Introduction
Iyad Khalak, a 32-year-old Palestinian autistic person was shot to death by Israeli forces on May 30, 2020. Iyad was on his way to the special needs employment framework to which he was integrated, taking the same road he traveled every day for the last six years of his life. When he noticed two policemen running towards him, he began an instinctive run out of fear when the commander fired two shots at Iyad which did not hit him. It must be noted that it remains an undisputed fact as admitted by the commanders in the district court, that Iyad was chased because they accidentally “believed” he was a terrorist. Though no reasoning has been accorded to this belief. Upon being chased unprovoked by the commissioners, Iyad continued to flee in fear and entered a garbage compound in the area into which his instructor from his occupational setting also entered. The instructor upon noticing what was happening began shouting. Despite hiding frightened in the garbage compound, the commanders allegedly concluded that Iyad posed a danger to the instructor who was shouting at the time and opened fire at Iyad. (the first towards his lower body) Then ordered him not to move and asked “where the gun.” Iyad lay bleeding on the floor and moved his hands to raise his upper body by an angle and in response to this movement, the commanders fired a second shot. It remains undisputed that this second shot led to the death of Iyad.
All of the Israeli forces arguments in the district court have one central core which remains that the forces received a report about a terrorist and because the commanders shouted at Iyad not to move but instead he kept running. Upon losing contact with him, and encountering him in the garbage compound with his instructor screaming, they gathered enough apprehension of danger to shoot him the first time. And when Iyad fell to the floor; since he attempted to move his body at a slightly upper angle despite the forces giving instructions “not to move” or “where the gun”– he posed sufficient danger for the forces to shoot him the second time which eventually led to his death.
The Jerusalem district court in Rana Hallaq v. Police Investigation Department et al. held that the commanders honest mistake that Iyad was an ‘armed’ terrorist, Iyad’s refusal to obey calls to ‘stop moving’, his ‘escape’ to the compound and his final movements after the first shot despite orders to the contrary makes the commanders acts ‘reasonable’ under the given circumstances under Section 34J and Section 34H of the Israeli Penal Code. Adalah in its petition to appeal the district court’s ruling has highlighted the lack of rationality to the court’s reasoning and its lack of adherence to the principles laid down by the previous decisions of the Israeli Supreme Court itself. In this post, I argue that the judgment firstly, stands in contravention with International law. Secondly, it highlights the glaring lack of inclusion of disability frameworks in understanding and implementing IHL and its indiscriminate effect on disabled persons.
The contravention with International Law
In Public Committee against Torture in Israel et. al v the Government of Israel et. al, the Israeli Supreme Court firstly found the existence of a situation of continuous armed conflict between Israel and various Palestinian armed entities. In accordance with customary international law, it was held that civilians are entitled to legal protection against being attacked as long as they are not actively and directly taking part in hostilities. This principle can be found embodied in Article 51 (3) of the Additional Protocol I (1977). According to the ICRC, the constitutive elements of direct participation in hostilities comprises of the following cumulative criteria: firstly, the act must be of such nature that it must be likely to adversely affect the military operability of the party to the armed conflict or alternatively be of such nature so as to inflict injury or destruction on the parties and objects protected against direct attacks (the threshold of harm). Secondly, there must be a direct causal link between the act committed and the harm likely to result from such an act or any other coordinated military operation (direct causation). Thirdly, there must be a belligerent nexus, the act must be specifically designed to cause the threshold of harm in support of a party to the conflict and to the detriment of the other. Recognizing these principles provided for in the additional protocols and customary international law- the Israeli Supreme Court concluded in Public Committee against Torture that it was necessary to obtain well-founded, verifiable information about civilians taking direct part in hostilities before attacking them. In this case, the Israeli forces haven’t indicated the presence of any such information except for the apprehension of danger they felt due to the deceased’s movements or the immediate non-compliance of verbal orders.
Even if there was credible information regarding his direct involvement in the conflict, which was not present in this case, targeted killings have to be carried out in compliance with the customary principle of “proportionality.” In the Military Junta case the National Appeals Court of Argentina held the principle of proportionality to be a part of customary international law. It is further codified in Article 51 (5) (b) and Article 57 of Additional Protocol I. The principle of proportionality seeks to limit damage caused by military operations by requiring that the methods of warfare should not be disproportionate to the sought military advantage. It remains oblivious to the facts as to what was the anticipated military advantage in carrying out this attack given that there was no evidence that the deceased was directly participating in hostility. Even if there were any such anticipated military advantage, the same could have been very well achieved by other means which did not necessitate the killing of the deceased when he was clearly incapacitated by the previous gunshot wounds. The act of the commander, therefore, cannot be justified as being proportional under IHL.
Autism, Disability framework and IHL
The attack not only violates International Humanitarian Law but also highlights the glaring lack of inclusion of disability frameworks in understanding and implementing IHL and its indiscriminate effect on disabled persons. The UN Convention on the Rights of Persons with Disabilities (CPRD) adopted in 2006 underscores the undeniable fact that persons with disabilities are equal and full stakeholders of their rights. Across conflict zones, we observe the tendency to routinely represent disabled persons as passive victims instead of affirming their agency and differences which needs to be adequately represented and consulted in the implementation of humanitarian mechanisms and enforcement of the laws of war. Article 2 of the CPRD provides that state parties have a direct responsibility to provide reasonable accommodation to the needs of disabled persons to prevent unlawful discrimination against them. Reasonable accommodation is sought to be used as a tool of substantive equality that values difference as opposed to sameness. Article 11 of the CPRD makes it clear that the convention will continue to be applicable during existing situations of armed conflict alongside principles of IHL, the extent to which will remain contextually determinative. The principle of distinction as identified earlier within IHL prohibits attacks against civilians as long as they are not directly participating in the conflict. The determination of who is a civilian and who is not has disability dimensions as patterns of movement and activity of individuals are constitutive of how the principle is applied. They are also relevant in pre-strike assessments to determine where the civilians are and how much is at risk if a strike is ordered.
Adopting a disability framework means recognizing that regular civilian patterns do not necessarily reflect the experiences of disabled persons as- they may not flee instinctively or react to instructions issued by the military personnel in the same way as non-disabled persons do. This underscores the importance of identifying the need to adapt rules of IHL within the disability framework to ensure that these variations can be identified by all personnel and authorities in conflict. It should not be a presumption that every person will follow “typical” patterns of behavior movements or activities associated with the rest of the general population. Failing to recognize this will pose an elevated risk of harm to disabled individuals during military observations. The interpretation of IHL rules related to the conduct of hostilities as they apply to and impact disabled persons is heavily impacted by the lack of disability inclusive data within militaries, commissions of inquiry and other human rights mechanisms involved in implementation of these rules. Routine consultation to include disability frameworks in our understanding of the laws of conflict is important to steer policy and practice towards overcoming discriminatory barriers that are reflective of disabled persons lived experience.
A March 2019 UN Commission of Inquiry concluded that rules of engagement of the Israeli security forces in majority of the cases have failed to comply with international legal standards. Disabled persons have been targeted even as it was clearly observed that they did not pose any imminent threat in the majority of the cases. This is not only a clear violation of the principles of International Humanitarian Law but also an indication of the acute failure to train armed forces and other stakeholders to understand and incorporate how disabled persons may react ‘differently’ and not normatively to directions/commands/orders issued towards them. The failure to explicitly accommodate and affirm these differences while applying the principles of distinction in armed conflict makes disabled persons more susceptible to being indiscriminately targeted in unlawful attacks. This not only costs us our lives, but also further entrenches the marginalization of rights-based disability framework in law, policy, and society. As was made evident in the murder of Iyad Khalak, the armed forces insistence that the non-compliance to verbal orders by Iyad, his action of running away from the police or his non-response to a verbal question of asking him about the where-abouts of his weapon could be somehow constructed to indicate a ‘reasonable’ apprehension of danger. Autistic people process instructions differently, many autistic individuals are also non-verbal. They do not react normatively in situations of distress. It remains imperative that armed forces are trained to understand and affirm these differences when in combat. Not doing so, is a violation of general obligations of states under Article 4 of the CPRD to undertake all measures necessary to promote and achieve the full realization of all human rights and freedoms of persons with disabilities.
The need to be inclusive of disability frameworks in understanding how armed conflict and actions of armed entities differently impacts disabled persons is particularly urgent. Traditional protection accorded to disabled persons on account of their civilian status is not enough, as only emphasis on their “need for protection” may further entrench their marginalization and victimization in policy and application of existing frameworks of law. Disabled persons experience compounded difficulties coping and fleeing violence. The law and humanitarian response will continue to fail them, if we don’t urgently recognize them as rights embedded individuals who do not require the law to only “protect” them as much as it is required to affirm their differences and provide for reasonable accommodation as a matter of right. To ensure that militaries are equipped to interpret their obligations under IHL in a disability inclusive manner, it is necessary that we undertake a better understanding of the ‘civilian population.’ There must be a concerted effort to ensure the availability of disability inclusive data disaggregated by age and sex, so as to train military commanders to have an understanding of the diversity of disability. This would in turn enable them to ensure that their operations affirm differences and protect the rights of disabled persons.
Conclusion
The Jerusalem Court’s acquittal of the border police officer who killed Iyad Hallaq by reasoning that taking risks forms an integral part of military activity violates core principles of International Humanitarian Law. It also demonstrates the lack of effective inclusion of rights-based disability frameworks towards understanding and implementing International Humanitarian Law in armed conflict. Violence during armed conflict not only disproportionately impacts disabled persons because of their disability status but also differently impacts them due to their unequal social and economic position which additionally contributes to their invisibility in the society. The judgment in Rana Hallaq v. Police Investigation Department et al and the killing of Iyad Khalak not only demonstrates the impunity of the Israeli armed forces. But also underscores the importance of accounting for the diverse accommodations and realities of disabled persons to ensure effective action while applying human rights protections provisioned under IHL to a heterogenous population.
Panchami Manjunatha is a third-year law student from the National Law School of India University, Bengaluru.
Image: painted the murals on the West Bank [Getty]
Jindal Forum for International and Economic Laws 