Supreme Court Criticizes “Prior Warning Order” Allowing Army to Use Palestinian Civilians During Military Operations

The Supreme Court of Israel held a hearing pursuant to a pending petition filed in May 2002, a motion for injunction submitted in April 2004, and a motion for contempt of court against the Israeli army filed in August 2004 by Adalah and six other Israeli and Palestinian human rights organizations in the “human shields” case.

 5 September 2004, the Supreme Court of Israel held a hearing pursuant to a pending petition filed in May 2002, a motion for injunction submitted in April 2004, and a motion for contempt of court against the Israeli army filed in August 2004 by Adalah and six other Israeli and Palestinian human rights organizations in the “human shields” case.

The legal filings were submitted by Adalah Attorney Marwan Dalal on behalf of Adalah, the Association for Civil Rights in Israel, Qanun (LAW): The Palestinian Society for the Protection of Law and the Environment, Physicians for Human Rights-Israel, B'Tselem, The Public Committee Against Torture in Israel and HaMoked: Center for the Defence of the Individual. The named respondents are the Commander of the Israeli Army in the West Bank; the Chief of Staff of the Israeli Army; the Minister of Defense; and the Prime Minister of Israel.

The main issue discussed by the Supreme Court at the hearing was the legality of the Israeli army's “prior warning order”. According to this order, the Israeli army claims that Palestinian civilians may be used during military operations, if they “do not refuse to assist” and the commander in the field determines that there is no danger to the individual's life. The petitioners' motion for injunction filed in April 2004 requested that the Israeli army be prohibited from using Palestinian civilians during military operations in the 1967 Occupied Territories and/or from approaching them and asking them to participate in these operations, irrespective of the discretion of any military commander.

At the hearing, Supreme Court Chief Justice Aharon Barak criticized the Israeli army's “prior warning order” and suggested that they waive it. Chief Justice Barak also stated that, in the overwhelming majority cases, Palestinian civilians would not agree to assist and, if they did, it would be out of fear of the army. He added that in 100 cases where civilians assist the army, 99 would be unwilling to do so. Despite these criticisms of the “prior warning order”, the Supreme Court did not issue an injunction banning its use, as requested by the petitioners. Rather, the Court ordered the state/army to notify the Court, within 90 days, about how this military order is actually being implemented in the field.

Representing the petitioners, Adalah Attorney Marwan Dalal argued at the hearing that international humanitarian law absolutely prohibits an occupying power from using civilians - who are a protected population in an occupied territory - in military operations. Adalah drew the Court's attention to three rulings issued by the International Criminal Tribunal for the Former Yugoslavia (ICTY) - Kordic and Cerkaz, 26 February 2001; Blaskic, 29 July 2004; and Aleksovski, 29 June 1999 - which prohibited the use of civilians as human shields by an enemy force, and particularly positioning them in dangerous places. The ICTY judgments confirmed that international humanitarian law is clear in its prohibition on placing any civilian in a position where s/he is exposed to danger, without any relationship to the realization of the danger. In Blaskic (para. 645), for example, the ICTY held that:

Using protected detainees as human shields constitutes a violation of the provisions of the Geneva Conventions regardless of whether those human shields were actually attacked or harmed. Indeed, the prohibition is designed to protect detainees from being exposed to the risk of harm and not only to the harm itself.
Adalah further contended, at the hearing, that it is illogical to expect that Palestinian civilians would consent to assist the Israeli army, due to the inherent dangerousness of the army's operations, as well as their perception of the army as an occupying force.

This litigation began in May 2002 with the submission of a petition to the Supreme Court challenging the legality of the Israel army's use of Palestinian civilians as human shields and/or as hostages during the course of military operations. Israeli soldiers force Palestinian civilians to: (i) enter buildings to check if they are booby-trapped; (ii) remove suspicious objects from roads used by the army; (iii) stand inside houses where soldiers have set up military positions, so that Palestinians will not fire at the soldiers; (iv) walk in front of soldiers to shield them from gunfire, while the soldiers hold a gun behind their backs and sometimes fire over their shoulders; and (v) remain tied to military jeeps at which stones are being thrown by protestors.

In August 2002, after the killing of a 19-year-old Palestinian civilian, Mr. Nidal Abu Mohsen, while being used as a human shield during the course of an Israeli military operation in Tubas, West Bank, at the petitioners' request, the Supreme Court issued an injunction similar to one requested in April 2004. However, the army continued to use Palestinian civilians as human shields and/or hostages, in contempt of the Court's order. Adalah repeatedly provided the Court with testimonies and affidavits of eyewitnesses and victims showing that the Israeli military was breaching the Court's order. In November 2002, the petitioners filed the first motion for contempt of court against the army. However, the Court did not issue any decision on this request.

The Israeli army prepared the “prior warning order” in December 2002. The state claims that “assistance” does not amount to participation in a military operation, and that civilian use for “assistance” is done in order to prevent the loss of life. During a Supreme Court hearing held on the case in January 2003, the Court limited its August 2002 injunction and permitted the army's use of the aforementioned order.

The last time that the Supreme Court heard the case was in July 2003. At that time, the Court refused to extend the scope of the injunction to include a prohibition on the use of the “prior warning order”. It also ruled that it would deliver a final judgment at a future date, and that it may issue such a ruling with an expanded panel of justices. To date, the Court has not issued a decision on the petition.

The Israeli military has breached the injunction banning it from using Palestinian civilians as human shields and/or hostages in at least 27 instances, at different times and locations as well as by different forces, showing a consistent pattern of violation. This information has been documented by the petitioners and brought before the Court. Relying on this information, in August 2004, the petitioners filed a second motion for contempt of court against the army for its failure to implement the Court's order prohibiting the use of Palestinian civilians as human shields and/or hostages. Adalah argued in the motion that occurrences of the Israeli military violating the Court's orders present a serious danger to the lives and safety of civilians, and infringe their dignity, which are basic human rights stipulated in the Geneva Convention (IV) – 1949. Adalah also argued that, if the Court does not respond to the content of the motion, the principle of the rule of law over all the state's institutions will be rendered devoid of all meaning.

Adalah accompanied the motion for contempt of court with eight new testimonies gathered by B'Tselem from Palestinians who have been used as human shields and/or hostages by the Israeli military during military operations. These incidents date from January to July 2004. However, the Supreme Court did not address this motion or issue any decision at the recent hearing.

H.C. 3799/02, Adalah, et. al. v. Yitzhak Eitan, Commander of the Israeli Army in the West Bank, et. al.

 Motion (H)