Barake v. Minister of Defense
Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners requested that the IDF be ordered to cease checking and removing the bodies of Palestinians that had been killed during the course of warfare in the Jenin refugee camp. Petitioners also requested that the IDF be ordered not to bury those ascertained to be terrorists in the Jordan valley cemetery. Petitioners request that the tasks of identifying and removing the bodies be the responsibility of medical teams and the Red Cross. Petitioners also request that the families be allowed to bring their dead to a quick and honorable burial.
Held: The Supreme Court held that the respondents were responsible, under international law, for the location, identification, and burial of the bodies. As such, and according to guidelines that will be set out by respondent, teams will be assembled for the location, identification and removal of bodies. Respondent agrees that the Red Cross should participate in these activities and is prepared to positively consider the suggestion that the Red Crescent also participate, according to the discretion of the Military Commander. The identification process will be completed as quickly as possible, and will ensure the dignity of the dead as well as the security of the forces. At the end of the identification process, the burial stage will begin. Respondents’ position was that the Palestinian side should perform the burials in a timely manner. Of course, successful implementation requires agreement between the respondents and the Palestinian side. If it becomes clear that the Palestinian side is refraining from bringing the bodies to an immediate burial, in light of the concern that such a situation will compromise national security, the possibility that respondents will bring the bodies to immediate burial will be weighed. Burials be carried out in an appropriate and respectful manner, while ensuring respect for the dead. No differentiation will be made between bodies, and no differentiation will be made between the bodies of civilians and the bodies of armed terrorists.
Barak, Aharon | Primary Author | majority opinion |
Beinisch, Dorit | majority opinion | |
Or, Theodor | majority opinion |
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The Supreme Court Sitting as the High Court of Justice
[April 14, 2002]
Before President A. Barak, Justices T. Or, D. Beinisch
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: This petition was submitted during IDF operations against the terrorist
infrastructure in the areas of the Palestinian Authority. (“Operation Defensive
Wall.”) Petitioners requested that the IDF be ordered to cease checking and
removing the bodies of Palestinians that had been killed during the course of
warfare in the Jenin refugee camp. Petitioners also requested that the IDF be
ordered not to bury those ascertained to be terrorists in the Jordan valley
cemetery. Petitioners request that the tasks of identifying and removing the
bodies be the responsibility of medical teams and the Red Cross. Petitioners also
request that the families be allowed to bring their dead to a quick and honorable
burial.
Held: The Supreme Court held that the respondents were responsible, under
international law, for the location, identification, and burial of the bodies. As
such, and according to guidelines that will be set out by respondent, teams will
be assembled for the location, identification and removal of bodies. Respondent
agrees that the Red Cross should participate in these activities and is prepared
to positively consider the suggestion that the Red Crescent also participate,
according to the discretion of the Military Commander. The identification
process will be completed as quickly as possible, and will ensure the dignity of
the dead as well as the security of the forces. At the end of the identification
process, the burial stage will begin. Respondents’ position was that the
Palestinian side should perform the burials in a timely manner. Of course, Barake v. Minister of Defence
successful implementation requires agreement between the respondents and the
Palestinian side. If it becomes clear that the Palestinian side is refraining from
bringing the bodies to an immediate burial, in light of the concern that such a
situation will compromise national security, the possibility that respondents will
bring the bodies to immediate burial will be weighed. Burials be carried out in
an appropriate and respectful manner, while ensuring respect for the dead. No
differentiation will be made between bodies, and no differentiation will be made
between the bodies of civilians and the bodies of armed terrorists.
Israeli Supreme Court Cases Cited:
[1] HCJ 2901/02 The Center for the Defense of the Individual v. The
Commander of the IDF Forces in the West Bank IsrSC 56(3) 19
[2] HCJ 2936/02 Physicians for Human Rights v. The Commander of the
IDF Forces in the West Bank, IsrSC 56(3) 3
[3] HCJ 2977/02 Adalah—The Legal Center for the Arab Minority Rights in
Israel v. The Commander of the IDF Forces in the West Bank, IsrSC
56(3) 6.
[4] HCJ 3022/02 LAW—The Palestinian Organization for the Defence of
Human Rights and the Environment v. The Commander of the IDF
Forces in the West Bank IsrSC 56(3) 9
For the petitioner in HCJ 3114/02—Ihab Iraqi
For the petitioner in 3115/02—Saadi Usama
For petitioner 1 in HCJ 3116/02—Hasan Jabareen
For petitioner 2 in HCJ 3116/02—Jamal Dakwar
For the respondents—Malchiel Blass, Yuval Roitman
Judgment
President A. Barak
1. Since March 29, 2002, combat activities, known as “Operation
Defensive Wall,” have been taking place in areas of Judea and Samaria.
Their objective is to prevail over the Palestinian terror infrastructure, and
to prevent the recurrence of the terror attacks which have plagued Israel. In the context of this operation, on April 3, 2002, IDF forces entered the
area of the city of Jenin and the refugee camp adjacent to it. According to
respondents, an extensive terror infrastructure (in their words—a bona fide
“Palestinian Military Industries”) has developed in the city of Jenin and in
the refugee camp. More than twenty three suicide bombers have come
from that area—about one quarter of all terrorists who have executed
suicide bombing attacks, including the attacks during Passover, the attack
in the Matza Restaurant in Haifa, in the Sbarro Restaurant in Jerusalem,
in the train station in Benyamina, the bus attack at the Mosmos junction,
and the attack at the junction adjacent to Army Base 80.
2. As IDF forces entered the refugee camp, they found that a large
proportion of the houses were empty. The civilian population was
concentrated in the center of the camp. As IDF forces arrived, they
appealed to residents to come out of their houses. According to the
information before us, this call was not answered until the night of April 7,
2002. At that point, approximately one hundred people left the camp. In
order to apprehend the terrorists, and locate weapons and explosives, IDF
forces began house to house combat activity. This technique was adopted,
among other reasons, in order to prevent casualties to innocent civilians. It
became clear that the empty houses had been booby-trapped. As a result
of this fighting, twenty three of our soldiers fell in battle. After several
days of house to house combat, the army achieved control of the camp.
According to respondents, during the fighting, after calls to evacuate the
houses, bulldozers were deployed in order to destroy houses, and some
Palestinians were killed.
3. Bodies of Palestinians remained in the camp. Until the camp was
completely under IDF control, it was impossible to evacuate them. Once
the camp was under control, explosive charges, which had been scattered
around the refugee camp by Palestinians, were neutralized and removed.
As of the submission of these petitions, thirty seven bodies had been found.
Eight bodies were transferred to the Palestinian side. Twenty six bodies
have yet to be evacuated. Barake v. Minister of Defence
4. The three petitions here ask us to order respondents to refrain from
locating and evacuating the bodies of Palestinians in the Jenin refugee
camp. In addition, they request that the respondents be ordered to refrain
from burying, in the Jordan Valley cemetery, the bodies of those
ascertained to be terrorists. Petitioners request that the task of locating and
collecting the bodies be given to medical teams and representatives of the
Red Cross. In addition, they request that family members of the deceased
be allowed to bring their dead to a timely, appropriate and respectful
burial.
5. The petitions were submitted on Friday afternoon, April 12, 2002.
We requested an immediate response from the Office of the State
Attorney. That response was submitted on Friday evening. After reading
the petitions and the response, we decided that arguments would be heard
on Sunday, April 14, 2002. The President of the Court granted a
temporary order forbidding, until after the hearing, the evacuation of the
bodies from the places where they lay.
6. At the beginning of arguments this morning, April 14, 2002, a
group of reserve soldiers, who had served in the area of the Jenin refugee
camp, requested to be added as respondents to this petition. We read their
submissions and heard the arguments of their attorney, Y. Caspi. We
requested the State’s position. The State responded that the reservists did
not present anything that was not already present in the position of the
State and, as such, there was no place to grant their request. As such, and
according to our procedures, we rejected the request to join as respondents
to this petition. We allow the addition of a petitioner or respondent when
their position adds to what has already been put before us. As the State
correctly noted, this is not the case in this situation.
7. Our starting point is that, under the circumstances, respondents are
responsible for the location, identification, evacuation, and burial of the
bodies. This is their obligation under international law. Respondents
accept this position. Pursuant to this, and according to procedures that
were decided upon, teams were assembled, including the bomb squad unit, medical representatives, and other professionals. These teams will locate
the bodies. They will expedite the identification process. They will
evacuate the bodies to a central location. In response to our questions,
respondents stated that they are prepared to include representatives of the
Red Cross in the teams. In addition, they are willing to consider, according
to the judgment of the Military Commander and in consideration of the
changing circumstances, the participation of a representative of the Red
Crescent in the location and identification process. We recommended that
a representative of the Red Crescent be included subject, of course, to the
judgment of the military commanders. Respondents also state that it is
acceptable to them that local representatives will assist with the process of
identification, following the location and evacuation of the bodies.
Identification activities on the part of the IDF will include documentation
according to st\andard procedures. These activities will be done as soon as
possible, with respect for the dead and while safeguarding the security of
the forces. These principles are also acceptable to petitioners.
8. At the end of the identification process, the burial stage will begin.
Respondents’ position is that the Palestinian side should perform the
burials in a timely manner. Of course, successful implementation requires
agreement between the respondents and the Palestinian side. If it becomes
clear that the Palestinian side is refraining from bringing the bodies to an
immediate burial, in light of the concern that such a situation will
compromise national security, the possibility that respondents will bring
the bodies to immediate burial will be weighed. Though it is unnecessary,
we add that it is respondents’ position that such burials be carried out in
an appropriate and respectful manner, while ensuring respect for the dead.
No differentiation will be made between bodies, and no differentiation will
be made between the bodies of civilians and the bodies of armed terrorists.
Petitioners find this position acceptable.
9. Indeed, there is no real disagreement between the parties. The
location, identification, and burial of bodies are important humanitarian
acts. They are a direct consequence of the principle of respect for the
dead—respect for all dead. They are fundamental to our existence as a Barake v. Minister of Defence
Jewish and democratic state. Respondents declared that they are acting
according to this approach, and this attitude seems appropriate to us. As
we have said, in order to prevent rumors, it is fitting that representatives of
the Red Crescent be included in the body location process. It is also fitting,
and this is acceptable to the respondents, that local Palestinian authorities
be included in the process of the identification of the bodies. Finally, it is
fitting, and this is the original position of the respondents, that burials
should be performed respectfully, according to religious custom by local
Palestinian authorities. All these acts should be performed in as timely a
manner as possible. All the parties are in agreement in that regard.
Needless to say, all of the above is subject to the security situation in the
field, and to the judgment of the Military Commander.
10. Indeed, it is usually possible to agree on humanitarian issues.
Respect for the dead is important to us all, as man was created in the
image of God. All parties hope to finish the location, identification, and
burial process as soon as possible. Respondents are willing to include
representatives of the Red Cross and, during the identification stage after
the location and evacuation stages, even local authorities (subject to
specific decision of the Military Commander). All agree that burials
should be performed with respect, according to religious custom, in a
timely manner.
11. Petitions claimed that a massacre had been committed in the Jenin
refugee camp. Respondents strongly disagree. There was a battle in Jenin,
a battle in which many of our soldiers fell. The army fought house to
house and, in order to prevent civilian casualties, did not bomb from the
air. Twenty three IDF soldiers lost their lives. Scores of soldiers were
wounded. Petitioners did not satisfy their evidentiary burden. A massacre
is one thing; a difficult battle is something else entirely. Respondents
repeat before us that they wish to hide nothing, and that they have nothing
to hide. The pragmatic arrangement that we have arrived at is an
expression of that position.
12. It is good that the parties to these petitions have reached an understanding. This understanding is desirable. It respects the living and
the dead. It avoids rumors. Of course, the law applies always and
immediately. Respondents informed us that, in all their activities, the
military authorities are advised by the Chief Military Attorney. This is
how it should be. Even in a time of combat, the laws of war must be
followed. Even in a time of combat, all must be done in order to protect
the civilian population. See HCJ 2901/02 [1]; HCJ 2936/02 [2]; HCJ
2977/02 [3]; and HCJ 3022/02 [4]. Clearly this Court will take no position
regarding the manner in which combat is being conducted. As long as
soldiers’ lives are in danger, these decisions will be made by the
commanders. In the case before us, it was not claimed that the
arrangement at which we arrived endangered the lives of soldiers. Nor was
it claimed that the temporary order endangered the lives of soldiers. On the
contrary; the arrangement at which we arrived is an arrangement in which
all are interested.
In light of the arrangement detailed above, which is acceptable to all
parties before us, the petitions are rejected.
April 14, 2002