HCJ
9132/07
Jaber Al-Bassiouni
Ahmed
and others
v.
1. Prime Minister
2. Minister of Defence
The Supreme Court
sitting as the High Court of Justice
(30 January 2008)
Before
President D. Beinisch, Justice E. Hayut & Justice J. Elon
Petition to the High
Court of Justice
Israeli
Supreme Court cases cited:
[1] HCJ 3451/02 Almadani v. Minister of
Defence [2002] IsrSC 56(3) 30; [2002-3] IsrLR 47.
[2] HCJ 168/91 Morcus v. Minister of
Defence [1991] IsrSC 45(1) 467.
[3] HCJ 3114/02 Barakeh v. Minister of Defence
[2002] IsrSC 56(3) 11; [2002-3] IsrLR 39.
[4] HCJ 320/80 Kawasma v. Minister of
Defence [1981] IsrSC 35(3) 113.
For the petitioners:
N. Peleg, Prof. K. Mann, F. El-Ajou,
H. Jabareen, S. Bashi.
For the respondents: G. Shirman, O. Mendel
JUDGMENT
President
D. Beinisch
1. The
petition before us is directed against the respondents’ decision to reduce or
limit the supply of fuel and electricity to the Gaza Strip. In their petition
for relief from this court, the petitioners mainly addressed the need for
various types of fuel (gasoline and diesel) for the proper running of hospitals
and water and sewage pumps, as well as for the supply of electricity, whether
via power lines from Israel or by supplying industrial diesel for operating the
Gaza Strip power plant.
2. The
circumstances surrounding the petition are the combat activities that have been
taking place in the Gaza Strip for a long period, and the continuing campaign
of terrorism directed against the citizens of Israel. The terrorist attacks have
intensified and worsened since the Hamas organization took control of the Gaza
Strip. These attacks include the continuous firing of rockets and mortar shells
at civilian targets in the territory of the State of Israel, as well as
terrorist attacks and attempted attacks that target civilians and IDF soldiers
at the border crossings between the Gaza Strip and the State of Israel, along
the border fence and in the territory of the State of Israel. The respondents’
decision to limit the supply of fuel and electricity to the Gaza Strip was made
as a part of the State of Israel’s operations against the continuous terrorism.
The following is the text of the decision that was adopted by the Ministerial
Committee on National Security Affairs on 19 September 2007:
‘The Hamas organization is a terrorist
organization that has taken control of the Gaza Strip and turned it into a
hostile territory. This organization carries out acts of hostility against the
State of Israel and its citizens, and the responsibility for these acts lies
with it. It has therefore been resolved to adopt the recommendations presented
by the security establishment, including the continuation of the military and
intelligence operations against the terrorist organizations. Additional
restrictions will also be placed upon the Hamas regime, so that the passage of
goods to the Gaza Strip will be limited, the supply of fuel and electricity
will be reduced and restrictions will be imposed upon the movement of persons
to and from the Strip. The restrictions will be implemented after considering
the legal ramifications of the humanitarian situation in the Gaza Strip, in
order to prevent a humanitarian crisis.’
The petition is directed against this decision.
3. The
petition against the decision was filed on 28 October 2007 and it was heard on
7 November 2007, in the presence of the parties. On the date of the hearing the
state gave notice that a final decision as to whether to implement the
restrictions upon the supply of electricity to the Gaza Strip had not yet been
made, and therefore we only heard argument regarding the restrictions upon the
supply of fuel. During the hearing, counsel for the respondents told the court
that the state recognizes that it has a duty not to prevent the supply of basic
humanitarian needs to the Gaza Strip, and therefore it announced that it would
monitor the situation and ensure that the restrictions being made do not harm
the supply of basic humanitarian needs. At the end of the hearing we held that
within seven days the state should present the data on which it based its
assessment of the effect of reducing the fuel supply to the Gaza Strip, and
explain the methods of monitoring and of checking the data that it intends to
adopt in order to safeguard the humanitarian needs of the inhabitants of the
Gaza Strip.
Reduction of the fuel supply to the
Gaza Strip
4. On
29 November 2007 we held, with regard to that part of the petition addressing
the reduction of the fuel supply to the Gaza Strip, that the fuel that the
Palestinian Energy Authority buys from the Israeli Dor Alon company, which is
distributed by private suppliers to the highest bidder irrespective of any
other concerns, can be distributed in another manner. We said that the various
types of fuel supplied to the Gaza Strip can be distributed according to
priorities that take into account the humanitarian needs of the civilian
population, as well as the functioning of the generators that operate the water
pumps and electricity plants in the Gaza Strip. In our decision we gave weight
to the state’s position that while combat operations and missile attacks are
being carried out against Israeli towns, some of the fuel that enters the Gaza
Strip is de facto used for various objectives of the terrorist
organizations, and in such circumstances the reduction of the fuel supply, in
the controlled manner in which it is made, may damage the terrorist
infrastructures and their ability to operate against the citizens of the State
of Israel, considering that the amount of fuel that enters the Gaza Strip is
supposed to satisfy only the humanitarian purposes that require the use of
fuel. We were therefore not persuaded at that stage, on the basis of the data
presented to us, that the respondents’ decision to reduce the amount of fuel allowed
into the Gaza Strip through the border crossings with Israel currently violates
the basic humanitarian needs of the Gaza Strip. We therefore held that there
was no basis for any order nisi or interim order concerning the
reduction of the fuel supply (gasoline and diesel). Our decision was mainly
based on the state’s undertaking, as required by Israeli and international law,
to monitor the situation in the Gaza Strip and ensure that the aforesaid
reduction does not prejudice the humanitarian needs of the inhabitants of the
Gaza Strip. In these circumstances we concluded the hearing of the issue of the
restrictions on the fuel supply to the Gaza Strip, and proceeded to examine the
arguments concerning the harm to the inhabitants of the Gaza Strip that could
be anticipated as a result of the restrictions on the supply of electricity.
Reduction of the supply of
electricity to the Gaza Strip
5. The
hearing of the part of the petition regarding the reduction of the supply of
electricity to the Gaza Strip required complex factual verification, and we
encountered difficulty in receiving figures on this issue from the state’s
representatives. Therefore the
proceedings on this issue were drawn out while on various dates we received
detailed applications from the petitioners and written and oral responses from
the respondents. On 15 November 2007 the petitioners filed an urgent
application for an interim order in the petition, and on 23 November 2007 they
applied for an urgent hearing of the petition in view of the state’s notice
that as of December 2007 it would begin to restrict the amount of electricity
supplied to the Gaza Strip. The petitioners argued that there is no physical
way of restricting the electricity to the Gaza Strip without causing power
stoppages in hospitals and stopping the pumping of clean water to the civilian
population in Gaza, and without causing serious disruptions to basic needs.
Their main argument was that implementation of the decision would cause
certain, serious and irreversible damage to the essential humanitarian needs of
the Gaza Strip, its hospitals, the water and sewage system, and the entire
civilian population.
6. According
to figures that are not disputed by either party, the amount of electricity
needed for the Gaza Strip at peak times is slightly more than 200 megawatts.
Approximately 120 megawatts are supplied by Israel, and approximately 17
megawatts are supplied by Egypt. The remainder is supplied by the Gaza Strip
power plant. The electricity supplied to the Gaza Strip by the State of Israel
is supplied via 10 power lines, on four of which load limiters have been
installed. The respondents’ intention was to reduce the supply of electricity
through those four power lines gradually, by 5% of the amount of electricity
transferred through each of the lines. The respondents’ claim that this step
would require the authority that controls the Gaza Strip to manage the load and
reduce the actual consumption of electricity in the area to which the relevant
line supplies electricity, to prevent the supply of electricity for terrorist
purposes such as workshops where Qassam rockets are made. According to their
approach, if the authorities in Gaza manage the consumption of electricity
properly, the flow of electricity from Israel to the Gaza Strip will continue
without interruption. But if consumption exceeds the permitted amount, the
supply of electricity will cease automatically, due to the load limiters
installed upon the four power lines described above. The respondents emphasized
in their response that the aforesaid reduction of electricity does not affect
the basic humanitarian needs of the residents of the Gaza Strip.
7. The
petitioners argue that there is no physical way of reducing the supply of
electricity to Gaza without causing power stoppages in hospitals and the
pumping of clean water to the civilian population of Gaza, and therefore the
implementation of this decision will cause certain, serious and irreversible
harm to the necessary humanitarian needs of the Gaza Strip, its hospitals, the
water and sewage system, and the entire civilian population. In their
supplementary pleadings of 27 November 2007, the petitioners presented detailed
arguments regarding the future reduction of electricity to the Gaza Strip, and
according to them even now, since the bombing of the local power plant by the
Israeli Air Force in 2006, the Gaza Strip has suffered from a shortage of
electricity that compels the Electricity Distribution Company in Gaza to make
electricity stoppages for several hours each day. They argue that even now the
frequent power stoppages affect the functioning of essential services in Gaza,
such as hospitals, because the infrastructure in the Gaza Strip does not make
it possible to disconnect the electrical supply to the civilian population
without disconnecting essential services. Moreover, it was emphasized that
stopping the supply of electricity to the homes of Gaza residents denies them
the possibility of receiving clean drinking water in their homes and interrupts
the functioning of the water and sewage pumps.
8. On
29 November 2007 we held a hearing of the petition, at which we heard the
arguments of the parties. During the hearing we also heard the respondents’
deponents, Colonel Shlomi Muchtar, head of the Operations Department at the
Unit for Coordination of Government Activities in the Territories, and Mr Idan
Weinstock, director of the Electricity Authority at the Ministry of National
Infrastructures. For the petitioners we heard the second petitioner, Mr Maher Najar,
the assistant-director of the Water Authority in the Coastal Cities
Administration in Gaza. After we heard the arguments of the parties and their
deponents regarding the planned reduction of the electricity supply to the Gaza
Strip and after we received the incomplete facts that were presented to us, we
saw fit to request further pleadings from the respondents on several points
concerning the possibility of regulating the flow of electricity to the Gaza
Strip so that humanitarian needs will not be harmed. We also made an order that
until the aforesaid submissions were received, the plan to reduce the
electricity supply to the Gaza Strip should not be implemented.
9. While
the petition was pending, the petitioners once again filed applications to
compel the state to continue the normal supply of electricity to the Gaza Strip
without restrictions. Their arguments focused mainly on the fact that the local
power plant, which supplies electricity to essential humanitarian facilities,
cannot function properly due to a severe shortage of industrial diesel fuel.
They argue that the amount of industrial diesel that the respondents are
allowing to enter the Gaza Strip is insufficient for the needs of the power
plant and does not enable it to produce the amount of electricity that the
residents of the Gaza Strip need during the winter months. It was argued that
the shortage of industrial diesel caused a reduction of approximately 30% in
the amount of electricity produced by the power plant in the Gaza Strip, which has
led to long electricity stoppages. It was emphasized that the industrial diesel
supplied to the Gaza Strip is used solely for producing electricity at the
power plant. On 9 January 2008 filed an update, in which they said that as a
result of the severe shortage of industrial diesel at the power plant in the
Gaza Strip, power stoppages of eight hours every day were being imposed in
central Gaza, and in the city of Gaza itself stoppages were being imposed for
eight hours every two days. It was further alleged that as a result of the
reduction in electricity production, the central hospital in Gaza was suffering
power stoppages of 6-12 hours each day, which disrupted the functioning of the
hospital. On 21 January 2008 the petitioners informed the court that, due to
the shortage of industrial diesel, the power plant in Gaza had completely
stopped the production of electricity, which resulted in a shortage of
approximately 43% of the amount of electricity required by the residents of the
Gaza Strip. They claimed that on 20 January 2008 the respondents imposed a
complete ban on the entry of industrial diesel into the Gaza Strip, and in the
absence of reserves this led to the shutdown of the power plant. In the
prevailing circumstances, the petitioners claimed that many residents of the
Gaza Strip had no access to clean drinking water, sewage was overflowing and
residents were unable to operate in their homes the medical equipment that they
needed.
10. Following
the aforesaid, the respondents filed a further statement, in which they
addressed the various claims and the dynamic changes in the factual position.
They said that at a meeting between the head of the Operations Department of
the Unit for Coordination of Government Activity in the Territories, Colonel Shlomi
Muchtar, and the representatives of the Palestinian Energy Authority, the
Palestinians had said that they were able to regulate loads by reducing the
consumption of electricity in the distribution area of a certain line, and that
such regulation had already been put into operation; thus, for example, the
Palestinian authorities confirmed that they were able to reduce the consumption
on a certain power line in order to allow the proper functioning of a hospital.
We were also informed that as a result of an arrangement between the Israel
Electric Corporation and the Palestinian Authority in 2005, the supply of
electricity through two of the lines providing electricity from Israel to the
Gaza Strip was limited to 11 megawatts. The respondents admitted that the
Nachal Oz crossing, through which the
industrial diesel fuel needed to run the Gaza power plant enters the Gaza
Strip, had indeed been closed for several days, and therefore the supply of
industrial diesel to the power plant in the Gaza Strip had been prevented
during those days. The respondents explained that the closure of the crossing
and the stoppage in the supply of industrial diesel to the power plant occurred
as a result of a very serious rocket barrage against Israel, in which between
the fifteenth and eighteenth of January 2008, 222 mortar shells had been shot
at Israeli towns near the Gaza Strip, Ashkelon and Sederot, which caused the
wounding of seven civilians, many victims of trauma and considerable damage.
Despite that, we were told that it has now been decided that the amount of
industrial diesel supplied to the Gaza Strip will amount to 2.2 million litres
a week, as it was before the reduction plan. Regarding the supply of
electricity from Israel, the respondents said that they intend to implement a
gradual reduction in only three power lines, in an amount of 5% of the total
current in each of those lines, so that the amount of electricity supplied
through them will total 13.5 megawatts in two of them and 12.5 megawatts in the
third. The respondents emphasized in this context that the Palestinians
themselves have said on several occasions that they are able to carry out load
reductions if restrictions are imposed on the power lines, so that humanitarian
purposes and needs are not affected. Finally, the respondents said that the
opening of a Rafah crossing into Egypt, which was an action taken unilaterally
by the Palestinians, might affect the entire situation in the Gaza Strip and
all of the obligations of the State of Israel towards the Gaza Strip, but they
added that this subject is a new development and is being examined from a
factual, legal and political perspective. On 27 January 2008 we held a hearing
that focused on the supply of industrial diesel fuel to the Gaza Strip, at
which the parties reiterated their main arguments, as set out above, and the
state announced, as aforesaid, that industrial diesel fuel was being supplied
to the Gaza Strip in the same manner as it had in the past.
Deliberations
11. The
question before us is whether the various restrictions upon the supply of fuel
and electricity to the Gaza Strip harm the essential humanitarian needs of the
residents of the Gaza Strip. As we said in our decision of 29 November 2007,
the State of Israel has no duty to allow an unlimited amount of electricity and
fuel to enter the Gaza Strip in circumstances where some of these products are
in practice being used by the terrorist organizations in order to attack
Israeli civilians. The duty of the State of Israel derives from the essential
humanitarian needs of the inhabitants of the Gaza Strip. The respondents are
required to discharge their duties under international humanitarian law, which
requires them to allow the Gaza Strip to receive only what is needed in order
to provide the essential humanitarian needs of the civilian population.
12. The
State argued before us that it conducts itself in accordance with the rules of
international law and respects its humanitarian obligations under the laws of
war. Counsel for the state argues that these duties are limited and are derived
from the state of armed conflict that exists between the State of Israel and
the Hamas organization that controls the Gaza Strip, and from the need to avoid
harm to the civilian population that finds itself in the combat zone. We should
point out in this context that since September 2005 Israel no longer has
effective control over what happens in the Gaza Strip. The military government
that was in force in this territory in the past was ended by a decision of the
government, and Israeli soldiers are no longer stationed in the territory on a
permanent basis, nor are they in charge of what happens there. In these
circumstances, the State of Israel does not have a general duty to ensure the
welfare of the residents of the Gaza Strip or to maintain public order in the
Gaza Strip under all of the laws of a belligerent occupation under
international law. Neither does Israel have any effective ability, in its
present position, of enforcing order and managing civilian life in the Gaza
Strip. In the prevailing circumstances, the main duties of the State of Israel
relating to the residents of the Gaza Strip derive from the state of armed
conflict that exists between it and the Hamas organization that controls the
Gaza Strip; these duties also derive from the degree of control exercised by
the State of Israel over the border crossings between it and the Gaza Strip, as
well as from the relationship that was created between Israel and the territory
of the Gaza Strip after the years of Israeli military rule in the territory, as
a result of which the Gaza Strip is currently almost completely dependent upon
the supply of electricity from Israel.
13. In
this context, the respondents referred in their pleadings to various provisions
of international humanitarian law that apply to this case. Inter alia,
the respondents referred to art. 23 of the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War, 1949 (hereinafter: ‘the
Fourth Geneva Convention’), which requires a party to a conflict to allow the
free passage of consignments intended for the civilians of the other party.
They said, however, that this is a very limited obligation, since it only
requires a party to a conflict to allow the unlimited passage of medical
equipment, and to allow the passage of foodstuffs, clothing and medicine
intended for children under the age of fifteen and expectant mothers. The
respondents also referred to art. 70 of the Protocol Additional to the Geneva
Conventions of 12 August 1949 and relating to the Protection of Victims of
International Armed Conflicts, 1977 (hereinafter: ‘the First Protocol’), which
in their opinion constitutes customary international law, and which imposes a
general and broader obligation according to which parties to a conflict are
required to allow the rapid and unimpeded passage of essential goods for the
civilian population. Finally, the respondents also referred in their pleadings
to art. 54 of the First Protocol, which prohibits the starvation of civilians
as a method of warfare, as well as any attack, destruction, removal or
rendering useless of installations required by the civilian population,
including foodstuffs, agricultural areas and drinking water installations.
14. The
state’s pleadings in this regard are based upon norms that are part of the
customary international law, which set out basic obligations that govern
combatant parties during an armed conflict, and require them to ensure the
welfare of the civilian population and respect its dignity and basic rights. It
should also be noted that under the rules of customary international
humanitarian law, each party to a conflict is obliged to refrain from
disrupting the passage of basic humanitarian relief to populations needing it
in areas under its control (J. Henckaerts & L. Doswald-Beck, Customary
International Humanitarian Law (ICRC, vol. 1, 2005), at pp. 197, 199). It
is also stated in the commentary on art. 70 of the First Protocol that arts. 54
and 70 of the First Protocol should be read together, so that a party to a
conflict should not be permitted to refuse to allow the passage of foodstuffs
and basic humanitarian equipment necessary for the survival of the civilian
population (Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (Y. Sandoz, C. Swinarski, B. Zimmermann, eds., ICRC, Geneva, 1987), at
p. 820).
15. It
follows from the aforesaid that the respondents do not in any way deny the
existence of their humanitarian duties, which require the State of Israel to
allow the passage of essential humanitarian goods to the Gaza Strip, and to
refrain from intentional harm to humanitarian facilities. According to the
respondents’ arguments, which they supported with affidavits and statements of
the responsible authorities, not only are the respondents allowing the transfer
essential goods to the civilian population in the Gaza Strip, but they also
regard this as a humanitarian obligation for which they are liable pursuant to
international law and the decision of the ministerial committee.
Notwithstanding, the respondents emphasized that this does not require them to
allow the passage of unessential goods or amounts of goods that exceed what is
required for basic humanitarian needs, and this is the heart of the
disagreement between them and the petitioners.
16. In
this last respect, Colonel Nir Press, the commander of the Coordination and
Liaison Authority, appeared before us during the final hearing and gave details
of the relevant data and information upon which respondents rely. Colonel Press
clarified the statements made on behalf of the state, and insisted that the
amount of fuel and electricity entering the Gaza Strip is sufficient for the
proper functioning of all the humanitarian services in the territory; Colonel
Press further told us of contacts that he held with Palestinian representatives
for the routine monitoring of the functioning of the humanitarian services in
the Gaza Strip. Inter alia, he described how the State of Israel allows
the safe conduct of the sick for treatment in the State of Israel, and allows
the unlimited passage of food and medicine, in order to avoid harming the
residents of the Gaza Strip beyond the extent necessitated by the state of
armed conflict between the State of Israel and the Hamas organization. Colonel
Press admitted to us that the situation of the civilian population in the Gaza
Strip is indeed difficult, but he also gave examples of exaggerated
descriptions published by the Hamas organization with regard to a humanitarian
crisis in the territory.
17. The
main issue remaining before us, as became clear from the last hearing, is the
amount of industrial diesel fuel required for the operation of the power plant
in the Gaza Strip. As stated above, we were persuaded by the respondents’
declarations that they intend to continue to allow the supply of industrial
diesel fuel at the same level as prior to the implementation of the
limitations, namely 2.2 million litres per week. Since it has been clarified that
industrial diesel can be used, and is used de facto, solely for the
power plant in the Gaza Strip, it can be assumed that the supply of industrial
diesel will not fall short of this amount. Our examination of the matter
revealed that the supply of industrial diesel to the Gaza Strip during the
winter months last year was similar to the amount that the respondents now
promise will be permitted to enter the Gaza Strip, and this fact also indicates
that it is a reasonable amount that is sufficient for the basic humanitarian
needs of the Gaza Strip. Admittedly, for several days the border crossings were
closed and consequently the required amount of diesel was not delivered. But
this, it was explained, was on account of a temporary security need that was caused
by a very severe rocket attack launched against Israeli towns from within the
Gaza Strip. It need not be said that even during this period, when there was a
specific security need to close the border crossings, the State of Israel
continued to supply the Gaza Strip with the same amount of electricity that it
usually provides.
18. As
for the revised plan presented to us, which concerns a five per cent reduction
of the supply of electricity through three of the ten power lines supplying
electricity to the Gaza Strip, to a level of 13.5 megawatts in two of the lines
and 12.5 megawatts in the third, we have been persuaded that this reduction
does not breach the State of Israel’s humanitarian duties within the context of
the armed conflict taking place between it and the Hamas organization that
controls the Gaza Strip. This conclusion is based, inter alia, upon the
fact that the respondents’ affidavit shows that the relevant Palestinian
authorities have said that they have the ability to carry out load reductions
if limits are placed on the power lines, and they have made actual use of this
ability in the past.
19. It
should be emphasized that during the hearing of the petition the state
reiterated its undertaking to monitor the humanitarian situation in the Gaza
Strip, and in this context we were informed, in various affidavits filed on
behalf of the respondents, that this commitment is being discharged very
responsibly and seriously, and that the security establishment carries out a
weekly assessment of the position in this regard, which is based, inter alia, upon contacts with Palestinian authorities in the fields of
electricity and health, and on contacts with international organizations. It
should be noted in this context that from the hearing of this issue before us,
as well as from other cases where an immediate response was required on matters
regarding humanitarian concerns, it has be seen that the parties are capable of
reaching understandings and arrangements in these matters. Indeed, a solution
in the form of communication between the persons in charge of the security
establishment and those authorities in contact with them who can inform them of
the essential basic needs is the best way of finding speedy solutions to
concrete problems that arise from time to time; that is shown by the fact that
even before we held a hearing, the state announced, of its own initiative, that
it was renewing the supply of regular diesel fuel, which is required, inter alia, for ambulances and operating generators in hospitals, in the same
amount as prior to the reduction, as well as the supply of industrial diesel.
These facts shows that the state is indeed monitoring the situation in the Gaza
Strip, and allowing the supply of the amount of fuel and electricity needed for
the essential humanitarian needs in the area.
20. We have said, on more than one occasion,
that we do not intervene in the question of the effectiveness or the wisdom of
the security measures adopted by those responsible for security, but only in
the question of their legality. Our role is limited to judicial review of
compliance with the rules of Israeli and international law that bind the State
of Israel, which the respondents declared before us are being scrupulously
observed by the state. In this regard it has been said in the past that in
times of war legal norms continue to apply, and the laws of war should be
observed. In HCJ 3451/02 Almadani v. Minister of Defence [1] we
held, in a similar context, that:
‘Israel
finds itself in severe combat against raging terrorism. Israel acts pursuant to
its right to self-defence (see art. 51 of the
Charter of the United Nations). This combat is not carried out in a normative
void. It is carried out pursuant to the rules of international law, which
determines principles and rules for conduct of combat’ (Almadani v. Minister of Defence [1], per President Barak; see also HCJ 168/91 Morcus v. Minister of Defence [2], at p. 470).
And in a judgment
concerning the humanitarian obligations of the State of Israel during the
combat operations carried out in the ‘Defensive Shield’ operation, we said
that:
‘Even during periods
of combat the laws of war should be upheld. Everything should be done in order
to protect the civilian population (see HCJ
2901/02; HCJ 2936/02; HCJ 2977/02, and HCJ 3022/02)’ (HCJ 3114/02 Barakeh v. Minister of Defence [3] ).
21. Indeed, in times of war, as in our case,
the civilian population regrettably finds itself in a combat zone, and it is
the first and main victim of the state of hostilities, even when efforts are
made to limit the harm to it. In the territory of the State of Israel, in a
period of terrorist attacks that have been continuing for years, the immediate
and main victim of the state of hostilities is also the civilian population.
But in so far as the operations being carried out against Israel are concerned,
we are not speaking of accidental harm or collateral damage, but of persistent
terrorist attacks that directly target the civilian population with the
intention of harming innocent civilians. This is the difference between the
State of Israel, a democratic state fighting for its survival by the methods
that the law permits, and the terrorist organizations that seek to destroy it.
‘The state is fighting in the name of the law and in order to preserve it. The
terrorists fight against the law and in violation thereof. The war against
terrorism is also the struggle of the law against those who seek to undermine it’
(HCJ 320/80 Kawasma v. Minister of Defence [4] , at p. 132; see also Almadani v. Minister of Defence [1]). In
this case, the facts that were presented to us, as set out above, show that the
State of Israel accepts and respects the rules provided in the laws of war, and
is committed to continuing to supply the amount of fuel and electricity needed
for the essential humanitarian needs of the civilian population in the Gaza
Strip.
22. In conclusion, we reiterate that the Gaza Strip is controlled
by a murderous terrorist organization, which acts unceasingly to strike at the State
of Israel and its inhabitants, violating every possible rule of international
law in its violent acts, which are directed indiscriminately toward
civilians — men, women and children. Notwithstanding, as we said above,
the State of Israel is committed to acting against the terrorist organizations
within the framework of the law and in accordance with the provisions of
international law, and to refrain from intentional harm to the civilian
population in the Gaza Strip. In view of all of the information presented to us
with regard to the supply of electricity to the Gaza Strip, we are of the
opinion that the amount of industrial diesel that the State said it intends to
supply, as well as the electricity that is continually supplied through the
power lines from Israel, are capable of satisfying the essential humanitarian
needs of the Gaza Strip at the present.
Therefore, for the
reasons set out above, the petition is denied.
Justice
E. Hayut
I agree.
Justice
J. Elon
I agree.
Petition denied.
23 Shevat 5768.
30 January 2008.