High Court (Archive)
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Photo: Alex Kolomoisky
Justice Edna Arbel
Photo: Alex Kolomoisky

High Court sets protocol for intervening in IDF arms use

Though rejected by High Court, petition to ban IDF use of phosphorus-laced arms calls attention to legal jurisdiction over warfare. Judges lay out conditions under which court can intervene in usage of arms when breaking international rules of war

In response to a petition filed by human rights organizations regarding the IDF's use of phosphorus, the High Court of Justice has ruled that in extreme circumstances, the court has the right to intervene. The ruling also defined the conditions under which such intervention could take place.


The petition was filed by 116 organizations in a bid to force the Knesset to ban the use of white phosphorus in civilian areas, an issue that was raised during Operation Cast Lead and the ensuing Goldstone Report.


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The court rejected the petition by the human rights organizations – which attempted to attain a ruling that would force the Knesset to amend its current directive to the army – seeing as the State agreed to discontinue the use of white phosphorus, except for two combat related cases.


Though rejecting the petition, justices Edna Arbel, Hanan Meltzer, and Yoram Danziger accepted the petitioners' claim that international law governing warfare was not only a military issue, but also a legal one.


As a result, the judges opted to create a checklist balancing between "the restraint mandated by the court's involvement in army matters," on the one hand, and the "need to defended human rights and international law," on the other.


The legal checklist would determine whether a decision regarding the use of warfare is exclusively military or requires legal examination.


In the ruling, Judge Arbel noted that the aforementioned checklist would first "examine whether petitions (motioning to restrict IDF's use of warfare in a particular case) posses jurisprudential aspects that allow the court authority to look into them, without interfering with the military's work."


If after such an examination, the court decided there were no legal issues or that the IDF's work were compromised, it would reject the petition, Arbel noted, but if the court decided a legal examination of the case was needed, it would examine the "practical aspects of the petition."


Arbel further noted that the court's involvement in these types of issues was "extremely limited, and reserved for extreme cases mandating such involvement, when there is a real threat to well-based legal norms."



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פרסום ראשון: 07.22.13, 00:05
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