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Sunday, May 30, 2004
Supreme Court Decision - Physicians for Human Rights etc. vs. IDF

Supreme Court Decision - Physicians for Human Rights etc. vs. IDF part 1

This document is a draft, and is subject to further revision.

HCJ 4764/04

1. Physicians for Human Rights
2. Association for Civil Rights in Israel
3. The Center for the Defense of the Individual - Founded by Dr.
Lota Salzberger
4. B'Tselem - The Israeli Information Center for Human Rights in the
Occupied Territories
1. Commander of the IDF Forces in the Gaza Strip

The Supreme Court Sitting as the High Court of Justice
[May 30, 2004]
Before President A. Barak, Justice J. Türkel and Justice D. Beinisch

Petition to the Supreme Court sitting as the High Court of Justice

For petitioners-Fatma Al-Aju
For respondents- Anner Helman, Yuval Roitman - Office of the State Attorney

President A. Barak
Is the State of Israel, during the current military operations in Rafah,
fulfilling its duties under international humanitarian law? This is the
question before us.


1. Since May 18, 2004, combat activities have been conducted in the
area of Rafah in the Gaza Strip. See HCJ 4573/04 Al-Besioni v. Commander of
the IDF Forces; HCJ 4584/04 Shakfhat v. Commander of the IDF Forces in the
Gaza Strip; HCJ 4694/04 Abu-Amra v. Commander of the IDF Forces in the Gaza
Strip. According to respondent, these combat activities, broad in scope, are
directed against the terrorist infrastructure in that area. Their central
objective is to locate the underground tunnels which are used to smuggle
arms from the Egyptian side of Rafah to the Palestinian side. In addition,
the military operations are aimed at arresting those wanted for terrorist
activity and locating arms caches in the Rafah area. The activity includes
battles against armed opponents. Explosive charges and gunfire have been
directed against the Israeli Defense Forces ("IDF").

2. The city of Rafah consists of several neighborhoods. Most of the
military operations took place in the neighborhood of Tel A-Sultan. The IDF
also entered the neighborhood of Brazil. Between the time that this petition
was submitted (May 20, 2004), and heard the next morning (May 21, 2004), the
IDF withdrew from these two neighborhoods. The neighborhoods, however,
remained surrounded and controlled by the IDF.

3. Before the start of the military operations, the IDF, having
learned from similar operations in the past, took three steps in
anticipation of any humanitarian problems that could arise. First, a
"Humanitarian Hotline" was established. The Hotline was to serve as a
contact for organizations outside the area of operations. Human rights
organizations, for example, would be able to contact the Hotline and
immediate efforts would be made to resolve specific humanitarian problems.
Second, a District Coordination Office ("DCO") was established. The DCO was
to stay in constant communication with the Palestinian Ministry of Health,
the Red Crescent, the International Red Cross, and local hospitals. The DCO,
headed by Col. I. Mordechai, would resolve humanitarian problems that had
arisen as a result of the operations. Third, a liaison officer of the
Coordination Office was placed with every battalion in the area of
operations. The liaison officer was to contend with humanitarian problems,
such as the evacuation of Palestinian casualties.

The Petition

4. Petitioners are four human rights organizations. They point to harm
that has been caused to the local civilian population in Rafah as a result
of the military operations - the demolition of houses and injuries caused to
civilians. The petition asks that the IDF allow medical teams and ambulances
to reach and evacuate the wounded in Rafah, that such evacuation not require
coordination with the Hotline, that medical teams be neither threatened nor
harmed, and that the transport of medical equipment into Rafah be allowed.
The petition further asks that electricity and water provisions be restored
to the neighborhood of Tel A-Sultan, that the IDF allow the provision of
food and medicines to the residents of that neighborhood, and that a medical
team of Petitioner 1 be allowed to enter hospitals in the Gaza Strip and
assess the medical situation there. Finally, petitioners ask that a full
investigation be made into an incident in which a number of residents were
killed when a crowd of protesting civilians was shelled. Moreover,
petitioners ask for an order prohibiting the shelling of civilians, even
when among them are armed combatants, who do not pose an immediate threat to

Respondent's Answer

5. Respondent asks that the petition be denied. It emphasizes that
military operations, including battles with armed combatants, continue in
the area. Therefore, this Court should exercise caution in its judicial
review of the actions of the security authorities. These actions lie at the
outer limits of the reach of the judiciary. As to the substance of the
petition, respondent asserts that underground tunnels from the Egyptian to
the Palestinian side of the city constituted a central link in the smuggling
of arms into the Gaza Strip. These arms are used against the IDF and Israeli
communities both inside the Gaza Strip and outside of it. The purpose of the
current IDF operations is to break up the Palestinian terror infrastructure
in the area: to locate underground tunnels, to detain wanted terrorists, and
to locate arms caches. During the operations, there occurred intensive
battles between the IDF and combatants armed with explosive devices and
other weapons.

In both its written briefs and in its oral arguments, respondent emphasized
that the IDF has made strong efforts to take the needs of the local
population into consideration. These efforts led to the establishment of the
Hotline and the District Coordination Office. Even so, the situation remains
complex - armed combatants operate from within the population, employing
houses as cover from which to fire on the IDF forces, and this presents
difficult situations for the IDF. Despite these problems, however, the IDF
is fulfilling its obligations towards the civilian population, and is doing
everything possible to minimize the damage caused. Respondent supplied
detailed responses to each of the petitioners' claims. It also asserts that
the petition's description of the situation is based on Palestinian sources,
whose sole purpose is to paint the humanitarian picture as being far more
grim than reality.

The Proceeding

6. The petition was submitted on Thursay, May 20, 2004. Hearings were
scheduled for the next morning, May 21, 2004. We ordered respondent to reply
to the petition. Both sides, as well as the head of the District
Coordination Office and the Judge-Advocate General, were present at the
hearing. The head of the Coordination Office described situations that he
had dealt with. Several times during the hearing he requested some moments
to determine the real-time situation in Rafah. He contacted his liaisons in
Rafah, these would provide details, which he would relay back to the Court.

At the end of hearing we suggested an arrangement regarding the burial of
the dead. See infra para. 25. The State Attorney provided its updated answer
regarding this arrangement on Sunday, May 23, 2004. On May 24, 2004, we
ordered petitioners to respond to this answer. Before we received
petitioners' response, we received an additional answer from the respondent.
Petitioners' response, which concerned the burial of the dead and the
provision of electricity to Rafah, was received the same day. Respondent's
answer to this latter response was received on May 27, 2004, following the
IDF withdrawal from Rafah on May 24, 2004, which returned the civil and
security control in the city to the Palestinian Authority.

Judicial Review

7. "Israel is not an isolated island. She is a member of an
international system." HCJ 5592/02 Yassin v. Commander of the Kziot Military
Camp. The military operations of the IDF are not conducted in a legal
vacuum. There are legal norms - of customary international law, of treaties
to which Israel is party, and of the fundamental principles of Israeli law -
which set out how military operations should be conducted. In HCJ 3451/02
Almandi v. The Minister of Defense, I noted that:

Israel finds itself in the middle of a difficult battle against a furious
wave of terrorism. Israel is exercising its right of self defense. See The
Charter of the United Nations, art. 51. This combat is not taking place in a
normative void. It is being carried out according to the rules of
international law, which provide principles and rules for combat activity.
The saying, "When the cannons roar, the muses are silent," is incorrect.
Cicero's aphorism that laws are silent during war does not reflect modern

The foundation of this approach is not only the pragmatic consequence of a
political and normative reality. Its roots lie much deeper. It is an
expression of the difference between a democratic state fighting for its
life and the aggression of terrorists rising up against it. The state
fights in the name of the law and in the name of upholding the law. The
terrorists fight against the law and exploit its violation. The war against
terror is also the law's war against those who rise up against it. See HCJ
320/80 Kawasma v. The Minister of Defense, at 132. Moreover, the State of
Israel is founded on Jewish and democratic values. We established a state
that upholds the law-it fulfills its national goals, long the vision of its
generations, while upholding human rights and ensuring human dignity.
Between these-the vision and the law- there lies only harmony, not conflict.

Indeed, all of the IDF's operations are subject to international law. For
example, in HCJ 3114/02 Barake v. Minister of Defense I noted that "[e]ven
in a time of combat, the laws of war must be followed. Even in a time of
combat, all must be done in order to protect the civilian population."

8. In general, the judicial review of this Court is exercised ex post
facto. A petition is submitted against an action that has already been
taken. Occasionally, a significant period of time can elapse between the
time the action is taken and before that action is examined by this Court.
This, however, is not the case here. Petitioners have not requested that we
examine the legal import of military operations that have already concluded.
The purpose of this petition is to direct the present actions of the
military. This is ex ante judicial review, exercised while military
operations are currently underway. This imposes certain constraints on the
Court. Of course, petitions that look towards the future are not novel to
us. For example, in HCJ 5100/94 Public Committee Against Torture in Israel
v. The State of Israel, we examined the legality of guidelines that allowed
for the imposition of moderate physical pressure on suspects of an
investigation. The purpose of our review there was not to examine actions
that had been taken in the past, but to review investigations that were
underway at that time. Even so, the current petition is unique in that it
asks us to review military operations while they are underway and while IDF
soldiers are subject to the dangers inherent to combat. As such, it is
appropriate to emphasize that:

Clearly this Court will take no position regarding the manner in which
combat is being conducted. As long as soldiers' lives are in danger, these
decisions will be made by the commanders. In the case before us, it was not
claimed that the arrangement at which we arrived endangered the lives of

Barake, at 16. The same applies here: humanitarian concerns have been
resolved, without endangering the lives of soldiers or the military
operations. Subject to this caveat, the situation before us is no different
than other situations where this Court has reviewed the legality of military

9. We do not review the wisdom of the decision to take military
action. We review the legality of the military operations. As such, we
presume that the operations in Rafah are necessary from a military
standpoint. The question before us is only whether these military operations
adhere to domestic and international law. The fact that operations are
necessary from a military standpoint does not automatically mean that they
fulfill legal requirements. Of course, with regard to issues of military
concern, we do not stand in the stead of the military commander, and we do
not substitute our discretion for his own. That is his expertise. We examine
the legal import of his decisions. That is our expertise.

The Normative Framework

10. The military operations of the IDF in Rafah, to the extent they
affect civilians, are governed by Hague Convention IV Respecting the Laws
and Customs of War on Land 1907 [hereinafter - the Hague Convention] and the
Geneva Convention Relative to the Protection of Civilian Persons in Time of
Was 1949 [hereinafter - the Fourth Geneva Convention]. In addition, they are
also governed by the principles of Israeli administrative law. See HCJ
393/82 Almasualiah v. Commander of the IDF Forces in the West Bank; HCJ
358/88 Association for Civil Rights in Israel v. GOC Central Command.
According to these principles, the IDF must act with integrity (both
substantive and procedural), with reasonableness and proportionality, and
appropriately balance individual liberty and the public interest. See HCJ
3278/02 The Center for the Defense of the Individual v. The Commander of the
IDF Forces in the West Bank.

11. For our purposes, the central injunction of international
humanitarian law applicable in times of combat is that civilian persons 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."
Fourth Geneva Convention, § 27. See also the Hague Convention, § 46. This
normative framework was formulated by Gasser:

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.

Hans Peter Gasser, Protection of the Civilian Population, in The Handbook of
Humanitarian Law in Armed Conflicts 211 (D. Fleck, ed., 1995). The basic
assumption of this injunction is the recognition of the importance of man,
the sanctity of his life, and the value of his liberty. Compare The Basic
Law: Human Dignity and Liberty, § 1; J.S. Pictet, Commentary: Fourth Geneva
Convention 199 (1958). His life may not be harmed, and his dignity must be
protected. This basic duty, however, 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." See Fourth Geneva Convention, § 27. These
measures may not "affect the fundamental rights of the persons concerned."
See Pictet, at 207. These measures must be proportionate. See Fleck, at 220.
The military operations are directed against terrorists and hostile
combatants. They are not directed against civilians. See Fleck, at 212. When
civilians, as often happens, enter a zone of combat - and especially when
terrorists turn civilians into "human shields" - everything must be done in
order to protect the dignity of the local civilian population. The duty of
the military commander is double. First, he must refrain from operations
that may cause harm to the civilian population. This duty is formulated in
the negative. Second, he must take all measures required to ensure the
safety of civilians. This latter duty calls for positive action. See Fleck,
at 212. Both these duties - which are not always easily distinguishable -
should be reasonably and proportionately implemented given considerations of
time and place.

12. Together with this central injunction regarding civilians' human
dignity during times of combat, international humanitarian law imposes
several specific obligations. These obligations do not exhaust the
fundamental principle. They only constitute specific expressions of that
principle. We shall note two of these obligations that are relevant to the
case at hand.

1. The Provision 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." The
Fourth Geneva Convention, § 55; Pictet, at 300. As such, the Red Cross and
other humanitarian organizations must be allowed to provide food and
medicines. The Fourth Geneva Convention, § 59. Free passage of these
consignments must be allowed. Id.; See also Id., at § 23. Of course, the
consignments may be searched to ensure that they are intended for
humanitarian concerns. Id, at § 59.

2. Medical Supplies: The proper operation of medical establishments must
be ensured. Fourth Geneva Convention, § 56. Persons engaged in searching for
the wounded must be protected. Id., at § 20. The Red Cross and the Red
Crescent must be allowed to pursue their activities in accordance with the
principles of the International Red Cross. Id., at § 63.

From the General to the Particular

13. In their briefs and in their oral arguments, petitioners presented a
list of respondent's violations of international humanitarian law. We
ordered respondent to reply to each item on this list, both in writing and
during oral arguments. We also received updated replies from Col. Mordechai.
We will now turn to each of these specific topics.


14. Petitioners asserted that the entrance of tanks into the neighborhood
of Tel A-Sultan has wrecked the water infrastructure and, as a result, the
provision of water in all of Rafah has been disrupted. As of oral arguments,
one of the wells had been repaired, but a severe water shortage persisted.
Petitioners ask that we order respondent to restore the provision of water
to the neighborhood of Tel A-Sultan. During oral arguments Col. Mordechai
confirmed that the wells in the neighborhood of Tel A-Sultan have indeed
been damaged. Repairs have been delayed as the Palestinian repair team, wary
of the hostilities, did not want to enter Tel A-Sultan. Later, under the
initiative of Col. Mordechai, the Red Cross entered the neighborhood and
most wells were repaired. In areas where running water is as yet
unavailable, as in Tel A-Sultan, the military has allowed water tankers to
enter. Currently, there are five water tankers in Tel A-Sultan, and
residents may reach them without difficulty. As he was explaining the
situation to us, it was reported to Col. Mordechai - and he, in turn,
reported to us - that six additional water tankers had entered the
neighborhood. Similarly, we have been informed that all the wells have been
repaired. Diesel fuel has been brought into the neighborhood to allow the
pumping of water from the wells. As such, there is currently running water
in all neighborhoods of Rafah.

15. It is the responsibility of the military commander to ensure the
provision of water in the area of combat activities. This includes not only
the responsibility to ensure that no damage is caused to the sources of
water, but also the positive obligation to provide water in areas of
shortage. Everything should be done in order to ensure the provision of
water; sources of water must be repaired with due speed. Water tankers
should be provided if no running water is available. As Col. Mordechai has
informed us, these issues have been resolved. Of course, the lessons learned
here must serve the army in the future.


16. Petitioners claim that Rafah's neighborhoods are without electricity.
An attempt to connect the Tel A-Sultan neighborhood failed, and the entire
city is without electricity. They ask that we order respondent to restore
electricity to the affected areas. During oral argument, Col. Mordechai
informed us that electricity in the southern Gaza Strip comes from Israel.
The electric infrastructure was damaged during the course of combat
activities. The IDF - in coordination with the Rafah municipality - is
working on repairing the damage. The repairs take time, as the workers
occasionally have difficulty finding the source of the problem. In addition,
the battles taking place on the scene make the proper reestablishment of the
electrical network difficult. At the moment, there is electricity in the
great majority of Rafah, and everything will be done to ensure that
electricity is restored to the entire area. In light of all this, we believe
that this Court need not make any additional orders concerning this issue.

On May 24, 2004, petitioners informed us that several houses in Rafah
remained without electricity. The equipment necessary to repair the network
is not available in Gaza, and must be imported from Israel. The closure of
Karni crossing, however, has prevented the equipment from being imported.
After the withdrawal of the IDF, and after military operations had ceased,
respondent informed us (May 27, 2004) that Rafah had been returned to the
civilian and security control of the Palestinian Authority, and that the
area is no longer under the control of the IDF. Moreover, we were informed
that the required materials may be brought in through Karni crossing, as
long as arrangements are made with the appropriate authorities in the IDF.

Medical Equipment and Medicines
17. Petitioners claimed that there is a severe shortage of medicines,
medical equipment, and donated blood in the A-Najar hospital, which,
although located outside the area of combat, serves the area which is
controlled by the IDF. The shortage was reported by the hospital to
Professor Donchin, a member of Petitioner 1 (Physicians for Human Rights).
Petitioner 1 prepared a vehicle full of medicines, bandages, and donated
blood. The vehicle is waiting outside Erez Crossing, and it is not permitted
to enter the Gaza Strip. Petitioners request that we order respondent to
allow the supply of medicines to the residents in the Tel A-Sultan
neighborhood. They also request that we order respondent to allow the
passage of vehicles carrying medical equipment between Rafah and the
hospitals outside of it, in Khan Younis and Gaza City. Col. Mordechai
mentioned in his written response that medicines and medical equipment are
being allowed to be brought into the Rafah area. There is nothing preventing
the transfer of medical equipment from one area to another. The
international border crossing at Rafah, which had been closed due to the
combat, was opened for this specific purpose, in order to enable trucks
bearing 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 brought to that gate will be
transferred immediately to its destination, on condition that it is not
accompanied by Israeli civilians, for fear that they may be taken hostage.
As to the situation regarding medicines in the hospital, Col. Mordechai
claimed that he has been in contact, at his own initiative, with the
hospital director. At first, he was told of the shortage of donated blood
and of basic medical equipment. After a short while, he was told that
donated blood had been received and that there was no longer a shortage. The
shortage of first aid equipment, he reported, continues. That same night a
truck with medical equipment from Tunisia entered the Gaza Strip from Egypt.
In addition, four Red Cross trucks with 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 received
and expedited. During the battles, oxygen tanks were allowed to be taken out
of Gaza, filled in Israel, and returned to the hospital. In response,
petitioners noted that contact had just been made between Petitioner 1 and
the Red Cross, and that the vehicle prepared by them, and the equipment upon
it, will be brought to its destination. Respondent informed us that he had
just gotten word that four trucks with medical equipment had passed through
Karni Crossing.

18. It is the duty of the military commander to ensure that there is
enough medical equipment in the combat zone. This is surely his obligation
towards his soldiers; but his obligation is also towards the civilian
population under his control. In the framework of the preparation 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 as well as
the ability of local hospitals to give reasonable medical care during combat
must be examined in advance. Medical equipment must be prepared in advance
in case of shortage; provision of medical equipment from different sources
must be allowed in order to relieve the shortage; contact must be
maintained, to the extent 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. Compare the
Fourth Geneva Convention, § 60. However, such external assistance is likely
to lead to the fulfillment of the obligation, de facto. It seems to us now
that this issue is reaching solution and we do not think that there is a
need for additional remedies from this court.

19. According to petitioners, a full curfew and sealing off of some of
the neighborhoods of Rafah were imposed along with the commencement of
military activity. These are lifted and imposed intermittently, according to
the area in which combat is taking place at any given time. In the
neighborhood of Tel A-Sultan, continuous combat has been taking place since
the morning of May 18, 2004. For three days now, the curfew has cut the
residents of the neighborhood off from the outside world. They suffer a
shortage of water (see supra para. 14), medicine (see supra para. 17), and
food. In four Rafah neighborhoods, there is no milk or basic food products.
Contact with other neighborhoods - which would solve the problem - is denied
by the IDF; nor is food provided to the area. Petitioners ask that we order
respondent to allow food supply to the residents of the neighborhood of Tel
A-Sultan. In his response, Col. Mordechai mentioned that, when a curfew is
imposed, standard procedure is to allow restocking of food 72 hours from the
curfew's commencement. In this case, the IDF allowed trucks laden with food,
prepared by the Red Cross, into the area within 48 hours. Food stations were
designated in different parts of the neighborhoods, and food was distributed
to the residents. For this purpose, the IDF is in contact with the mayor of
Rafah and with the Ministries of the Palestinian Authority. During the day,
additional food trucks were allowed in. Every request from an outside
source to supply food will be approved and expedited. The same applies to
milk. In Col. Mordechai's opinion, there is currently no shortage of food.
He emphasized that, even before the operation, UNRWA was allowed to fill its
warehouses with food.

20. On the normative level, the rule is that a military commander that
takes over an area by way of combat must provide for the nutritional needs
of the local residents under his control. The specific details of this
obligation depend, of course, upon the current state of the combat. However,
it is prohibited for combat to cause the starvation of local residents under
the control of the army. See Almandi, at 36. On the practical level, it
seems to us that the food problem has been solved. Nonetheless, we must note
once again, that just like the medicine problem, the issue of food for the
civilian population must be part of any advance planning for a military
operation. The full responsibility for this issue lies with the IDF. The IDF
is, of course, likely to be assisted by international organizations, such as
the Red Cross and UNRWA. However, the actions of the latter do not relieve
the army, which has effective control of the area, from its basic obligation
towards the civilian population under its control. Compare the Fourth Geneva
Convention, § 60.

Evacuation of Casualties
21. Petitioners claim that, as the military operation commenced, the road
from Rafah to Khan Younis was blocked in both directions. That morning,
ambulances evacuating casualties from Rafah to Khan Younis did not succeed
in returning to Rafah. Therefore, wounded persons remained in the A-Najar
hospital. That hospital is not equipped or advanced enough to treat the
tens of wounded arriving. Due to the blocking of the road, the lives of many
wounded are in danger. Moreover, evacuation of the wounded from A-Najar
hospital in Rafah to hospitals outside of Rafah is allowed only on the
condition that the name and identification number of the wounded person and
the license number of the ambulance intended to evacuate him are provided.
Whereas the demand for the license number of the ambulance is possible to
satisfy - though with difficulty - it is impossible to provide the name and
identification number of the wounded. The reason for this is that many of
the wounded are not conscious and their identity is not known. As such,
ambulances are unable to evacuate unidentifiable casualties. Moreover, the
entrance of additional ambulances into the A-Sultan neighborhood is
prevented due to the excavations that the IDF is carrying out in the area.
In one instance, shots were even fired on an ambulance of the Red Crescent.
Petitioners request that we order the IDF to refrain from hurting or
threatening the medical teams or civilians engaged in the evacuation of
casualties. They also request that medical teams and Palestinian ambulances
be allowed to reach the wounded in Rafah in order to evacuate them to
hospitals. Finally, they request that we order respondent to allow the
transfer of wounded in ambulances from the hospital in Rafah to other
hospitals in the Gaza Strip with no need for advance permission, or
provision of the identities of the wounded.

22. In his written response, Col. Mordechai stated that the IDF allows
the entrance of ambulances and medical teams into Rafah to evacuate
casualties. The evacuation is coordinated with Red Cross and Red Crescent
officials, the Palestinian Civilian Liaison office, various UNRWA officials,
different Palestinian officials, and Israeli human rights organizations that
contacted the Humanitarian Hotline. On the whole, IDF forces are not
preventing the entrance of ambulances into the Rafah area or the passage of
ambulances from the Rafah area to the Khan Younis area. Regarding the demand
for the identification of the ambulances and the wounded, Col. Mordechai
mentioned, in his written response, that these demands are based on the
desire to ensure that Palestinian medical teams are indeed transferring
people who are wounded, and that the vehicles are indeed ambulances and not
vehicles used for other purposes. In past experience, Palestinian terrorists
have used ambulances for terrorist activities, including the transportation
of armed Palestinians and the smuggling of arms from one area to another.
During oral arguments, Col. Mordechai added that a Coordination Office
Officer is attached to each battalion. One of his main duties is to insure
the orderly evacuation of the wounded, in coordination with the ambulance
teams. During the operation, more than eighty ambulances have passed from
the northern Gaza Strip to Rafah in the south. The IDF permits the passage
of any ambulance, provided that such passage is coordinated with it. The
search of the ambulance - to ensure that forbidden combat equipment is not
being transferred from one area to another - is completed in a matter of
minutes. The evacuation of the wounded is not contingent upon the relaying
of their names and identification numbers. Those whose identities are not
known are also being evacuated. However, if it is possible to receive the
name and identity number, this information is requested and received. Col.
Mordechai mentioned, regarding the evacuation of wounded to locations
outside of Rafah, that more than 40 ambulances have exited Rafah, heading
north. Every ambulance requesting exit is allowed to do so. All that is
required is coordination regarding the route. As for the shooting upon an
ambulance, Col. Mordechai stressed that it was not intentional. There are
clear instructions that shooting on ambulances is prohibited. "Ambulances
are out of bounds" - so stated Col. Mordechai before us. Col. Mordechai
informed us, that tens of ambulances passed with no harm done to them. It is
to be regretted if a single exception occurred. Wireless contact exists
between ambulance drivers and officers of the DCO, by which proper
coordination between forces maneuvering in the field and ambulances is
maintained. When the passage of an ambulance is prevented by dirt piled on
the road, all is done - after coordination - to bring a bulldozer to remove
the obstacle.

23. There is no disagreement regarding the normative framework. The army
must do all possible, subject to the current state of the combat, to allow
the evacuation of local residents wounded during combat activities. On this
issue, Justice Dorner gave the ruling of this court more than two years ago
in HCJ 2936/02 Physicians for Human Rights v. Commander of IDF Forces in the
West Bank:

[O]ur 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.

In HCJ 2117/02 Physicians for Human Rights v. Commander of IDF Forces in the
West Bank, Justice Dorner stated:
[I]nternational law provides protection for medical stations and personnel
against attack by combat forces . [It is forbidden], under all
circumstances, [to] attack 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 ..
[P]rotection 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
It appears to us that the passage of ambulances to and from Rafah proceeded
properly. This was made possible, among other means, by the contact between
the IDF - via officers of the DCO - and the ambulances. This contact was
proper, and it was put into effect properly. In addition, ambulances move
freely to and from the area. The demand of the IDF regarding the license
plate numbers of ambulances is reasonable. It is appropriate not to make the
transfer of wounded contingent upon the relaying of their names and
identification numbers. However, we see no fault in the attempt to receive
this information when it is attainable, assuming that receipt of this data
is not a condition for transport outside of the combat area and does not
cause unreasonable delay in transport. The single instance of shooting on an
ambulance was an exception. We have been convinced that the instructions
forbidding such activity are clear and unequivocal. It seems to us,
therefore, that as far as this issue is concerned, the petition has been

Burying the Dead
24. Petitioners' attorney maintains that, at A-Najar Hospital in Rafah,
there are 37 bodies of residents that were killed during the course of the
IDF operation. It is not possible to bury them due to the restrictions
imposed by the army. In his response before us, Col. Mordechai noted that,
as far as the army is concerned, there is no impediment to the burial of the
dead in cemeteries. These are located, to the best of his knowledge, outside
the neighborhood of Tel A-Sultan and, as such, the burials can be carried
out immediately. In their response, petitioners noted that the funerals had
not been conducted because the army has surrounded the neighborhood of Tel
A-Sultan, and is not allowing relatives of the dead to participate in the
funerals. Col. Mordechai admitted that this is true.

25. This response does not satisfy us. We noted that a solution to this
problem must be found quickly. Thus, for example, we asked why the
relatives, whether all or some or some of them, 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 May 23, 2004, we were
informed by respondent, on behalf of Col. Mordechai, that respondent had
decided (on May 21, 2004) to allow a number of family members of all those
killed to leave the Tel A-Sultan neighborhood in order to conduct funerals.
This proposal was rejected by the Palestinians. That statement also noted
that on that same day (May 21, 2004) respondent had offered, as a goodwill
gesture, to allow 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 (May 22, 2004) respondent
was prepared, as a goodwill gesture and in response to a request by the Red
Cross, to allow the family members of all of the dead to leave the
neighborhood in order to take part in funeral ceremonies, without limit on
number, provided that the funerals not all be conducted at the same time.
The Palestinians rejected this proposal as well. On Sunday (May 23, 2004)
respondent announced that he was prepared, as a goodwill gesture, and in
coordination with the Palestinian Authority, to allow several buses to leave
the neighborhood in order to allow family members to take part in their
relatives' funerals. According to respondent, the Palestinians had begun
organizing the buses needed to transport those family members leaving Tel
A-Sultan for the funerals. A complementary statement from the respondent
(dated May 25, 2004) informed us that the attempt (on May 23, 2004) to
transport family members out of the neighborhoods on organized buses for the
funerals had not been successful due to the opposition of the Palestinians.
Respondent added that on that same day (May 23, 2004), after IDF troops
pulled out of the Tel A-Sultan neighborhood, 22 funerals took place, and
there had been no impediment to the participation of family members who
reside in the neighborhood of Tel A-Sultan, as traffic between the
neighborhood and the area where the funerals took place was not held up by
the IDF.

26. In their response of May 24, 2004, petitioners reported, after
discussions with the mayor of Rafah, that the residents of Rafah had indeed
refused the IDF's proposals, and that this had significantly limited the
participation of families in the funerals. The residents preferred to
perform the funerals after the curfew was lifted in order to ensure that the
prayer for the dead was recited and that a temporary structure would be
erected for the mourners so that they could receive those who come to
comfort them, in line with Islamic law. We were further informed that the
mayor of Rafah had announced that, since the end of the closure on Tel
A-Sultan, the residents of Rafah had begun organizing a mass funeral for 23
dead. The funeral would take place in the afternoon and was expected to
continue until the late afternoon due to the large number of dead.

27. The problem of burying the dead was resolved. Nevertheless, there are
lessons to learn form the incident. Our assumption is that the fundamental
principle that the dignity of local residents must be protected, as
enshrined in section 27 of the Fourth Geneva Convention, encompasses not
only local residents who are living, but also the dead. Compare Fourth
Geneva Convention, §130; see Pictet, at 506; see also HCJ 3436/02 The
International Custodian of Terra Santa v. The Government of Israel, at 22,
25. Human dignity includes the dignity of the living and the dignity of the
dead. The same applies with regard to domestic Israeli law. See CA 294/91
Jerusalem Community Jewish Burial Society v. Kestenbaum, at 464; FH HCJ
3299/93 Wikselbaum v. The Minister of Defense, at 195; CA 6024/97 Shavit v.
Rishon Lezion Jewish Burial Society, at 600. "The protection of the dead and
their dignity is just like the protection of the living and their dignity."
See Justice J. Türkel in HCJ 81/66 The Inspector-General of The Israel
Police v. Ramla Magistrate Court Judge Mr. Baizer, at 337, 353. The
military commander is duty-bound to search for and locate dead bodies. See
HCJ 3117/02 The Center for the Defense of the Individual - Founded by Dr.
Lota Salzberger v. The Minister of Defense, at 17, 18. After bodies are
found, he is obligated to ensure that they are accorded a dignified burial.
In the Barake case, which discussed the duty of the military commander
regarding dead bodies during army operations, we stated:

Our starting point is that, under the circumstances, respondents are
responsible for the location, identification, evacuation, and burial of the
bodies. This is their obligation under international law. Respondents accept
this position. The location, identification, and burial of bodies are
important humanitarian acts. They are a direct consequence of the principle
of respect for the dead-respect for all dead. They are fundamental to our
existence as a Jewish and democratic state. Respondents declared that they
are acting according to this approach, and this attitude seems appropriate
to us. Indeed, it is usually possible to agree on humanitarian issues.
Respect for the dead is important to us all, as man was created in the image
of God. All parties hope to finish the location, identification, and burial
process as soon as possible. Respondents are willing to include
representatives of the Red Cross and, during the identification stage after
the location and evacuation stages, local authorities as well (subject to
specific decision of the military commander). All agree that burials should
be performed with respect, according to religious custom, in a timely
Id, at 15.

The army attempted to act according to these principles in the
case at hand. The dead were identified and transferred to A-Najar Hospital.
At both these stages the Red Cross and the Red Crescent were involved. The
problem here, however, concerned burial. Respondent was obviously prepared
to bury the dead, but it believed that it had discharged this duty by
transferring the bodies to A-Najar Hospital. This was not the case. The duty
of the respondent is to ensure a dignified burial for the bodies. To this
end, he must negotiate with the local authorities, to the extent that they
are functioning, and find respectful ways to carry out this duty. As is
clear from the information presented to us, the main difficulty which arose
was the participation of the relatives of the dead. This matter was in the
power of the respondent, whose forces controlled all entrances and exits to
Tel A-Sultan, and respondent was obviously limited by security
considerations. Apparently, the later proposals should have been proposed
earlier. The changing position of respondent indicates that it did not
prepare for the situation in advance, and it improvised the proposed
solutions on the spot. This should not have happened. Preparations for
dealing with the dead should have been planned in advance. Clear procedures
should be fixed regarding the different stages of the process. Of course,
if, at the end of the day, the dead are in a hospital and their relatives
refuse to bury them, they should not be forced to do so. Nevertheless,
everything should be done in order to reach an agreement on this matter.

Shelling of the March

28. Petitioners claim that on Wednesday, May 19, 2004, thousands of
Palestinians from Rafah participated in a quiet and non-violent procession.
They marched in the direction of Tel A-Sultan. Some of the participants were
armed and masked. The marchers included men and women, both children and
adults. Many of the marchers held food and water, which they intended to
bring to the residents of Tel A-Sultan, who had 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 towards them. According
to reports from the marchers, the fire came only from the direction Tel
Al-Zuareb observation post, a post manned by the IDF. The fire towards the
marchers caused the deaths of eight civilians. About half of the casualties
were minors. Petitioners ask that we order a probe of the incident by
Military Police Investigations. They also ask that we order respondent to
issue an unequivocal order absolutely forbidding the shooting or shelling of
civilian gatherings, even if there are armed elements among them, if they do
not pose an immediate danger to life.

29. Respondent informed us that an initial investigation was conducted
immediately. It found that there was a mishap while firing tank shells
towards an abandoned building, and the eight Palestinians were killed by
shrapnel. One of them was an armed activist of the Islamic Jihad. The other
seven victims were completely innocent. It was emphasized that there is a
great deal of arms in Rafah, including armor-piercing weapons. It was also
emphasized that, in the past, terrorists have often attempted to use
civilians as cover to strike at the IDF. It was also feared that the
protesters would climb onto the armored vehicles with soldiers inside them.
The procession took place in a combat zone. Among the marchers were armed
elements. In initial negotiations with the protesters, the attempt was made
to halt the procession. The attempt failed. Afterwards, deterrents were
employed. These also failed and the procession continued on its way. It was
then decided to fire hollow shells toward the abandoned building.

The full investigation is yet to be completed. With its completion
the material will be passed on to the Judge-Advocate General, who will
decide on the matter. Respondent added that IDF rules of engagement for
opening fire, which also address situations of civilian gatherings,
incorporate the legal and ethical stance of preventing harm to the innocent.
Nevertheless, he reiterated that this was a situation of active warfare and
danger to troops in an area densely populated with civilians, where the
combatants do not differentiate themselves from the civilian population, but
conceal themselves within it. The deliberate use of the population as a
human shield, in contravention of the basic rules of combat, constitutes a
war crime.

30. The investigation of this tragic event has not yet been completed.
All the material will be passed on to the IDF Judge-Advocate General. Under
these circumstances, there is no call, at this stage, for any action on our
part. Petitioners must wait for the findings of the investigation and the
decision of the Judge-Advocate General. It may be assumed that lessons will
be drawn, and if there is a need for a change in the instructions that are
given to the troops, this will be implemented. At this stage, in the absence
of facts, we can only repeat the obvious: the army must employ all possible
caution in order to avoid harming a civilian population, even one that is
protesting against it. The necessary precautions are, obviously, a function
of the circumstances, such as the dangers posed to the civilians and the
soldiers. Compare CA 5604/94 Khemed v. The State of Israel.

The Requested Remedies

31. In their petition, Petitioners listed seven remedies that they
requested from us, see supra 4. Regarding six of these seven, we have
examined the specific issues detailed by petitioners. See para. 14 (water),
para. 15 (electricity), para. 16 (medical equipment and medicines), para. 18
(food), para. 20 (evacuation of wounded), para. 27 (investigation of the
fire on the march). The final request remains. This is petitioners' request
that we order respondent to allow the entry of a delegation of three doctors
from Petitioner 1 (Physicians for Human Rights) into hospitals in the Gaza
Strip, in order to provide for their medical needs, and bring in equipment
and suitable medical practitioners.

32. In his written response, Col. Mordechai noted that any delegation of
doctors from petitioner 1 or any other authorized body may enter the area
and visit the hospitals. The single condition that respondent insists upon
is that there be no Israelis among the visiting doctors. This is due to fear
of harm to them or their group, an occurrence which could complicate the
security situation further. In this context, he noted that there is already
a team from the International Committee of the Red Cross in the field, and
that the head of the International Red Cross Bureau in Israel is in direct
contact with the IDF. During oral arguments, respondent added that there is
no impediment to the visit of non-Israeli doctors who are employees of
Israeli hospitals. Moreover, there is nothing stopping doctors employed in
hospitals in Judea and Samaria, or hospitals in the Gaza Strip, from
visiting and investigating the situation. These proposals did not satisfy
petitioners, who insisted that Israeli doctors be authorized to enter
hospitals in the Gaza Strip.

33. Regarding this matter, we do not find any flaw in the position of
respondent. We are convinced that respondent's stance is purely
security-related, and that he has no motivations that are not founded on a
concern for security issues. Indeed, fears for the welfare of Israelis who
enter the Gaza Strip in general, and combat zones in particular, are
justified. Respondent has enforced a similar rule even when no military
operation was under way, and this stance was deemed legal. This was the case
regarding the entry of Knesset members into the Gaza Strip, see HCJ 9293/01
Barake v. The Minister of Defense, at 509. It was so even with regard to the
entrance of doctors from Petitioner 1 into the Gaza Strip, see HCJ 3022/02
Physicians for Human Rights v. The Commander of the IDF Forces in the Gaza
Strip, at 39. Israel has a duty to protect its citizens. It does not forfeit
this duty because some citizens are "prepared to take the risk." The State
remains responsible for the safety of its citizens, and it must do its
utmost to return them safely to Israel. Allowing the entrance of Israeli
doctors to a combat 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. It has been noted that there should be no difficulty
for Petitioner 1 to find three non-Israeli doctors - be they from Gaza
itself, Judea and Samaria, Israel or the rest of the world - who will be
prepared to carry out for it the required inspection. In this matter the
petition is denied.

The Future

34. According to the humanitarian principles of international law,
military activities require the following: First, that the rules of conduct
be taught to, and that they be internalized by, all combat soldiers, from
the Chief of General Staff down to new recruits. See Physicians for Human
Rights, at 5. Second, that procedures be drawn up that allow implementation
of these rules, and which allow them to be put into practice during combat.
An examination of the conduct of the army while fighting in Rafah, as
detailed in the petition before us - and we have nothing other than what has
been presented to us - indicates significant progress compared to the
situation two years ago. See Barake; Physicians for Human Rights and other
decisions. This is the case regarding the implementation of the duty to
ensure water, medical equipment, medicines, food, evacuation of the wounded,
and the burial of the dead. This is also the case regarding the preparation
of the army, and the design of procedures that allow humanitarian
obligations to be satisfied. The establishment of the Humanitarian Hotline
and the District Coordination Office, as well as the assignment of a liaison
officer of the Coordination Office to every battalion, greatly aided the
implementation of humanitarian principles.

35. In the framework of our discussion regarding the internalization of
humanitarian laws, we emphasize that it is the duty of the military
commander not only to prevent the army from harming the lives and dignity of
the local residents (the "negative" duty: see supra para. 11). He also has a
"positive" duty (para. 11). He must protect the lives and dignity of the
local residents. For example, regarding the burial of local residents, the
military commander was satisfied that the corpses were transferred to
A-Najar Hospital. But this was not enough. He is obligated to do his utmost
to ensure that the bodies be brought to a dignified burial according to
local custom. He must make prior arrangements in order to ensure there are
sufficient supplies of food and water. Damage to the water supply is
something that can be anticipated from the outset, and if it cannot be
avoided, a solution to this problem must be prearranged. Supplies of
medicines, medical equipment and food should also be prepared in advance.
Harm to local residents is expected and if, despite every effort to limit
this, in the end there will be casualties among residents, this must be
prepared for from the outset. Respondent should not rely solely on
international and Israeli aid organizations to solve these problems, though
their aid is important. The recognition that the basic duty belongs to the
military commander must be internalized, and it is his job to adopt
different measures from the outset so that he can fulfill his duty on the

36. Additional measures should be adopted so that the established
institutional arrangements (see supra para. 3) will be more effective. We
were informed that those who called the Humanitarian Hotline had to wait
many hours. Col. Mordechai noted several times that some issues should have
been referred to him, and not to the Humanitarian Hotline. The lack of
information led, on several occasions, to inefficiency in aid efforts by
third parties. Thus, for example, a vehicle of Petitioner 1 laden with
medical equipment and medicines waited at Erez Crossing while the entrance
point was Karni Crossing. However, at Karni Crossing their entrance was
again denied, since Israeli doctors were among the passengers in the
vehicle, and the army was only prepared to allow the entry of non-Israeli
doctors. These issues and others need to be addressed. It is possible that
the Humanitarian Hotline needs to be expanded, and there needs to be more
effective communication between it and the District Coordination Office and
the Coordination Office's liaison officers placed with the combat
battalions. It is possible that there is a need, with regard to
international and Israeli organizations whose humanitarian involvement is
anticipated, to bypass the Humanitarian Hotline and facilitate direct
contact with the DCO. It is possible that there is a need to take other
measures. This matter is for the respondent to address; it must learn from
the events of the day.

37. With the conclusion of the arguments in the petition, we ordered that
the military staff in the area ensure that they solve not only the problems
raised by petitioners, but also anticipate new problems that, in the nature
of things, will arise in the future. For this reason it has been decided
that Col. Mordechai will appoint a senior officer who will remain in direct
contact with petitioners. This is the least that should have been done at
the time the events were unfolding. The main thing is that it must be done
now in order to learn lessons from the episode.

38. Before we conclude we wish to inform petitioners' attorney Fatima
Al-Aju that she presented the position of petitioners clearly and
responsibly. Respondent's attorneys, Anar Helman and Yuval Roitman, also
provided us with the most comprehensive and up-to-date information possible
in a very short space of time. We also express thanks to Col. Mordechai, who
was good enough to explain to us the details of the area and the activities
of respondent and, to the best of his ability, translated humanitarian
standards into practical language.

39. The outcome is, therefore, that the petition is granted regarding six
of petitioners' seven requests. The seventh request - the entry of Israeli
doctors from Petitioner 1 to the area in general and A-Najar Hospital in
particular - is denied, due to the danger to the doctors. In this matter one
must be satisfied by the proposal of respondent - which has been rejected by
petitioners - that non-Israeli doctors (whether from the Gaza Strip, Judea
and Samaria, Israel, or anywhere else in the world), will be allowed to
enter the area.

Justice J. Türkel

I concur.

Justice D. Beinisch

I concur with the opinion of the President. I also concur with his
conclusions regarding the principles of the IDF's obligation to satisfy its
responsibilities - under customary international law, under treaties to
which Israel is a party, and under the fundamental principles of domestic
Israeli law - towards the civilian population in combat areas. Similarly, I
also concur with regard to the particulars at issue here: that the situation
regarding the requested remedies was clarified by a close investigation of
the facts together with our holding regarding the specific obligations of
the IDF to enable the civilian population to continue its routine,
especially regarding the provision of medicines, food, medical assistance,
water, electricity, evacuation of casualties and burial of the dead.

As such, I join the President's conclusion that all military operations
require advance preparation regarding all issues concerned with the civilian
population in the combat zone. Such advance preparation will take into
account humanitarian obligations towards the civilian population, the
possibility of harm to it, and consequences that must be prevented or - at
the least - minimized.

Even if it is impossible to forecast the course of military operations,
there is no doubt that the basic needs of the civilian population in the
combat zone - whose lives and property stand a substantial chance of being
harmed - can be predicted. As such, in planning military activities, the
humanitarian obligations towards the civilian population, which is caught
between the cynical exploitation of terrorists and the military operations
seeking to uproot that terrorist infrastructure, must be taken into account.
The military forces operating within that population bear the two
responsibilities outlined by the President: the obligation to refrain, to
the extent possible, from harming civilians, and the positive obligation to
ensure that these civilians are not harmed. In any case, the IDF must
minimize, to the extent possible, the suffering of those in the combat zone.
This is all subject to the requirements of the military operation, and does
not diminish the military commander's obligation to protect the lives of
soldiers under his command.

If these obligations are not satisfied, the doors of this Court remain
open - in times of war as in times of peace - to those injured (In practical
terms, the injured may be represented by organizations). At the same time,
the difficulty of employing judicial review as combat continues reduces the
effectiveness of that review and makes intervention by the Court difficult.

As the President noted, this court does not examine the wisdom of the
military operations. Neither does it intervene in decisions concerning when
military action should be taken. Judicial review, as it requires detailed
clarification of a situation, is constrained during times of combat. First,
from a practical standpoint, the fact that the Court must review an
ever-changing battle situation and deliver its opinion swiftly, makes
verification of the party's claims and clarification of the factual
situation difficult. As distinct from regular petitions, where the factual
situation can be laid out before the Court, judicial review exercised during
combat activities requires a unique type of process, and the current
petition constitutes a stark example of that. The facts here were clarified,
and they changed and developed, during combat itself. During arguments, the
parties stood in contact with and reported from the combat zone. These
reports, as they came in, changed the factual situation before us. The
President's opinion details how this occurred in practice. In such
situations, judicial review is an inadequate tool with which to review
real-time developments and to grant effective and efficient remedies.

Second, judicial review during active combat brings the Court closer to the
zone of combat, and requires a new balance between conflicting values -
between the fact that the Court will not intervene in the combat activity
itself, and between the need to ensure, at the same time, that combat
proceeds according to humanitarian obligations. These constraints do not
deter the Court from exercising judicial review in real-time and from
handing down orders. Judicial review is exercised despite these constraints.
This is not the first time that we have examined the implementation of
humanitarian principles during combat, as the cannons roar and the sounds of
fire are still being heard.

In these circumstances, a heavy burden is placed on the combat forces. Even
so, the burden does not excuse the duty, and the military commander must
prepare in advance in order to satisfy his obligations. As such, I concur
with the President that institutional arrangements must be fashioned that
will allow the implementation of humanitarian principles during times of
combat. This will require an infrastructure and logistical planning before
military operations are commenced. Medical equipment and medicines must be
provided and means of transporting these to the battle zone must be made
available. Essential services such as water and food must be provided to the
civilian population. Substitutes for the civilian infrastructure that will
be damaged must be prepared. Appropriate arrangements for the evacuation of
casualties must be provided. This also applies to other issues that can be
predicted. The ability to determine the needs of the civilian population
must be provided for; arrangements for coordination between the military and
between humanitarian organizations, local governments, and bodies that
represent the population must be prepared. These are difficult in the
current circumstances: where the civilian population is hostile, where that
populations recoils from actions that may be interpreted as cooperation, and
where terrorists cynically exploit that population for their own purposes.
This reality, however, is the reality in which the military commander must
satisfy his humanitarian obligations.

Even if, in Israel's difficult reality, the following does not guarantee an
optimal solution, it will promise improvement: the establishment of detailed
guidelines, of logistical planning, of rules for the security forces in
their interaction with the civilian population, and of a mechanism for
direct communication with the bodies that act on behalf of that population.
These will ensure that the harm caused to the civilian population is
minimized, that international and Israeli law is followed, that effective
solutions will b found, and that the need to resort to judicial review in
order to protect the law will be reduced.

Decided as per the opinion of President Barak.

May 30, 2004

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