Israeli Army Asks Supreme Court to Grant Second Hearing to Re-Consider its Decision Banning the Use of Palestinians as Human Shields
On 17 November 2005, the Attorney General (AG) submitted a motion to the Supreme Court of Israel on behalf of the Defense Minister, Shaul Mofaz, and the Chief of the Israeli Army, Dan Halutz, requesting a second hearing before the Supreme Court in the “human shields” case. The AG argued that the Supreme Court's recent decision created a new legal precedent, which will have a negative and harmful effect on the military's operations in the 1967 Occupied Palestinian Territories, that it is legally flawed, and that a second hearing before an expanded panel of the Court to re-consider the decision is justified under these circumstances.
On 6 October 2005, the Supreme Court ruling, by Chief Justice Aharon Barak, Deputy Chief Justice Mishael Heshin, and Justice Dorit Beinisch, accepted a petition filed by Adalah on behalf of six Palestinian and Israeli human rights organizations 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 Supreme Court banned the army's use of civilians either as “human shields or as hostages” and the “prior warning order” used by the army in the course of its military operations to conduct arrests in the West Bank.
The “prior warning order” provided that the army could seek assistance from civilians as long as two conditions were met: (i) the civilian did not “refuse to assist;” and (ii) the commander determined that the act poses no danger to the civilian. The petitioners objected to the “prior warning order,” arguing that it is based on the faulty presumption of “voluntary” assistance, that no Palestinian would voluntarily agree to assist an occupying army in carrying out its 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 AG argued that the Supreme Court was mistaken in ruling that the “prior warning order” violated IHL. The AG stated that although IHL prohibits compelling a civilian to provide assistance to the military in its war effort, it does not bar the obtaining of assistance where a civilian consents. Regarding the scope of a civilian's consent, the AG argued that: (i) it cannot be determined, generally, that in all cases there will not be real consent; and (ii) even if there were no real consent, the army's practice is still not prohibited under IHL because the civilian is not participating in the war effort, but rather providing a warning to others based on humanitarian considerations. In other words, the AG argued that the army can, under IHL, compel an individual to provide "humanitarian assistance" (the warning), during a military operation to conduct an arrest. The AG also added that determining that the military's "prior warning order" contradicted IHL has serious ramifications for the State of Israel, which is not justified due to the Court's erroneous ruling.
The Supreme Court ruled in its October 2005 judgment that the army “cannot exploit the civilian population for the army's military needs, and [the army] cannot force them to collaborate.” In accepting Adalah's argument, the Supreme Court also ruled that, "Due to the lack of equality between the occupying power and the local resident, it is not possible to expect that the latter would reject a request to pass a warning to someone who is being sought for arrest. A military order should not be based on consent, when in most cases the consent will not be genuine...Reaching a situation where the consent is being requested should not be allowed."
According to Supreme Court procedure, the most senior justice of the Court who was not a member of the panel that issued the judgment must decide, after receiving the petitioners' response, whether or not to grant the AG's request for a second hearing.
Adalah Attorney Marwan Dalal, who represented the petitioners in this case, stated that the petitioners will inform the Court, when requested, that “the Attorney General's motion has no legal basis and therefore must be dismissed. International humanitarian law is clear in prohibiting the use of civilians in an occupied territory by an occupying power during its military operations."
