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Judicial partiality?

Al-Ahram Weekly – 6 June 2002

Under mounting legal pressure, the Israeli army has promised to stop using Palestinian civilians as human shields, a practice widely employed during Israel’s recent military invasion of the West Bank according to evidence compiled by human rights groups. The army made the promise during a hearing before the Israeli high court, although it refused to confirm or deny whether it had a policy of using human shields.
 
But lawyers at the Adalah centre for Arab minority rights in Israel, which filed the petition, said the military’s decision to issue an order banning the use of human shields was an implicit admission that soldiers were resorting to such tactics. Adalah doubted, however, that even with the ban in place it would be possible to prove to the court’s satisfaction that in individual cases people had been taken as human shields.
 
The dossier submitted to the court by seven Israeli and Palestinian human rights groups includes many examples of Palestinian non-combatants being taken hostage and forced to assist the army, often at gunpoint. The most common practice, according to the testimonies, was for civilians to be coerced into entering buildings in which the army suspected militants were hiding. In the worst cases, individuals were taken for days at a time.
 
In several towns during Israel’s recent Operation Defensive Shield there were also examples of soldiers posting Palestinian men at windows and using their shoulders as rests from which to fire their weapons. All such uses of civilians are prohibited under the Fourth Geneva Convention and constitute a war crime.
 
In one case documented by the Israeli human rights group Betselem, six Israeli soldiers entered the Al-Baq Mosque in the casbah of Nablus, which was being used as an emergency hospital, on 8 April. According to one of the doctors inside, Dr Zahra al-Wawi, the soldiers arrived with their guns on the shoulders of Palestinian civilians.
 
In another case, Dr Mohamed Iscafi, the director of the leading Palestinian medical charity, the Union of Palestinian Medical Relief Committees, was taken hostage by an army unit in the centre of Ramallah. The Israeli commander told Iscafi that he believed Palestinian gunmen in the building next door had made their way into his building after they came under heavy fire. The doctor was ordered to help in a search of the offices. “I refused to co-operate, saying I was a doctor and they had no right to hold me, but he [the commander] wasn’t interested in my opinions,” Iscafi said. “They took me to the first locked door on the ground floor and used explosives to open it. As the smoke cleared, I was told to go inside. They said they would come in behind me. I realised I was being used as a human shield.”
 
The doctor searched some 20 offices, all of them empty. The soldiers then took him to the neighbouring building, which had been badly shelled by tanks. “Again they sent me into each room first. I knew there had been gunmen in there, so I was very frightened. On the top floor, two offices were still smoldering and giving off toxic fumes, but the soldiers insisted I went in first,” Iscafi said. “Afterwards the commander thanked me, saying ‘Without your help, we could not have entered the building.’ There were about 20 soldiers in the group and a few seemed really uncomfortable watching me being treated like that. But most of them didn’t seem to care.”
 
The Israeli army has consistently denied using human shields. After an army investigation at the Jenin refugee camp, where some of the worst incidents were documented, spokesmen were prepared to concede only that one Palestinian woman had been asked to go back into her house to ask others to come out. But testimonies such as Iscafi’s have been supported by the accounts of ordinary soldiers. One reserve sergeant, Nati Aharoni, told the army’s weekly newspaper Bamahaneh on April 12 of his experiences searching a building in Qalqaliya.
 
“We had entered the building in the past and were afraid that this time the Palestinians might have left explosive devices for us,” he was quoted as saying. “So according to normal practice the unit commander took a Palestinian from a neighbouring house and made him look through the place. Then we shook his hand and thanked him.”
 
According to Betselem, such actions are not taken simply on the initiative of a local commander. Using human shields, says spokesman Lior Yavne, is an “operational recommendation” in the army, and is regarded an effective way to safeguard soldiers’ lives.
 
There have been Palestinian claims of soldiers taking civilian hostages through much of the current Intifada. Last summer, for example, the Ha’aretz newspaper reported that the army took over a house with a family of 20 inside in Beit Jala and used them as protection against gunfire from Aida refugee camp.
 
At the court hearing last week, the Israeli army agreed to “immediately issue a decisive order” imposing an absolute ban on all of the forces in the field from using civilians as hostages or as a means to “humanly shield” Israeli soldiers from fire or “terrorist attacks by the Palestinian side”. The army also said it would “clarify” that it was forbidden to force Palestinians to enter other residents’ homes unless the local commander thought such activity would not put a civilian in danger.
 
Marwan Dalal, of Adalah, who filed the petition, said: “This qualification is totally unacceptable for two reasons. One, no Palestinian wants to help the Israeli army and so such actions always involve coercion, which is prohibited by International Law. And two, how can the commander know all the facts, how can he be sure that there is no danger to a Palestinian hostage?”
 
Adalah has demanded to see the order on the use of human shields, issued by the army, and wants to know details of what is permitted for local commanders. The court has given the army until later this month to respond. The lawyers, however, believe the chances of ending the practice of taking human shields are slim. The standard of proof demanded by Israeli courts in cases involving security issues is extremely high. If the judges must choose between believing the accounts of soldiers and Palestinians they are likely to favour the army.
 
During the Intifada some judges have even confessed to a lack of impartiality. In a petition brought by Israeli Arab MK Mohamed Barakeh earlier this year to stop the army’s assassinations of militant Palestinian leaders, Judge Mishael Cheshin said he wanted the policy maintained because it would prevent his son, who was serving in the army, from having to venture into dangerous areas to arrest suspects. “My son goes into that [Palestinian] territory and I don’t want to endanger him,” he said.
 
Almost all of the petitions filed by human rights groups during Operation Defensive Shield failed in the Israeli courts, including attempts to stop the aerial bombardment of Jenin camp and to end the policy of the widespread demolishing of homes.
 
Dalal said he believed the army had issued the order on human shields to avoid prosecution at possible future international war crimes tribunals. He feared that by issuing the order military commanders would be able to claim they had disciplined offending soldiers in internal inquiries.

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