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Israeli judges too meek to dispense justice

The Daily Star – 12 July 2003
 
The Israeli Supreme Court heard three major cases this week involving army policies in the Occupied Territories, which, according to human rights groups, either grossly violate the individual rights of Palestinians or inflict unfair collective punishment on the civilian population.
 
In separate hearings, Israeli and Palestinian lawyers asked the judges to ban extra-judicial assassinations of Palestinian leaders, to end the use of Palestinian civilians as human shields and to lift the curfew that has been in place in Hebron for the past six months.
 
In the Hebron case, the judges rejected outright the grounds for the petition, which argued that the continuous curfew prevents the city’s 120,000 inhabitants from safely getting food and medicines. Instead the court accepted the army’s claim that the measure was necessary to allow soldiers to carry out operations against “terrorist cells.”
 
The other two cases had been presented in court before.
 
The judges were first petitioned on the army’s assassinations policy 18 months ago, in January 2002. Then they dismissed the case, arguing in a half-page judgment that it was a subject in which they did not feel “fit to interfere.” This week they again refused to step in.
 
The policy of using human shields has been discussed by the court intermittently since May last year. In practice the judges have failed to outlaw this practice too.
 
Israel, flagging itself as the only democracy in the Middle East and the occupation as a benevolent measure needed to ensure the Jewish state’s security, has relied heavily on the image of its judges as tenacious, independent-minded watchdogs to keep its international reputation unsullied.
 
But the truth is rather different. Faced with an Israeli government that consistently ignores the rights of Palestinians, and a public that unquestioningly believes the country’s army to be the “most moral in the world,” the court has found itself in a precarious position during the intifada.
 
Seen by the ruling right wing as a bastion of liberal-minded depravity, the court has been further undermined by calls for its abolition and replacement with a more popular Constitutional Court that would be at least partly chosen by politicians.
 
During the intifada, therefore, cases submitted on Palestinian rights have been more a test of the judiciary’s nerve than of legal principle. There is little doubt the court has consistently bowed to this political pressure.
 
As David Kretzmer, law professor at Hebrew University in Jerusalem, has observed: “The court has rationalized virtually all controversial actions of the Israeli authorities, especially those most problematic under principles of international humanitarian law.”
 
In a recent book on the Supreme Court, Kretzmer provides an impressive list of its failings in the face of government or army policies that contradict international law: As well as refusing to intervene in the assassinations policy and use of human shields, the judges have upheld punitive house demolitions, deportations from the Occupied Territories, the establishment of settlements, the widespread use of administrative detentions (or imprisonment without trial) and a ban on Palestinian families being reunified.
 
In addition, the lower courts have been backing a spate of class actions by Israeli businesses hoping to sue the Palestinian Authority for damages caused by the intifada, despite the much greater economic crisis facing the Palestinian population.
 
In the one area where the court did make an impression – banning the widespread use of torture in 1999, during the Oslo years – the ruling has been effectively reversed, according to Israeli monitoring groups like the Public Committee Against Torture in Israel. It has recorded a dramatic rise in the use of torture by the secret services, including in high-profile cases like that of jailed Fatah leader Marwan Barghouti. The court, however, has refused to enforce its earlier decision through insisting on monitoring mechanisms.
 
The court’s main strategy for appearing to protect Palestinian rights – to maintain its international standing – while at the same time doing nothing in practice to defend them is succinctly illustrated by this week’s case dealing with human shields.
 
Marwan Dalal, a lawyer with the Adalah legal center for the Arab minority in Israel, originally submitted a petition against the use of human shields by the Israeli Army in May 2002, on behalf of seven Israeli and Palestinian human rights groups.
 
The petition identified four common practices by soldiers against Palestinian civilians. They were forced to enter buildings to see if they were booby-trapped, to remove suspicious objects from the road, to stand inside military positions to deter fire from armed Palestinians, and to walk in front of soldiers to protect them from gunfire.
 
The use of Palestinians as human shields is possibly the most clear-cut of all the human rights violations practiced by the Israeli Army, not least because the small “security” benefits accruing to the army come at the very high cost of endangering civilian lives.
 
“The policy simply assumes that the lives of Palestinian bystanders are inferior to those of soldiers,” says Dalal. His view is supported by Tel Aviv University law professor Eyal Benvenisti, who in one Adalah petition affirms that the use of human shields violates the Geneva Conventions and is a war crime.
 
Nonetheless, over more than a year of hearings, the Supreme Court has refused to intervene in any practical manner. Instead it has repeatedly postponed hearings, allowed the army to redefine what constitutes its human shields policy, and refused to issue rulings when the army has been shown to have acted in bad faith.
 
In May 2002, after Adalah submitted several affidavits by Palestinians used as human shields, the army promised both to issue an order banning the use of civilians “as a means to ‘humanly shield’ (soldiers) from fire or terrorist attacks” and to forbid its commanders from forcing Palestinians to enter buildings if it put them in danger.
 
Despite Adalah’s objections that such decisions taken by soldiers on behalf of Palestinian civilians still violated international law and that commanders could not know whether civilians’ lives were being put in danger, the court refused to issue an injunction.
 
The issue resurfaced in August 2002 when a 19-year-old Palestinian, Nidal Abu Mohsen, was shot dead by a gunman in the West Bank village of Tubas as he was forced by the army to knock on a neighbor’s door. Adalah returned to court.
 
It challenged the army’s reassurances about the safety of what the state this time referred to as the “neighbor procedure” – soldiers using Palestinian civilians to perform military operations. Adalah claimed it was merely a euphemism for using human shields. The court issued a temporary injunction on the “neighbor procedure” to give the state a chance to provide details about the practice.
 
Adalah returned to court in November after it became clear that the army was continuing to use human shields in violation of the court injunction.
 
The Israeli human rights group Btselem supplied five detailed instances of Palestinian civilians taken hostage by the army. Adalah demanded that Prime Minister Ariel Sharon, Defense Minister Shaul Mofaz and Chief of Staff Moshe Yaalon be held in contempt of court.
 
The court again postponed acting, giving the state more time to reply to the claims. In the meantime, in late December, Adalah and Btselem presented a further four examples of Palestinians being used as human shields.
 
Rather than using the mass of evidence to begin contempt of court proceedings against the army, the court instead chose to reduce the scope of the injunction, in January approving a practice now termed “prior warning” – Palestinians being used by soldiers for “assistance.” The army agreed to apply two conditions: The commander must determine that the civilian was not placed in danger, and the participant must agree to help.
 
Adalah’s objections that all “assistance” to an army is inherently dangerous and that no Palestinian would volunteer for such an operation were rejected by the judges.
 
In February, April and May Adalah was back in court with more cases of Palestinians being used as human shields, including one incident photographed by an Israeli peace activist.
 
Finally, on July 8, the court reconvened to hear more submissions from Adalah. This time the lawyers arrived armed not with affidavits from Palestinians but from an Israeli soldier. Gedalia Etzion, a 39-year-old from Jerusalem, said that during his last reserve duty in February his unit was given instructions on “prior warning.”
 
According to Etzion, the issue of consent was treated as a joke by his commanders.
 
“One guy asked what we would do if the Palestinian did not agree to serve as a shield. The instructor answered, grinning and joking: ‘There is no such thing.’” As for the other condition, that a civilian’s life not be placed in danger, it was not mentioned at all.
 
The hearing this week offered little hope that the court is about to safeguard Palestinians’ rights. The judges have again postponed the case to a later, unspecified date, when they have said it will be heard by an expanded panel. They made no ruling about the “prior warning” order which will be allowed to continue.

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