9 April 2002

Supreme Court Dismissed Petition on Wounded and Killed Palestinians in Jenin and Nablus

On 8 April 2002, the Israeli Supreme Court dismissed a petition challenging the Israeli army's prevention of access to medical treatment for the sick and wounded in Jenin and Nablus; restriction of access of medical personnel and transport to the areas; and obstruction of the right to bury the dead in a respectful manner. The case, filed by Adalah Staff Attorney Jamil Dakwar, on behalf of Adalah and LAW - The Palestinian Society for the Protection of Human Rights and the Environment, was heard the same morning by a three-judge panel composed of Justices Dalia Dorner, Ayala Procaccia and Edmund Levy. The panel joined a second petition filed by Attorney Andre Rosenthal on behalf of Physicians for Human Rights - Israel (PHR) regarding access to medical treatment and attacks on ambulances and hospitals, and ruled on both petitions in its decision.

Writing for the panel, Justice Dorner stated that:

"Although it is not possible to address the specific incidents in the petition that on their face look harsh, we have to stress that our fighting forces are 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 IDF to act in order to prevent such activity; however, this by itself does not allow a sweeping violation of humanitarian rules. In fact, this is also the declared position of the State. This attitude is not only required by international law, on which the petitioners are relying, but also by the values of the State of Israel as a Jewish and democratic state."
She added that 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.

During the court hearing, Adalah cited instances in which the Israeli army prevented the sick and wounded from getting treatment, and referenced the recent decision by the Palestine Red Crescent Society to limit its movements in the West Bank to a strict minimum due to attacks on its personnel and ambulances by Israeli forces. Adalah also gave examples of incidents in Nablus and Ramallah where burials were forced to take place in mass graves, as families were unable to evacuate and properly bury their dead. These concerns had been previously raised in pre-petitions submitted by Attorney Azmie Odeh and Mr. Dakwar on 5 and 7 April 2002 respectively. Such incidents constitute clear breaches of international humanitarian law, notably the Geneva Convention (IV) Relative to the Protection of Civilians Persons in Time of War (1949), which upholds the obligation of parties to the conflict to both protect and facilitate the removal of the sick and injured. It also calls on all parties to facilitate the search for the killed and wounded.

In its response, the Attorney General's representative Attorney Aner Helman stated that the Israeli army is fighting a serious and intensive war, citing an example in which the Israeli army would only permit the evacuation of an injured individual, who was on their wanted list, on the condition that he would be arrested before receiving medical treatment. Mr. Helman added that the State cannot permit free access of humanitarian agencies due to a few incidents in which the army reportedly found explosives or wanted individuals in ambulances.

Adalah responded that these arguments do not take into account the urgency and severity of the situation, as Palestinian civilians who are sick and wounded have died due to the inability to access medical treatment. Through its actions in Jenin and Nablus, in which Israeli forces are using helicopters and ground troops to attack Palestinian civilian populations, the Israeli army is exhibiting blatant disregard for the rights to life and dignity. Further, the situation on the ground is not one of conflict between two armies. The Israeli army is using tanks, helicopter gunships and other heavy military equipment to attack and reoccupy Palestinian civilian areas. As the occupier, 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. Noting that there is a pattern of such policies since the re-occupation of towns in the Occupied Palestinian Territories (OPTs), Adalah urged the Court to oblige the army to allow evacuation of the killed and wounded.

Adalah believes that the aim of the Israeli army in preventing medical personnel and transport from accessing the OPTs is to paralyze the medical infrastructure in the area. The Israeli army is effectively holding the civilians in the re-occupied areas hostage in order to force Palestinian armed militants to surrender.

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