Supreme Court Outlaws Army Tactic

The High Court ruled today that the Israel Defense Forces' "neighbor procedure," designed to save lives and facilitate the peaceful arrest of wanted terrorists, is illegal.

Hillel Fendel, | updated: 11:26

Under the procedure, IDF forces approach a house in which wanted terrorists are suspected to be hiding out, and prepare to arrest him. To avoid a military-style entry, involving the risk of violent escalation and deaths on both sides, including nearby Arab residents, the army orders or asks an Arab living in a neighboring house to knock on the door. The Arab is to inform those inside that the army is seeking their arrest and is demanding that they give themselves up. The operative assumption of the procedure is that Arabs would not open fire or otherwise harm their own compatriots.

The three-justice panel, headed by Chief Justice Aharon Barak, ruled unanimously today that the procedure should not be used, even if the neighbor agrees to take part. The judges agreed with the claim made by a PA civil rights organization - one of seven groups that demanded the outlawing of the procedure - that the neighbor's consent to take part is the result of his fear of the army.

In August 2002, a restraining order was issued against the procedure, just days after one "neighbor" was shot and killed by the wanted suspect - even though the killer was warned via loudspeaker that his neighbor was approaching. Col. (res.) Moshe Hager told Israel Television at the time that the procedure had been used safely many thousands of times, and that "it actually saves Arab lives, because if we cannot catch the suspects, then we have to drop bombs on them, which can accidentally kill neighboring civilians." He also said that Israel's ethical imperative is to do whatever it has to in order to fight terrorists.

The Supreme Court judges do not agree, feeling that the Arab neighbor must not be endangered at all. "In balancing the military and humanitarian considerations," Barak wrote, "the considerations that forbid the army to use local residents have the upper hand."

"There is no way to know for sure in advance if the neighbor will be endangered," Barak wrote in his ruling. He explained that he was referring not only to the "physical danger of gunshots from the house in which the wanted terrorist is hiding, but also the broader risk that a local resident can expect from cooperating with the army."

Deputy Chief Justice Mishael Heshin and Justice Dorit Beinish agreed with Barak, though Heshin was slightly less enthusiastic. "Whatever decision I make, there will come a time when I regret it," he wrote, but in the end sided with Barak.

The organizations that brought the suit against the procedure included the Israeli human rights group B'tzelem, the Adala Legal Center for Arab Minority Rights in Israel, and Doctors for Human Rights. The suit was brought against Israel's Prime Minister, the Defense Minister, the IDF Chief of Staff, and the IDF Central District Commander.

In January 2003, the Supreme Court relaxed the restraining order it had previously issued, and allowed the army to ask neighbors for their help, but not force them. In today's ruling, however, this was outlawed as well.

The judges ruled that the neighbor procedure violates international law. It was noted, however, that the necessity for the procedure stems from a previous violation of international law, namely, terrorist activity from within populated areas.

A former paratroopers regiment commander, quoted on Ynet, said, "It must be remembered that the terrorists choose purposely to act from within populated areas, with the populace serving as their human shield... Our activities are therefore not carried out under sterile conditions."

Left-wing elements praised the decision. Meretz party leader Yossi Beilin said that the Supreme Court had saved the day, adding, "It's said that the regime in Israel is unable to understand on its own that the neighbor procedure... blackened Israel's face for no reason and harmed its status as the only democracy in the Middle East."

Labor MK Raleb Majadele said, "The Court's decision is another step symbolizing progress in the IDF's relation to Palestinian citizens."

On the other hand, National Religious Party head MK Zevulun Orlev said, "This ruling joins the Court's rulings regarding the security fence and is an indication of a dangerous trend by the Supreme Court justices, who are willing to endanger the lives of IDF soldiers and Israeli citizens in order not to hurt Palestinians."

Shas Party leader MK Eli Yishai said, "The need to present ourselves as refined and 'bleeding hearts' is liable to endanger IDF soldiers."