'Intentional unlawful lethal use of firearm by police'


November 25, 2014
Sarah Benton


Palestinian students gather at Hebrew University on 11 November to protest the killing of Kheir Hamdan. Photo by Faiz Abu Rmeleh / ActiveStills

Human rights and a hair-trigger: the killing of Kheir Hamdan

By Dearbhla Katharine Minogue – LPHR Student Director, LPHR blog
November 20, 2014

On 7 November 2014, a 22 year old Palestinian citizen of Israel, Kheir Hamdan, was shot and killed by police in the Arab town of Kufr Kanna. The circumstances were unclear until CCTV footage emerged which shows the killing.1 In it, Kheir Hamdan is seen hitting the windows of a police car with an unidentifiable object. After a short time, police emerge from the vehicle and Mr Hamdan turns to run – whereupon he is shot in the back at close range. Following this, he is dragged into the police car, with an apparent disregard for the fact that he has been severely, if not fatally, injured.2

What these shocking images appear to show is police officers perpetrating criminal acts under Israeli law against an individual, and also, in their capacity as actors representing the state of Israel, a serious breach of international human rights law against a civilian.

The right to life

Under international human rights law, everybody has the right to life. This can only be interfered with under strict conditions. The International Convention on Civil and Political Rights (ICCPR) states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life (Article 6(1)).

Israeli has been a signatory of the ICCPR since 1966.3 Therefore, as a citizen of Israel, Kheir Hamdan was entitled to expect that his fundamental right to life would be protected.

As lawyers it is important to approach material such as this CCTV footage as evidence, not proof, of an alleged breach of duty. This footage is compelling evidence that intentional unlawful lethal use of a firearm by a police officer against Kheir Hamdan occurred and following this, that inadequate medical aid was provided, both indicating a breach of Israel’s duty under the ICCPR.

Can it ever be legal for the State to deliberately kill a civilian?

The ICCPR does permit deliberate killing by the state in two specific circumstances.

The first circumstance allows capital punishment (commonly known as the death penalty) for very serious crimes, but only after a full and fair trial. This circumstance is of course not relevant to Kheir Hamdan’s case.

The only other way this killing could have been lawful is if Kheir Hamdan had been posing a direct threat to the life of the police officers. The criteria as to what amounts to a direct threat to life are set out in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (the Principles)4:

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life5;

(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.6

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed,7 unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

The Principles go on to say that the arbitrary use of force and firearms by police must be punished as a criminal offence and that no departure from these basic principles can be justified by reference to internal political instability or public emergency (Principles 7 and 8).8

These principles are very clear. Force and firearms may be proportionately used by police officers to exercise a legitimate objective, and only with unavoidable necessity, clear effective warning and mitigation of injury. However the particular circumstances of Kheir Hamdan’s case, which indicates he was not posing an immediate threat to the police officers’ or others’ lives at the time of the killing, raises grave concerns that the lethal force used was not in compliance with the Principes above.

Moreover, any lethal use of force by police should be investigated fully as a potential criminal offence. The Israeli police force have indicated that an investigation will take place in relation to this killing,9 and legal and human rights campaigners will be doing all they can to ensure it is robust, credible and timely.

Is this an exceptional case?

Kheir Hamdan’s case has attracted international media coverage perhaps because of the shocking CCTV footage, but this is not an isolated incident. Human rights organisations working in the region, which LPHR works to support, have documented many other instances of Israeli law enforcement officials, both police and military, killing Palestinian civilians and demonstrators in similar circumstances. For example, the Israel-based human rights organisation B’Tselem campaigns on the issue of unlawful use of firearms both in Israel and the Occupied Palestinian Territories.10 In February 2014 Amnesty International produced its ‘Trigger Happy’ report on the unlawful use of firearms by Israeli security services in the West Bank.11 Many of the cases documented by in the report record fatalities such as in the case of Kheir Hamdan, and abhorrently the killing and maiming of children.

What happens next?

The killing of Kheir Hamdan highlights the ever-critical need for implementation of the law so that it actually protects the fundamental rights of citizens. The existence of the right of an individual not to be killed by the state except in very specific circumstances means little when that right is not implemented by the police officers who have the power to use lethal force. The criminal investigation and accountability of individual members of the Israeli security forces for alleged violation of Israeli law, international human rights law, and the Principles referred to above is essential to ensure that this disturbingly pervasive culture of, as Amnesty International described it, ‘trigger happy’ action, is dismantled.

As a human rights organisation fundamentally concerned with rule of law, LPHR is focused on not only what the law says, but its enforcement and its power in action. LPHR has repeatedly expressed its serious concerns about the absence of accountability for law enforcement officials in its Urgent Actions,12 including the killing of civilians in the West Bank during Operation Brother’s Keeper.13 Worryingly, however, Prime Minister Benjamin Netanyahu’s comments about removing the citizenship of demonstrators in response to Kheir Hamdan’s case demonstrate a frightening disregard for the rule of law at the highest level in Israeli politics.14 Sadly, with the intersection between law and politics, the nature of such discourse will have to change considerably before we see a positive transformation on this particular human rights horizon for Palestinians.

LPHR, with the support of its members, will continue to work with its partners to urge that proper investigations and legal accountability become the norm in the Israeli criminal/military justice system. The prevailing culture of impunity for the Israeli police and military does not deter, and arguable enables, the use of apparently unlawful lethal force which has Kheir Hamdan at its latest victim. A sustained end to conflict is not possible without justice and rule of law equally applicable to all.

Footnotes:

1 https://www.youtube.com/watch?v=CC1PD119xmE

2 http://adalah.org/eng/Articles/2339/Adalah-Statement-on-the-Killing-of-Kheir-Hamdan-by

3 https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-4&lang=en

4 http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx

5 Emphasis added

6 Emphasis added

7 Emphasis added

8 http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx

9 http://www.timesofisrael.com/riots-marches-in-kafr-kanna-after-cold-blooded-killing-by-cops/

10 http://www.btselem.org/topic/firearms

11http://www.amnesty.org/en/news/trigger-happy-israeli-army-and-police-use-reckless-force-west-bank-2014-02-27

12 http://lphr.org.uk/index.php/urgent-actions/

13 http://lphr.org.uk/wp-content/uploads/LPHR-letter-to-UK-Foreign-Secretary-investigations-and-accountability-8-July-2014-Final1.pdf

14 http://www.telegraph.co.uk/news/worldnews/middleeast/israel/11219367/Israel-orders-probe-after-police-kill-Arab-in-cold-blood.html

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