Evacuation of bodies in Jenin- Decision of the Supreme Court Sitting as a High Court of Justice - 14-Apr-2002

April 14, 2002

H.C. 3114/02

BARAK P.: 1. Combat activities have been taking place during the recent days in the areas of Judea and Samaria ("operation Defensive Wall"). The operation began (on March 29^th 2002) as a result of a government decision. Its objective - to defeat the Palestinian terror infrastructure, and to prevent the reoccurrence of the multiple terrorist attacks which have plagued Israel. In the framework of this activity, I.D.F. forces entered (on April 3^rd, 2002) the area of the city of Jenin, and the refugee camp adjacent to it. According to the information relayed to us by the Respondents' counsel, Mr. Blass, a widespread terror infrastructure (a bona fide "Palestinian Military Industries", in the words of Mr. Blass) 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 fourth of all of the terrorists who have committed suicide bombing attacks (including the attacks during Passover, in the Matza Restaurant in Haifa and in the Sbarro Restaurant in Jerusalem; 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 I.D.F. forces entered the refugee camp, they found that a large proportion of the houses were empty. The civilian population was mainly in the center of the camp. As I.D.F. forces arrived, they called out a general appeal to residents to come out of the houses. According to what has been relayed to us, the 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, weapons, and explosives, I.D.F. forces began combat activity from house to house. Among other reasons, this technique was adopted in order to prevent massive casualties to innocent civilians. A skirmish developed. It turned out that empty houses had been booby-trapped. As a result of this fighting, 23 of our soldiers fell in battle. After a few days of combat, from house to house, the army achieved control of the camp. According to the claim of Respondents' counsel, after a stage in which a call was given to evacuate the houses, bulldozers destroyed the houses during the fighting, and some Palestinians were killed.

3. Bodies of Palestinians remained in the camp. Until the camp was completely under control of the I.D.F., it was impossible to evacuate them. When the camp was under control, a process of searching began, during which the explosive charges which the Palestinians had scattered around the refugee camp were neutralized and removed. Up to the point when these petitions were served, thirty seven bodies had been found. Eight bodies were given over to the Palestinian side. Twenty six bodies have not yet been evacuated.

4. In the three petitions before us, we were asked to order the Respondents to refrain from locating and evacuating the bodies of Palestinians in the Jenin refugee camp. In addition, we were asked to order the Respondents to refrain from burying the bodies of those determined to be terrorists in a cemetery in the Jordan Valley. The 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 the family members of the deceased be allowed to bring their dead to a timely, appropriate and respectable burial.

5. The petitions were served on Friday afternoon (April 12, 2002). The immediate response of the State Attorney's Office was requested. That response was served on Friday evening. After reading the petitions and the response of the State Attorney's Office, it was decided that the petitions would be heard before a panel on Sunday (April 14, 2002). Thus, the President of this Court decided to give a temporary order forbidding the evacuation of bodies of Palestinians from the places where they lay, until the hearing.

6. At the beginning of the hearing this morning (April 14, 2002), a group of reserve soldiers in combat in the area of the Jenin refugee camp requested to be added as Respondents to the petitions. We read their petition. We heard the arguments of their spokesperson, the reservist attorney Y. Caspi. We requested to know the State's position. Mr. Blass noted that the position of the reservists who requested to join the case contained nothing that didn't appear in the State's position, and thus, that there is no place for that request. As a result, we decided, according to our accepted policy, that there is no place for the request to join as a party to the case, and we rejected it. We allow the addition of a Petitioner or a Respondent when his/her position adds to what has already been put before us. Mr. Blass rightly noted that this is not the case in this situation.

7. The principle which serves as a starting point, is that in the circumstances of this case, the responsibility for the location, identification, evacuation and burial of the bodies belongs to the Respondents. These are their obligations according to the rules of international law. The Respondents accept this position, and it guides their action. In the framework of this position - and according to the procedures which 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 point. In response to our questions, Mr. Blass responded that the Respondents are willing to include representatives of the Red Cross in the various teams. In addition, they are willing to consider, with a positive outlook - according to the judgment of the Military Commander, in consideration of the changing circumstances - the participation of a representative of the Red Crescent in the location and identification process. We suggest that a representative of the Red Crescent be included, subject, of course, to the judgments of the military commanders. It is also acceptable to the Respondents that the process of identification, during the stage after the location and evacuation of the bodies, will include local representatives who are capable of assisting in this matter. Identification activities on the part of the I.D.F. will include, among other things, photography and documentation according to standard procedure. These activities will be done as quickly as possible, with respect for the dead and while safeguarding the security of the acting forces. These principles are also acceptable to the Petitioners.

8. At the end of the identification process, the burial stage will begin. The position of the Respondents is that burial will be performed in a timely manner, by the Palestinian side. Successful expedition obliges agreement between the Respondents and the Palestinian side, of course. If it turns out that the Palestinian side is refraining from bringing the bodies to immediate burial, the possibility of bringing the bodies to immediate burial by the Respondents - in light of the concern that such a situation will compromise security - will be weighed. Needless to mention, the Respondents' position is that such burial, if performed by the Respondents, will be done in an appropriate and respectful way, while ensuring respect for the dead. In this, no differentiation will be made between located bodies, and no differentiation will be made between bodies of armed terrorists and civilians. This position is acceptable to the Petitioners.

9. Indeed, there is no real argument between the parties. The location, identification and burial of bodies are very important humanitarian acts. They are deduced from the principle of respect for the dead. Respect for all dead. They are placed at the base of our existence as a state whose values are Jewish and democratic. The Respondents declared that they are acting in accordance with this attitude, and their attitude seems to us to be appropriate. That is to say: in order to prevent rumors, it is fitting to include, in the body location stage, representatives of the Red Crescent. It is also fitting - and this is acceptable to the Respondents - that during the identification of bodies, local Palestinian authorities will be included. Finally, it is fitting - and this is even the original position of the Respondents - that the burial should be done respectfully, according to the religious customs, by local Palestinian authorities. All these acts need to be done in as timely a manner as possible. All the parties are in agreement in that regard. Needless to say, all the above is subject to the security situation in the field, and to the judgment of the Military Commander.

10. On the humanitarian issues, it is indeed usually possible to arrive at understanding and arrangement. Respect for the dead is important to us all, for humankind was created in the likeness of God. All the parties hope to finish the location, identification, and burial process as soon as possible. The 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 are in agreement that burial should be done with respect, according to religious custom, in a timely manner.

11. It was claimed in the petitions that a massacre had been committed in the Jenin refugee camp. The Respondents disagree most strongly. In Jenin there was a battle - a battle in which many of our soldiers fell. The army fought from house to house, not by bombing from the air, in order to prevent, to the extent possible, civilian casualties. Twenty three I.D.F. soldiers lost their lives. Scores of soldiers were wounded. The Petitioners did not lift the burden of evidence which laid on their shoulders. A massacre is one thing. A difficult battle is something else. The Respondents repeat their claim before us, that they wish to hide nothing, and that they have nothing to hide. The pragmatic arrangement to which we have arrived is an expression of that position.

12. It is good that the parties to these petitions before us reached understanding. This understanding is desirable. It respects the living, and the dead. It avoids rumors. Of course, legal rules apply always and immediately. Mr. Blass relayed to 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 law applying to combat must be upheld. Even in a time of combat, all must be done in order to protect the civilian population (see H.C. 2901/02; H.C. 2936/02; H.C. 2977/02, and H.C. 3022/02). Clearly this court will take no position regarding the way the combat is being managed. As long as the 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 endangers the soldiers. Nor was the claim made before us that by giving the temporary order there is any danger to soldiers. On the contrary; the arrangement to which we arrived is an arrangement in which all are interested.

In light of the arrangement detailed above, it is acceptable to all the parties before us, that the petitions are rejected.

Judgment given on April 14, 2002

H.C. 3117/02

CENTER FOR THE DEFENCE OF THE INDIVIDUAL, FOUNDED BY DR. LOTAH ZALTZBERGER (REGISTERED SOCIETY)

v.

THE MINISTER OF DEFENCE

In the Supreme Court sitting as the High Court of Justice
Barak P., Or J., and Beinisch J.

JUDGMENT

The Petitioners wish to know why the Respondent does not send the special rescue unit of the IDF Homefront Command to search for and locate all persons buried alive under the ruins in the Jenin refugee camp, and rescue them. The petition was served to the court on Sabbath eve. The Justice on-call decided that the petition would be heard today (April 14, 2002), in the morning. At the beginning of the hearing, before the Respondent's counsel, Mr. Blass, had the opportunity to prepare a written response, he announced to us that the rescue unit of the Homefront Command had already entered the Jenin refugee camp, together with additional army forces, to the extent that security restrictions allowed. The unit will attempt to locate people.

That having been said, it appears to us that the petition has achieved what it set out to achieve. Law and morality both justify the entry of the rescue unit. The responsibility lays, of course, on the shoulders of the Military Commander on site. He will receive all information on possible locations of people, according to his judgment: information relayed by soldiers; information relayed by locals; information stemming from the experience of the unit itself; all subject to the judgment of the Military Commander and to security needs in the field.

In light of the declaration of the State's counsel, the petition is hereby rejected.

Judgment given on April 14, 2002