Declining to Intervene: Israel's Supreme Court and the Occupied Territories

Jonathan Cook

(Jonathan Cook is a freelance journalist living in Israel.)

August 4, 2003

Further Info For background on the applicability of international law to the Occupied Territories, see Richard Falk, "International Law and the al-Aqsa Intifada," Middle East Report 217 (Winter 2000). The article is accessible online. See also Kathleen Cavanaugh and Jamil Dakwar, "Grave Breaches: A View from Jenin and Nablus," Middle East Report 223 (Summer 2002). Order back issues of Middle East Report, or subscribe, via a secure server at MERIP's home page.

In its annual report issued in July 2003, the Association for Civil Rights in Israel (ACRI) painted a familiar yet surprising picture of Israeli army maltreatment of Palestinians in the West Bank and Gaza. A wide range of army practices -- from house-to-house searches in villages to "targeted killings" of Palestinian militants -- came in for harsh criticism, unusually harsh by the standards of the mainstream human rights group. "Most of the abuses occur not as a result of operational necessity on the part of the army," the report continues, "but from vindictiveness on the part of soldiers, who receive implicit approval to denigrate the dignity, life and liberty of innocent Palestinians." ACRI goes on to cite army data revealing that most incidents of possible abuse, including most shooting deaths, are never investigated. Between the outbreak of the second intifada in September 2000 and June 2003, the army says it opened 362 internal investigations and brought charges in 46 cases, the majority of them relating to theft of Palestinian property. Only eight soldiers were indicted in shooting incidents. To date, not one has been convicted.

Although indicted soldiers usually face military tribunals, rather than civilian judges, Israeli government policies and the army's operational strategies in the Occupied Territories are subject to civilian judicial review in the Supreme Court. These judges boast a reputation as tenacious, independent-minded watchdogs on a range of social and cultural issues within Israel. Yet, despite the illegality of curfews, home demolitions and other occupation policies under the Fourth Geneva Convention, almost all these policies have been sanctioned by the Supreme Court, bolstering the government's claim to be carrying out a relatively benign occupation needed only to ensure Israel's security.

THE COURT'S SHADOW

According to David Kretzmer, a law professor at the Hebrew University of Jerusalem, the court has handed down hundreds of judgments relating to the West Bank and Gaza since 1967, particularly during the two intifadas, the first between 1987 and 1993 and the second since September 2000. These rulings have approved, among other things, the establishment of civilian settlements, changes to local laws, the building of bypass roads, land confiscations, deportations, house demolitions and administrative detentions. The conclusion of Kretzmer's recent book, "The Occupation of Justice," is gloomy: "The court has rationalized virtually all controversial actions of the Israeli authorities, especially those most problematic under principles of international humanitarian law."

The mere threat of a legal challenge -- what Kretzmer calls "the court's shadow" -- may on occasion have forced the authorities to reverse a decision without testing it before the judges. But Kretzmer argues that when cases reach the court, it invariably decides "in favor of the authorities, often on the basis of dubious legal arguments." He adds that this has legitimized the occupation "both for the Israeli public, in whose name the military authorities are acting, and for foreign observers sympathetic to Israel's basic position."

During the second intifada, human rights groups have mounted legal challenges to several Israeli policies in the Occupied Territories. Three important cases have involved the system of checkpoints and roadblocks that has suffocated Palestinian economic and social life and led to dozens of Palestinian deaths because medical treatment has been withheld, the prolonged curfews imposed on most Palestinian cities throughout 2002-2003, and the taking of Palestinian civilians as "human shields." ACRI's report is circumspect in its criticism of the Supreme Court on these issues, possibly because the justices offer the only hope of remedy for Palestinians suffering at the hands of the army. However, a close reading of the document yields a picture of a judiciary that, in the words of one senior human rights lawyer, "rubber-stamps any war crime the army commits." In all three cases heard or adjudicated in July 2003, the Supreme Court refused to intervene in any practical manner to protect the civilian population.

"NOT UNREASONABLE" ROADBLOCKS

In March, ACRI and Physicians for Human Rights petitioned the Supreme Court in a test case on roadblocks. The Israeli human rights organization B'tselem has recorded at least 38 Palestinian deaths at checkpoints in the period between the eruption of the intifada and February 2003. B'tselem believes there have been many more instances but has included only those where it could verify beyond any doubt that a delay at a checkpoint led to a death. In the ACRI case, the petitioners demanded that the army remove barriers preventing the entry and exit of Palestinians from three villages close to Nablus in the West Bank. The 11,000 residents of Salim, Deir al-Hatab and Izmut, which form a semi-circle south of the Jewish settlement of Elon Moreh, had been effectively imprisoned in their villages for a year, unable to make a living, gain access to medical services or attend universities. In July, the court rejected the petition, admitting that, although other means of preventing attacks on Elon Moreh were available, the army's chosen method was "not unreasonable."

In a separate action, ACRI asked the court to end the curfews that have afflicted almost every West Bank city over the past year. In Ramallah, residents have been forced to remain indoors for 100 days; in Hebron, the city most regularly under curfew, that number of days rose to 200. ACRI presented Hebron as a test case, arguing to the Supreme Court that the regular imposition of curfews lasting more than 100 hours was depriving Palestinians of the right to make a living and bringing them close to starvation. Attorneys also posited that the army's reason for the curfew in Hebron was to prevent clashes between the 100,000 Palestinian inhabitants and a few hundred Jewish settlers living in the city center. ACRI argued that this policy was discriminatory, as Palestinians were not allowed out of their houses while settlers could move about at will. In July, the judges rejected this petition too, ruling that the policy was "coherent" and that the army was doing its utmost to ease the situation of the local inhabitants.

"HUMAN SHIELDS"

But perhaps the most glaring example of Supreme Court inaction has been the legal saga of the army's use of human shields. Seven Israeli and Palestinian human rights groups have been battling to end this practice since May 2002, believing that it so clearly contravenes international law it would be almost impossible for the court not to ban it. So far, despite several hearings, they have been proven wrong.

Attorney Marwan Dallal of Adalah, a legal aid society for Palestinian citizens of Israel, has led the fight. Dallal filed his initial petition against the army's human shield policy in May 2002. After the invasion of West Bank cities beginning on March 28, as part of Operation Defensive Shield, the seven human rights groups identified four common army practices that amounted to taking Palestinians as hostages, or "human shields": forcing individuals to enter buildings to probe them for booby traps, making them remove suspicious objects from the road, requiring them to stand inside military positions to deter fire from armed Palestinians and forcing them 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 the human rights violations committed 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 Dallal. His view is supported by Amnesty International and Human Rights Watch, both of which classify the taking of human shields as a grave breach of the Fourth Geneva Convention.

According to Adalah, the policy violates seven articles of the convention. Article 51, for example, states: "The occupying power may not compel protected persons to serve in its armed or auxiliary forces." Even more clearly, Article 28 says: "The presence of a protected person may not be used to render certain points or areas immune from military operations." Nonetheless, over more than a year of hearings, the Supreme Court has refused to intercede. Instead, it has repeatedly postponed hearings, allowed the army to redefine what constitutes its human shields policy and refused to issue contempt rulings when the army has been shown to have acted in bad faith.

THE "NEIGHBOR PROCEDURE"

In its original petition, Adalah submitted several testimonies of Palestinians used as human shields. In one instance, on April 8, 2002, six Israeli soldiers were reported to have entered the al-Baq mosque in the old city of Nablus, which was being used as an emergency hospital. According to one of the doctors inside, Zahra al-Wawi, the soldiers arrived with their guns on the shoulders of Palestinian civilians.

These testimonies were supported by the accounts of ordinary soldiers. One reserve sergeant, Nati Aharoni, told the army's weekly newspaper Bamahaneh on April 12, 2002 of his experiences searching a building in Qalqilya. "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 neighboring house and made him look through the place. Then we shook his hand and thanked him."

The army refused to admit it had ever adopted such a practice but avoided a ruling from the court by promising to "immediately issue a decisive order" banning the use of civilians "as a means to 'humanly shield' [soldiers] from fire or terrorist attacks" and to "clarify" for its commanders that Palestinians must not be forced to enter buildings unless the commander was sure they were not being put in danger. The court agreed to these terms, refusing to issue an injunction, 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 issue resurfaced in August 2002 when a 19 year-old Palestinian, Nidal Abu Muhsin, 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, challenging 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. Dallal claimed the phrase 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 of the practice.

But Adalah was forced to appeal to the court again in November after it became clear that the army was continuing to use human shields in violation of the court injunction. B'tselem supplied five detailed instances of Palestinian civilians taken as human shields 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 B'tselem presented a further four examples of Palestinians being used as human shields. In one case recorded by B'tselem, on November 9, 2002, 39 year-old Khalid Kamil, a father of three, was ordered at gunpoint to enter the home of an armed Islamic Jihad leader to call to him to give himself up. Kamil was later exposed to a vicious gun battle.

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 2003 approving a practice now labeled "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.

DECLINING TO INTERVENE

In February, April and May 2003, Adalah was back in court with more cases of Palestinians being used as human shields, including one incident photographed by an Israeli peace activist. In one typical testimony, 21 year-old Samer Sharif from Nablus states that on January 21, 2003 he was put on the hood of a jeep, handcuffed to the window with his back to the driver. The jeep then drove towards stone-throwing Palestinian youths as one of the soldiers fired at them from behind Sharif's head.

The court failed to issue a ruling on prior warning or begin contempt proceedings at any of the hearings. It also ignored an expert opinion from law professor Eyal Benvenisti of Tel Aviv University who argued that the "prior warning" procedure was still a violation of the Geneva Convention.

Most recently, on July 8, the court reconvened to hear a new submission 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, to which the instructor answered -- grinning and joking -- 'There is no such thing.'" As for the other condition -- that a civilian not be placed in danger -- it was not mentioned at all.

The hearing offered little hope that the court is about to safeguard Palestinians' rights. The judges again postponed the case to an unspecified date, when they said it would be heard by a panel expanded from three justices. They made no ruling on the contempt of court or on the "prior warning" order, which will be allowed to continue.

POLITICS OF THE LAW

Under the Fourth Geneva Convention, to which Israel is a signatory, civilian residents of occupied territory are "protected persons" and must be safeguarded by the occupying power. Though the UN and the high contracting parties to the Geneva Conventions concur that the Fourth Geneva Convention is applicable in the West Bank, Gaza and East Jerusalem, the Israeli authorities have traditionally argued that it is not, because no recognized "sovereign" power was replaced when Israel took these territories in 1967. Israel clouds the picture somewhat by agreeing to implement the convention's provisions "de facto" -- saying, in effect, that though the convention is not binding in the Occupied Territories, Israel will respect its provisions because it chooses to do so. When Israel does not respect the convention, its lawyers can fall back on the claim that it does not apply in any event. But the failure of the Supreme Court to overturn illegitimate policies of occupation has political roots more than it does legalistic justifications.

The court's 14 justices, as members of a society whose goals and values they share, are not immune from either the fear or the self-interest common to the Jewish public. This was neatly illustrated in a hearing before the court to stop "targeted killings" in January 2002. Before rejecting the petition, Justice Michael Cheshin -- on a three-person panel -- expressed a vested interest in wanting the policy of assassinations to continue if it meant his son, who was serving in the army, did not have to venture into dangerous areas to make arrests. "My son goes into that [Palestinian] territory and I don't want to endanger him," he told the human rights lawyers.

Although opinion polls show the public holds the court in high regard, it holds the military in even higher esteem. The public is unlikely to support negative rulings on the army's behavior. The Supreme Court's chief justice, Aharon Barak, has implicitly acknowledged this fact, writing that the court "must take into account the social consensus." Also, the activism often ascribed to the court in the domestic sphere -- judgments applying to Israeli citizens only -- has earned it a reputation from the Israeli right as a bastion of depraved liberalism. The court endures periodic threats to replace it with a more populist Constitutional Court, which would be at least partly chosen by politicians. Controversial interference by the court in the Occupied Territories would doubtless build pressure for its dissolution.

Most importantly, the court has dutifully accepted the Zionist premise that Israel's state interests have primacy over all other considerations, including, apparently, international law. In disputes between the state and the Palestinians, the court is not and cannot be neutral. So when the state deploys the argument that a specific policy is necessary for Israel's security, the court is almost duty-bound to agree, whatever the evidence. As Kretzmer observes, "The dominant narrative holds that the state is being attacked, the authorities are trying to protect it and the ultimate duty of the court is to assist them in this task." Cases submitted to protect Palestinian human rights, therefore, are more likely to test the judiciary's nerve or its ideological assumptions than legal principles.