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6.10.2005

The High Court of Justice ruled that the military's use of Palestinian residents as "human shields" is unlawful and contradicts the provisions of international law: following a petition filed by seven human rights organizations in this matter, the HCJ banned the use of civilians to conduct arrests in the Territories

The petition, filed by a number of human rights organizations including HaMoked, stated that the military's use of Palestinian residents as "human shields" and hostages is unlawful. Following the petition, the High Court of Justice (HCJ) banned the use of the "neighbor procedure," and the military replaced it with the "prior warning procedure." This procedure allows the military to use Palestinian residents in the course of conducting arrests in the OPT, provided that the latter give their consent, and that their life is not put at risk.

On 6 September 2005, the HCJ ruled that the "prior warning procedure" was equally unlawful. After the Court reiterated its ban on the use of civilians as human shields and hostages (which is undisputed by the State), it ruled that it was likewise forbidden to use Palestinian residents in a more limited capacity – to convey a warning from the army to individuals it intends to arrest. This prohibition is founded on the central principle of the laws of belligerent occupation: the use of protected residents as part of the occupying army's belligerent efforts is strictly prohibited. Another principle of international humanitarian law establishes that every effort must be made to separate the civilian population from military activity. Therefore, the army must not bring Palestinian residents into an area of belligerent activity, even if they consent. Additionally, in light of the extreme disparaty between the military and that the Palestinian residents, a resident's "consent" cannot be regarded as genuine consent. The Justices also ruled that it is impossible to determine whether or not conveying such a warning endangers the conveyor. The capacity to correctly assess danger  in conditions of combat is severely limited, therefore the army must not institute a procedure based on an assumption of the absence of danger, when this assumption is often unfounded. Justice Beinisch noted in her judgment that the procedure, unlawful in itself, also constitutes a breach which encourages further transgression on graver prohibitions.

The judgment relies mostly on the provisions of international humanitarian law. In addition to the Hague Regulations and the 4th Geneva Convention (which the Court has used frequently in the past), the Court relied upon the First Protocol Additional to the Geneva Conventions, as well as upon a publication issued by the International Committee of the Red Cross in which it defined the customary rules of international humanitarian law.

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