HCJ 2117/02
Physicians for Human Rights
v.
The Commander of the IDF Forces in the
The Commander of the IDF Forces in
The Supreme Court sitting as
the High Court of Justice
[
Before Justices D. Dorner,
D. Beinisch, and E. Levy
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: This petition was submitted during IDF
operations against the terrorist infrastructure in the areas of the Palestinian
Authority. (“Operation Defensive Wall.”) Petitioner requested explanations from
the State regarding accounts of IDF fire on ambulances and injuries caused to
the medical teams traveling in them. Petitioners requested that respondents be
ordered to cease such activities. The State responded that these incidents were
the result of the Palestinian’s use of ambulances for the transport of
explosives. Even so, the State held firm in its obligation to fulfill its
duties under international law. The State asserted that combat forces had been
instructed to act in accordance with the rules of international law.
Held: The
Supreme Court held that international law provides protection for medical
stations and personnel against attack by combat forces. Article 19 of the First
Geneva Convention forbids, under all circumstances, attack of stations and
mobile medical units of the “Medical Service,” that is to say, hospitals,
medical warehouses, evacuation points for the wounded and sick, and ambulances.
However, the “Medical Service” has the right to full protection only when it is
exclusively engaged in the search, collection, transport and treatment
of the wounded or sick. Moreover, Article 21 of the First Geneva Convention
provides that the protection of medical establishments shall cease if they are
being “used to commit, outside their humanitarian duties, acts harmful to the
enemy”, on condition that “a due warning has been given, naming, in all
appropriate cases, a reasonable time limit and after such warning has remained
unheeded.”
Treaties
Cited:
The
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field, §§ 19, 21, 24,
26
Israeli
Supreme Court Cases Cited:
[1]
HCJ 2936/02 Physicians for Human Rights v. The Commander of the IDF
Forces in the
Israeli Books Cited:
[2]
Y. Dinstein, The Laws of War (1983)
Motion denied.
For the petitioners—Andara Rosenthal
For the respondent—Shai Nitzan
Judgment
Justice D. Dorner
1. The petition before us was filed by the society
known as Physicians for Human Rights, on
During the oral arguments of
In the meantime, petitioner submitted the required
affidavits. As a result of the relatively short time at its disposal, and
especially due to the ongoing combat activities, which made a full
investigation difficult, the State responded only partially to the content of petitioner’s
affidavits. The State obligated itself
to continue its inquiry. Substantively, the State based its arguments on the
decision of this Court in HCJ 2936/02, and restated its position in that case,
in which it agreed that the situation regarding the medical treatment of the
wounded was not simple, and that, as stated in one of the affidavits, shots had
even been fired at a Palestinian ambulance. However, according to the State,
this was a direct result of the behavior of Palestinians who had, on a number
of occasions, transported explosives in ambulances. Nonetheless, the State
reemphasized the obligation of the IDF to uphold the rules of international
law, as required by law, morality, and even by utilitarian considerations. The
State also declared that the combat forces had been, and were being, instructed
to act according to those rules.
The petition before us is prospective; it deals with
the future. We were not asked to grant relief regarding specific events. The
incidents mentioned in the petition were only meant to provide a factual
picture. The State obligated itself to complete its investigations regarding
those events, and the petitioner reserved the right to petition this Court
again, if not satisfied by the results of this investigation.
As to the crux of the matter, international law
provides protection for medical stations and personnel against attack by combat
forces. Article 19 of the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, of Aug. 12,
1949 [hereinafter The First Geneva Convention] forbids, under all
circumstances, attack of stations and mobile medical units of the “Medical
Service,” that is to say, hospitals, medical warehouses, evacuation points for
the wounded and sick, and ambulances. See Y. Dinstein, The Law of War 144-45
(1983) [2].
However, the “Medical Service” has the right to full
protection only when it is exclusively engaged in the search,
collection, transport and treatment of the wounded or sick. Note the provisions
of Articles 24 of the First Geneva Convention as well as the provisions of
article 26, which expands this protection to include the Red Cross and similar
voluntary aid societies. See also Dinstein, [2] at 153.
Moreover, Article 21 of the First Geneva Convention
provides that the protection of medical establishments shall cease if they are
being “used to commit, outside their humanitarian duties, acts harmful to the
enemy”, on condition that “a due warning has been given, naming, in all
appropriate cases, a reasonable time limit and after such warning has remained
unheeded.” See also Dinstein, [2]
at 145.
Against this legal background, we recall our words from
our decision in HCJ 2936/02 [1]:
[W]e see fit to emphasize that
our combat forces are required to abide by the rules of humanitarian law
regarding the care of the wounded, the ill, and bodies of the deceased. The fact
that medical personnel have abused their position in hospitals and in
ambulances has made it necessary for the IDF to act in order to prevent such
activities but does not, in and of itself, justify sweeping breaches of
humanitarian rules. Indeed, this is also the position of the State. This stance is required, not only under the
rules of international law on which the petitioners have based their arguments
here, but also in light of the values of the State of Israel as a Jewish and
democratic state.
The IDF
shall once again instruct the combat forces, down to the level of the lone
soldier in the field, of this commitment by our forces based on law and
morality—and, according to the State, even on utilitarian considerations—through
concrete instructions which will prevent, to the extent possible, and even in
severe situations, incidents which are inconsistent with the rules of
humanitarian law.
The instructions which are to be given to soldiers
should deal with, among other things, the reasonable and fair warnings which
should be given to medical teams. These guidelines should be subject to the circumstances,
and should be carried out by the IDF in a way that balances the threat of
Palestinian fighters camouflaged as medical teams against the legal and moral
obligation to uphold humanitarian rules regarding the treatment of the sick and
wounded. Such a balance should take into
consideration, among other things, the imminence and severity of any threat.
So we decided in HCJ 2936/02 [1] and so we decide,
once again, in this petition.