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Physicians for Human Rights and others v. Prime Minister of Israel and others & Gisha Legal Centre for Freedom of Movement and others v. Minister of Defence

Court The Supreme Court sitting as the High Court of Justice, Israel
Case number HCJ 201/09 & HCJ 248/09
Decision title Judgment
Decision date 19 January 2009
  • Physicians for Human Rights and others
  • Gisha Legal Centre for Freedom of Movement
  • Prime Minister of Israel
  • Minister of Defence of Israel
Categories War crimes
Keywords Belligerent occupation; civilians; Israel; Palestinian Territories; Gaza Strip; law of armed conflict; medical personnel; Operation Cast Lead
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When Hamas, a Palestinian armed resistance group, came into power in Gaza, southern Israel was increasingly subject to heavy missile attacks. On 27 December 2008, the Israeli Defence Forces (IDF) began a large-scale military operation that Israel initiated in the Gaza Strip in order to stop the shooting of mortars. During that operation, also known as “Operation Cast Lead”, the IDF entered the Gaza Strip and attacked targets used by Hamas. In January 2009, two organisations filed a complaint against Israel and claimed that during the operation, the IDF did not protect medical centres and personnel, did not help with the transfer of wounded people, and did not supply electricity to the Gaza Strip. The Israeli Supreme Court found that Israel was acting reasonably and had not violated any international rules.

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Procedural history

On 7 and 9 January 2009, two petitions were filed by human rights organisations (Physicians for Human Rights and the Gisha Legal Centre for Freedom of Movement) to the Israeli High Court of Justice challenging the legality of certain actions during ‘Operation Cast Lead’. The petitioners complained that the Israel Defence Forces (IDF) had failed to comply with international humanitarian law in the protection of medical facilities and personnel, the evacuation of wounded persons, and the supply of electricity to the civilian population in the Gaza Strip. Israel responded that ambulances and medical facilities that it had targeted, were being used in the conduct of hostilities, and that others were simply harmed by mistake. Israel further claimed that since its withdrawal in 2005, it had no control over the Gaza Strip and could therefore not protect the civilian population, but that it was repairing any damaged electricity lines.

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Legally relevant facts

On 27 December 2008, the IDF launched “Operation Cast Lead” ostensibly to stop or reduce the firing of rockets from the Gaza Strip into Israel, resulting in hundreds of civilian Palestinian deaths.

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Core legal questions

Did the IDF commit any violation of international law or customary laws during Operation Cast Lead?

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Specific legal rules and provisions

Geneva Convention (I), 1949:

  • Article 21 - Discontinuance of protection of medical establishments and units

  • Article 24 - Protection of permanent personnel

  • Article 25 - Protection of auxiliary personnel

  • Article 26 - Personnel of aid societies

Geneva Convention (IV), 1949:

  • Article 16 - Wounded and Sick I. General protection

  • Article 18 - Wounded and Sick II. Evacuation

  • Article 20 - Wounded and Sick V. Hospital Staff

  • Article 23 - Consignment of medical supplies, food and clothing

  • Article 27 - Treatment I. General observations

  • Article 30 - Application to Protecting Powers and relief organizations

Additional Protocol (I) to the Geneva Conventions, 1977:

  • Article 8(c) - Terminology

  • Article 12 - Protection of medical units

  • Article 13 - Discontinuance of protection of civilian medical units

  • Article 14 - Limitation on requisition of civilian medical units

  • Article 15 - Protection of civilian medical and religious personnel

  • Article 16 - General protection of medical duties

  • Article 70 - Relief actions
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Court's holding and analysis

On 19 January 2009, the Supreme Court sitting as the High Court of Justice held, contrary to Israel’s claims, that IDF activities were justiciable as they were subject to domestic and international legal and customary norms governing international armed conflicts (para. 11).

The Court noted that the ‘normative arrangements that govern the armed conflict between the State of Israel and the Hamas organization are complex’, but that they ‘revolve around the international laws relating to an international armed conflict’ (para. 14). Although the classification of the armed conflict raised several difficulties, the Court held that it had regarded the conflict as an international conflict in a host of other judgments. Moreover, in addition to the applicability of the laws concerning an international armed conflict, the Court noted that belligerent occupation laws may apply as well. However, because it was ‘not yet possible to draw conclusions with regard to the factual position in the territory of the Gaza Strip and the scope of control that the IDF has in the new situation that has arisen’, there was no need to decide whether belligerent occupation laws were indeed applicable (para. 14).

Further, after having decided that an international armed conflict was taking place between Israel and Hamas, the Court did affirm the applicability of rules under the Geneva Conventions concerning the protection of civilians, medical personnel and facilities (paras. 18-19), the evacuation and medical treatment of the wounded (para. 20), and the passage of goods to aid the civilian population (para. 21).

By taking these provisions into account, the Court found that the reports and explanations provided by Israel indicated that the IDF had made efforts to redress the humanitarian needs of the civilian population in the Gaza Strip and to protect medical personnel, though, such efforts were often hampered by the complexities of the conflict. (para. 23).

Furthermore, the Court attributed blame to Hamas for the use of ambulances and medical facilities in the hostilities, for refusing to allow the evacuation of wounded persons for treatment in Israel, and for disrupting the flow of humanitarian goods (paras. 22-23).

Although the Court emphasised that the civilian population in the Gaza Strip was seriously affected by the combat operations, it held that the respondents were aware of their obligations under international humanitarian law. Moreover, they had given detailed explanations about, and examples of the measures they had carried out in order to discharge their obligations. The petitions were therefore denied by the Court.

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Further analysis

S. Horovitz, ‘Accountability of Hamas under International Humanitarian Law’, Jerusalem Center for Public Affairs and the Konrad Adenauer Stiftung, 2009, pp. 1-44.

D. Weiss and R. Shamir, ‘Corporate Accountability to Human Rights: The Case of the Gaza Strip’, Harvard Human Rights Journal, Summer 2011, Vol. 24(1), pp. 155-183.

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Instruments cited

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Related cases

High Court of Justice of England and Wales (UK), Al-Haq v. Secretary of State for Foreign and Commonwealth Affairs, Case No. C0/1739/2009, Judgment, 27 June 2009

Supreme Court of Israel, Barake et al. v. The Ministry of Foreign Defense et al., Case No. HCJ 3114/02, HCJ 3115/02, HCJ 3116/02, Judgment, 14 April 2002

Supreme Court of Israel, Public Committee v. Government of Israel, Case No. HCJ 769/02, Judgment, 13 December 2006

Supreme Court of Israel, Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank & Badia Ra’ik Suabuta v.The Commander of the IDF Forces in the West Bank, Case Nos. HCJ 2936/02 and HCJ 2941/02, 8 April 2002.