Jenin - a thicket of human rights questions
Rights groups were disappointed by the High Court, which says its intervention is `limited' during army operations.
By Joseph Algazy and Moshe Reinfeld
HA'ARETZ
Tuesday, April 16, 2002 Iyyar 4, 5762 Israel Time: 09:18 (GMT+3)
The High Court of Justice yesterday ordered the Israel Defense Forces to resume clearing Jenin of the bodies of people killed during the 10-day battle that ensued in the northern West Bank town, but with International Red Cross units attached to the search parties. The court recommended that the IDF also make use of Red Crescent and local Palestinians to help recover and identify bodies. Two Arab MKs brought the case to the court on Friday and when the two sides reached a compromise, this became the basis for the court's decision.
But the decision also followed a week of High Court rejections of petitions by human rights groups asking for court intervention in various IDF activities in the territories. The court consistently responded by saying that its power to intervene is limited while military operations are underway.
"Bulldozer movement into built-up areas is accompanied by loudspeakers telling people to evacuate their homes because the IDF is moving in with heavy equipment that could harm the walls of their homes. The Palestinian residents have between an hour to an hour-and-a-half from the time of the announcement and the bulldozer's arrival. During the IDF operation in the center of the Jenin refugee camp, there were houses from which people exited after the announcement, and there were houses that were not exited after the announcement, with people only leaving their homes after the bulldozer struck one of the walls of the house, and before the house was demolished."
That quote was not taken from a petition to the court by a human rights group, but rather from the state's response to a petition filed by Adalah, the Legal Center for Arab Minority Rights in Israel, and by LAW, one of the leading Palestinian human rights groups. The petitions asked the court to issue a temporary injunction ordering the IDF commander in the West Bank to explain why he should not cease house demolitions without providing advance warning, opportunity for hearings by the owners, and without enabling evacuation of the buildings by the residents so they could go with their belongings. The court turned down the petition and four others that were brought over the weekend by human rights groups operating in Israel and the Palestinian territories to cease IDF activities that the organizations believe are illegal according to both Israeli and international humanitarian law.
The petition regarding the house demolitions was filed while the demolitions were taking place as the IDF carved two roads through the refugee camp, from south to north and from west to east, said the petition, and was done "while civilians, including women, children, and the elderly, who are not involved in the fighting" were still in the buildings. A partial list of 21 families whose homes were demolished was attached to the petition.
The three justices - Shlomo Levin, Yitzhak Engelrad, and Asher Grunis - accepted the state's position that the house demolitions were part of "effective combat operations in which sometimes harm is inexorably done to residences, when these homes serve as bunkers from which the IDF is shot at." Therefore, said the court, the court's "power to intervene in ongoing operations with judicial criticism is limited. Indeed, these are not ordinary, static conditions, in which people interested in objecting to the operation are given early warning before their property is damaged."
Send in IDF rescue teams
On Saturday night, Hamoked, the Center for the Defense of the Individual, petitioned the court against the defense minister, arguing he should order the IDF's own civil engineering rescue squads attached to the Home Front to seek out and uncover any people under demolished buildings in Jenin refugee camp. The attorneys for Hamoked quoted information received by them on Friday about two women buried under a building for the previous five days. The residents of the building were given advance notice of an impending demolition, but while the son of 60-year-old Farida Alsa'adi managed to get out, neither she nor her sister, Lina Abdel Latif, 50, managed to get out in time. Their fate remains unknown. Their families feared they were dead, but they heard by Friday that there were sounds coming from the rubble. Hamoked called on the Civil Administration, the chief of staff, and the State Attorney to help the family of the two missing women and others in the camp to uncover people buried in the rubble.
The court, with a panel headed by Court President Justice Aharon Barak, and including Theodor Or and Dorit Beinish, turned down the petition yesterday after the state responded by saying that the rescue units indeed were already searching for survivors.
Stop bombing and torture
Another panel of justices turned down a petition by the Association for Civil Rights in Israel, Adalah, and LAW, asking that the IDF and its commanders cease harming the civilian residents of the refugee camp and those elsewhere in the territories where the IDF was operating, ceasing all forms of bombardment of civilian targets. In response, the IDF confirmed to the court that during the fighting there were civilians injured and houses demolished, but it added that measures were taken to mitigate the harm to civilians.
Rejecting the petition, Justices Dalia Dorner, Ayal Proccacia, and Edmund Levy accepted the state's position, that "during combat, it is not possible to use judicial criticism to give effective succor with regard to the manner of an operation."
Justices Levin, Engelrad, and Grunis also rejected a petition at the start of this week in which four Israeli human rights groups asked the court to order the IDF in the West Bank to cease torture and other harm being done to the Palestinians under arrest in Ofer Camp.
The appeal to the court, said the petitioners, came after B'Tselem received word from reliable sources - including Israeli sources inside the military camp - that "the prisoners are experiencing torture during their interrogations, including breaking of fingers": and from other testimony about harsh conditions that human rights groups heard from Palestinians released from the temporary prison camp. Furthermore, the four human rights groups - ACRI, Hamoked, B'Tselem and Physicians for Human Rights - asked the court to order the IDF to allow lawyers meet with prisoners to protect their rights. Almost immediately after the petition was filed, Central Command's Major General Yitzhak Eitsan used his authority to issue an order that allows an officer from the rank of lieutenant up to order a person held for 18 days. A second order allows "prevention of meeting a lawyer during the period of the arrest."
The court panel rejected the petition, accepting the IDF's argument that "there was no reference to individual prisoners" in the petition, that it did not specify specific bodily harm done to an individual, and that during combat, the IDF cannot allow "meetings by lawyers with people who are suspected of being dangerous or potentially dangerous to the area, the safety of IDF forces, or public safety, as long as the conditions have not ripened to enable considering each individual case."
As for the allegations of torture, the court said that "torture is forbidden" and the IDF is expected to investigate every complaint of torture that is filed.
Justices Dorner, Proccacia, and Levy also rejected a petition complaining that the IDF was preventing medical teams from reaching the home of Raik Suavta, who was seriously wounded during the IDF operation in Kafr Albadan. The petition, brought in his name by Physicians for Human Rights, Adalah and LAW, was "against shooting at medical teams of the Red Cross and Red Crescent ... against preventing the medical evacuation of wounded and wounded patients, to hospitals, for treatment; and against preventing the evacuation of corpses to hospitals and from there to burial by their families.
The state responded by saying the "objective circumstances with regard to the ailing, wounded and dead are not easy ... result from the actual combat ... and the improper use by Palestinians of medical teams and ambulances."
The court accepted the IDF's explanations after it was made clear that the "IDF's soldiers have been instructed to operate according to humanitarian rules, and they do so."
The High Court's rejection of the five petitions in one week, said ACRI attorney Dan Yakir, was a grave disappointment. "This is a direct continuation of the court's huge failure to protect civil rights in the territories. The real test of the court is protecting human rights precisely when there is an emergency or when there is combat underway."
Yossi Wolfson, the lawyer for Hamoked, said that "it is painful that at a time when the army and Israeli society are slipping down the slope to losing their humanity, the highest court in the land is not restraining the authorities nor rising above the general erosion."
Meanwhile, Attorney Shamai Leibowitz is going to the High Court of Justice this morning with a petition on behalf of reserve lieutenant Doron Mutai, asking that the Judge Advocat General release him immediately from the brig. The lawyer is also asking that if the IDF is indeed convinced he broke the law, he should be given a fair trial with the full legal rights afforded any person accused in Israel. In other words, he should have legal representation, be allowed to offer documentation in support of his case, and bring witnesses to testify on his behalf.
Mutai was sentenced to 28 days for refusing to serve over the Green Line. His petition says he suffered a miscarriage of justice and was deprived of his right to a fair trial. He was convicted, sentenced, and jailed without the opportunity to prove his innocence.
After Mutai was jailed, Leibowitz asked JAG to annul the court martial and free him. The lawyer claims that a lieutenant colonel, acting as judge, wrote "admitted guilt" even after Mutai pleaded innocent and explained that "the order to serve in the territories is illegal, a contravention of international law and IDF values."
Last week, the number of refuseniks in jail reached 38, the highest number of soldiers refusing orders in the history of the state.
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