Human shields

State's response

1 Jan 2011

On 5 December, seven months after the initial petition was filed, the state filed its response to the petition, to the temporary injunction, and to the contempt-of-court application. The state repeated its position that it will not use human shields but that the "neighbor procedure," or the "prior warning" procedure as it was now called, will continue. Even after the state filed its answer, B'Tselem continued to receive testimonies that soldiers were violating the state's declared policy.

In its response, the state repeated its earlier contention that use of the "neighbor procedure" was legal. In an attempt to allow the court to sanction the practice, the state gave it a new name - "operational directive - prior warning."

The state's attempt to defend the procedure was sharply attacked in the media. The Supreme Court also expressed a hint of criticism of the state's position. Despite the cosmetic changes in the procedure, it remained illegal and immoral.

According to the new procedure, it will be used "in operations to arrest wanted persons," and it "enables [soldiers] to be assisted by a local Palestinian resident for the purpose of reducing the danger of injury to innocent civilians and to the wanted persons themselves. Being assisted by the local resident is meant to give prior warning to the occupants of the house in order to enable the innocent persons to leave the structure and for the wanted persons to surrender, to prevent the necessity of using force, which is liable to endanger human life."

The procedure contains two cumulative conditions before it may be used. First, the "local resident" must consent to assisting the soldiers, and soldiers are forbidden to use force or to threaten the use of violence or arrest in order to obtain the individual's consent. As regards this condition, the assumption that a Palestinian facing armed soldiers is able to give his free and willing consent is unfounded. In addition to the disparity in power between armed soldiers and civilians, most of the cases take place in the middle of the night, when the soldiers remove the civilian from his house while both he and his family are under gunpoint.

The second conditions states that, "using a local resident for assistance is patently prohibited, even should he consent, where the commander believes that the civilian is at risk." However, the situation for which the new procedure was drafted - arresting wanted persons - is inherently dangerous, and any involvement of a civilian in cases in which two armed sides are facing each other, endangers his life. The life-threatening risk inherent in this kind of action is perfectly clear from the incident in which Nidal Abu Mukhsan was killed by a member of Hamas after soldiers ordered Abu Mukhsan to knock on the door of the house in which the Hamas member was located. Indeed, the state in effect admitted the life-threatening danger involved. This recognition of the danger is apparent from the prohibition on using "women, children, the elderly or disabled/persons with severe limitations" for this purpose. This restriction raises grave doubts about the good faith of those who argue that the procedure does not endanger the lives of the civilians who are requested to assist in these matters. For if the action does not entail risk, why not send a child to knock on the door of a house in which an armed person may be situated? And if the person whom the soldiers volunteered is indeed placed in a life-threatening danger, is his being a grown Palestinian male sufficient basis to warrant the risk to his life?

Furthermore, the procedure states that, "if, during the course of the assistance, it is necessary for the soldiers to use force, the commander shall do everything possible to ensure that the local resident immediately leaves the area of operation without being injured." It is apparent, therefore, that the drafters of the procedure were well aware that it is possible that exchanges of fire may take place whereby the life of the civilian will be jeopardized, and that the soldiers may not be able to protect him. Despite this reality, the army permits implementation of the procedure.

The new procedure endangers human life, in violation of law, while cynically arguing that it is intended to protect civilian lives. If that were indeed the intention of the procedure, the drafters of the procedure should have sought alternative ways, ones that do not place innocent people at risk.

The state mentions in its response that the senior IDF echelon was involved in drafting the procedure, including the chief of staff, and senior Justice Ministry officials, among them the attorney general and the state's attorney. The mention of the lofty positions held by the drafters of the procedure likely was intended to impress the court and indicate the seriousness given to the matter. However, the involvement of senior government officials and high-ranking officers in drafting an order that sanctions injury to civilians fails to give it either legal or moral validity. This involvement only makes the participants responsible for the harm to civilians that results from implementation of the procedure.

On 24 December, 2002, The human rights organizations file their response.

On 21 January 2003, the Supreme Court heard the petition that the seven human rights organizations had filed. At the end of the hearing, the Court ordered the petitioners to file within thirty days a supplemental brief on the legality of the new procedure under international law. The Court directed the state to file its responsive brief within thirty days thereafter. In addition, the Court limited the temporary injunction: the state is now forbidden "to use persons as human shields and/or as hostages in its military actions in the West Bank."

The main argument raised by the state was that the new procedure does not entail the use of human shields; therefore, its implementation does not violate the Court's temporary injunction. The state added that it intends to implement the new procedure before the Court reaches a decision on the petition. The justices did not relate to these comments, in effect allowing the state to implement the new procedure.