motion for injunction (H)
On 28 April 2004, Adalah submitted a motion to the Supreme Court of Israel in its own name and on behalf of six other Israeli and Palestinian human rights organizations requesting the immediate issuance of an injunction and an urgent hearing in the “human shields” case, pending before the Court since May 2002. Specifically, the petitioners seek an order prohibiting the Israeli military from using Palestinian civilians in the 1967 Occupied Territories during and for the purpose of military operations, including as human shields and/or as hostages, and from approaching civilians and asking them in any way to participate in military operations, irrespective of the discretion of any military commander.
Adalah argued in the motion that these illegal practices used by Israeli military are continuing and provided four new affidavits and testimonies collected by Adalah, Rabbis for Human Rights, and B’Tselem from individuals who were used as human shields and/or as hostages during Israeli military operations in December 2003, January 2004, and most recently in April 2004.
Adalah Attorney Marwan Dalal filed the motion on behalf of 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 Public Committee Against Torture in Israel and HaMoked: Center for the Defence of the Individual. The named respondents are 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.
At present, there is an injunction in place banning the Israeli military’s use of Palestinian civilians as human shields and/or as hostages. However, the army claims that it may use Palestinian civilians in military operations, if they agree to “assist” and the military commander in the field determines that there is no danger to the civilians. According to the army, this “Operational Order - Prior Warning” and these practices do not constitute the use of Palestinian civilians as human shields and/or as hostages. The petitioners have consistently argued that these practices are illegal for the following reasons: (i) The purpose of the order is to allow the army to get assistance from Palestinian civilians, while conducting an arrest. This practice is inherently dangerous, even as noted in the text of the order, which anticipates an exchange of fire; (ii) Under international humanitarian law, the army may not approach a civilian to ask for his or her assistance in a military operation pursued by an occupying power; and (iii) In practice, in the field, the Israeli military disregards the safety of Palestinian civilians, as also set forth in the “Operational Order - Prior Warning”, and it is illogical that a Palestinian civilian would consent to assist the Israeli army due to the inherent dangerousness of its operations. Moreover, Palestinian civilians perceive the Israeli military as an occupying force.
In August 2002, after the killing of a 19-year-old Palestinian civilian, Mr. Nidal Abu Mohsen, while being used as a human shield during the course of an Israeli military operation in Tubas, West Bank, at the petitioners’ request, the Supreme Court issued an injunction similar to one that is now being requested. Yet, in January 2003, the Supreme Court limited that injunction to the one currently in place, despite the fact that it did not rule on the legality of the “Operational Order – Prior Warning,” but requested the petitioners and the state to submit written arguments on the status of the Order under law. In July 2003, the Court heard oral arguments on this issue and decided that it will deliver a final judgment on the matter, possibly by an expanded panel of justices. To date, the Supreme Court has still not delivered its decision.
In the new motion for an injunction, Adalah argued that the substantial and irreversible harm to Palestinian civilians is much greater if the military is permitted to continue to approach individuals and use them for military purposes at the field commanders’ discretion, than any potential harm to the Israeli military were they to completely refrain from resorting to these practices. This is particularly true given the serious reservation as to the legality of the “Operational Order- Prior Warning”, which is still a matter of dispute before the Court.
Most recently, on 15 April 2004, the Israeli military used Mohammed Badwan, a 12-year-old Palestinian boy from Biddo, West Bank as a human shield. Mohammed was taking part in a demonstration against the construction of The Wall in Biddo. Following the use of tear gas by the Israeli army to disperse the demonstrators, some youth started throwing stones at the military. Rabbi Arik Asherman of Rabbis for Human Rights, who was also taking part in the demonstration, received word that the Israeli military was holding a boy and beating him. When Rabbi Asherman approached the soldiers, he saw Mohammed sitting on the hood of a military jeep with his arm tied to the metal grating on the windshield. When he tried to intervene with the military for Mohammed’s release, the soldiers shouted at Rabbi Asherman with one of them hitting him in the nose. Rabbi Asherman was subsequently arrested, handcuffed, and put in front of another military jeep near Mohammed, along with an approximately 60-year-old Swedish activist and another Palestinian civilian, while stones continued to be thrown at the Israeli military. Rabbi Asherman told the soldiers not to use them as human shields and they responded by shouting and threatening him. Placing the four civilians in front of the military jeeps put their safety in serious jeopardy.
On 12 January 2004, Mr. Ahmad Assaf, a 33-year-old father of five living in the Tulkarm refugee camp was also used by the Israeli military as a human shield as well as subjected to other physical and verbal abuses for an entire day. Mr. Assaf was forced to enter and search many homes before Israeli soldiers entered. The soldiers also bombed and fired shots into these homes both before and after Mr. Assaf was compelled to enter them. Mr. Ahmad Ganem, 25-years-old, living in the Tulkarm refugee camp, was also used by Israeli soldiers to enter and search homes prior to their entry on 12 January 2004.
On 4 December 2003, Mr. Majd Abu Arab, a 40-year-old journalist from Nablus, was used as human shield by the Israeli military. At about 2:00 a.m., Mr. Abu Arab saw a bright light shining into his living room and stones being thrown at the windows. Israeli soldiers shouted to him to come downstairs. When he went down, three armed soldiers with blackened faces holding guns with red lasers shining from them, asked Abu Arab to knock on his neighbor’s door. He responded that it was not his job, that he is not a policeman, and that he is a reporter. In reply, one of the soldiers shouted, “Shut up, ring the bell, or I’ll shoot you.” Abu Arab complied. When the neighbor opened the door, the three soldiers jumped back into a corner, despite the fact that the neighbor was unarmed. The soldiers ordered the neighbor and his family out of the apartment and to stand outside in the rain. The soldiers asked the family members for their identity cards and subsequently arrested the neighbor’s 24-year-old daughter.
Citation - H.C. 3799/02, Adalah, et. al. v. Yitzhak Eitan, Commander of the Israeli Army in the West Bank, et. al. (case pending) For more information, including a briefing paper detailing all of the case developments, see Special Reports – “Human Shields.”