Blanket claims like this divorce these terms of their legal meaning and suggest that Israel must allow its own citizens to be attacked or killed before it can respond, in order to even out the body count. Like any other state, however, Israel has an inherent right to self-defense under international law, enshrined in Article 51 of the UN Charter.

“It is too simplistic to say a threat can never be imminent until the barrier is breached,” said Lt. Col. Geoffrey Korn, a legal scholar and expert in the laws of war. “What qualifies as an imminent threat when you’re trying to prevent a breach of a barrier that will result in an influx of hundreds if not thousands of protesters is a very complicated question.”[1]

Col. Richard Kemp, a British military expert who traveled to the border multiple times to observe the events from close range, clarified this issue in his submission to the UNHRC Commission of Inquiry into the Gaza border confrontations:

Today, it is well accepted in international law that live ammunition can be used when there is a serious threat of death or injury, and where no other means have succeeded in confronting the threat. There is no requirement that the threat be ‘immediate’ — rather, such force can be used at the point where it becomes ‘imminent’; i.e. when there is no intermediate stage in which an aggressive action can be prevented before it becomes an immediate threat.[2]

The reality, wrote the former Commander of British forces in Afghanistan, is that:

Under the conditions deliberately created by Hamas, there was no effective intermediate step that could have been taken, short of shooting those who posed an imminent threat. Had these people (who can hardly be called mere ‘demonstrators’) been permitted to reach the fence and breach it there would have been not just an imminent but an immediate threat to life, which could only have been prevented by inflicting far higher casualties.[3]

Speaking at a UNHRC breakout session as the Commission of Inquiry presented its report to the plenary, Col. Kemp said that based on his own military experience “I could not work out any single way that the IDF could have operated differently and still achieve their objectives” of protecting the Israeli population by avoiding a mass border breach.[4]

Furthermore, it is essential to correct a common misunderstanding about both when and how the test of proportionality is applied under International Humanitarian Law (IHL). The test is not an ex post facto count of which side had more deaths; rather, it is a prospective consideration based on the military commander’s assessment—before his military action—of whether the expected civilian casualties will be excessive in relation to the anticipated military gain.[5]

In fact, IHL accepts the possibility of civilian casualties (see Article 57 of the First Additional Protocol to the 1949 Geneva Conventions). The above accusations during the UNHRC’s Item 7 debate completely ignore the very real threat to the lives of Israeli civilians by Hamas-orchestrated attackers who sought to breach the Gaza border fence, intent on infiltrating nearby Israeli communities and murdering civilians. Under international law, it is up to the Israeli commanders to make case-by-case proportionality determinations, based on the real-time facts and data available at the time, to defend against the threat posed by these attackers at the border.

For more information on the Gaza border riots see UN Watch’s 2018 submission to the HRC Commission of Inquiry[6], response to the 2019 Commission of Inquiry’s report[7] and response to the related press conference.[8]