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Adalah et al. v. GOC Central Command, IDF et al. HCJ 3799/02, Supreme Court
Supreme Court of Israel (last accessed on 29.07.2014)

On 6 October 2005, the Supreme Court sitting as the High Court of Justice of Israel issued its judgment in which it found that the "Early Warning" procedure used by the Israeli forces was not legal.

This procedure allowed asking the assistance of local residents, in order to arrest wanted persons. According to the respondents, the procedure would permit to leave the buildings and the wanted persons to turn themselves in, before it became necessary to use force. For that, and under their consent, the armed forces may ask a local resident to approach the house, to give notice to those in the house that the army is present and to warm them if they do not leave the house, the army is liable to use force in order to arrest the wanted person. In the Army's opinion, the procedure sits well with the fundamental principles of international law. In particular, those which regulate the planning of a military operation and the protection of civilians or the reduction of the danger of injury to them. In addition, they state that international law does not prohibit receiving the assistance of a consenting local civilian, in order to warn other residents of an impending attack, if he is not exposed to danger as a result.

The petitioners argued that the Israeli forces were violating constitutional law and the fundamental norms of public international law, when the civilian population of Judea and Samaria was used during military operations, which the petitioners considered "human shield" or hostages. They pointed out that the so-called "Early Warning" procedure was illegal as far as it put the protected civilians in real and tangible danger. They argued that the consent of the civilians as part of the procedure was irrelevant and against articles 3, 8, 27, 28, 47 and 51 of the IV Geneva Convention 1949, and article 51(7) of the Additional Protocol I of 1977.

Regarding the main debate on the need of the consent of the civilian as part of the procedure, the Court stated that article 8 of the Fourth Geneva Convention of 1949 states that the protected civilians cannot renounce in part or in entirely his rights pursuant to humanitarian law. Furthermore, the Court also pointed out that de facto, it was difficult to judge when the consent is given freely, and when it was the result of overt or subtle pressure. In sum, based on the principle of distinction and the duty to distance innocent local residents from the zone of hostilities, the Court states that a local resident cannot be brought, even with his consent, into a zone in which combat activity is taking place.

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application/pdf 94 KB Israel - Adalah et al. v. GOC Central Command, Supreme Court, 2005 [eng].pdf