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Red Cross and Red Crescent: Decision of the Supreme Court Sitting as a High Court of Justice
April 8, 2002
H.C. 2936/02
PHYSICIANS FOR HUMAN RIGHTS
v.
THE COMMANDER OF I.D.F. FORCES IN THE WEST BANK
H.C. 2941/02
BADIA RA'IK SUABTA et al.
v.
THE COMMANDER OF I.D.F. FORCES IN THE WEST BANK
In the Supreme Court sitting as the High Court of Justice
Dorner J., Proccacia J., and Levy J.
JUDGMENT
DORNER J: Both of the petitions before us, which were filed yesterday
and today, as I.D.F. combat activities in the framework of operation
"Defensive Wall" were underway in the areas of the Palestinian
Authority, contain arguments - relating to a number of concrete
events - against the I.D.F. forces' shooting at "Red Cross" and "Red
Crescent" medical teams working by ambulance and in hospitals. In
addition, the petitions contain arguments against the prevention of
evacuation of wounded and ill people to hospitals in order that they
may receive medical treatment, and arguments against the prevention
of the evacuation of bodies to hospitals, and from there to burial by
the families of the deceased. The Petitioners also argue against the
lack of provision of medical supplies to the besieged hospitals.
According to the claims of the Petitioners, these activities on the
part of the I.D.F. in the areas of the Palestinian Authority are
breaches of the rules of international law.
In its response to the petitions, the State explained that in light
of the brief period at its disposal, and especially in light of the
combat underway even as the petitions were being heard before us, it
was not possible to investigate the claims regarding the concrete
events mentioned by the Petitioners. On the main issue, the State
agrees that the objective situation regarding care of the ill, the
wounded, and bodies of the deceased is not good. However, the State
claims that this situation is a result of the fighting itself, during
which it became clear that in a number of cases explosives were
transferred via ambulance, and wanted terrorists found shelter in
hospitals. Nonetheless, the State emphasized that the I.D.F. sees
itself as obliged to abide by the rules of humanitarian law, not only
since they are mandatory rules of international law, but also since
they are necessary from a moral point of view, and even for
utilitarian reasons. The State declared that the combat forces have
been given instructions to act according to these rules, and that the
I.D.F. has even allocated many forces and resources for the purpose
of liaison and humanitarian aid in the areas of battle.
Unable to express a position regarding the specific events mentioned
in the petition, which, prima facie, seem severe, we see fit to
emphasize that our combat forces are obliged to abide by the
humanitarian rules regarding care for the wounded, the ill, and the
bodies of the deceased. The abuse committed by medical personnel in
hospitals and in ambulances obliges the I.D.F. to act in order to
avoid such activities, but does not, in and of itself, make sweeping
breach of humanitarian rules permissible. And, indeed, this is the
declared position of the State. This position is appropriate not only
as far as international law, on which the Petitioners based their
argument, is concerned, but also in light of the values of the State
of Israel as a Jewish and democratic state.
The I.D.F. shall once again remind the combat forces, down to the
level of the single soldier in the field, of this commitment of our
forces, based on law and morality - and according to the State, even
on utility - through concrete instructions which will prevent, to the
extent possible, and even in severe situations, activities which are
not in line with the rules of humanitarian aid.
The relief requested in the petitions was an order obliging the State
to give an explanation. The explanation having been given, including
the clarification that I.D.F. soldiers have been instructed to act
according to humanitarian rules and that they are indeed so acting,
the petition is thus rejected.
Judgment given on April 8, 2002
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