IpsofactoJ.com: International Cases [2004] Part 13 Case 10 [SCIsr]


SUPREME COURT OF ISRAEL

(sitting as the High Court of Justice)

Coram

Physicians for Human Rights

- vs -

IDF Commander in Gaza

A. BARAK, President

JUSTICE J. TÜRKEL

JUSTICE D. BEINISCH

30 MAY 2004


Judgment

President A. Barak

  1. Is the State of Israel complying with various humanitarian obligations to which it is subject under international humanitarian law, during the military operations taking place in Rafah? This is the question before us.

    Background

  2. Since 18 May 2004, active combat has been taking place in the area of Rafah in the Gaza Strip (see HCJ 4573/04 Albesioni v IDF Commander (unreported); HCJ 4585/04 Shakfahat v IDF Commander in Gaza Strip (unreported); HCJ 4694/04 Abu Atra v IDF Commander in Gaza Strip (unreported)). According to the respondent’s statement, the combat activities are on a large scale. They are intended to damage the terror infrastructure in that area. The main goal is to locate tunnels that are used for smuggling weapons from the Egyptian part of Rafah to the Palestinian part. The fighting also has the aim of arresting persons wanted for acts of terror and locating weapons in the Rafah area. The activity taking place there includes battles with armed opponents. Many explosive charges have been directed against the IDF forces, and various weapons are being fired at them.

  3. The city of Rafah is divided into several neighbourhoods. Most of the military operations were in the neighbourhood of Tel A-Sultan. The IDF also entered the Brazil neighbourhood. During the night between the filing of the petition (20 May 2004) and the hearing the next morning (21 May 2004), the IDF left these two neighbourhoods, but the neighbourhoods are surrounded and controlled by the army.

  4. Before the fighting – in the light of experience from similar operations carried out in the past – the army took three steps that were intended to facilitate the solution of humanitarian problems. First, a ‘humanitarian centre’ was set up. This centre maintains contact with parties outside the area of operations. Thus, for example, various human rights organizations contact it. An attempt is made, on the spot, to resolve concrete problems arising in the course of the fighting. Second, a District Coordination Office (‘DCO’) was established. This DCO is in constant communication, with regard to humanitarian matters arising as a result of the fighting, with personnel from the Palestinian Ministry of Health, the Palestinian Red Crescent and the International Red Cross. The person in charge of the DCO in the southern part of the Gaza Strip is in direct contact with personnel from the Palestinian Ministry of Health and with local hospitals. It is his job to find a solution to problems arising as a result of the fighting. The person in charge of the DCO in the area of the Gaza Strip is Colonel Y. Mordechai. Third, every battalion involved in the fighting has an officer from the DCO. His job is to deal with humanitarian issues arising from the fighting, such as the evacuation of the Palestinian dead and wounded.

    The petition

  5. The petitioners are four human rights organizations. They point to various instances of harm suffered by the local population in Rafah – which we will discuss below – as a result of the army’s military operations. They are petitioning that the army should allow medical teams and ambulances to reach the wounded in Rafah in order to evacuate them; that the evacuation should take place without prior coordination with the humanitarian centre; that the transport of medical equipment between Rafah and the hospitals outside it should be allowed; that medical teams or civilians involved in the evacuation of the dead or wounded should not be harmed or threatened; that the electricity and water supply to the neighbourhood of A-Sultan should be renewed and the supply of food and medicines for the residents of the neighbourhood should be allowed; that a team of physicians on behalf of the Physicians for Human Rights Organization (the first petitioner) should be allowed to enter hospitals in the Gaza Strip in order to assess the medical needs there. Finally, the petitioners ask that an incident (on 19 May 2004) in which a crowd of civilians was shelled and several residents were killed should be investigated. They also ask that an order should be made prohibiting the shooting or shelling of a crowd of civilians even if they contain armed persons who do not pose an immediate danger to life.

    The respondent’s response

  6. The respondent asks us to deny the petition. It emphasizes that extensive military operations are continuing in the area. Battles are taking place against armed combatants. In this situation, great caution is required when the court exercises judicial review of the activities of the security forces. The activity lies on the border of the sphere of institutional justiciability. On the merits, the respondent claims that Rafah was a main channel for bringing weapons into the Gaza Strip, mainly by means of tunnels dug between the Egyptian part of Rafah and the Palestinian part. These smuggled weapons are used to attack the army and Israeli settlements both in the Gaza Strip and outside it. The purpose of the fighting is to damage the Palestinian terror infrastructure in this area; to locate tunnels being used for smuggling weapons; to arrest Palestinians wanted for acts of terror; to locate weapons in the Rafah area. Within the framework of the IDF’s operations in the area of Rafah, battles took place with armed combatants. Many explosive charges were used against the IDF forces. They were fired upon with various weapons, and intensive fighting took place between the IDF and the armed combatants. In their written and oral arguments, counsel for the respondent emphasized that within the framework of the fighting, the IDF has made considerable efforts to take into account the needs of the local population and to minimize in so far as possible any damage to the civilian population, and contact and coordination personnel were appointed in advance for this purpose. Notwithstanding, the position in the area is complex, since the terrorists are making use of the homes of Palestinians for firing on the IDF. They operate from within the Palestinian population, and as a result they make it difficult for the IDF to deal with these problems. Nonetheless, the army is fulfilling its obligation to the civilian population and is doing everything into order to minimize the damage to it. In this respect, the respondent responded – as we will see below – to each of the petitioners’ claims. The respondent emphasizes that difficulties are caused by the fact that the terrorists are operating from among the Palestinian population and they sometimes use it as a human shield. The respondent also points out that the description of the position in the petition is based on Palestinian sources, and it includes gross exaggerations, whose sole purpose is to paint the humanitarian picture in far worse a light than the actual reality.

    The proceeding before us

  7. The petition was filed in the Supreme Court on Thursday, 20 May 2004. It was set down for a hearing before us the next morning, 21 May 2004. Prior to this hearing, we asked for and received a written response from the respondent. At the oral hearing, in addition to the representatives of the parties, the head of the District Coordination Office for the Gaza Strip, Colonel Y. Mordechai, and the Chief Military Attorney, were present at the hearing. Colonel Mordechai informed us orally about various matters that arose before us. Sometimes he asked for a little time to find out what was happening in the area of Rafah, while he contacted his men in the area of Rafah who gave him details, and he passed them on to us. At the end of the arguments, we suggested that a certain arrangement – which we will discuss below – should be considered with regard to the burial of the dead (see para. 26 below). In this respect we received a notice containing an update from the State Attorney on Sunday, 23 May 2004. On 24 May 2004, we asked for the petitioner’s response. Before this was received, we received on the same day (24 May 2004) an additional response from the respondent. The petitioners’ response was also received on the dame day, and it related both to the problem of burying the dead and to the issue of restoring electricity in Rafah. The respondent’s response to the petitioners’ notice was received on 27 May 2004, after the IDF left Rafah on 24 May 2004 and after the area was returned to the civilian and security control of the Palestinian Authority.

    Judicial Review

  8. ‘Israel is not an island. It is a member of an international community ....’ (HCJ 5591/02 Yassin v Commander of Ketziot Military Camp [2003] IsrSC 57(1) 403, at p. 412). The military operations of the army are not conducted in a legal vacuum. There are legal norms – some from customary international law, some from international law enshrined in treaties to which Israel is a party, and some from the basic principles of Israeli law – which provide rules as to how military operations should be conducted. I discussed this in one case, where I said:

    Israel finds itself in a difficult war against rampant terror. It is acting on the basis of its right to self-defence (see art. 51 of the United Nations Charter). This fighting is not carried out in a normative vacuum. It is carried out according to the rules of international law, which set out the principles and rules for waging war. The statement that “when the cannons speak, the Muses are silent” is incorrect. Cicero ’s aphorism that at a time of war the laws are silent does not reflect modern reality ....

    The reason underlying this approach is not merely pragmatic, the result of the political and normative reality. The reason underlying this approach is much deeper. It is an expression of the difference between a democratic state that is fighting for its survival and the fighting of terrorists who want to destroy it. The State is fighting for and on behalf of the law. The terrorists are fighting against and in defiance of the law. The war against terror is a war of the law against those who seek to destroy it (see HCJ 320/80 Kawasma v The Minister of Defence, at 132). But it is more than this: the State of Israel is a state whose values are Jewish and democratic. We have established here a state that respects law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular; between these two there is harmony and agreement, not conflict and alienation (HCJ 3451/02 Almadani v Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47, at pp. 34-35 {52-53}).

    Indeed, all the military operations of every army are subject to the rules of international law governing these operations. I discussed this in one case where I said: ‘Even in a time of combat, the laws of war must be upheld. Even in a time of combat, everything must be done in order to protect the civilian population....’ (HCJ 3114/02 Barakeh v Minister of Defence [2002] IsrSC 56(3) 11; [2002‑3] IsrLR 39, at p. 16 {46}).

  9. The judicial review of the Supreme Court is normally exercised ex post facto. The act which is the subject of the complaint has already been committed. Occasionally, a significant period of time elapses between the event and its review in the Supreme Court , which examines the legal consequences after the event. This is not the case here. We were not asked by the petitioners to examine the legal significance of military operations that have already been carried out and completed. The purpose of the petition is to direct the immediate conduct of the army. Our judicial review is prospective. It is exercised while the military activity is continuing. This imposes obvious constraints on the court. Admittedly, the mere fact that the hearing is prospective is not unprecedented in the Supreme Court. Thus, for example, in HCJ 5100/94 Public Committee Against Torture in Israel v Government of Israel [1999] IsrSC 53(4) 817; [1998‑9] IsrLR 567, we examined the legality of a guideline that allowed physical pressure to be exerted against persons under interrogation. The purpose of our review in that case was not to examine interrogations that took place in the past; the purpose was to consider interrogations that were taking place at that time. Nonetheless, the case before us is special in that the judicial review is taking place before the military operations have ended, and while IDF soldiers are facing the dangers inherent in the combat. In this regard, it should be emphasized once again that:

    Certainly this court will not adopt any position regarding the manner in which the combat is being conducted. As long as soldiers’ lives are in danger, the decisions will be made by the commanders. In the case before us, no claim was brought before us that the arrangement that we reached endangers our soldiers (HCJ 3114/02 Barakeh v Minister of Defence [2002] IsrSC 56(3) 11; [2002‑3] IsrLR 39, at p. 16 {46}).

    This is the case here: the humanitarian concerns have been resolved without endangering the lives of soldiers or the military operations. Subject to this restriction, this case is no different from other cases where this court examines the legality of military operations.

  10. Judicial review does not examine the wisdom of the decision to carry out military operations. The issue addressed by judicial review is the legality of the military operations. Therefore we presume that the military operations carried out in Rafah are necessary from a military viewpoint. The question before us is whether these military operations satisfy the national and international criteria that determine the legality of these operations. The fact that operations are necessary from a military viewpoint does not mean that they are lawful from a legal viewpoint. Indeed, we do not replace the discretion of the military commander in so far as military considerations are concerned. That is his expertise. We examine their consequences from the viewpoint of humanitarian law. That is our expertise.

    The normative framework

  11. The military operations of the IDF in Rafah, in so far as the local inhabitants are concerned, are governed by the Hague Convention Respecting the Laws and Customs of War on Land, 1907 (hereafter – the Hague Convention) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter – the Fourth Geneva Convention). In addition to this, there are the general principles of administrative law, which accompany every Israeli soldier (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785; HCJ 358/88 Association for Civil Rights in Israel v Central Commander [1989] IsrSC 43(2) 529; IsrSJ 9 1, at p. 536 {12}). According to these general principles of Israeli administrative law, the army must act in the occupied area, inter alia, with (substantive and procedural) fairness, reasonableness and proportionality, with a proper balance between individual liberty and the public interest (see HCJ 3278/02 Centre for Defence of the Individual v IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002‑3] IsrLR 123, at p. 396 {136}).

  12. The basic injunction of international humanitarian law applicable in times of combat is that the local inhabitants are ‘.... entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof ....’ (art. 27 of the Fourth Geneva Convention; see also art. 46 of the Hague Convention). This general normative-humanitarian framework was formulated by Gasser (H.P. Gasser, ‘Protection of the Civilian Population, The Handbook of Humanitarian Law in Armed Conflicts (D. Fleck ed., 1995), at p. 211), in the following language:

    Civilians who do not take part in hostilities shall be respected and protected. They are entitled to respect for their persons, their honour, their family rights, their religious convictions, and their manners and customs. Their property is also protected.

    What underlies this basic provision is the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty (cf. s. 1 of the Basic Law: Human Dignity and Liberty; see also J.S. Pictet (ed.), Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at p. 199). His life or his dignity as a human being may not be harmed, and his dignity as a human being must be protected. This basic duty is not absolute. It is subject to ‘.... such measures of control and security in regard to protected persons as may be necessary as a result of the war’ (last part of art. 27 of the Fourth Geneva Convention). These measures may not harm the essence of the rights (see Pictet, op. cit., at p. 207). They must be proportionate (Gasser, op. cit., at p. 220). Indeed, the military operations are directed against terrorists and hostile acts of terror. They are not directed against the local inhabitants (Gasser, op. cit., at p. 212). When these, as sometimes happens, enter a combat zone – and especially when terrorists turn the local inhabitants into ‘human shields’ – everything must be done in order to protect the lives and dignity of the local inhabitants. The duty of the military commander, according to this basic rule, is twofold. First, he must refrain from operations that attack the local inhabitants. This duty is his ‘negative’ obligation. Second, he must carry out acts required to ensure that the local inhabitants are not harmed. This is his ‘positive’ obligation (Gasser, op. cit., at p. 212). Both these obligations – the dividing line between which is a fine one –should be implemented reasonably and proportionately in accordance with the needs of the time and place.

  13. In addition to the basic injunction regarding the human dignity of the local inhabitants during military operations, international humanitarian law establishes several secondary obligations. These are not a full expression of the general principle. They are merely a specific expression of it. Of these secondary obligations, we shall mention two that are relevant to the petition before us:

    1. The supply of food and medicines: ‘.... the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate’ (art. 55 of the Fourth Geneva Convention; see Pictet, op. cit., at p. 300). In this context, humanitarian organizations and the Red Cross should be allowed to supply food and medicines (art. 59 of the Fourth Geneva Convention). Free passage of these consignments should be permitted (ibid., and see also art. 23 of the Fourth Geneva Convention). Of course, the consignments may be searched in order to ascertain that they are intended for humanitarian purposes (art. 59 of the Fourth Geneva Convention).

    2. Medical services: The proper operation of medical establishments in the area under belligerent occupation should be ensured (art. 56 of the Fourth Geneva Convention). Persons engaged in searching for the wounded shall be protected. They shall be recognizable by means of an identity card certifying their status (art. 20 of the Fourth Geneva Convention). The Red Cross and the Red Crescent shall continue their activities in accordance with the principles of the Red Cross (art. 63 of the Fourth Geneva Convention).

    From the general to the specific

  14. In their written petition and in their oral arguments, counsel for the petitioners presented a list of specific matters with regard to which the respondent is violating international humanitarian law. We asked for and received a written and oral response to each of these matters from counsel for the respondent. We also received updated explanations orally from Colonel Y. Mordechai. Let us now discuss each of these matters.

    Water

  15. Counsel for the petitioners argued before us that the entrance of tanks into the neighbourhood of Tel A-Sultan has destroyed the water infrastructure and as a result the supply of water to the whole of Rafah has been disrupted. Before the date of the oral arguments before us, one of the wells was repaired, and therefore there is a severe water shortage in the area. Water tankers are not coming to the houses, and therefore there is a problem with the water supply. The petitioners ask that we order the respondent to renew the water supply to the neighbourhood of Tel A-Sultan. In his oral response, Colonel Y. Mordechai said that the water wells in the neighbourhood of Tel A-Sultan were indeed damaged. As a result of this, there is a shortage of water in the southern part of the Gaza Strip. According to his report, as of the date when matters were presented before us, four out of five water wells had been repaired. The delay in the repairs was caused because the Palestinian repair team did not want to enter the neighbourhood of Tel A-Sultan, for fear of being injured. Later, on the initiative of Col. Mordechai, the Red Cross came in an international vehicle and most of the wells were repaired. In areas where there is still no running water (like in the neighbourhood of Tel A-Sultan), the army allows water to be brought in tankers. As of now, there are five water tankers in the neighbourhood, to which the inhabitants have access without difficulty. While he was explaining this to us, Col. Mordechai was told – and he told us – that six additional water tankers had entered the neighbourhood. We were also told that all the wells are now functioning. Diesel fuel has been brought into the neighbourhood to enable the operation of generators which allow water to be pumped from the wells. As a result of this, there is now running water in all the neighbourhoods of Rafah. In a notice that we received from counsel for the petitioners (on 24 May 2004), we were told that an enquiry directed to the Mayor of Rafah revealed that the water infrastructure in Rafah has not yet been repaired. According to him, the IDF’s tanks and bulldozers caused major damage to the water infrastructure. Water pipes have been cracked, and sewage has flooded the roads and polluted the drinking water. Many homes still have no water.

  16. It is the duty of the military commander to ensure the supply of water in the area subject to military activities. This duty is not merely the (negative) duty to prevent damage to water sources and to prevent a disruption of the water supply. The duty is also the (positive) duty to supply water if there is a shortage. Everything should be done in order to protect water sources and to repair them with due speed. Water tankers should be provided if the normal water supply is not functioning properly. Lessons will certainly have been learned in this regard for the future.

    Electricity

  17. The petitioners claim that the neighbourhoods in Rafah are without electricity. An attempt to connect the Tel A-Sultan neighbourhood to the electricity network failed, and the whole city is without electricity. They ask that we order the respondent to restore the supply of electricity. In his oral response, Col. Mordechai said that electricity in the southern part of the Gaza Strip comes from Israel . During the military operations, the electricity infrastructure was damaged. The army – in coordination with the Rafah municipality – is working on repairing the damage. This takes time, as sometimes the workers have difficulty finding the source of the problem. In addition, the fighting taking place in the area makes it difficult to repair the electricity network properly. At the moment, there is electricity in the vast majority of Rafah, and everything will be done in order to complete the repairs so that electricity is restored for the whole area. Against this background, it seems to us that there is no need for any further action on our part. In a statement providing an update (on 24 May 2004), which was filed by the petitioners, we were told that many houses in Rafah still do not have electricity. Equipment that does not exist in the Gaza Strip is required in order to repair the network, and this must be imported from Israel . The closure of Karni crossing prevents the entry of the equipment and materials that are needed for repairing the electricity network. After the IDF forces left the area of Rafah and after military operations ceased, we received a statement from the respondent (on 27 May 2004). We were told that the area of Rafah was now under the civilian and security control of the Palestinian Authority, and not of the IDF forces. On the substantive question we were told that there is nothing to prevent the transfer of the equipment required for the repair of the electricity infrastructure through Karni crossing, provided that arrangements are made with the appropriate authorities in the IDF.

    Medical equipment and medicines

  18. Counsel for the petitioners said that there is a severe shortage of medicines, medical equipment and blood units in the A-Najar hospital, which, although it is located outside the area of combat, serves the area which is controlled by the IDF. Notice of this was given by the hospital to Professor Donchin, a member of the first petitioner (Physicians for Human Rights). The first petitioner prepared a vehicle containing medicines, bandages, and blood units. The vehicle is waiting by Erez Crossing, and it is not being allowed to enter the Gaza Strip. The petitioners request that we order the respondent to allow the supply of medicines to the inhabitants in the Tel A-Sultan neighbourhood. They also request that we order the respondent to allow the passage of vehicles carrying medical equipment between Rafah and the hospitals outside it, in Khan Younis and Gaza City . In his written response, Col. Mordechai said that the entry of medicines and medical equipment to the Rafah area is being allowed on a regular basis. There is nothing preventing the transfer of medical equipment from one area to another. The international border crossing at Rafah, which was closed during the fighting, was opened for this very purpose, in order to allow trucks carrying medical equipment from Egypt to enter the Gaza Strip area. In his oral response Col. Mordechai added that the entrance to the combat zone is through Karni Crossing. Any medical equipment that is brought to that gate will be transferred immediately to its destination, provided that it is not accompanied by Israeli civilians, because of the fear that they may be taken hostage. With regard to the position regarding medicines in the hospital, Col. Mordechai said that he spoke, on his own initiative, with the hospital director. At first, he was told of the shortage of blood units and basic medical equipment. After a short time, he was told that blood units had been received and that there was no longer a shortage. The shortage of first aid equipment continues. That same evening a truck from Egypt carrying medical equipment from Tunisia entered the Gaza Strip. In addition, four Red Cross trucks containing medicines entered via Karni Crossing. Col. Mordechai remains in direct contact with the Red Cross regarding this issue. Every request for the supply of medicines is accepted and carried out. During the fighting, oxygen tanks were permitted to be taken out of Gaza . These were filled in Israel and returned to the hospital. In her response, counsel for the petitioners said that contact had just been made between the first petitioner and the Red Cross, and that the vehicle prepared by it and the equipment in it would be taken to their destination. Counsel for the respondents also told us that he had just been told that four trucks carrying medical equipment had passed through Karni Crossing.

  19. It is the obligation of the military commander to ensure that there is sufficient medical equipment in the war zone. This is certainly his obligation to his own soldiers. But his obligation extends also to the civilian population under his control. Within the framework of the preparations for a military operation, this issue – which is always to be expected – must be taken into account. In this regard, both the local medical system and the ability of the local hospitals to give reasonable medical care during the fighting must be considered in advance. Medical equipment must be prepared in advance in case of a shortage; the entry of medical equipment from various sources must be allowed in order to alleviate the distress; contact must be maintained, in so far as possible, with the local medical services. The obligation is that of the military commander, and the receipt of assistance from external sources does not release him from that obligation (cf. art. 60 of the Fourth Geneva Convention). However, such external assistance may lead to the de facto fulfilment of the obligation. It seems to us that this issue has now been resolved and we do not think that there is a basis for any additional relief from the court.

    Food

  20. According to the claim of counsel for the petitioners, when the military activity began, the army imposed a full curfew and sealed off some neighbourhoods in Rafah. These are lifted and imposed intermittently, depending upon the area where combat is taking place at any given time. In the neighbourhood of Tel A-Sultan, continuous combat has been taking place since the morning of 18 May 2004. Because of the curfew, the residents of the neighbourhood have been cut off from the outside world for three days. They suffer from a shortage of water (see para. 15 supra), medicine (see para. 18 supra), and food. In four neighbourhoods of Rafah, there is no milk nor any basic food products. Contact with other neighbourhoods – which would solve the problem – is prevented by the army. Moreover, no food is being brought in from outside the area. The petitioners request that we order the respondent to allow the supply of food to the residents of the neighbourhood of Tel A-Sultan. In his response, Col. Mordechai said that the usual procedure is that, when a curfew is imposed, a restocking of food should be allowed within 72 hours from the beginning of the curfew. In the case before us, the army allowed food trucks prepared by the Red Cross to be brought into the area within 48 hours. Food stations were designated in various parts of the neighbourhoods, and food was distributed to the residents. In this regard, the IDF is in contact with the mayor of Rafah and with the ministries of the Palestinian Authority. During the day, additional food trucks will be allowed to enter. Every request from an outside source to supply food will be approved and allowed. The same applies to milk. In Col. Mordechai’s opinion, there is currently no shortage of food. He emphasized in this regard that, even before the operation, UNRWA was allowed to fill its storage facilities with food.

  21. On the normative level, the rule is that the military commander who is holding an area under belligerent occupation must provide the food requirements of the local inhabitants under his control. Carrying out this obligation in practice is naturally dependent on the conditions of the fighting. However, it is prohibited for the fighting to result in the starvation of local inhabitants under the control of the army (see HCJ 3451/02 Almadani v Minister of Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47, at p. 36 {53-54}). On the practical level, it seems to us that the food problem has been resolved, but we should repeat that, like the problem of medicines, the question of food for the civilian population must be part of the advance planning for a military operation. The full responsibility for this issue lies with the IDF. The IDF may, of course, be assisted by international organizations, such as the Red Cross and UNRWA, but the actions of these do not discharge it, since it has effective control of the area, of its basic obligation to the civilian population under its control (cf. art. 60 of the Fourth Geneva Convention).

    Evacuation of the wounded

  22. The petitioners claim that, when the military operation began, the road from Rafah to Khan Younis was blocked in both directions. Ambulances that evacuated the wounded from Rafah to Khan Younis on that morning did not succeed in returning to Rafah. Therefore, wounded persons remained in the A-Najar hospital. That hospital is not equipped, nor is it sufficiently advanced, to treat the dozens of wounded coming to it. Because of the blocking of the road, the lives of many wounded are in danger. Moreover, when the army allows the evacuation of the wounded from A-Najar hospital in Rafah to hospitals outside Rafah, it allows the evacuation only on the condition that the name and identity number of the wounded person and the licence number of the ambulance which is supposed to evacuate him are provided. While the demand for giving the licence number of the ambulance can be satisfied, albeit with difficulty, the demand that the name and identity number of the wounded person are provided is an impossible demand. The reason for this is that many of the wounded are not conscious and their identity is not known. Because of this demand, ambulances are unable to come to evacuate wounded persons whose identities are not known. Moreover, the entry of additional ambulances into the A-Sultan neighbourhood is prevented because of digging that the IDF is carrying out in the area. In one case, shots were even fired on an ambulance of the ‘Red Crescent.’ The petitioners request that we order the IDF to refrain from harming or threatening the medical teams or civilians involved in the evacuation of the wounded or the dead. They also request that medical teams and Palestinian ambulances are allowed to reach the wounded in Rafah in order to evacuate them to hospitals. Finally, they request that we order the respondent to allow the transfer of the wounded in ambulances from the hospital in Rafah to other hospitals in the Gaza Strip without any need for prior arrangement, including giving details of the identity of the wounded.

  23. In his written response, Col. Y. Mordechai said that the IDF allows the entry of ambulances and medical teams into Rafah in order to evacuate the dead and wounded. This is coordinated with Red Cross and Red Crescent officials, the Palestinian Civilian Liaison office, various UNRWA officials, various Palestinian officials, and Israeli human rights organizations that have contacted the humanitarian centre. As a rule, IDF forces do not prevent the entrance of ambulances into the Rafah area or the passage of ambulances from the Rafah area to the Khan Younis area. With regard to the demand for the licence plate number of the ambulances and the identity of the wounded, Col. Mordechai said, in his written response, that these demands are based on a desire to ensure that it is indeed wounded persons that are being transferred by Palestinian medical teams, and that it is indeed an ambulance and not vehicles that are being used for another purpose. Experience has shown that Palestinian terrorists have used even ambulances for terrorist activities, including the transport of armed Palestinians and the smuggling of weapons from one area to another. In his oral response, Col. Y. Mordechai added that a DCO officer is attached to each battalion. One of his main duties is to ensure the evacuation of the wounded in coordination with the ambulance team. During the operation, more than eighty ambulances passed from the northern part of the Gaza Strip to Rafah. The IDF allows the passage of every ambulance, provided that it is coordinated with the army. The search of the ambulance – in case it contains prohibited military equipment that is being transported from one place to another – is completed within minutes. With regard to the evacuation of the wounded, this is not made conditional on providing the names and identity numbers. Even someone whose name and identity is unknown is evacuated, but if it is possible to obtain the name and identity number, the information is requested and received. Without regard to the evacuation of the wounded to somewhere outside Rafah, Col. Mordechai says that more than 40 ambulances have left Rafah, heading north. Every ambulance requesting to leave is permitted to do so. All that is required is coordination with regard to the route. With regard to the shooting on an ambulance, it was stressed before us that the shooting was unintentional. There are clear orders that shooting at ambulances is prohibited. ‘Ambulances are out of bounds’ – so Col. Mordechai told us. Col. Mordechai informed us that dozens of ambulances have passed without being harmed. It is to be regretted if even a single exception occurred. Wireless contact exists between ambulance drivers and officers of the DCO, by which proper coordination between the forces moving in the field and ambulances is maintained. When the passage of an ambulance is prevented by earth on the road, everything is done – after coordination – so that a tractor is brought to that place to remove the earth.

  24. There is no dispute regarding the normative framework. The army must do everything possible, subject to the state of the fighting, to allow the evacuation of local inhabitants that were wounded in the fighting. In this respect, it was held by this court, per Justice Dorner, more than two years ago (HCJ 2936/02 Physicians for Human Rights v IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35, at pp. 4-5 {37}):

    .... our combat forces are required to abide by the rules of humanitarian law regarding the treatment of the wounded, the sick and dead bodies. The abuse committed by medical teams, hospitals and ambulances has made it necessary for the IDF to act in order to prevent such activities, but it does not, in itself, justify a sweeping violation of humanitarian rules. Indeed, this is the declared position of the State. This position is required not only by international law, on which the petitioners are relying, but also by the values of the State of Israel as a Jewish and democratic state.

    In another case (HCJ 2117/02 Physicians for Human Rights v IDF Commander in West Bank [2002] IsrSC 53(3) 26, at pp. 28-29), Justice Dorner said:

    .... The rules of international law provide protection for medical facilities and personnel against attack by the combat forces .... it is forbidden, in any circumstances, to attack mobile or stationary medical facilities of the medical service, i.e., hospitals, medical storage facilities, evacuation points for the sick and wounded, ambulances, and so forth ....

    However, the medical team is entitled to full protection only when it is involved exclusively in missions for the search, collection, transport and treatment of the sick and wounded, etc. ....

    .... The protection of medical establishments shall cease if they are being used “for purposes other than their humanitarian functions, for carrying out acts that harm the enemy,” on condition that “advance warning was given, stipulating, in all appropriate cases, a fair deadline and the warning was not heeded”.

    It appears to us that the passage of ambulances to and from Rafah took place properly. This was made possible, inter alia, by the contact between the IDF – through the officers of the DCO – and the ambulance drivers. This contact is proper, and it worked properly. Also the movement of ambulances to and from the area was unrestricted. The demand of the IDF regarding the licence plate numbers of ambulances is reasonable. It is correct not to make the transfer of the wounded conditional upon giving their names and identity numbers, but we see nothing wrong in the attempt to receive this information when it is available, provided that obtaining this information is not made a condition for transporting them outside the combat area and does not cause an unreasonable delay in the transport. The single case of shooting on an ambulance was an exception. We are persuaded that in this respect the orders prohibiting such activity are clear and unequivocal. It seems to us, therefore, that in this regard the petition has been satisfied.

    Burying the dead

  25. Counsel for the petitioners said that the A-Najar Hospital in Rafah has 37 bodies of inhabitants who were killed in the course of the IDF’s operations. Because of the restrictions imposed by the army, it is impossible to bury them. In his response before us, Col. Mordechai said that, in so far as the army is concerned, there is nothing to prevent the dead being buried in the cemeteries. These are located, to the best of his knowledge, outside the neighbourhood of Tel A-Sultan and therefore the funerals can be carried out today. In her response, counsel for the petitioners said that the funerals had not taken place because the army is surrounding the neighbourhood of Tel A-Sultan, and it is not possible for the relatives of the dead to participate in the funerals. Col. Mordechai admitted this to be true.

  26. This response did not satisfy us. We said that a solution to this problem must be found quickly. Thus, for example, we asked why all or some of the relatives are not being allowed to participate in the funerals. Col. Mordechai promised us an answer to this question. In an updated statement we received on 23 May 2004, after the pleadings were concluded, we were notified by counsel for the respondent, on behalf of Col. Mordechai, that the respondent decided (on 21 May 2004) to allow several family members of each of the dead to leave the Tel A-Sultan neighbourhood in order to hold the funerals. The proposal was rejected by the Palestinian authorities. That statement also said that on that same day (21 May 2004) the respondent was prepared to allow, as a good will gesture, two vehicles from each family to leave the area of Tel A-Sultan in order to participate in their relatives’ funerals. This proposal was also rejected by the Palestinians. On Saturday (22 May 2004) the respondent was prepared to allow, as a good will gesture and in response to a request by the Red Cross, the family members of each of the dead to leave the neighbourhood in order to take part in the funeral ceremonies, without any limit on the number, provided that the funerals should not be conducted at the same time, but one after the other. The Palestinians rejected this proposal as well. On Sunday (23 May 2004) the respondent announced that he was prepared, as a good will gesture and in coordination with the Palestinian Authority, to allow several buses to leave the neighbourhood in order to allow family members to take part in their relatives’ funerals. To the best of the respondent’s knowledge, the Palestinians began organizing the buses needed to transport the family members from the neighbourhood of Tel A-Sultan for the funerals. A further statement from the respondent (on 24 May 2004) told us that the attempt (on 23 May 2004) to transport family members from the neighbourhood on organized buses for the funerals was unsuccessful because of  the opposition of the Palestinians. The respondent added that on that day (24 May 2004), after IDF troops left the Tel A-Sultan neighbourhood, 22 funerals took place, and there was nothing to prevent the participation of family members living in the neighbourhood of Tel A-Sultan, as traffic between the neighbourhood and the area where the funerals took place was not held up by the IDF.

  27. In their response (which was received on 24 May 2004), counsel for the petitioners said that, after making enquiries with the mayor of Rafah, it became clear that the residents in Rafah did indeed refuse the IDF’s proposals, which significantly limited the participation of the families in the funerals of their relatives. The residents preferred holding the funerals after the siege on the neighbourhoods was lifted, in order to ensure that the prayer for the dead would be recited and that a mourners’ tent would be erected for receiving condolences, as Islamic law mandates. We were further told that the mayor of Rafah announced that, in view of the end of the curfew on the neighbourhood of Tel A-Sultan, the inhabitants of Rafah are organizing a mass funeral for the 23 dead in Rafah. The funeral will take place in the afternoon and is expected to continue until the late afternoon because of the large number of the dead.

  28. The problem of burying the dead has been resolved. Nevertheless, there are lessons to learn from the incident. The premise is that the basic principle enshrined in art. 27 of the Fourth Geneva Convention, according to which the dignity of the local inhabitants must be protected, applies not only to the local inhabitants who are alive, but also to the dead (cf. art. 130 of the Fourth Geneva Convention; see Pictet, Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at p. 506; see also HCJ 3436/02 HCJ 3436/02 Custodia Internazionale di Terra Santa v Government of Israel [2002] IsrSC 56(3) 22, at p. 25). Human dignity is the dignity of the living and the dignity of the dead (with regard to Israeli law, see: CA 294/91 Jerusalem Community Burial Society v Kestenbaum [1992] IsrSC 46(2) 464; HCJFH 3299/93 Wechselbaum v Minister of Defence [1995] IsrSC 49(2) 195; CA 6024/97 Shavit v Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3) 600; [1998-9] IsrLR 259). ‘.... The protection of the dead and their dignity is like the protection of the living and their dignity ....’ (per Justice J. Türkel in HCJ 66/81 Inspector-General of Police v Ramla Magistrates Court Judge Mr Baizer [1984] IsrSC 38(4) 337, at p. 353). It is the duty of the military commander to locate the bodies of the dead (see HCJ 3117/02 Centre for Defence of the Individual v Minister of Defence [2002] IsrSC 56(3) 17, at p. 18). After bodies are found, he is obliged to ensure a dignified burial is held. In HCJ 3114/02 Barakeh v Minister of Defence [2002] IsrSC 56(3) 11; [2002‑3] IsrLR 39, which considered the duty of the military commander with regard to the bodies of persons killed in military operations, we said (ibid., at pp. 15-16 {43-45}):

    The basic premise is that, in the circumstances of the case, the responsibility for locating, identifying, evacuating and burying the dead rests with the respondents. This is their obligation under international law. The respondents accept this position, and they act accordingly ....

    ....

    .... The location, identification and burial of the dead are very important humanitarian acts. They derive from respect for the dead – respect for all dead. They are fundamental to our being a state whose values are Jewish and democratic. The respondents declared that they are acting in accordance with this approach, and their approach seems correct to us ....

    .... in the humanitarian sphere, it is usually possible to reach an understanding and an arrangement. Respect for the dead is important to us all, for man was created in the image of God. All the parties wish to finish the procedure of locating, identifying and burying the dead as soon as possible. The respondents are prepared to allow the participation of the Red Cross and, during the identification stage after the evacuation, also local authorities (subject to the specific decision of the military commander). In locating the bodies, everyone agrees that burials should be carried out with respect, in accordance with religious custom and as quickly as possible.

    The army tried to act in accordance with these principles in the case before us. The dead were identified and transferred to A-Najar Hospital. During all these stages, the Red Cross and the Red Crescent were involved. The problem that arose in the case before us is the problem of burial. The respondent was naturally prepared to bury the dead, but he thought that when he transferred the bodies to A-Najar Hospital he had discharged his duty. This was not the case. The duty of the respondent is to ensure a dignified burial for the bodies. In this regard, he must speak with the local authorities, to the extent that they are functioning, and find dignified ways to carry out this duty. As is clear from the information presented to us, the main difficulty that presented itself was with regard to the participation of the relatives of the dead. This matter was within the control of the respondent, whose forces controlled all the entrances to the neighbourhood of Tel A-Sultan, and it was naturally conditional upon the security considerations. Prima facie it would appear that the proposals which he made in the end could have been made at an earlier stage. The changing position of the respondent, as it appears from the response of the State Attorney’s Office, implies that the matter was not originally taken into account, and the solutions that were proposed were improvisations made up on the spur of the moment. This should not happen. Preparations for dealing with this matter should have been made in advance. A clear procedure should be adopted with regard to the various steps that should be followed in this matter. Naturally, if in the final analysis the bodies are in a hospital and their relatives refuse to bury them, they should not be forced to do so. Nonetheless, everything should be done in order to reach an agreement on this matter.

    Shelling on a procession   

  29. The petitioners claim that on Wednesday, 19 May 2004, thousands of Palestinians from Rafah participated in a quiet and non-violent procession. They marched in the direction of the neighbourhood of Tel A-Sultan. None of the participants were armed or masked. The marchers included men and women, children and the elderly. Many of the marchers carried food and water, which they intended to bring to the residents of Tel A-Sultan, which had at that time been completely cut off from all outside contact for three days. While they were marching, three or four tank shells and two helicopter missiles were fired at them. According to reports from the participants in the procession, shots were fired also from the direction of the Tel Al-Zuareb observation post, which is an observation post manned by the IDF. The shooting at the crowd resulted in the deaths of eight civilians. About half the dead were minors. The petitioners request that we order an investigation by the Military Police Investigations Department. They also request that we order the respondent to issue an unequivocal order absolutely forbidding the shooting or shelling of civilian gatherings, even if there are armed men among them, if they do not pose an immediate danger to life.

  30. Counsel for the respondent told us that an initial investigation was conducted immediately. It found that because of a mishap, a shell was fired at an abandoned building, and eight Palestinians were killed by shrapnel. One of these was an armed activist of the Islamic Jihad. The other seven victims were completely innocent. In this regard it was emphasized that there are considerable amounts of weapons in Rafah, including armour-piercing weapons. It was also emphasized that, in the past, terrorists have made many attempted to use civilians to attack the IDF. It was also feared that the protesters would climb onto the armoured vehicles with soldiers inside them. The procession took place in the middle of a war zone. There were armed elements among the marchers. In an initial attempt to speak with the marchers, an attempt was made to stop the procession. The attempt failed. Afterwards, deterrents were used. These also failed and the procession continued on its way. In these circumstances, it was then decided to fire a hollow shell at an abandoned building. As stated, the full investigation has not yet been completed. When it is completed, all the material will be passed on to the Chief Military Attorney, who will make a decision on the matter. The respondent further said in his written response that the rules for opening fire in effect in the IDF, including with regard to dealing with civilian gatherings, were formulated on the basis of the ethical and legal outlook of preventing harm to the innocent, in so far as possible. Nevertheless, he reiterated that this was a situation of active warfare and danger to our forces in an area densely populated with civilians, where those persons fighting against the army do not separate themselves from the civilian population, but hide within it. They deliberately use the population as a human shield, contrary to the basic rules of war, which amounts to a war crime.

  31. The investigation of this tragic event has not yet been completed. All the material will be sent to the Chief Military Attorney. In these circumstances, there is no basis, at this stage, for any action on our part. The petitioners must wait for the results of the investigation and the decision of the Chief Military Attorney. It may be assumed that lessons will be learned, and if there is a need for changing the rules that are given to the army, that will be done. At this stage, in the absence of a factual basis, we can only repeat the obvious, that the army must employ all possible caution in order to avoid harming the civilian population, including one that is protesting against it. The necessary precautions are naturally a function of the circumstances, including the dangers facing civilians on the one hand and the army on the other (cf. CA 5604/94 Hemed v State of Israel [2004] IsrSC 58(2) 498).

    The requested remedies

  32. The petitioners set out in their petition a list of seven reliefs that they requested from us (see para. 5 supra). We have discussed six of the seven reliefs, with regard to the specific issues that the petitioners raised (see paras. 15 (water), 16 (electricity), 17 (medical equipment and medicines), 19 (food), 21 (evacuating the wounded), 28 (investigating the shooting that hit the procession)). This leaves the final relief. This is the petitioners’ request that we order respondent to allow the entry of a delegation of three doctors on behalf of the first petitioner (Physicians for Human Rights) into hospitals in the Gaza Strip, in order to assess the medical needs there, for the purpose of bringing in teams of the appropriate medical personnel and medical equipment.

  33. In his written response, Col. Y. Mordechai said that any delegation of doctors from the first petitioner or any other authorized body may enter the area and visit the hospitals. The sole condition that the respondent made is that there are no Israelis among the visiting doctors. This is because of the fear that they may be harmed or taken hostage, an occurrence that will very seriously complicate the security situation. In this context, he said that there is already a team from the International Red Cross in the area, and that the head of the International Red Cross in Israel is in direct contact with the IDF. Within the framework of oral arguments, counsel for the respondent added that there is nothing to prevent a visit by doctors who are not Israelis but who work in Israeli hospitals. Moreover, there is nothing to prevent doctors from hospitals in Judea and Samaria , or hospitals in the Gaza Strip, from visiting and examining the situation. These proposals did not satisfy the petitioners, who insisted that Israeli doctors should be allowed to enter hospitals in the Gaza Strip.

  34. We found nothing wrong with the respondent’s position in this matter. We are persuaded that the consideration underlying the respondent’s position is solely the security factor, and that he has no other non-security reason. Indeed, concerns for the welfare of Israelis who enter the Gaza Strip in general, and the war zone in particular, are very real. Even during periods when there was no military activity taking place the respondent acted in accordance with a similar consideration, and his reasoning was found to be lawful by the court. This was the case regarding the entry of Knesset members into the Gaza Strip (see HCJ 9293/01 Barakeh v Minister of Defence [2002] IsrSC 56(2) 509). This was also the case with regard to doctors from the first petitioner entering the Gaza Strip (see HCJ 3022/02 Physicians for Human Rights v IDF Commander in Gaza Strip [2002] IsrSC 56(3) 39). Israel has a duty to protect its citizens. It does not discharge this duty merely because some citizens are prepared to ‘take the risk on themselves.’ This ‘taking the risk’ is of no significance, because the state remains responsible for the safety of its citizens, and it must do everything in order to return them safely to Israel . Allowing the entry of Israeli doctors into a war zone in Gaza creates a real danger to the safety of the doctors and to the interests of the State. There is no reason to place the State in this danger. Beyond what is necessary, it should be noted that prima facie there should be no difficulty in the first petitioner finding three doctors who are not Israelis – whether in Gaza itself, in Judea and Samaria, in Israel or from the rest of the world – who will be prepared to carry out the required inspection on its behalf. In this matter the petition should be denied.

    What of the future?

  35. According to the humanitarian rules of international law, military activity has the following two requirements:

    • first, that the rules of conduct should be taught to all combat soldiers and internalized by them, from the Chief of General Staff down to the private (see HCJ 2936/02 Physicians for Human Rights v IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35, at p. 5 {37});

    • second, that institutional arrangements are created to allow the implementation of these rules and putting them into practice during combat.

    An examination of the conduct of the army while fighting in Rafah, as it appears from the petition before us – and we only have what has been presented before us – indicates significant progress as compared with the position two years ago, as it appeared to us from the various petitions (see HCJ 3114/02 Barakeh v Minister of Defence [2002] IsrSC 56(3) 11; [2002‑3] IsrLR 39; HCJ 2936/02 Physicians for Human Rights v IDF Commander in West Bank [2002] IsrSC 56(3) 3; [2002-3] IsrLR 35, etc.). This is the case regarding the internalization of the obligation to ensure water, medical equipment, medicines, food, evacuation of the wounded, and the burial of the dead. This is also the case regarding the preparedness of the army and the creation of arrangements for realizing the humanitarian obligations. The establishment of the humanitarian centre and the District Coordination Office, as well as the assignment of a liaison officer from the Coordination Office to each battalion have greatly facilitated the implementation of humanitarian principles.

  36. Within the framework of the internalization of humanitarian laws, it should be emphasized that the duty of the military commander is not restricted merely to preventing the army from harming the lives and dignity of the local residents (the ‘negative’ duty: see para. 12 supra). He also has a ‘positive’ duty (ibid.). He must protect the lives and dignity of the local residents, all of which subject to the restrictions of time and place. Thus, for example, with regard to the burial of the local residents, the military commander was satisfied when the bodies were transferred to A-Najar Hospital , but this was not enough. He is obliged to do his utmost to ensure that the bodies are brought to a dignified burial according to local custom. The same is true with regard to advance preparations in order to ensure there are sufficient supplies of food and water in the area. Damage to the water supply is something that should be foreseen from the outset, and if it cannot be avoided, a solution to this problem must be arranged. Sufficient supplies of medicines, medical equipment and food should be prepared in advance. Harm to local inhabitants is to be expected and if, despite every effort to limit this, in the end there are casualties among the local inhabitants, preparations should be made for this from the outset. The respondent should not rely solely on international and Israeli aid organizations, even though their aid is important. The recognition that the basic obligation rests with the military commander must be internalized, and it is his job to carry out various measures from the outset so that he can fulfil his duty in times of war.

  37. Within the framework of the institutional arrangements, additional measures should be adopted so that the arrangements that were created (see para. 4 supra) will be more effective. We were told that those who called the humanitarian centre waited for many hours. Col. Y. Mordechai said to us several times that matters should have been referred to him, and not to the humanitarian centre. The lack of information led, on several occasions, to inefficiency in aid provided by third parties. Thus, for example, a vehicle of the first petitioner laden with medical equipment and medicines waited at Erez Crossing when the entry point was at Karni Crossing. Moreover, even at Karni Crossing its entry was not allowed, because there were Israeli doctors in the vehicle, and the army was only prepared to allow the entry of doctors who were not Israelis. These issues and others need to be addressed. It is possible that the humanitarian centre needs to be enlarged, and there needs to be more effective communication between it and the District Coordination Office and the Coordination Office’s special liaison officers attached to the combat battalions. It is possible that there is a need – with regard to international and Israeli organizations whose humanitarian involvement is foreseen – to create a direct link between these and the officers of the DCO, thereby bypassing the humanitarian centre. It is possible that there is a need to take other measures. This matter is for the respondent to address when he studies the lessons to be learned from the current events.

  38. Against this background, when the arguments in the petition were completed, we wished to ensure that the various military frameworks in the area solve not only the problems raised by the petitioners, but also new problems that, in the nature of things, will arise tomorrow. In this respect, it was agreed that Col. Mordechai would appoint a senior officer who will be in direct contact with the organizations of the petitioners. This is the least that could have been done around the time of the events themselves. The main steps that should be taken will come after studying the lessons at the end of the events.

  39. Before we conclude, we wish to thank counsel for the petitioners, Advocate Fatima Al-Aju, who presented the position of the petitioners clearly and responsibly, and counsel for the respondent, Advocates Anar Helman and Yuval Roitman, who within a very short time provided us with the most comprehensive and up-to-date information possible. We also wish to thank Col. Y. Mordechai, who did well in explaining to us the details of the area and the activities of the respondent, and who did all he could to translate humanitarian norms into practice.

  40. The result is that six of the seven reliefs that were requested by the petitioners have been satisfied. The petitioners are not entitled to the seventh relief – the entry of Israeli doctors on behalf of the first petitioner into the area in general and A-Najar Hospital in particular – because of the danger that the doctors will be taken hostage. In this regard, the respondent’s proposal that doctors who are not Israeli (whether from the Gaza Strip, from Judea and Samaria , from Israel , or from anywhere else in the world), will be allowed to enter the area –  which was rejected by the petitioners – must suffice.

    Justice J. Türkel

  41. I agree.

    Justice D. Beinisch

  42. I agree with the opinion of the President. I also accept his conclusions in principle, which focus on the duty of the IDF to fulfil its humanitarian obligations deriving from customary international law, from international law enshrined in treaties to which Israel is a party and from the basic rules of Israeli law, in so far as it concerns the obligations imposed on the army vis-à-vis the local civilian population during the fighting; I also accept, in particular, that all the special matters with regard to which operative relief was sought have been resolved as a result of the detailed clarification of the facts concerning the position in the area and from determining the specific obligations that should be imposed on the IDF in order to allow the minimum of normal life required by the civilian population with special reference to medicines, food, medical assistance, water, electricity, treating the wounded and burying the dead with dignity.

  43. I can only join with the important operative conclusion set out in the opinion of the President, that any military operation requires advance preparation in order to deal with the basic requirements of the inhabitants who are in the line of fire during the fighting, or who are likely to be hurt by its consequences and ramifications. This advance preparation should take into account the humanitarian obligations to the civilian population, the possibility of harm to it, and the serious consequences that should be prevented or at least minimized.

  44. Even if it is not possible to foresee every development that may take place during military operations, there is no doubt that the basic needs of the civilian population which at a time of war are in real danger of damage to life, property and basic subsistence, are known and foreseeable. Therefore, within the framework of the operative planning of a military operation, the army must also take into account that part that guarantees the fulfilment of the humanitarian obligations to the civilian population, which is caught between the cynical exploitation of terrorists without any inhibitions, and exposure to the activity of a military force operating against the terror infrastructure. The military forces operating among a civilian population therefore have the double responsibility discussed by my colleague, the President – the obligation to refrain, in so far as possible, from harming the inhabitants, and the positive obligation to ensure that these inhabitants are not harmed, or at least the obligation to minimize the suffering and distress of those persons who find themselves in the war zone and who are exposed to its serious dangers and ravages – all of which while taking into account the necessity arising from the military operations themselves, as required in accordance with the conditions of the time and place, and without derogating from the obligation of the military commander to protect the lives of the soldiers under his command.

  45. Failure to comply with the humanitarian obligations means that those who are injured, and usually, for practical reasons, those organizations that represent them, may apply to the court, which exercises judicial review in times of war as in times of peace. However, the circumstances involved in the judicial review process during actual war time restrict the effectiveness of the judicial review and makes it difficult to implement the solutions sought through the court.

  46. The court does not examine the wisdom of the policy underlying military operations, nor does it intervene in the considerations involved in determining the need for military action, and this was discussed by the President in his opinion. Judicial review, which refers to the rules of international and Israeli law in times of war, requires a detailed investigation of the issues concerning the upholding of the law. The problem is that judicial review concerning the fulfilment of humanitarian obligations during wartime is limited for many reasons.

    • First, from a practical viewpoint, the urgency with which the court is required to hold the judicial review process, while dynamic developments are taking place in the field of battle, makes it difficult to carry out the process and to make an investigation of the facts required to authenticate the contentions of the parties. Unlike the process of judicial review in regular petitions, where the mechanism of ascertaining the facts takes place after they have occurred and the particulars has been clarified, and the factual picture has been set out before the court, judicial review that seeks to examine the need for relief when the combat activities are still in progress requires a judicial proceeding of a special kind, and the petition before us is a clear example of this. The petition was heard while the changes and developments in the field were taking place during the hearing itself. The parties that presented their arguments before us based their contentions on continuous reports from the field of battle, and these reports changed the circumstances and the facts during the hearing of the petition. The factual description of ascertaining the particulars as aforesaid finds expression in the opinion of the President. In such circumstances, the judicial review process is limited and suffers from the lack of adequate arrangements with which to ascertain the relevant particulars in order to examine them in real time and to grant effective relief for them.

    • Second, judicial review that takes place during combat brings the court closer to the war zone in a way that requires us to find a balance between the conflicting values, a balance that derives from the court’s need not to intervene in the combat operations themselves, and at the same time to ensure that the war is conducted within the framework of the law and while complying with humanitarian obligations. These constraints do not deter the court from exercising judicial review in real time and from making operative orders, in so far as these are required in order to comply with the obligations of the military commander to uphold the rules of law during the combat. Judicial review is exercised despite the constraints that we have discussed, and this is not the first time that we have examined the issue of complying with the humanitarian rules during combat, while the cannons roar and the sounds of gunfire are still heard in the war zone.

  47. The burden placed on the combat forces in such circumstances is a heavy one, but the weight of the burden cannot provide an exemption from the duty to discharge it, and a condition for complying with it properly is the advance preparation required of the military commanders. I therefore agree with the President’s ruling that institutional arrangements must be created to implement the humanitarian rules required during times of combat. This requires the setting up of a proper infrastructure and logistic planning before military operations are commenced, inter alia as required by the scope of the planned military action. These must guarantee the supply of medical services, equipment and medicines, the possibility of sending these to the war zone, the supply of essential services to the civilian population, food and water, the preparation of alternatives to the existing infrastructure that may be damaged and proper preparation for evacuating the wounded and burying the dead. This also applies to the other issues that can be foreseen and anticipated. No less important is the necessity of having an effective mechanism whose purpose is to monitor the needs of the population, on the one hand, and coordinate with the auxiliary forces on which the army relies in such a situation – humanitarian organizations, local authorities and organizations that represent the population vis-à-vis the army, on the other hand. The facts surrounding such preparations are not at all simple in a reality such as ours, where we are dealing with a hostile population, a population that recoils from any measure that may be interpreted as collaboration, and a population that is cynically exploited by terror organizations for their own purposes. But the reality, no matter how difficult, is the reality within which framework the military commander must comply with the humanitarian rules even in time of war.

  48. Preparing detailed guidelines, preparing a logistic system in advance and determining rules of conduct for the combat forces vis-à-vis the population that is being harmed, and also creating a direct mechanism for maintaining contact with the various organizations operating on behalf of and in the interests of the population – these are capable of ensuring an improvement in the position even if they do not guarantee, in the very difficult reality that Israel finds itself, optimal solutions. These arrangements are capable of guaranteeing an aspiration to minimize the harm to the civilian population, compliance with the rules of international and Israeli law, and the adopting of measures to find effective solutions while reducing the need for judicial intervention to achieve the objectives of the law.

Petitions denied.


Representations

F. Alaju for the petitioner.

A. Helman, Senior Deputy to the State Attorney; Y. Roitman, Assistant to the State Attorney for the respondents.


all rights reserved