Case Number
HCJ 3799/02
Date Decided
10-6-2005
Decision Type
Original
Document Type
Full Opinion
Abstract
This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
The IDF’s “advance warning” procedure stipulates that IDF soldiers who wish to arrest a Palestinian suspected of hostile terrorist activity may be assisted by a local Palestinian resident in order to give through him the advance warning to the arrestee of possible harm to him or to whoever is with him while the arrest is being made. According to the procedure, it is possible to be assisted by a local Palestinian resident in order to give advance warning only when that residents consents to it, and only when it does not put the resident at risk. The Petitioners argued, among others, that the procedure is not lawful because it is inconsistent with principles of international humanitarian law as to the military activity of an occupying force in an occupied territory. They additionally argued that the procedure is not proportional.
The Supreme Court held:
A. 1. In balancing between the conflicting interests – protecting the life of the civilian population verses the occupying military’s duty to protect the life and the dignity of the local resident who is sent to give the notice – the considerations that prohibit the military to use the local resident prevail. First, it is a fundamental principle in the law of warfare occupation that using protected residents as part of the occupying military’s combat efforts is prohibited. It is from this general principle, that the specific prohibition of using local residents as a “human shield” derives. As a result of this general principle we must also draw the prohibition to use local residents as givers of notices from the military to those whom the military wishes to arrest.
2. Second, another principle of the humanitarian law is that everything must be done in order to isolate the civilian population from military activity. This rule results in the approach that a local resident must not, even with their consent, inserted into the area where combat activity is taking place.
3. Finally, there is no telling in advance whether giving the notice involves any risk for the local resident who gives such notice, and a procedure that relies on the need to assume a lack of risk when such presumption often is unfounded must not be established.
4. Therefore the procedure of “advanced warning” must be declared to be inconsistent with international law.
B. (Per Justice D. Beinisch) The procedure cannot stand because the permission it gives to use a disproportional means and because it cannot ensure using the prohibited practice of using local residents for purposes of assisting military forces. The conditions set in the procedure, beyond being wrongful in and of themselves, allow going down the slippery slope that leads to a gross violation of the rules of international law and of the constitutional principles of the Israeli legal system. The military must do all it can in order to prevent the possibility that due to a regulated procedure loopholes would open up to devolve the activity in the area to clear situations of unlawfulness. This procedure is such loophole and for this reason as well it must be invalidated.
Keywords
International Law -- Occupied territories
Recommended Citation
Barak, Aharon; Cheshin, Mishael; and Beinisch, Dorit, "Adalah Legal Center for Arab Minority Rights in Israel v. IDF Central Commander" (2005). Translated Opinions. 28.
https://larc.cardozo.yu.edu/iscp-opinions/28
