Adalah to Supreme Court: Deny State's Request to Reconsider Court's Decision Banning Military's Use of Palestinian Civilians as Human Shields
On 8 February 2006, Adalah submitted its response to a petition submitted by Minister of Defense Shaul Mofaz and Chief of Staff of the Israeli Army Dan Halutz requesting a second hearing, before an expanded panel of the Supreme Court, to reconsider its ruling of 6 October 2005 outlawing the use of Palestinian civilians as human shields in Israel‘s military operations. Adalah submitted its response in its own name and on behalf of Israeli and Palestinian human rights organizations the Association for Civil Rights in Israel, LAW, Physicians for Human Rights-Israel, B'Tselem, The Public Committee Against Torture in Israel, and HaMoked.
On 6 October 2005, a three-Justice panel of the 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 law. In the decision, 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 petition filed by the Minister of Defense and Chief of Staff argued that the Court's 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. Specifically, the petitioners argued that the Supreme Court was mistaken in ruling that the “prior warning order” violated international law.
The “prior warning order” provided that the army could seek assistance from Palestinian civilians in the Occupied Palestinian Territories 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 commander determined that the act poses no danger to the civilian. In its ruling of 6 October, the Supreme Court accepted Adalah's 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 international humanitarian law.
In its response, Adalah stated that there is no legal basis for requesting a second hearing as the Court's original ruling is in accordance with domestic and international legal principles and jurisprudence. Furthermore, Adalah argued that the petitioners' request should be denied considering that Adalah has presented substantial evidence 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 military operations.
Between August 2002 and September 2005, Adalah submitted 33 testimonies and two motions of contempt of court against the Israeli army for continuing to use Palestinian civilians as human shields, in violation of the Court's injunctions. In the response, Adalah submitted two new testimonies provided by B'Tselem, documenting similar violations by the Israeli military since the Supreme Court's ruling in October 2005.
In the first testimony, Mrs. Rajeda Sharkawi, 44 years of age, from the West Bank village of el-Zababdi, testified that on 14 November 2005, a military commander instructed her to persuade her son to surrender himself to the Israeli military forces if she wanted him to remain alive. In the second testimony, Mr. Nashaat Daoud, 24 years of age, described how military personnel compelled him to search a building, which minutes earlier had come under fire by military forces during the same operation. He was ordered to instruct its occupants to evacuate the building, or else the military would demolish it. Commanders threatened to send Mr. Daoud to jail for 15 years if anyone remained inside the building after he had completed his search.
Adalah also submitted an affidavit given by a marine soldier who had participated in many operations aimed at detaining and arresting individuals in the West Bank. He stated that the use of Palestinian civilians in military operations was not uncommon, and that his own unit regularly compelled Palestinian civilians to assist them in their operations. The soldier further stated that his commander had said that he would disregard any objections from the civilians and force them to enter buildings to clear the way for the unit. The soldier's unit, he noted, never received official orders explaining the “prior warning” procedure and never sought to obtain a civilian's “agreement.” He added that his unit often sent children into a suspect's apartment to provide safer cover for military forces. According to his affidavit, during one operation, he almost shot a child unaware that the child had been sent into an apartment building at the behest of his own unit.
In the response, Adalah also submitted footage from Israel's Channel 10 Television News, broadcast on 6 September 2005. The footage shows Israeli military forces ordering Palestinian civilians to enter a building ahead of a military unit during an operation in the West Bank.
HCJ 10739/05 Minister of Defense et. al. v. Adalah
