Israel's army and Palestinian civilians:
Israeli judges clarify humanitarian rules

London - published on 8 June 2004
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Summary
Israel’s most senior judges have clarified the humanitarian rules with which Israel’s army must comply in the course of military operations. These relate to the provision of food, water and medical facilities for Palestinian civilians, and evacuation and burial arrangements. The court judgment was made in response to a petition submitted by Israeli human rights organisations, and was reached in the middle of Israel’s controversial military mission of May 2004 to destroy Palestinian weapons-smuggling tunnels in the Gaza Strip. The judgment has gone unnoticed outside Israel.

Israel’s military operation in Rafah, southern Gaza Strip

In May 2004, Israel’s army entered the southern Gaza strip town of Rafah, in order, in the words of Israeli spokesmen, “to locate and destroy Palestinian weapons-smuggling tunnels, and other terrorist infrastructure” in that area. The operation resulted in large loss of Palestinian life, and extensive damage and destruction of property. While Israel sought to place the blame for this outcome on the Palestinians (“if there were no terror activities in Rafah, we would not need to go in there”), the military operation prompted an international outcry, and debate inside Israel as to whether it was justified, ethical, proportionate and furthered Israel’s strategic interests.

Human rights campaigners take Israel’s army to court

In the midst of the Rafah campaign, four Israeli human rights organisations, led by lawyer Fatmeh Al-A’jou, submitted a wide-ranging petition to the Israeli court, demanding that the Israeli Defence Forces (IDF) supply Rafah residents with water, food, medicine, free passage for ambulances evacuating casualties, and burial for the dead. (Israeli spokesmen claimed that Israel already fulfilled each of these).

The organisations behind the petition were Physicians for Human Rights, The Association for Civil Rights in Israel, Hamoked Centre for the Defence of the Individual, and B’Tselem (Israel’s best known human rights advocacy group).
The petition was heard by Israel’s most senior judge Supreme Court President Aharon Barak, sitting with two other senior judges Yaacov Turkel and Dorit Beinisch. Here are extracts from the court’s judgment (as reported in Ha’aretz of 31 May 2004) :-

The IDF has a “positive obligation” to protect civilians

Judge Barak: “A military commander’s obligation does not end with avoiding harm to the lives and the dignity of the local residents, a “negative obligation”, but his obligation is also ‘positive’ – he must protect the lives and dignity of the residents, within the constraints of the time and place….”

“…. The army must behave fairly, reasonably and moderately, balancing the individual’s freedom against the needs of the many….”


The IDF must plan for humanitarian requirements in advance

Judge Beinisch: “Every military action requires advance preparation for handling the basic needs of residents in the line of fire, or who could become casualties of its results and implications….”

Food supplies for civilians must be ensured by the IDF

“…. The military commander must provide for the food needs of the residents under his control. Fighting must not be allowed to cause starvation among the local residents”

Water supplies must be ensured

“A commander’s duty is to ensure the supply of water in the battle zone. This duty is not merely a duty to avoid harming water sources and disrupting water supplies, but also the duty to supply water if it is in short supply.”

Medical facilities must be provided

“The proper operation of medical facilities must be ensured in an area subject to being occupied in battle…”

Evacuation of Palestinian casualties must be facilitated

“The IDF must do everything possible under battle conditions to enable the evacuation of local residents injured in the fighting….”


Burial arrangements must preserve human dignity

“The basic rule in the Geneva Convention according to which one must protect the dignity of local residents, applies not only to the living residents, but also to the dead. Human dignity is the dignity of the living and the dignity of the dead….” In the words of Ha’aretz: “the IDF must ensure a dignified burial of bodies, and must discuss matters with the local authorities and find “dignified ways” to fulfil this obligation….”


Our conclusion

  • Which country’s courts would even consider a legal petition of this type in the midst of a military operation in which its own soldiers are losing their lives to enemies with a long track-record of atrocities?
  • Which country would impose such extensive humanitarian obligations on its own armed forces?


Israel claims that its forces fulfilled the obligations set out in the judgment already, but in any event the judgment of the court clarifies the legal framework for Israeli military operations in built-up Palestinian areas. Its key messages contrast starkly with the blatant excuses and justifications which Palestinian leaders and supporters continue to offer up for Palestinian groups which commit mass murder against Israeli civilians (see eg Briefing 91).