 30, 2018 against Palestinian demonstrators, who posed no imminent threat to life, may amount to war crimes. The UN authorized an investigation of Israeli officials who authorized open fire orders. HRW accused Israel of using its investigations simply to whitewash its own humanitarian crimes.

Further, many of the wounded claimed to have been 30-40 metres from the fence when they were shot. They insisted that they had not thrown stones or other missives. Journalist video footage show Palestinians being shot and falling down as they were running away from the fence. Israeli officials acknowledged that the soldiers and border guards were following official orders to use live ammunition against people who approached or attempted to cross or damage the fences, but not to shoot to kill. Most of the wounded had been shot in the legs.

A 13 June 2018, a UN General Assembly resolution condemned the Israeli response.

One of the consequences of the highly favourable worldwide publicity the Palestinians gained from these protests and negative publicity from the Israeli response using deadly fire was that Hamas, which had been steadily sending rockets into Israel targeting civilians, by mid-April halted its use of missiles. Israeli leaders moved in the opposite direction.

Avigdor Lieberman, then Defence Minister, vowed to continue Israel’s tough response on the first day of protests when 18 Palestinians were killed. In mid-October, Prime Minister Benjamin Netanyahu threatened “very strong blows” against the Gazan protesters when the demonstrations seemed to be surging again. He also threatened to cut off petroleum deliveries. At the same time, Lieberman tightened the restrictions on Palestinian fishing from nine to six nautical miles. And by mid-November, he submitted his resignation, not because of the uproar over the free-fire response, but because he was opposed to a ceasefire agreement following an Israeli incursion into Gaza that turned into an open firefight requiring the Israelis to be extracted by helicopter.

Lieberman and Netanyahu were not the only top officials backing the tough policy. Three weeks before Lieberman’s resignation, IDF Chief of Staff, Gadi Eisenkot, awarded the IDF’s Gaza Division a “certificate of appreciation” for its brutal suppression of the Gaza Fence Protests. This was not a case of soldiers acting outside of ordinary orders but of a policy coming right from the top. Were these free-fire orders against protesters who were not armed and were not militants a war-crime even if – and it is a big if – the use of live ammunition against the protesters who charged the fence could be justified by international humanitarian law?

In April, the IDF launched an investigation. In August, the IDF determined that in the killing of 153 Gazans in the border protests, none of the incidents involved violations of open-fire orders and, hence, there was o need to refer any incidents to the Military Police for further investigation. B’Tselem not only condemned the report as a travesty, but insisted that it was simply full of lies. In any case, the issue was not a problem of soldiers not following open-fire orders, but the open-fire orders themselves, That is, the problem resided in the rules of engagement.

The issue was that the protesters in general did not pose an immanent threat to the Israelis. Other means – such as non-lethal methods used for riot control – were available for use. Lethal force was neither necessary nor proportionate. Further, of the 189 Gazans identified as killed by Israeli soldiers in the UN Human Rights report of 28 February 2019, there were a number of cases of individuals shot and killed who were not participating in hostilities. The UN report was dismissed by an Israeli spokesman as a product of three individuals who knew nothing of “security matters.” But an Israeli sniper killed a female medic.

When an Israeli military court opened an investigation into the killing of a fifteen-year-old boy on 13 July 2018, it determined that the unnamed soldier had acted without authorization. He was sentenced to one month of community service.

One might argue that lethal fire was required to deter militants who attempted to storm the fence or who threw Molotov cocktails over the fence or who rolled burning tires towards the fence or who sent kites with incendiary devices over the fence. However, this was not a situation where non-militant were being killed as collateral damage, but where there were cases of non-militants being shot. Even if the UN Human Rights Council is self-evidently biased against Israel, its report based on reams of interviews and video documentations clearly seemed to show three health workers, two journalists and a number of civilians, including some children, were killed by gunfire, in most cases when they were some distance from the fence.Although the evidence may be very clear that Hamas violated just war principles in sending missiles against civilian areas in Israel without provocation, there is a prima facie case that Israel committed war crimes in how it responded to the Gaza fence protests and that, given that the policies came from the highest levels, no proper investigation was done of those policies. Further, in the cases of investigations of individual incidents where non-militants were targeted and killed – and thousands were wounded – there is no evidence of thorough investigations by the IDF and at least the appearance of a just outcome. However, the main problem was the decision-makers who decided to use lethal force when its use was both questionable, undisciplined and inappropriate.