The Supreme Court’s Decision (H)
On 27 February 2006, the Supreme Court of Israel rejected a motion submitted by the Minister of Defense, Shaul Mofaz, and the Chief of Staff of the Israeli Army, Dan Halutz, requesting a second hearing before an expanded panel of the Court to reconsider its ruling prohibiting the Israeli army’s use of Palestinian civilians in military operations (see H.C. 10739/05, Minister of Defense, et. al. v. Adalah, et. al.).
In ruling on the motion, Supreme Court Justice Rivlin found that there was no legal basis to hold another hearing before an expanded panel of the Court. He reasoned that the case had been litigated for three years, during which the Court held several hearings and received numerous legal briefs from both parties before reaching its final decision. He added that, "It is the duty of the army which holds a territory in a belligerent occupation to protect the life and dignity of a local resident. To place this resident, who is caught in the middle of a battlefield, in a position where he has to choose whether or not to acquiesce to the army’s request to pass a warning to a wanted gunman is to place him in an impossible position. The choice itself is immoral and impairs the dignity of man.”
On 6 October 2005, a three-Justice panel of the Supreme Court accepted a petition filed by Adalah in May 2002, ruling that the Israeli army’s use of Palestinian civilians in military operations constituted a violation of international humanitarian law (IHL). The Court banned the army’s use of civilians either as “human shields or as hostages,” and prohibited its use of the “prior warning order” for conducting arrests in the West Bank. Adalah Attorney Marwan Dalal submitted the petition as well as the response to the state’s motion for a second hearing in Adalah’s own name and on behalf of the Association for Civil Rights in Israel, LAW, Physicians for Human Rights-Israel, B’Tselem, The Public Committee Against Torture in Israel, and HaMoked: Center for the Defence of the Individual.
The “prior warning order” provided that the army could seek assistance from Palestinian civilians in the Occupied Palestinian Territories (OPTs) while engaging in military operations to conduct arrests as long as two conditions were met: (i) the civilian did not “refuse to assist;” and (ii) the military commander in the field determined that the act posed no danger to the civilian. In its ruling of 6 October 2005, the Supreme Court accepted the petitioners’ position that the “prior warning order” was based on the faulty presumption of “voluntary” assistance, that no Palestinian would voluntarily agree to assist an occupying army in carrying out its military operations, and that a civilian’s “assistance” still amounts to participation in a military operation, which is prohibited under IHL.
In the motion for a second hearing, the Minister of Defense and the Army Chief of Staff argued that the Supreme Court’s ruling created a legal precedent, which will have a negative and harmful effect on the military’s operations in the OPT, and that the Court had erred in ruling that the “prior warning order” violated IHL.
In its response, the petitioners argued that there is no legal basis for a second hearing as the Court’s decision is in accordance with domestic and international legal principles and jurisprudence. Furthermore, Adalah argued that the request should be denied as substantial evidence had been presented to Court demonstrating that the Israeli army has consistently violated and continues to violate the Court’s injunctions and rulings which prohibit the use of Palestinian civilians in its military operations. The response included two testimonies obtained by B’Tselem, which detail incidences of the Israeli army’s continued use of the “prior warning order” which occurred after the Supreme Court’s ruled to ban the practice in October 2005.
H.C. 10739/05 Minister of Defense et. al. v. Adalah (petition withdrawn).
See also: Adalah to Supreme Court: Deny State’s Request to Reconsider Court’s Decision Banning Military’s Use of Palestinian Civilians as Human Shields – Adalah News Update, 13 February 2006.