Case Number

HCJ 4146/11

Date Decided

7-9-2013

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.]

A petition to direct the introduction of a military order prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and that is capable of achieving an equal or similar military advantage.

HCJ (per Judge Arbel and with the concurrence of Judges Melcer and Danziger) dismissed the petition, subject to guidance regarding the review of the issue the subject of the petition, and held as follows:

With regard to the issue’s justiciability, war is subject to laws and the laws are subject to judicial interpretation, within the boundaries of the restraint that the HCJ has imposed on itself especially with regard to quintessential military matters. The choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of weapons arise the Court will refuse to consider the matter. The boundaries of the HCJ’s intervention in matters of this kind are extremely limited to exceptional cases, where there is concern of injury to established legal norms. The HCJ intervenes in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect.

In order to maintain the balance between the restraint required in the HCJ’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, a multi-stage review is required in petitions of this kind: whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where, based on Army orders, the use of the weapons that are the subject of the petition has ceased. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, the petitioners’ arguments will be considered on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

This petition raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus, which oblige, ex facie, another in-depth examination. The arguments are of a dominant legal nature. Accordingly, the HCJ proceeded to the second stage of review. However, at this stage the HCJ stopped the judicial review in light of the State’s declarations that it had been decided not to allow at this time the use of shells containing white phosphorus in a built-up area. The exceptions to this order are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. With regard to the concern regarding a change in the Army’s orders, since the State has not declared that the orders are permanent ones, the HCJ ordered the IDF to conduct a comprehensive and in-depth review of the use of white phosphorus in the Army and the possible alternatives for its use, which will serve either to make the orders permanent or to substantiate a position justifying a change in the orders. The HCJ further ordered the State to notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before the HCJ.

Keywords

Administrative Law -- Judicial review, Army, Courts -- Retrospective Judgment, International Law -- International Humanitarian Law, International Law -- Laws of war, Justiciability

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