H.C. 3116/02, Adalah and LAW v. Commander of the Israeli Army in the West Bank.
Filed: 12 April 2002. Decision: 14 April 2002.
Petitioners: Adalah and LAW.
Note: Joined by the Court with similar petitions filed by Members of Knesset Mohammad Barakeh and Ahmad Tibi (H.C. 3114/02, Mohammed Barakeh, M.K. v. Minister of Defense, Benjamin Ben-Eliezer, et. al. and H.C. 3115/02, Ahmed Tibi, M.K. v. Prime Minister Ariel Sharon et. al.).
Respondent: Commander of the Israeli Army in the West Bank, Yitzhak Eitan.
Petitioners' Requests
- A temporary injunction to stop the removal and burial of Palestinian bodies from the Jenin refugee camp until there is a decision in the case.
- Stop the burial of Palestinian fighters and civilians from Jenin refugee camp in mass graves.
- Allow burials to be conducted in a respectful manner by family members of the deceased.
- Eyewitnesses reported that the army was removing bodies and concentrating them at a location on the outskirts of the camp.
- On 12 April 2002, the Israeli newspaper Ha'aretz reported that the army intended to bury the bodies of Palestinian fighters in a cemetery in the Jordan valley, while the bodies of Palestinian civilians would be transferred to Jenin hospital.
- On 14 April 2002, the Israeli newspaper Yehediot Aharonot reported on the army's aborted plan to evacuate and bury Palestinian bodies in mass graves. A reporter with the newspaper observed two refrigeration trucks that were to be used to transport the bodies.
- Based on media reports, it appeared that the army was collecting and concentrating bodies on the outskirts of the Jenin refugee camp with the intention of burying them in mass, anonymous or numbered graves. The army refused to allow the ICRC, PRCS, or any other humanitarian agency to enter the camp for over nine days.
- The army's policy of not allowing ICRC and PRCS to enter the Jenin camp to identify and evacuate the bodies, and its policy of burying bodies in anonymous graves, contradicts domestic and international law.
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The army's refusal to allow families to rapidly and respectfully bury their dead according to religious customs infringes on the constitutional rights of the deceased and their families, under the Israeli
Basic Law: Human Dignity and Liberty. It is disproportionate and an arbitrary act of revenge.
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The army's actions constitute severe breaches of international humanitarian law, notably Articles 15 and 17 of the Geneva Convention (IV) , and Article 43 of the Hague Convention .
- The army's ongoing, severe breaches of international humanitarian law are considered forms of war crimes.
- The army's actions violate previous commitments made before the Court to avoid breaches of humanitarian law, and are thus in contempt of Court. Now that the army is in control of the Jenin camp, there is no justification for sweeping breaches of humanitarian law.
- After gaining control of the camp, the army commenced operations to find and evacuate bodies.
- The bodies were identified by medical teams and moved to a location at the outskirts of the camp.
- The army stated that it intended to make contact with the PRCS to arrange for prompt burial of the bodies.
- The army planned to propose the continued transfer of bodies to the Palestinians as long as the bodies were buried immediately. In the event that the bodies were not buried immediately, the army intended to bury them, alleging that they would represent a threat to the security of the Israeli soldiers.
- No distinction would be made by the army between the bodies of fighters and civilians.
- Many of the bodies were booby-trapped. Due to the risk of injury to civilians, only the army should evacuate them. No humanitarian agency will be allowed to enter the camp.
- Petitions dismissed.
- Temporary injunction granted on 12 April 2002.
- Petitions dismissed on 14 April 2002, following an agreement by the state to permit entry of the ICRC to the camp.
- The army must allow the ICRC to accompany and assist the army in locating the bodies of Palestinian fighters and civilians killed in the Jenin refugee camp. The PRCS should also be permitted to join in these activities, at the discretion of military commanders. This should be done as quickly as possible.
- The army, accompanied by the ICRC and PRCS, must identify the bodies, documenting them with photographic and other equipment in accordance with international humanitarian law. Local representatives should be included in the identification process, at the discretion of military commanders. This should be done as quickly as possible.
- Once bodies have been located and identified, they should be given to the family members as quickly as possible in order to permit burial of the bodies in a respectful manner according to religious customs.
- If Palestinian entities refrain from burying the bodies immediately, options will be considered whereby the bodies will be immediately buried by the army.
- According to international law, it is the responsibility of the army to find, identify, document and remove the bodies, before handing them over to Palestinian civilians for burial.
- During the 14 April 2002 hearing, the State agreed to allow the ICRC into the camp to accompany the Israeli army and assist in the location and identification of the bodies (Contradicting the position it advocated in its 12 April 2002 response to the petition).
- On 15 April 2002, the ICRC decided to stop the removal of Palestinian bodies from the Jenin camp, due to army restrictions on the movement of ICRC personnel, and the lack of appropriate equipment and personnel trained to extract the bodies from areas of such widespread destruction, particularly in light of the risks to health and safety due to the presence of decomposing bodies, mines and unexploded munitions. The ICRC noted there were no army medical teams, as the army had originally claimed.
- On the same day, Adalah and LAW requested that the Supreme Court of Israel order the Israeli army to resolve the grievances of the ICRC and PRCS regarding the removal of Palestinian bodies from the camp. The request was dismissed by the Court on 16 April 2002. The Court adopted the state's position that the request was unnecessary.
- The Court's decision fixed responsibility on the army for documenting and evacuating the bodies in accordance with international humanitarian law. In Adalah's view, this is also the army's responsibility as the occupying power in the Occupied Palestinian Territories.
- The state admitted that the army began evacuating bodies without immediately contacting relevant Palestinian organizations, in violation of international law and norms.
- As a result of the petition, the ICRC and PRCS were allowed to enter the camp to participate in the documentation and evacuation of bodies. The army restricted their movement, however, and would not provide them with the necessary equipment and tools to accomplish their tasks.
- ICRC and PRCS representatives reported that there were no medical teams involved in documenting and evacuating the bodies, as the army had originally claimed.
- The Court agreed with the respondents' claim that a massacre did not take place in the Jenin camp, only a "tough battle."
- Evidence strongly suggests that the Israeli army had a plan to bury the bodies of Palestinian fighters in mass and anonymous graves without necessary documentation. This raises suspicions of an attempt to conceal evidence on the part of the Israeli army. Though the State's response to the request for injunction asserted that the army intended to contact the PRCS to arrange transfer of Palestinian bodies, no effort was made to contact that organization until 15 April 2002, after the petition was filed. The army's plan was finally aborted, when it withdrew from Jenin camp on 18 April 2002. In this manner, they were able to evade their legal responsibility.