Refuse to be a human shield? No such thing
Mocking High Court rules, the IDF still put Palestinians in the way of danger.
Gidi Etzion is 39, a computer programmer, married and has two daughters. He lives in Jerusalem and stays away from politics. Ever since he completed his compulsory army service in 1989 as an infantry soldier in Golani, he's been called up almost every year for reserve duty. In the past few years, he has was a platoon sergeant in an infantry unit, serving mainly in the territories. He does not like everything that he does or sees, but the option of refusing to serve has never entered his mind.
Three months ago, after a stint in the reserves that was devoted mainly to conducting arrests in Palestinian villages between Nablus and Jenin, he decided to do something. Immediately on his release, he called the offices of Adalah, the Legal Center for Arab Minority Rights in Israel, and volunteered to make a statement about things he had seen and heard during his service.
The affidavit, which he signed in the presence of attorney Marwan Dalal, was submitted by Dalal to the High Court of Justice and is the subject of a hearing tomorrow, as part of the court's ruling on a petition brought by Adalah and other human rights groups against the IDF's use of a method alternately known as "neighbor procedure," "human shield" and "early warning."
What all these terms mean is that IDF soldiers use Palestinian residents to enter homes in which there is a suspicion of concealed suspects, in order to warn the building's occupants of an imminent forced entry by the soldiers, and at times to inspect suspicious persons or objects.
At least in one instance, the practice resulted in the death of the Palestinian from gunshots fired from the suspect's house. Following the submission of the Adalah petition over a year ago, and even before a single hearing took place, the High Court of Justice considerably restricted the army's authority to employ the procedure.
The court ruled that it could be used solely with the consent of the Palestinian who was being asked to serve as a human shield.
"In the course of the pre-combat-duty training at the Eliyakim training base," Etzion wrote in the affidavit, "I became aware of the operational command known as `early warning,' which was introduced to us as `neighbor procedure.'
"Thee High Court of Justice stipulated use of the procedure on a single condition - the civilian had to consent."
Etzion says that what enraged him about the briefing was the fact that it stimulated what he calls "a jovial atmosphere" regarding the entire subject, but especially in regards to the consent of the Palestinian to serve as a human shield.
"The commanders of my unit and the officer giving the briefing, who was a high-ranking officer in the brigade under which we were serving, treated it like a joke," recalls Etzion.
"One guy asked what we should do if the Palestinian did not agree to serve as a shield, to which the instructor answered - grinning and joking - `there is no such thing.' In the situation in which these events take place, he explained, no Palestinian would refuse the IDF.
Etzion heard what he heard, and then began to search for the precise formulation of the injunction by which the High Court of Justice had authorized use of the procedure. To his amazement, he found that the written order that the IDF had presented to the justices stated: "There is a strict prohibition on using a local resident, even with his consent," if "the commander of the force feels that he might be in danger."
"The High Court of Justice approved the procedure on two conditions, and both are mocked by the army," Etzion said, when was asked why he decided to sign the statement he made to Adalah. "Judging by the briefings I received, in the case of the first condition - gaining the Palestinian's consent - the army simply turned into a joke. As for the second condition, which determined that the procedure may not be used if it places the Palestinian's life in danger, the army simply ignores it."
When the petition was submitted slightly over a year ago, the justices turned down Adalah's request to issue a temporary injunction that would have forbidden the IDF from using human shields. Instead, the court sufficed with a statement made by the state prosecutor, stating that the IDF committed not to use the procedure.
"Due to various complaints that came to the attention of the military authorities," attorney Shai Nitzan, responsible for security affairs at the State Prosecutor's Office, wrote at the time, "it has been decided by the IDF to immediately and unequivocally rescind the order issued to forces operating in the field; accordingly, there is an absolute ban on using civilians, no matter who they are, as a means of `human shield' from gunfire or bombings by the Palestinian side, or as `hostages.'"
About three months after this statement was issued to the court, Nidal Abu-Mohsen, a 19-year-old from the village of Tubas, was killed while being coerced to serve as a human shield for soldiers who wished to arrest his neighbor. Four days later, on August 19, 2002, attorney Dalal appealed to the justices of the High Court of Justice and, based on the tragic event in Tubas, asked them to issue an injunction to explicitly forbid the army from employing the dangerous procedure.
This time, the justices complied with the request, and the injunction that was issued remained in effect until January 2003. At that time, the court acceded to a request by the state, which asked to substitute a less all-encompassing injunction in its place.
By consent only
The new injunction, which still remains in effect, makes it possible to employ the procedure if the Palestinian consents to serve as a shield and if the commander of the force feels that he would not be exposed to any life-threatening danger.
In advance of the court hearing on this issue of legal principle, which is scheduled for tomorrow, attorney Dalal submitted five new eyewitness accounts, including that of Gidi Etzion. Based on this evidence, the IDF has in the past two months employed the procedure, in disregard of both of the conditions that it itself set (consent of the Palestinian and determination that there is no risk to his life).
According to the testimony of Ula Awad, a 22-year-old housewife and mother of four from Awarta, a village near Nablus, soldiers entered her home at noon in March 6, 2003 and forced her - at gunpoint - to serve as a shield as they carried out a search of her parents' apartment.
"They ordered me to walk upstairs in front of them to my parents' house. While we were walking up they said, in Arabic, that if they found any young men in the house, they would shoot them and shoot me.
On February 22, Emil Darwazeh, a 40-year-old resident of Nablus and a photographer by vocation, heard loud knocking on his front door. "When I opened," Darwazeh told investigators from the human rights watchdog B'Tselem, which joined Adalah in the petition, "I saw eight Israeli soldiers in front of me, with their rifles aimed at me. They shouted at me, frightening me, telling me to come outside and bring out everyone in the house. Everyone in the family quickly went out. One of the soldiers ordered me to go back in the house and open all the doors and closets."
"Then they took us [me and a family member] to a five-story building that belongs to the al-Aghbar family. They ordered us to go into one of the rooms of the building, and they brought in more people from the neighborhood. After about 40 minutes, the soldiers took us out and ordered us to go into the rest of the apartments in the building. The soldiers walked behind us with their rifles aimed at our backs, and every once in a while I felt the barrel of a rifle touching my back."
In the hearing this week, the justices of the High Court of Justice will essentially be asked to rule on two different questions. The first is whether the IDF upheld the commitments that it itself formulated so as to receive the High Court's authorization to employ the controversial procedure. The second question is on a matter of principle. Is forcing Palestinian civilians to take part in dangerous military operations compatible with Israeli and international law? The state thinks so.
"The regulations of international law," wrote attorney Nitzan on this point, "do not at all forbid making use of a local resident, with his consent, for the purpose of warning other residents of an impending assault, when he does not face any danger as a result of said action.
"Essentially, the opposite is the case, since as a rule, it is desirable to give an early warning of an assault that is liable to also harm the civilian population or civilian facilities that are being used for malevolent purposes."
Adalah thinks not, and partly relies on the legal opinion of Professor Eyal Benvenisti, who specializes in international law at Tel Aviv University Law School. "The `early warning' procedure," Benvenisti writes in an opinion submitted to the High Court of Justice by attorney Dalal, "is not compatible with the regulations of the humanitarian international law that is concerned with protecting civilians and other non-combatants from unnecessary dangers of war."
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