In April 2021, rising tensions in the occupied Palestinian territory (oPt) precipitated a resurgence of violence that continued to rage in the ensuing months. This was propelled by a confluence of factors, including the planned eviction of Palestinian families from their homes in Sheikh Jarrah, East Jerusalem. Protests against the evictions began in Jerusalem and spread to other parts of the West Bank. The practices of the Israeli Security Forces (ISF) in policing the protests, in particular the use of potentially lethal force against so-called key instigators and key rioters invoke a systemic breach of applicable international law.

International humanitarian law (IHL) sets the boundaries on the use of force during armed conflict while the rules regulating the use of force in law enforcement, including in response to protests and civil unrest, are derived primarily from international human rights law (IHRL). The protests in the oPt were civilian in character, and had clearly stated political aims. Although some protestors were engaged in acts of violence, such as by throwing stones and petrol bombs at ISF, the protests remained civilian in nature, and did not amount to actions of hostilities or armed conflict. Owing to the ongoing conflict between Israel and Palestine, IHL is also in effect and operates as lex specialis (overrides other legal frameworks) during active hostilities, for example, when an individual is identified as a member of Hamas’ armed forces. However, the protests did not involve individuals recognised under IHL to trigger its application. Thus, the legal framework governing Israel’s use of force in response to the protests is that of IHRL.

USE OF “KEY INSTIGATORS” TO MUDDLE APPLICABLE INTERNATIONAL LAW

The Israeli government invented the categorisations “key instigators” and “key rioters” to label persons they believe contribute centrally to creating threats posed by a mob. According to the Israel Defense Forces (IDF ), “‘[k]ey instigators” may be persons who direct or order activities within the mob, such as coordinating the tactical placement and setting on fire of tyres, coordinating people to contribute towards pulling back parts of the security infrastructure and so on”; whereas “‘key rioters” are those who by virtue of their actions incite the mob, influence their behaviour or provide the conditions for which mass breach or infiltration may occur,” for example, “a person who successfully breaches the security infrastructure and carries out attacks on IDF positions, exciting the mob into following his lead. Another example could be a person who works to connect wires to the security infrastructure so that it may be pulled backwards and made ineffective by the crowds”. The IDF’s uses of potentially lethal force against these persons, as justified by their invented labels, raise international legal concerns.

The categorisation of persons as key instigators and key rioters does not exist in international law and does not form a legal basis for violence. Findings in the UN Commission of Inquiry highlight alleged violations of IHL and IHRL in relation to the use of this term in the 2018 protests in the oPt. Since the use of force in law enforcement operations is based on IHRL, the right to life applies. According to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, use of force by state officials to maintain or restore public security, law and order, is permissible only when it is strictly necessary to achieve legitimate law enforcement objectives, such as protecting human life. The use of force must also comply with the principles of proportionality, precaution, and non-discrimination. Therefore, use of force in law enforcement is an exceptional measure and not a standard response, irrespective of whether the force is used against so-called key instigators and key rioters.

These terms conflate the rules regulating the use of force in law enforcement with those applicable in armed conflict. While IHL allows lethal force to be directed against lawful targets, such as combatants, as a first resort; IHRL permits the use of potentially lethal force only against individuals who pose a threat to life or injury. It has been reported that ISF has used potentially lethal force against key instigators and key rioters even when they had moved away from the crowd or were resting. This reveals that the notion of key instigators and key rioters has carved out a designated class of individuals who are always liable for direct attack, including the times when they posed no threat to life or injury to Israeli soldiers or civilians. The status of those who are categorised within this framework are unfoundedly akin to those of “combatants” under IHL. In turn, the creation of these new categories seems to grant status-based targeting under IHRL, thereby widening the scope of individuals who may be targeted with potentially lethal force in law enforcement and undermining the principle of necessity in IHRL.

The use of potentially lethal force against key instigators and key rioters absent active hostilities is likely a disproportionate use of force. Under IHRL, use of force in law enforcement cannot exceed the amount strictly needed for responding to the threat of death or injury. As stated by the U.N. Human Rights Committee in General Comment No. 37, firearms are not appropriate for policing assemblies, and must never be used simply to disperse an assembly. Consequently, the use of potentially lethal force against key instigators and key rioters, such as live fire and rubber-coated metal bullets is likely excessive force.

ISRAEL MUST RESPECT THE RIGHT TO LIFE AND PEACEFUL ASSEMBLY IN oPt

The invented categories of key instigators and key rioters conflate IHL and IHRL, thereby widening the scope of individuals who may be targeted with potentially lethal force. The IDF’s application of this categorisation undermines the principles of necessity and proportionality under IHRL. Israel, as the occupying power, must not only respect the rights of expression, peaceful assembly and association of Palestinians, but also protect the right to life of those participating in protests. Israel must not execute its law enforcement operations on determinations of individuals as key instigators and key rioters, as they do not exist in international law and are in direct opposition to the essence and spirit of IHRL.