Having viewed on social media a wide range of opinions regarding recent incidents, particularly the shooting of the terrorist in Hebron on Purim, I have become aware that there are several gross misunderstandings regarding the Israeli Rules of Engagement (RoE) that govern the circumstances in which firearms and lethal force can be used by armed citizens and Law Enforcement Personnel. In this discussion, I will explain the rationale behind the RoE, and then I will detail the RoE themselves. Then there are extensive notes (marked by numbers in superscript) that are important for a full understanding of the subject.
I want to emphasize that I am not expressing an opinion on any case that is currently under legal review, and about which all the facts have not been finally determined. It is meant solely to clarify the RoE, since there are many misunderstandings about their details and rationale.
For the record, I used to be an operative in the Yamam anti-terrorist unit of the Border Guard, and for seven years after that I was a Shabak-trained security guard in the Airports Authority. I have been a volunteer commissioned officer in the Border Guard for more than ten years now, giving regular briefings on RoE. Further, I used to be a civilian shooting instructor. I was for several years a member of the International Wound Ballistics Association. I am not a lawyer (although I have published peer-reviewed work on the legal aspects of weapons), but I can reasonably claim to have a better-than-average knowledge of the RoE, including relevant field experience.
Rationale Behind The RoE
There are two unrelated reasons behind the RoE in their current form:
- To give the armed civilian or Law Enforcement Personnel (LEP)[1. LEP includes policemen, volunteer policemen on duty, soldiers on active duty, and civilians employed by government and private bodies as recognised security personnel.] the legal capability to use deadly force in order to prevent (further) loss, injury or damage resulting from an illegal attack.
It is important here to distinguish between using force to prevent an imminent attack or stop one that is in progress, on the one hand, and to exact revenge or carry out punishment, however justified it may perceived to be, on the other hand. The RoE enable the former. They prohibit the latter. This is important to emphasise. The RoE are designed to place NO limits on the armed civilian or LEP in the fulfillment of the objective of preventing or halting an illegal attack. However, the RoE recognise that exacting punishment on an offender or terrorist is the role of the courts, and only the courts. As such, the RoE cannot be seen in any way as a set of instructions that endangers the public. - To ensure that, in the case of mistaken identity, an innocent individual who was shot by mistake and has suffered incapacitating but survivable wounds, is not killed unnecessarily.
This is enormously misunderstood in many quarters. There are many cases in which armed citizens or LEP shoot the wrong people. Two examples spring to mind from the current wave of attacks in Israel. There was the Eritrean in Beer Sheba, shot fatally by mistake (and then lynched by a mob). And there was the man outside Jaffa Gate who was shot dead by two border policewomen. In the overall confusion of a terrorist attack, mistaken identity occurs more often than we like to believe. The RoE are designed to limit as much as possible the likelihood of one person’s mistake turning into someone else’s tragedy.
So RoE are designed to give the shooter enough freedom to stop an attack, but not so much as to allow her/him to mete out punishment, at the same time ensuring that mistaken identity victims are not unnecessarily fatally shot. (There are many who believe that field punishment is justified, particularly in the case of a terrorist attack. However, there is a very slippery slope, here. It may be conjectured that those who make that argument would be the first and loudest to protest if the victim of such field punishment were one of their own ideological or ethnic sub-group. The legislator has to be very careful, here, to provide a set of rules that are good for all people at all times.)
The RoE
There are two basic cases in which an armed citizen or LEP can use firearms with lethal force, and then there are two more cases that are available to LEP only.
Case 1: If an attack with a weapon is in progress, the citizen/LEP must/can[2. “…the citizen/LEP must/can engage the attacker…” The armed citizen is under no obligation to use his/her weapon, even when the circumstances render such use legal. However, policemen, soldiers and security guards have an obligation to use their weapons when the criteria for legal use of weapons are fulfilled. It is their JOB to protect the public, and that is what they are trained and briefed to do..] engage the attacker with weapons to stop the attack, provided he/she has a clear and sufficient field of fire (FoF)[3. “…clear and sufficient field of fire…” Unfortunately, this qualification is often not sufficiently emphasised in briefings. During the current wave of terror attacks, there have been at least two events in which innocent people were shot by security personnel, with fatal results, due to this qualification being ignored. Ultimately, even with the best intentions, shooters who do not ensure a clear and sufficient FoF are doing the terrorists’ work for them. Armed people should be trained to adjust their angle of fire, or close the range, in order to ensure that no innocents are struck by their own fire, particularly in the case of knife attacks. This includes innocents that are BEHIND the target, particularly for shooters armed with pistols. (Somewhat counter-intuitively, the 9mm pistol round has far higher penetration in soft tissue than does the 5.56mm rifle round, due to the latter’s tendency to fragment in tissue.)].
Case 2: If an attack has not yet commenced, but the citizen/LEP perceives that there is about to be an attack and there is immediate danger to life[4. “…about to be an attack involving immediate danger to life…” In order to give a reasonable, universal concept of what constitutes immediate danger to life, the following three criteria need to be observed, not imagined, SIMULTANEOUSLY: Weapon; Intent; Capability.
(a) Weapon: Some kind of weapon. It cannot be an imagined weapon, and it cannot be a body movement that MIGHT end up in a weapon being produced. The shooter needs to see the weapon, or something that looks reasonably like a weapon. In both cases of mistaken identity that I mentioned, this criterion was apparently not observed by the shooters, resulting in unnecessary loss of life.
(b) Intent (to use the weapon): This is admittedly subjective. A weapon that is being carried in such a way that it cannot be immediately used (a rifle slung over a shoulder, for example) is not in and of itself a sign of intent. A suspect shouting their intent (in current contexts, “Allahu Akhbar” is shouted during terrorist attacks) DOES count as a reasonable statement of intent.
(b) Capability (of carrying out an attack): This criterion was added to the other two more recently, in response to cases where offenders/terrorists were killed in what was judged as unreasonable circumstances because, even though the attacker had both a weapon and intent, he or she was simply unable to use that weapon to cause any harm. For example, a knife-armed person, screaming “Allahu Akhbar”, who had already been subdued and actually tied up with rope.], the LEP must/can engage the imminent attacker with his/her weapons to stop the attack, provided he/she has a clear and sufficient FoF AND provided there is no other way to prevent the attack[5. “…provided there is no other way to prevent the attack…” This clause is also subjective and is very much dependent on circumstance. A person who weighs 45kg is going to have far fewer “other ways” than someone who weighs 90kg, and that is acceptable. The clause is designed to prevent obviously unreasonable situations in which it would have been easy to prevent to the attack without using weapons, but the shooter chose to shoot anyway. For example, in the case of a knife-wielding attacker who is still several dozen metres away from the nearest potential victim, the LEP can simply call him to halt and threaten to shoot, as the first response. The attacker may then stop and surrender, and the event is over, or, if the attacker continues to press the attack, the LEP can then use lethal force legitimately in accordance with the procedure, without any risk to themselves or the public.].
The following two cases are available to LEP only.
Case 3: Procedure for Arresting a Suspect: This special case is available to LEP only if briefed accordingly.[6. The Procedure for Arresting a Suspect is fairly standard for soldiers deployed in high-risk environments. Among older reservists, this is the part of the RoE that is remembered the best, sometimes at the expense of the first two circumstances. But it actually applies only to a very limited scenario.] It is designed for a set of aggravated circumstances (general conflict, a high likelihood of attack or a high state of alert) where suspects who do not follow the instructions of the LEP can be reasonably assumed to be about to engage in an attack. It goes as follows: On spotting the suspect, the LEP calls upon the suspect to stop while identifying him- or herself as LEP. If the suspect doesn’t stop, the LEP threatens to shoot. If the suspect still doesn’t stop, the LEP fires a warning shot in the air. If still the supsect doesn’t stop, the LEP fires in the direction of the suspect’s legs[7. “…the LEP fires in the direction of the suspect’s legs.” Since it is difficult to hit the legs of a running person, this is as much to simply emphasize to the suspect the he or she is indeed the object of the LEP’s attentions – they should notice bullet strikes near their feet. If the shooter gets lucky and hits the suspect’s lower limbs, the resulting wounds are very likely non-fatal, so excessive harm is not caused (as the suspect is not yet an immediate threat).]. If the suspect still does not stop, the LEP is entitled to use lethal force and fire into the suspect’s body. This whole procedure can be carried out fairly quickly, if circumstances warrant it. If at any time the conditions for Case 2 above present themselves, the LEP is entitled to open fire immediately.
Case 4: This is a variation on the Procedure for Arresting a Suspect that is always available to policemen, only. If an individual is suspected of a crime involving danger to life[8. “…crime involving danger to life…” Murder, attempted murder, armed robbery.], and is running away from arrest, the policeman can use the Procedure for Arresting a Suspect as in Case 3. However, the last stage, the use of deadly force, is not permitted, unless, again, Case 2 occurs, and immediate danger to life is perceived.
There are two important adjuncts, that are an integral part of the RoE.
First, once the conditions using lethal force are met, and as long as they are valid (the attack is ongoing or the immediate danger to life is still perceived), there are no restrictions at all on the number of rounds the shooter can fire, or on the part of the body he or she must aim at.
There is no concept of “shooting to wound.” Experience tells us that “shooting to wound” is a misguided approach based on a flawed understanding of the effects of bullet wounds on a casualty’s ability to continue to operate – to wit, shooting someone in the shoulder or leg is in many cases not going to stop them carrying out their attack, in spite of Hollywood. So, the citizen/LEP can continue shooting while the attack is ongoing (in Case 1) or while the danger to life persists (weapon, intent, capability) as in Case 2, until the attack has stopped, or the danger to life has passed. The citizen/LEP shoots in order to quickly/instantly incapacitate that person. The ideal target location for those purposes is the head – in the vast majority of cases, a bullet wound of any calibre to the brain is going to stop the assailant immediately, and will also probably kill her/him. However, firearms instructors generally do not train their students to aim for the head as it is a relatively small target that is easily missed – the preferred shot placement is the “centre of the body” for two reasons: a) if the shooter misses the centre, there is a higher probability of still hitting something that may cause an incapacitating wound and b) if the shooter does hit the centre, there are some organs like the heart, the aorta and the vena cava that can produce very fast incapacitation when hit.) Of course, that means, basically, shooting to kill, even if killing is not the primary objective. There is no getting away from the high correlation between wounds that cause death, and those that cause fast incapacitation. The RoE make no apologies for this.
Second, once the danger has passed and the attacker is no longer able to continue or commence his/her attack, the shooter is REQUIRED TO CEASE shooting unless the original criteria for lethal force become valid again.
This negates the so-called “confirmation of kill” that used to be the doctrine, whereby the LEP shoots the now downed assailant, in the head, “to make sure.” The “confirmation of kill” doctrine historically has compelling arguments in its favour since there were several events in which terrorists who were shot and appeared to be incapacitated subsequently raised their weapons to attempt to continue their attack. The most famous event of this kind was in the Ma’alot massacre in 1972, where, after the action was over, the then Minister of Defence, Moshe Dayan, entered the room where the hostages had been held to get a first-hand view of the carnage. One of the terrorists who was thought to be dead raised a weapon but was sharply dispatched by a quick-thinking officer. There are other cases with less fortunate results that reinforced the tactic of “confirmation of kill.”[9. An incident that is very often mistakenly used to justify the policy of “confirmation of kill” for TACTICAL reasons is that of Charlie Chelouche, z”l, who was killed by a knife-wielding terrorist even after he had just shot that terrorist once in each leg. There are many misunderstandings about this event which I admit is difficult for me to view dispassionately, as Charlie and I were in the Yamam together. We were on the same basic course, and in the same troop, and eventually he was my team leader and I acted as his deputy. He was at my wedding, and I was at his. We were friends. I knew him well and I know well what happened. There were many conflicting eye-witness reports, but one thing that is not open to question is that the terrorist was NOT incapacitated or “neutralized” at any time. He was standing up from beginning to end. Therefore it is not possible to learn any pertinent lesson from this event onto events in which the terrorist IS incapacitated. Why Charlie did not continue to shoot the terrorist and either approached the terrorist or allowed the terrorist to approach him, is something about which we can speculate, but will never know.] “Confirmation of kill” was later abandoned as events began to emerge where innocent people who had either been shot by the terrorists or shot by LEP by mistake, were then finished off with head shots according to the “confirmation of kill” doctrine. Nowadays the shooter is required to verify that the target is incapacitated (“neutralized”) by eye, at the same time minimizing the risk to him- or herself by covering the suspect with a weapon, ready to shoot instantly if the target again becomes a threat. This is best done with two people. There are then accepted procedures for an incapacitated suspect who is thought may be booby-trapped or armed with an explosive device. These do not involve a head shot unless, as already said, Cases 1 or 2 apply again. There is one exception where a “confirmation of kill” is allowed – that is where the LEP is still in active combat and must move past the downed assailant he has just shot in order to continue fighting. In such a case he cannot stop covering that downed assailant and so is permitted to use a shot to the head before moving on, but the rationale must be “active” combat – it is not sufficient for the LEP to claim that there “might be” more terrorists. The LEP must know.
I want to make one final observation. When discussions about the RoE take place, often participants imagine situations that “might be” true. A downed and incapacitated terrorist “might be” wired with a bomb. Or an accomplice “might be” waiting nearby with his or her own suicide vest. These are legitimate concerns but are mostly poor justifications for using lethal force. The “might be’s” can easily get out of hand. During the early 2000s many suicide bombers disguised themselves as ultra-orthodox Jews to fool security personnel and enable them to get just a shade closer to their targets. Surely we cannot then say that because a Hasid was in the area the LEP could shoot him because he “might be” a disguised suicide bomber. Or that a LEP could shoot an innocent Arab-looking passerby, because he “might be” an accomplice, ready to strike. The only reasonable set of instructions that can be given to citizens/LEP is to base the use of deadly force on what they can actually SEE, while at the same time giving them the tactics and power to take reasonable, non-lethal precautions against the different “might be’s.” These procedures exist, but are beyond the scope of this piece. (There is admittedly some element of risk involved in implementing them. But there is also risk involved in allowing the use of lethal force to cater for unestablished “might be’s.”) If deadly force were allowed in the case of unestablished “might be’s”, the result would be a lot of dead innocents. We would be doing the terrorists’ job for them.
In sum, it is difficult to fault the Israeli RoE as they currently stand. They appear to provide a clear set of guidelines that empower the armed citizen or LEP to protect the public, while not granting them power to mete out summary punishment. What happens when someone breaks the rules? Are they guilty of murder? Some lesser crime? Or merely a technical infraction? This is a question for a criminal lawyer that I do not feel qualified to answer. What is clear at least is that an impartial investigation would be in order, and the severity of the punishment (assuming guilt is proven) may depend on a variety of factors, as in any criminal case.
FOOTNOTES
