In early January 2009, human rights groups in Israel submitted two petitions to the Supreme Court against the Israeli military challenging its actions against Palestinian civilians in the Gaza Strip in violation in international humanitarian and human rights law. The petitions were based on information that the army was shelling and firing at medical teams and ambulances in Gaza, preventing and delaying the evacuation of the injured, and that essential infrastructure, including the electricity and water systems necessary to the survival of the civilian population had broken down.

The Supreme Court rejected the two petitions on 19 January 2009. In its ruling, the court determined that there was no legal dispute between the parties regarding the obligations that apply to the State of Israel and their relevance to the petitions. According to the ruling, the disagreement turned on the way in which these obligations were fulfilled (para.17 of the ruling). The court ruled that, in light of the establishment by the state of humanitarian mechanisms, “we must hope that the humanitarian array of measures will operate as required and in accordance with its obligations” (paras. 23 and 27).

The court unquestioningly accepted the state’s claims to have respected international law, despite the evidence and affidavits presented by the petitioners, reports from international aid organizations and media reports that clearly showed repeated violations. Although the petitioners had sought urgent and immediate action, the court issued its rulings about two weeks after the petitions were filed and two days after the end of fighting. The timing of the decision indicates that the court did not give serious consideration to the principle of an effective of legal remedy, which mandates a prompt hearing and decision.

The first petition was filed by Adalah Attorney Fatmeh El-'Ajou on 6 January 2009 in Adalah's own name and on behalf of Physicians for Human Rights-Israel (PHR-I), the Public Committee Against Torture in Israel (PCATI), Gisha, Bimkom, the Association for Civil Rights in Israel (ACRI), HaMoked, and Yesh Din. The petition challenged Israeli military attacks targeting ambulances and medical teams engaged in carrying out their duties in assisting the wounded, and the delays imposed by Israel on the evacuation the injured to hospitals in Gaza for medical treatment.

The second petition was filed on 7 January 2009 by Attorney Sari Bashi of Gisha in Gisha's own name and on behalf of Bimkom, ACRI, PCATI, HaMoked, Yesh Din, Adalah, PHR-I, and Rabbis for Human Rights. In the petition, the organizations demanded that the court order the State of Israel to ensure the supply and transport of fuel to Gaza, in particular to power plants and the water and sewage systems. The petitioners further demanded the repair of the electricity grid, particularly the electric lines that were disabled due to the collapse of the water and sewage systems. As a result, the electric supply was cut off from approximately one million Gaza residents, hospitals, and vital systems, around 800,000 people had no water, and raw sewage was flowing through the streets.

The petitioners provided the court with frequent updates regarding the facts on the ground and the unmet humanitarian needs of civilians. Data was brought before the court concerning attacks against medical teams, even after they had coordinated their evacuation work with the Israeli army, as demanded by Israel; oftentimes medical assistance delays lasted for many days. Data on the status of Gaza’s electricity and water and the ramifications for the health systems and the civilian population were also provided to the court, as well as reports by UN and other humanitarian agencies. Both sets of petitioners argued that, despite the existence of humanitarian mechanisms, violations of IHL continued to be committed regarding the protection of medical teams and facilities, the evacuation of the wounded, protecting the civilian population and ensuring vital services.

In response to this evidence, the state argued that the court should dismiss the petitions on the grounds that the petitioners' cases were non-justiciable (matters inappropriate to bring before a court). Further, the state claimed that Israel was adhering to the applicable rules of IHL. Concerning the first petition, the respondents announced that the guidelines issued to the military forces operating in the field are to avoid attacking medical teams and ambulances performing their duties, except in cases where it is clear that the ambulances were being abused for belligerent purposes against the army. The state also claimed that the army was enabling the evacuation of the injured for medical treatment subject to the “complex realities” of the fighting. These claims are contradicted by the petitioners' evidence according to which medical teams were unjustifiably attacked in violation of these guidelines.

Regarding the electricity cuts and damage to infrastructure, the state argued that in the context of the hostilities it had been impossible to completely avoid striking the local electric grid, adding that even in the midst of fighting efforts were made to repair damaged electric lines. The state further claimed to be working to allow a maximal supply of electricity to enter the Gaza Strip, subject to the security constraints. The state did not respond to the petitioners' evidence, which indicated that the scope of the attacks on Gaza’s infrastructure was far wider than the respondents had depicted before the court, and that hundreds of thousands of people and vital service buildings remain without electricity and water supplies.

Decision of the Supreme Court (19.1.09)