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Will new IDF open fire rules fix or create problems? – analysis

CM 15/11/2021

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Sometimes policy, efficiency and law conflict.
The IDF’s new open fire regulations announced on Sunday allowing troops to use live fire against persons trying to steal guns and other weapons from military bases will probably help reduce some of the wave of murders of Israeli-Arabs.
The logic is that if there are fewer illegal guns going around – many of which until now were stolen from isolated and poorly defended IDF bases – there will be fewer murders.

Also, it seems insane and infuriating that there would be a continued problem that common criminal Israeli-Arab or Israeli-Beduin gangs are able to easily supply their weapons needs by stealing weapons from the region’s greatest military power.
So it is hard to argue against the new rules from a policy-results or efficiency perspective.

 IDF soldiers guard a fence near the West Bank. (credit: AMMAR AWAD/REUTERS) IDF soldiers guard a fence near the West Bank. (credit: AMMAR AWAD/REUTERS)

If the narrative is that what was allowing thieves to rob IDF bases of weapons was soldiers being overly worried that they would injure the thieves, then being a little more aggressive in protecting such deadly weapons from criminals sounds obvious.
However, the devil is in the details – and in this case in the law.
There are many areas of multiple competing views where Israel can feel free to take more aggressive interpretations because it is dealing with large terror groups like Hezbollah and Hamas who would wipe out the Jewish state if they could.
This is not one of those areas.
The new rules do not relate to some kind of concerted attack by Hezbollah or Hamas forces on an IDF base.
That would obviously be a serious military threat and no questions would have been asked even before Sunday’s announcement about using firepower to kill and stop such attackers.
Rather, the question is what use of force is legal against one or two bandits, who may not even be armed, and who cut through an IDF fence to a military base and sneak past any guards on the area to steal a certain number of guns from a storage area in order to then flee and make money.
If unarmed, the bandits present no imminent threat.
In fact, some such bandits do not even use the guns themselves and their plan is mainly to sell to others to make money.
Is it legal to shoot to kill thieves?
In most democracies in 2021 the answer is an unequivocal ‘no’.
There were in the past more democracies that had rules allowing homeowners to shoot thieves to kill even if it might seem like they were fleeing based on the idea that anyone robbing a home was someone aggressive enough to be prepared to murder the homeowner and older notions of “a man’s house is his castle.”
Few democratic legal systems support shooting fleeing thieves in such circumstances in 2021.
Maybe a military base is different?
Can the IDF argue that someone who is brazen enough to steal from a military base – and whose goal is to steal deadly weapons at that – is in a different category of posing some broader danger to society even if they present no imminent danger to the soldiers confronting them?
There could be some policy arguments for this that it does not matter if the thieves intend to kill anyone and that the fact that they intend to sell deadly weapons to others who are likely to kill is enough to permit using deadly force on them.
In the US, only “less than deadly force” is allowed “to prevent the destruction of Department of Defense property” or to arrest someone, such as a thief.
“Deadly force” can be used to prevent the theft or sabotage of assets “vital to national security” or relating to “national critical infrastructure.”
Presumably, this would include shooting to kill a thief trying to break into a nuclear facility, but not at a thief who is fleeing with some guns and ammunition.
All of this means that the IDF may be opening up a new front for the International Criminal Court and global media critics to descend when the next thief is shot and killed dozens of meters off base as he is running away.
No one knows how the ICC will decide what to deal with Israel, but Jerusalem might want to be careful about giving The Hague new excuses to move toward future conflict.
The other problem is that it is not clear that shooting to kill will solve the problem.
Many of the thefts have been found to be at least partially inside jobs or from bases where there are practically no guards or where the defenses and guards in place have close to zero effectiveness.
Giant bases with a few guards at the front gate merely require resourceful thieves to figure out which small parts of the base are not being watched.
So one scenario is Israel starts running into new scandals of fleeing dead thieves, while at the same time guns and weapons continue to be stolen from poorly defended bases or where the theft is an inside job.
Another approach would be to take protecting internal country bases seriously, as opposed to just the borders, and to put in place a more serious system for cross-checking where weapons go so that one or two bad apple officers cannot maintain their own black market deals without getting caught.
Time will tell whether the new policy reduces illegal shootings or creates more headaches than it fixes.

Source: Jerusalem Post

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