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To Prevent Ill Rumors: HCJ 3114/02 MK Barake v. Minister of Defense (Judgment of April 14, 2002)
Court Watch | 3114/02 | 1.10.2012 | Adv. Yossi Wolfson

The events that took place in Jenin Refugee Camp during the April 2002 Israeli military operation (known as “Operation Defensive Shield”), or rather, the fight over their representation, provided the background for a number of legal actions. One of them was heard very shortly after the incidents, before the bodies were buried. In fact, on the face of it, this action resolved the issue of the bodies' burial, but even then, the battle over how the events would go down in history and how they would be remembered in public discourse, was already underway.

The arrangement reflects Barak's view that Israeli actions which could be perceived as an attempt to obfuscate and hide the facts are a greater danger to Israel than photos of bodies and mass funerals

The three petitions which are the subject of the judgment were filed with the High Court of Justice (HCJ) on Friday afternoon of April 12, 2002. The petitioners asked that the Israeli military refrain from removing the corpses of those killed in the incidents from the refugee camp, and particularly that it refrain from burying some of them in secrecy in the military cemetery for enemy dead in the Jordan Valley. The petitioners asked that Palestinian medical crews and the International Committee of the Red Cross (ICRC) remove the bodies and that the families of the dead bring them to burial. According to the judgment, the petitioners described what had transpired in the refugee camp as a massacre. The petitions were brought before Supreme Court President Aharon Barak, who, after receiving the state's response, issued an interim injunction ordering the state to refrain from removing the bodies of the dead from their location at the time. The petition was brought before a Supreme Court bench, headed by Barak, on Sunday, and the operative sections of the judgment reflect an arrangement Barak guided the parties to enter into during the hearing.

Friday, April 12, 2002, was not the first time Barak was called to address issues relating to Israeli involvement, or alleged involvement, in a massacre in a Palestinian refugee camp. Barak was a member of the Cohen Commission which investigated the massacre at the Sabra and Shatila refugee camps in Lebanon twenty years earlier. His sensitivity to the public and historic dimensions of these types of affairs is clearly reflected in the judgment.

On the open level, the judgment addressed a seemingly technical question: who would collect the bodies strewn in the camp, who would identify them and who would bring them to burial. Under the surface, however, the battle was not about the bodies but about the way the story would unfold in history and the images that would be etched into the collective memory: Would the world's papers be flooded with images of endless lines of corpses? Would mass funerals be held? Who would document the bodies and the killing field? In addition to these two levels, the judgment also fluctuates between the legal and the public levels.

According to the arrangement reached in court, the bodies would be located and removed by Israeli military teams, with ICRC delegates in attendance (the court recommended that delegates of the Palestinian Red Crescent Society also be included in the teams). The bodies would be identified by the Israeli military and Palestinian officials, at which point they would be documented and photographed. The bodies would then be transferred to the Palestinians who would bring them to burial immediately. The court allowed the military to bury the bodies itself, if the Palestinians did not bring them to immediate burial, provided that this was done appropriately and in a dignified manner.

Aharon Barak felt it was important to emphasize the legal aspects that served as the basis for the arrangement. This is, after all, the court's job: resolving disputes by applying legal standards. “The law applies always and immediately”, says Barak in the paragraph that concludes the judgment. He puts a special emphasis on the fact that the arrangement conforms to legal standards. The evacuation of the bodies by the Israeli military does not breach international law. On the contrary, “Our starting point”, writes Barak, “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”. Bringing the bodies to burial immediately, in a dignified manner and according to religious custom is required by the concept of respect for the dead. The entire question, he stresses in the judgment, is humanitarian: “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”. He goes on to say: “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”.[1]

However, alongside the legal and humanitarian aspects, the public and historic aspects resurface repeatedly. The arrangement reflects Barak's view that Israeli actions which would be perceived as an attempt to obfuscate and hide the facts are a greater danger to Israel than photos of bodies and mass funerals. He puts this consideration into the mouth of the state: “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”. Yet, it is important to recall that “the pragmatic arrangement we have arrived at” was not formulated by the state, but rather by the court. The court suggested including ICRC delegates in the body location and removal teams and the state accepted. The court's suggestion to include delegates from the Palestinian Red Crescent Society as well remained a recommendation only and Barak beseeched the state to accept it after all: “As we have said – in order to prevent calumny – it is fitting that representatives of the Red Crescent be included in the body location process”.[2]

It was not just international law that guided the court, but also a desire to prevent rumors against the state. And perhaps that is why the court did not remain neutral on the question of how so many had been killed in Jenin Refugee Camp. It is all done very carefully. Aharon Barak, a veteran of the Sabra and Shatila massacre commission of inquiry knew he did not have the tools required for determining what went on in the camp. Neither findings nor testimonies had been collected at that point. However, public discourse is not shaped only by what actually happened on the ground and transparency in the way the dead are handled is not enough to clear the state of some serious allegations. The texts that describe the events, including his own judgment, are also important. Maybe that is why the judgment described the events, in detail, from the state's point of view, rejecting the version that called them a massacre.

Barak describes the facts regarding the events at the refugee camp in unnecessary detail, based on the description provided by the state. However, with appropriate care, he makes sure to mention the originator throughout: “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”; “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”; “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]

As for the massacre, the court seems to carefully reject this version:

Petitioners 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 military 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.[4]

“Petitioners did not satisfy their evidentiary burden”, writes Barak. But do the petitioners really have to prove exactly what happened in the Jenin refugee camp? After all, the question before the court was never what happened in the refugee camp but rather what would happen to the bodies left in it. And just how were the petitioners to meet their burden? Using the findings of the post-mortems performed on bodies still lying on the ground? Examining witnesses in court? And what value is there in the court's expressing an opinion about satisfying an evidentiary burden with respect to what happened in the camp, an issue neither party had any way of proving at that stage and which, in any case, was never before the court? The legalistic phrasing that the petitioners “did not satisfy their evidentiary burden” looks, in the circumstances, like some sort of compromise between wanting to deny the allegations of a massacre and knowing that the tools to do so are simply not available.

The court should not stray from its natural arena – resolving legal disputes with legal standards. The task of shaping the historical discourse is better left for researchers and historians

If saying that “Petitioners did not satisfy their evidentiary burden” is lamentable, the sentence that follows is worse still. Barak writes: “A massacre is one thing; a difficult battle is something else entirely”. Whereas the preceding statement is phrased ambiguously – it may be the continuation of the state's arguments, or perhaps a conclusion drawn by the court, this last sentence is undoubtedly the position of the court. But what does this sentence mean? A quick reading may give the impression that Barak declares there was no massacre in the camp, but a difficult battle. Barak is cautious enough not to make this sort of declaration before the facts are clarified. On a more careful reading, it becomes clear that all he really said was that the two scenarios are distinct and a massacre is not the same thing as a difficult battle. Would anyone say it is? Careful as he may be, Barak falls into a trap. The battle and massacre scenarios are not the only two options. There are others, which are eliminated by his categorical distinction. Human Rights Watch, which published a report about the events in Jenin, did not find evidence a massacre had been committed, but that war crimes certainly had been, including targeted killings of civilians and extrajudicial executions.[5]

The court should not stray from its natural arena – resolving legal disputes with legal standards. The task of shaping the historical discourse is better left for researchers and historians. In the judgment regarding the removal of bodies from Jenin Refugee Camp, the court was presented with a great temptation to make historical findings on the events that had taken place there. Instead of resisting temptation, the court got carried away, making statements so cautiously phrased that when examined in detail, seem almost like tautologies. And even after exercising all this caution, the court falls into the trap of creating a dichotomy between a massacre, which is obviously horrific, and a difficult battle which purportedly clears the Israeli side of any wrongdoing. In retrospect, the truth is most likely somewhere in between these two versions. At the time, the court should have resisted the temptation to investigate what happened in Jenin a few days earlier.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.

HCJ 3114/02 MK Barake v. Minister of Defense (2002), judgment of April 14, 2002, paras. 7, 9 and 10.
Ibid., paras. 11 and 9, respectively.
Ibid., paras 1-2.
Ibid., para. 11.
Human Rights Watch, Jenin: IDF Military Operations (2002). (02) 627 1698   (02) 627 6317

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