Since the beginning of the occupation in 1967, Israeli security forces have repeatedly used Palestinians in the West Bank and in the Gaza Strip as human shields, ordering them to perform military tasks that risked their lives. As part of this policy, soldiers have ordered Palestinian civilians to remove suspicious objects from roads, to tell people to come out of their homes so the military can arrest them, to stand in front of soldiers while the latter shoot from behind them, and more. The Palestinian civilians were chosen at random for these tasks, and could not refuse the demand placed on them by armed soldiers.
This use of civilians is not an independent initiative by soldiers in the field, but the result of a decision made by senior military authorities. During the second intifada, and particularly during military incursions into Palestinian population centers, such as Operation Defensive Shield in April 2002, use of Palestinians as human shields became open military policy.
As a result, in May 2002, the Adalah legal center petitioned Israel’s High Court of Justice (HCJ) against this policy on behalf of seven human rights organizations, including B’Tselem. Two days after the petition was filed, the state informed the court that “…the IDF has decided to immediately issue an unequivocal order to all forces in the field, absolutely forbidding them to use any civilians at all as a ‘living shield’ against gunfire or attacks by the Palestinian side.” However, the state argued that ordering civilians to direct individuals to come out of their houses does not constitute use of the former as human shields. Nevertheless, “the IDF decided to clarify that even this act is forbidden in situations in which the commander in the field believes that a civilian is liable to be injured.”
Using civilians to get wanted persons out of a house is known as “neighbor procedure.” This procedure does not differ significantly from other ways in which the military has used Palestinian civilian. It, too, too, constitutes illegal exploitation of civilians to perform military tasks and places them in real danger. This was made irrefutably clear in an incident that took place in 2002. On 14 August, soldiers sent Nidal Abu Mukhsan, a 19-year-old from the village of Tubas, to the home of Nasser Jarar, a Hamas activist, and ordered him to get Jarar out of the house. When Abu Mukhsan approached the house, Jarar, apparently thinking that the person knocking at the door was a soldier, shot and killed him. Following this incident, the organizations went back to court and demanded that a temporary injunction be issued forbidding the military from using the “neighbor procedure”. The injunction was issued the same day. Nonetheless, B’Tselem and other organizations continued to receive reports of soldiers using the procedure, and the petitioning organizations filed a motion under the Contempt of Court Ordinance.
In December 2002, the state responded that the military had ceased using Palestinian civilians as human shields and was only “using the assistance of residents to prevent loss of life.” The state attached to its response the details of a new measure dubbed “prior warning procedure,” which was intended to replace the “neighbor procedure.” According to the new procedure, “assistance” by civilians is allowed if the commander in the field judges that the civilian is not risking his or her life and provided that he or she consents. The court refused to apply the temporary injunction to the new procedure and allowed the military to use it, for the time being.
The “prior warning procedure” stipulates two conditions for its use. First, the civilian must consent to helping the soldiers without being subjected to force or threatened with violence or arrest. Assuming that a civilian facing armed soldiers can freely choose whether or not to assist them is absurd. Implying that the random Palestinian civilians chosen for such tasks are free to refuse is meaningless as, in most cases, they are ordered to do the bidding of armed soldiers after being dragged out of home at gunpoint, or with guns pointed at their family members. The second condition is that even of the civilian consents, the procedure may not be employed if the commander of the force believes that it will endanger the civilian. Yet the situation for which the new procedure was created – arresting wanted persons – is dangerous by definition. Any civilian brought into an armed face-off is in mortal danger. The fact that the state inserted the proviso that “women, children, the elderly and persons who are disabled or severely limited are not to be used” begs the question whether the procedure was, in fact, drafted in good faith. If there is no danger involved, why not send a woman or an elderly person to knock on the door of a suspect who is considered armed? Alternately, if the person selected by the soldiers to perform the task is in danger – is being an adult Palestinian male sufficient cause to put his life at risk?
In its response to the court, the state stressed that the highest-ranking officers in the military, including the chief of staff, and top ministry of justice officials, including the Attorney General and the State Attorney, had been party to drafting the procedure. Highlighting the senior level of the officials involved in designing and drafting the procedure was likely meant to show how seriously the matter was taken. However, the fact that top government and military officials are involved in drafting a directive that sanctions harm to civilians gives it no moral or legal validity – it merely makes them accomplices in the resulting harm to civilians.
In September 2004, in another hearing on the petition, then-Supreme Court President Aharon Barak criticized the procedure and called on the military to stop using it, as the Fourth Geneva Convention prohibits an occupying military from using local residents for military actions. The former president commented that “it is very hard to verify consent, which raises concern that, when a contingent of soldiers comes at night, not a single neighbor will refuse to cooperate, out of fear.” The court announced it would give its decision at a later time.
About a year later, in October 2005, the HCJ issued its judgment, ruling that any use of Palestinian civilians during military actions is forbidden, including the “prior warning procedure”.
However, soldiers continue to occasionally use Palestinians as human shields even after the court ruling, especially during military operations. Despite the fact this violates an HCJ ruling, the security establishment, including the military law enforcement system, has responded feebly – if at all.
For example, over the course of Operation Cast Lead, which took place in Gaza from December 2008 to January 2009, B'Tselem and other organizations were informed of incidents in which soldiers used Palestinians as human shields. The vast majority of these reports were never investigated, and those that did resulted in no further action. Soldiers were prosecuted in one case only. The two soldiers in question had ordered a nine-year-old boy, at gunpoint, to open a bag they suspected was booby-trapped. Despite the gravity of their conduct – putting a young child at risk – the two were given a three-month conditional sentence and demoted from staff sergeant to private, some two years after the incident took place. None of their commanding officers were tried.
During Operation Protective Edge in Gaza, in 2014, B’Tselem again received testimonies regarding soldiers’ use of Palestinians as human shields. This time, no one was prosecuted.