Adalah v GOC Central Command, IDF

JurisdictionIsrael
CourtSupreme Court (Israel)
Docket Number(HCJ 3799/02)1

Israel, Supreme Court.2

(Barak, President; Cheshin, Vice-President; Beinisch, Justice)

(HCJ 3799/02)1

Adalah (Legal Center for Arab Minority Rights in Israel) and Others
and
GOC Central Command, IDF and Others

(Early Warning Procedure Case)

War and armed conflict Belligerent occupation Civilians West Bank territories occupied by Israel since 1967 Geneva Convention IV respecting the Protection of Civilian Persons, 1949 Regulations Concerning the Laws and Customs of War on Land, 1907 Prohibition of use of protected residents to assist the war effort of the occupying State Use of civilian residents to deliver warnings to houses containing suspects Danger to such civilians Assistance of consenting local civilian Early Warning procedure The law of Israel

Summary: The facts:IDF policy prohibited the use of civilians as a live shield or as hostages against armed attacks upon IDF personnel in the occupied territories. Under certain circumstances, however, the policy permitted the use of an Early Warning Procedure, according to which IDF soldiers wishing to arrest a Palestinian suspect were allowed to request the assistance of local residents in supplying an early warning to the residents of a house, so as to allow persons to leave the building before it became necessary to use force.3 The petitioners argued that the use of civilians to deliver warnings under such circumstances violated both international law and Israeli constitutional law and had resulted in the death of a Palestinian civilian. It was argued that this incident illustrated the illegality of such a procedure. The petitioners contended that the procedure was equivalent to the use of civilians as human shields, as the civilians involved were placed in real and tangible danger. The respondents claimed that the procedure was intended to prevent injury to innocent civilians in circumstances where no effective alternative method of warning was available. It was also argued that the policy reduced the need to use force.

Held (unanimously):The procedure was contrary to international law.

(1) The armed forces operating in occupied territory were entitled to arrest a resident suspected of endangering their security and were permitted, and in some circumstances required, to give such a person a warning before using force to effect the arrest (para. 20).

(2) It was a fundamental principle of the international law applicable to occupied territories that the occupying forces had a duty to protect the lives and safety of members of the civilian population. International law, therefore, clearly prohibited the use of members of the population of occupied territory as a human shield. Similarly, compelling residents to deliver early warnings in circumstances where their safety might be endangered by doing so was contrary to international law (paras. 212).

(3) While there was no express rule prohibiting the use of residents who acted voluntarily to deliver early warnings in circumstances where they would not thereby be endangered, the general principles that such residents must be protected and should not be used to assist the war effort of the occupying State, together with the difficulty of establishing whether they were truly acting voluntarily and whether they might be endangered, rendered even a policy of making voluntary use of such residents unlawful (paras. 235).

The following is the text of the judgments delivered in the Court:

President A. Barak

According to the Early Warning procedure, Israeli soldiers wishing to arrest a Palestinian suspected of terrorist activity may be aided by a local Palestinian resident, who gives the suspect prior warning of possible injury to the suspect or to those with him during the arrest. Is this procedure legal? That is the question before us.

A. The Petition and the Course of its Hearing

[1.] Petitioners, seven human rights organizations, submitted this petition after the commencement of combat activities in the territories, in the framework of operation Defensive Wall. They contend that the IDF is using the civilian population in a way that violates fundamental norms of international and constitutional law. They have based their arguments on reports in the Israeli press and upon reports of international human rights organizations (e.g. Human Rights Watch, B'tselem, and Amnesty International). These reports contain descriptions of many cases in which the IDF made use of local residents for military needs. Described, inter alia, are cases in which the IDF forced Palestinian residents to walk through and scan buildings suspected to be booby-trapped, and in which it ordered them to enter certain areas before the combat forces, in order to find wanted persons there; also described are cases in which the army used residents as a human shield which accompanied the combat forces, to serve as a shield against attack on those forces. Thus, residents were stationed on porches of houses where soldiers were present, in order to prevent gunfire upon the houses. Further described were cases in which local residents were asked about the presence of wanted persons and weapons, under threat of bodily injury or death, should the questions go unanswered. According to the reports, relatives were taken in certain cases as hostages, in order to ensure the arrest of wanted persons.

2. It was against this background that petitioners submitted this petition (on 5 May 2002). They contended that respondents were violating Israeli constitutional law and the fundamental norms of public international law, when the civilian population was used during operations in the Judea and Samaria area. They asked that this Court issue an inter-locutory injunction, ordering respondents to refrain from using people as a human shield or as hostages during their military operations. Respondents responded that:

3. Respondents later announced (on 20 May 2002) that the Chief of the General Staff had instructed the IDF to prepare orders relating to the subject. As a result, the instructions providing that it is strictly forbidden to use Palestinian civilians as a live shield (to position civilians alongside army forces in order to protect the soldiers from injury) were issued. The instructions further provided that it is strictly forbidden to hold Palestinian civilians as hostages (to seize and hold civilians as a means to pressure others). Last, the instructions provided that it is strictly forbidden to use civilians in situations where they might be exposed to danger to life or limb. However, respondents did not rule out the possibility of being assisted by the local population. They emphasized that such assistance is solicited in situations where it will allow avoidance of a military act liable to cause greater harm to local residents, to soldiers, and to property. At the first hearing in the petition (on 21 May 2002), before Justices T. Strasberg-Cohen, D. Beinisch, and E. Rivlin, it was decided that respondents shall submit a supplementary response, in which they shall update the Court regarding preparation of an order to formalize and clarify the issue of soliciting Palestinian residents' assistance.

4. Petitioners submitted a statement (on 18 August 2002), attempting to illustrate the illegality of using civilians, through the case of the death of Palestinian civilian Abu Muhsan from the village of Tubas. Abu Muhsan was killed (on 14 August 2002) while participating in the neighbor procedure, as IDF forces tried to arrest a dangerous wanted person. Petitioners contended that he was asked to assist soldiers during the arrest of a wanted person in a most dangerous situation, and that his death illustrates the illegality of use of civilians who are asked to assist the security forces. Against this background, petitioners claimed that one cannot rely at all upon security agencies' discretion in employing the procedures they enacted. In light of petitioners' statement, this Court issued (Strasberg-Cohen J on 18 August 2002) a temporary interlocutory injunction, ordering respondents to refrain from using Palestinian civilians as a human shield or as hostages, including their use for any military acts such as the neighbor procedure, absolutely, irrespective of the discretion of any military personnel. This temporary interlocutory injunction was extended a number of times, with respondents' agreement.

B. The Early Warning Procedure

5. In respondents' supplementary statement (of 5 December 2002), they stated that IDF soldiers will continue to be absolutely forbidden from using civilians as a live shield against gunfire or attacks by the Palestinian side, or as hostages. Regarding assistance by Palestinian residents in order to prevent loss of life, it was decided that an order would be issued, clarifying in which exact situations it is forbidden, in which permitted, and under what restrictions. Respondents stated that at the end of a debate in which various IDF officials participated, instructions and orders were issued (on 26 November 2002), along with an operational directive by the name of Early Warning. This directive lays out the procedures for soliciting the assistance of local residents, in order to arrest wanted persons. The directive opens with the following general description:

When operations are preplanned, the procedure must be approved, in the framework in which the operations are approved. In cases of activity which was not preplanned, the approval of the brigade commander, his deputy, or of the brigade operations directorate officer is needed, in order to use it. When the procedure is used, an effort is to be made to find a person such as a relative or neighbor, who is acquainted with the wanted person or with the residents of the house, or has influence over them. The procedure is not to be used to solicit the assistance of women, children, the elderly, or the disabled (clause 1 of the procedure).

6. The Early Warning directive also included the details of the procedure...

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