24 October 2005
Supreme Court Bans Use of Palestinians as Human Shields by Israeli Military
On 6 October 2005, the Supreme Court of Israel issued a final verdict on a petition filed by Adalah, ruling that the Israeli army's use of Palestinian civilians in military operations constitutes a violation of international humanitarian law. The Supreme Court banned the army's use of civilians either as “human shields or hostages” in addition to the “prior warning order” in the course of Israel's military operations.
The ruling follows over three years of litigation by Adalah in cooperation with six other Israeli and Palestinian human rights organizations: the Association for Civil Rights in Israel (ACRI), Qanun (Law), Physicians for Human Rights-Israel, B'Tselem, The Public Committee Against Torture in Israel (PCATI), and HaMoked: Center for the Defence of the Individual. The named respondents were the Commander of the Israeli Army in the West Bank; the Chief of Staff of the Israeli Army; the Ministry of Defense, and the Prime Minister of Israel.
Litigation on this case began in May 2002 when Adalah Attorney Marwan Dalal submitted the petition to the Supreme Court, challenging the legality of the Israeli army's use of Palestinian civilians as human shields and/or as hostages during military operations. The petition presented evidence of the Israeli army's use of Palestinian civilians to: (i) enter buildings to check if they are booby-tapped; (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 the 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.
The petitioners argued that the use of civilians by an occupying power in military operations violates several articles of the Fourth Geneva Convention (1949), the Hague Convention (1907), and Protocol Additional to the Geneva Conventions of 1949 (Protocol I). Over the course of the litigation, Adalah also cited three rulings issued by the International Criminal Tribunal for the Former Yugoslavia (ICTY) which supported the petitioners' arguments regarding the illegality of the use of civilians by a military force as human shields: Kordic and Cerkaz, 26 February 2001; Blaskic, 29 July 2004; and Aleksovski, 29 June 1999. In addition, an expert opinion obtained from Prof. Eyal Benvenisti (Faculty of Law, Tel Aviv University) was submitted to the Court by the petitioners.
In August 2002, after the killing of a 19-year-old Palestinian civilian being used as a human shield during a military operation in the West Bank, the Supreme Court issued an injunction prohibiting the use of civilians in military operations pending a final decision on the case. Nevertheless, the petitioners repeatedly provided the Court with the testimonies and affidavits of eyewitnesses and victims demonstrating that the Israeli military had violated the Court's order on several occasions. On the basis of this evidence, Adalah submitted two motions for contempt of court against the respondents in November 2002 and August 2004.
In December 2002, the Israeli army introduced “Operational Order - Prior Warning,” which allowed the army to seek “assistance” from civilians provided that two conditions were met: (i) the civilian did not “refuse to assist;” and (ii) the commander in the field determined that the act posed no danger to the civilian. This order was approved by then-Attorney General and current Supreme Court Justice Elyakim Rubenstein. The petitioners objected to the “prior warning order,” arguing that it is based on the faulty presumption of “voluntary” assistance, which cannot be sufficiently demonstrated in a conflict zone. The petitioners further argued that a civilian's “assistance” still amounts to participation in a military operation, which is prohibited under international humanitarian law.
At a hearing held in January 2003, Supreme Court Justices Strassberg-Cohen, Englard, and Procaccia limited the Court's injunction from August 2002 and permitted the Israeli army's use of the “prior warning order,” reserving, however, final judgment on legality of the order for a future date. During a subsequent hearing held on September 2004, the Court strongly criticized the “prior warning order,” but again denied the petitioners' motion to expand the injunction to prohibit the Israeli army from employing this procedure.
While acknowledging the significance of this decision, Adalah notes, however, that over the course of three years' litigation, the Israeli army has violated the Court's injunction on at least thirty-three occasions. Therefore, it is imperative that the Israeli army's actions in this regard continue to be monitored to ensure compliance with the Court's ruling.
H.C. 3799/02, Adalah, et. al. v. Yizhak Eitan, Commander of the Israeli Army in the West Bank, et. al. (case accepted 6/10/05).