High Court Bans IDF's Early-warning' Practice

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.