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The army's use of Palestinians to deliver warnings to wanted men about
impending arrest operations is illegal, as it violates the principles of
international law, the High Court of Justice ruled yesterday in response to
petitions by seven human rights organizations.
The petitions were filed in May 2002, in response to Operation Defensive
Shield. They were based on reports that the Israel Defense Forces had forced
Palestinians to search houses that were thought to be booby-trapped and to
enter houses where wanted men were thought to be hiding, in advance of the
soldiers who sought to arrest them. Some of the reports also accused
soldiers of using Palestinians as human shields against attacks on IDF
forces.
In response, the IDF said that it had forbidden the use of Palestinians as
human shields against attacks or as hostages, but did not rule out their use
"in situations in which this aid would enable [the army] to refrain from
military activity that could cause even greater damage to local residents,
to soldiers and to property."
Nevertheless, the media and human rights organization continued to report on
cases in which the IDF had forced Palestinians to participate in operations
to arrest wanted men - a procedure that the army termed "neighbor
procedure." In August 2002, therefore, the court issued an interim
injunction against this practice.
Following this decision, the hearings revolved primarily around a different
IDF practice - using Palestinians to provide "early warnings" of impending
arrest operations to the wanted men themselves, in the hope of persuading
them to give themselves up peacefully, and to any civilians in the house, to
enable them to leave before the military operation began. This practice had
been approved by the attorney general, on the grounds, as government
attorney Shai Nitzan wrote in response to the petitions, that "international
law does not forbid receiving assistance from a local resident, with his
consent, for the purpose of warning other residents about an expected
attack."
However, the court rejected this argument. "The army is obliged to protect
the life and dignity of the local resident sent to deliver the warning, even
if he agrees to take this task upon himself and its implementation will not
cause him any harm," wrote Supreme Court President Aharon Barak, with
Justices Mishael Cheshin and Dorit Beinisch concurring. "This is partly
because in practice, it is hard to judge when his consent was given freely
and when it was the fruit or overt or covert pressure. A basic principle
of the rules of belligerent occupation in international law is the
prohibition on using protected residents as part of the army's military
effort. The civilian population must not be exploited for the army's
military needs. "Given the inequality between the occupying force and the
local resident, the local resident cannot be expected to oppose the request
to give a warning to someone whom [the army] wants to arrest," Barak
continued. "A procedure cannot be based on consent when, in many cases, this
[consent] will not be genuine."
But Cheshin, in his concurring opinion, argued that despite the general ban
on this practice, there could be cases in which it retroactively turned out
to be justified.
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