29 January 2003

Supreme Court Permits Israeli Army to Use Palestinians Civilians as "Assistants" With Their Consent

At a hearing held on 21 January 2003, the Supreme Court limited an injunction currently in place, which prohibits the Israeli army from using Palestinian civilians in the 1967 Occupied Territories as human shields. The Court permitted the army to act, pursuant to a new military order, which allows military commanders to request the "assistance" of Palestinian civilians. According to the order, such assistance may be provided when there is, at the discretion of the military commander in the field, no danger to the civilian, and when the civilian agrees to comply. The Court gave the petitioners 30 days to submit written arguments regarding the new military "assistance order," and the state and the army 30 days to respond to that submission.

The Supreme Court hearing was held last week in connection with a petition and motion for an immediate injunction filed by seven human rights organizations on 5 May 2002 seeking to prohibit the Israeli army from using Palestinian civilians as human shields and/or as hostages. Soon thereafter, the Attorney General's office announced that the Israeli army would issue an order banning the use of Palestinian civilians as human shields, and would clarify that the use of Palestinian residents to enter homes during military operations is also forbidden "in cases in which the commander in the field believes that a civilian is liable to be injured." In response, the petitioners asked that the army issue a comprehensive ban on the use of Palestinian civilians for military purposes; such an order was never issued.

In 14 August 2002, Nidal Abu Mohsen, 19, was killed while being used as a human shield during the course of a military operation in Tubas, West Bank. Abu Mohsen was compelled by the Israeli army to stand in front of soldiers and knock on a neighbor's door. After Abu Mohsen's death, the petitioners filed a second motion for injunction requesting that the Supreme Court prohibit the military from using Palestinian civilians as human shields and/or taking them as hostages, including the use of "neighbor practice," in an absolute manner with no discretion for the military commander. On 18 August 2002, the Supreme Court issued an injunction banning the army from engaging in these practices. The petitioners' subsequently submitted a motion for contempt of court on 20 November 2002, arguing that despite the injunction, the Israeli army continued to use Palestinian civilians as human shields in its military operations. On 5 December 2002, the State submitted written arguments in response to the organizations' filings, and on 24 December 2002, the organizations' submitted additional evidence, which detailed the army's continued breach of the injunction.

The petitioners in the case are Adalah, the Association for Civil Rights in Israel (ACRI), LAW - The Palestinian Society for the Protection of Human Rights 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. Adalah Staff Attorney Marwan Dalal prepared the filings and argued before the Supreme Court on behalf of the petitioners.

At the hearing, the Attorney General's representative, Mr. Shai Nitzan, claimed that the Israeli army does not use Palestinian civilians as human shields, but that it does get help from Palestinians in order to prevent loss of life. He alleged that the military's new "assistance order," which requires that the army gain consent of the individual, complies with the mandates of international law. In particular, he cited to Article 26 of the Hague Regulations (1907); Article 21 of the Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949); Article 19 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949); and Article 57 (2)(c) of Protocol I to the Geneva Conventions of 12 August 1949 (1977). He added that the new order was prepared after lengthy discussions and was approved by Attorney General Elyakim Rubenstein.

For the petitioners, Mr. Dalal argued before the Court that the "assistance" sought by the military amounts to the continued use of Palestinian civilians as human shields and/or taking them as hostages, and as such is a violation of international law. This "assistance," such as walking in front of soldiers or knocking on doors and asking persons to come out so that the army may arrest them, is clearly a part of military operations, and as such, is inherently dangerous and prohibited. These practices violate the rights of Palestinians to life, dignity, and freedom from humiliating and degrading treatment. The army's continued use of these illegal practices amount to a grave breach of the Geneva Convention (IV).

In the current reality of the 1967 Occupied Territories, no Palestinian, emphasized Mr. Dalal, would voluntarily agree to assist the Israeli military in carrying out its operations as civilians view the army as a foreign, hostile, occupying power. Further, he argued that the discretion of military commanders, in determining whether it is safe to involve Palestinian civilians in operations, cannot and should not be trusted. He pointed to evidence previously brought before the Court by the petitioners which showed that the military commanders in the field continued to perceive the use of civilians in military operations as efficient and justified, even after the deaths of Palestinians killed while "assisting" the army in apprehending others.

Mr. Dalal also challenged the legal bases relied upon by the state for the military's new "assistance order," arguing that all of the provisions cited speak only of the duty of an attacking power to issue a warning prior to an attack. The provisions mention nothing about the possibility of the military's use of civilians during their operations.

Following Mr. Dalal's oral argument, Justice Englard commented - "what do you want [of the military], to blow up the houses with missiles."

Surprisingly, the Supreme Court refused to hear arguments regarding the motion for contempt of court, despite the respondents' general denial of the petitioners' evidence of the army's continued breach of the injunction. The respondents' - 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 - did not submit any affidavits or any alternative version of the incidents as set forth by the petitioners evidencing the use of Palestinian civilians as human shields. No new hearing date has been scheduled by the Court.

The human rights organizations are deeply concerned that the new military "assistance order," which amounts to an exception to the total prohibition on using civilians as human shields, will allow the Israeli army to continue to commit gross violations of human rights against Palestinians in the Occupied Territories. Using Palestinian civilians in any manner during military operations, as human shields or otherwise, is dangerous, humiliating and degrading, and amounts to a grave breach of the Geneva Convention (IV). A grave breach of the Geneva Convention (IV) constitutes a war crime.

See also:

Adalah News Update, "Israeli Army Continues to Breach Supreme Court Injunction Prohibiting Use of Palestinian Civilians as Human Shields," 25 December 2002.

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