8 July 2003

Supreme Court to Hear Human Shields Case Today

Today at 11:30 a.m., the Supreme Court of Israel will hear a petition 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 to conduct arrests in the 1967 Occupied Territories. Israeli soldiers have forced 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; and (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. The Supreme Court will hear arguments primarily on two issues:

Does using Palestinian civilians in military operations to conduct arrests violate Israeli and international law? Considering the numerous affidavits by Palestinian civilians, Israeli soldiers and other eyewitnesses that were submitted to the Court regarding the continued use of these practices, did the Israeli army violate an injunction currently in place banning the use of Palestinian civilians as human shields and/or as hostages, and thus, is the army in contempt of court?

The three presiding justices will be Chief Justice Aharon Barak, Justice Theodor Or, and Justice Eliyahu Matza. Adalah Attorney Marwan Dalal will represent the petitioners before the Court.

The Petition: On 5 May 2002, Adalah: The Legal Center for Arab Minority Rights in Israel on behalf of seven Israeli and Palestinian NGOs filed a petition to the Supreme Court based on numerous testimonies collected by local and international human rights organizations seeking an order instructing the Israeli army to stop using Palestinian civilians as human shields and/or as hostages. The petitioners' also requested an immediate injunction to stop the Israeli army's illegal and abusive practices. The petitioners are 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 Israeli Information Center for Human Rights in the Occupied Territories ("B'Tselem"), The Public Committee Against Torture in Israel and HaMoked: Center for the Defence of the Individual. The petitioners named as respondents Yitzhak Eitan, then-Commander of the Israeli Army in the West Bank; Shaul Mofaz, then-Chief of Staff of the Israeli Army (now Minister of Defense); Benjamin Ben-Eliezer, then-Minister of Defense; and Ariel Sharon, Prime Minister of Israel.

Petitioners' Arguments: Adalah, on behalf of the petitioners, argued that the army's use of Palestinian civilians as human shields and/or as hostages is inhuman treatment and violates the right to life, physical integrity, and dignity. These actions are a violation of Articles 27, 28, 31, 32, 33, 34, and 51 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949). For example, Article 51 of the Geneva Convention (IV) states inter alia that: "The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces." The Israeli military's use of Palestinian civilians as human shields and/or as hostages amounts to a grave breach of the Geneva Convention (IV), pursuant to Article 147, and thus, these actions constitute a war crime. The army's actions also violate Articles 45, 46, and 50 of the Hague Regulations (1907), as well as Articles 51, 57 and 58 of Protocol I to the Geneva Conventions of 12 August 1949 (1977).

Case Developments:

August 2002 - The Supreme Court issued a temporary injunction as requested by the petitioners prohibiting the use Palestinian civilians as human shields and/or hostages.

November 2002 - Petitioners filed a motion for a contempt of court against the respondents based on their continued use of Palestinians as human shields.

December 2002 - State claimed that the army had adopted a new order called "prior warning," whereby Palestinian civilians could be used for "assistance" if they agree to the request. Such assistance may be provided, according to the State, when two conditions are met: i) the military commander in the field determines that there is no danger to the civilian; and ii) the civilian agrees to comply. The petitioners rejected the claim that "assistance" does not amount to participation in a military operation arguing that all "assistance" is inherently dangerous and that no Palestinian would voluntarily agree to assist an occupying army carrying out its operations.

January 2003 - Supreme Court limited the injunction and permitted the army to act pursuant to the new "prior warning" order. However, the Court also requested arguments from the petitioners and the state regarding the legality of this practice. State claimed that civilian use for "assistance" is done in order to prevent the loss of life, and that the military's new "assistance order" complies with the mandates of international law.

February 2003 - Petitioners challenged the legal bases relied upon by the state for the military's new "prior warning" 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. Petitioners submitted an expert opinion by Tel Aviv University International Law Professor Eyal Benvenisti, which concurred with the argument that international humanitarian law absolutely prohibits an occupying power from using civilians in the military operations of its forces, based on, inter alia, Articles 27 and 28 of the Geneva Convention (IV) and Articles 51, 57 and 58 of Protocol I to the Geneva Conventions.

April-July 2003 - Petitioners submitted additional testimonies and affidavits to the Court from Palestinian civilians, an Israeli soldier, and other eyewitnesses of Palestinians being used as human shields and as hostages. For example, on 3 July 2003, Adalah, on behalf of the petitioners, submitted a new affidavit given by an Israeli soldier who does his reserve service in the Occupied Territories. Regarding the issue of the "prior warning" order, particularly that of "consent" of a Palestinian civilian, the soldier stated that: "The commanders of my unit ... treated it like a joke ... One guy asked what we should do if the Palestinian did not agree to serve as a shield, to which the instructor answered - grinning and joking - 'there is no such thing.'" Regarding the issue of discretion of the military commander in the field, he added that: "As for the second condition, which determined that the procedure may not be used if it places the Palestinian's life in danger, the army simply ignores it."

On 6 July 2003, the State filed its response to the petitioners' February 2003 submission. The State claimed in its reply that using civilians as human shields or as hostages is prohibited, however, the "prior warning order" is not a case of using civilians as human shields or as hostages. It is based on the consent of a civilian as well as the discretion of the military commander in the field that there is no danger to the civilian. According to the state, this practice is not banned by international humanitarian law.

Citation - H.C. 3799/02, Adalah, et. al. v. Yitzhak Eitan, Commander of the Israeli Army in the West Bank, et. al. (case pending)

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