H.C. 2941/02, Badia Ra'ik Suabta and LAW v. Commander of the Israeli Army in the West Bank
Filed: 7 April 2002. Decision: 8 April 2002.
Petitioners: Badia Ra'ik Suabta and LAW - The Palestinian Society for the Protection of Human Rights and the Environment.
Note: Joined by the Supreme Court with a similar petition filed by Physicians for Human Rights - Israel (H.C. 2936/02, Physicians for Human Rights v. Commander of the Israeli Army in the West Bank).
Respondent: Commander of the Israeli Army in the West Bank, Yitzhak Eitan.
Petitioners' Requests
- Medical personnel of the International Committee of the Red Cross (ICRC) and the Palestine Red Crescent Society (PRCS) and must be allowed to evacuate the wounded to hospitals where they can receive medical treatment.
- Medical personnel must be allowed to evacuate the dead to hospitals.
- Families must be allowed to bury the dead, expeditiously and in a respectful manner, even in areas under military curfew.
- Badia Ra'ik Swabta, a petitioner in the case, is a resident of Albadan village. He was severely injured as a result of the Israeli army's actions. The army prevented medical personnel from reaching his house and evacuating him to the hospital.
- On Tuesday, 2 April 2002, the 'A'abdeh family, of Bethlehem, lost two of their relatives as a result of Israeli tank shelling: the mother, Sumiya 'A'abdeh, 62, and her son Ibrahim 'A'abdeh, 36. Because the area in which the family lives is under curfew and control of the army, who refuse to allow residents to leave their homes, their bodies remained in the family's home in Bethlehem. Transfer of the bodies to hospital in Bethlehem was allowed only two days later, after the photos of the dead in their home had appeared in the media.
- On Sunday, 1 April 2002, 28 bodies were buried in a common grave in the yard of the Ramallah Governmental Hospital. The burial took place after the morgue had filled up with bodies of the dead and the army had prevented their burial in the cemetery near the hospital.
- In dozens of cases, the army prevented the evacuation of the sick, wounded and dead. Many of the wounded were in extremely serious condition, requiring immediate medical attention.
- The army refused to allow medical personnel to enter areas in which there were wounded in need of treatment.
- Because of curfews, sieges and ongoing fighting, families were unable to evacuate and properly bury their dead. Burials were forced to take place in mass graves.
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The army's actions violate the constitutional rights of the wounded to bodily integrity, and of the deceased to dignity, as set forth in the Israeli
Basic Law: Human Dignity and Liberty.
- The army's refusal to allow families to bury their dead expeditiously and in a dignified manner is disproportionate, an arbitrary act of revenge, and without justification.
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The army's actions constitute clear breaches of international humanitarian law, notably
Articles 15 and 17 of the Geneva Convention (IV) Relative to the Protection of Civilians Persons in Time of War (1949), and Article 43 of the Hague Convention Respecting the Laws and Customs of War on Land (1907).
- The situation on the ground is not one of conflict between two armies. As the occupying power, Israel has both the ability and the obligation to call a temporary cease-fire to allow for the evacuation of the killed and wounded and the respectful burial of the dead.
- The army is fighting difficult, intensive, ongoing battles, and can not provide efficient and effective relief according to the petitioners' demands.
- The army has done everything possible to permit the provision of medical treatment to the wounded, and the evacuation of the wounded and dead, in accordance with international humanitarian law.
- Palestinians have used ambulances and hospitals to smuggle and hide terrorists, conceal means of combat and terror, and transport means of combat.
- Petitions dismissed.
- The army is "obliged to apply humanitarian rules which refer to treating the injured, in the hospitals and the bodies of the dead."
- Wrongful use of medical teams and of hospitals and ambulances obliges the army to act in order to prevent such activity.
- This by itself does not allow a sweeping violation of humanitarian rules. This is the declared position of the State.
- It is the commitment of the Israeli army on a legal, moral and utilitarian basis, to present to every soldier clear instructions which will prevent, to the greatest extent possible, any actions which are incompatible with humanitarian assistance, even in such harsh situations.
- The first petitioner, Badia Ra'ik Subata, was evacuated as a result of the petition.
- The Court's ruling, that a sweeping violation of humanitarian rules by the army is not justified, was later referred to by Adalah in H.C. 3116/02, Adalah and LAW v. Commander of the Israeli Army in the West Bank and H.C. 3022/02, LAW, ACRI, and Adalah v. Commander of the Israeli Army in the West Bank et. al. (see below).