Israeli Supreme Court dismisses petitions urging government to resume Gaza aid

Israel’s Supreme Court last Thursday unanimously rejected several petitions filed by international and Israeli human rights and non-governmental organizations seeking to compel the coalition to resume the flow of humanitarian aid into Gaza. 

While the petitions were renewed following the March 2 decision to impose a blockade on the Strip – in an effort to pressure Hamas into accepting a ceasefire extension and the release of additional hostages – the Supreme Court based its ruling on the facts and arguments presented in the original filings, submitted nearly a year earlier.

The justices were unanimous in determining that the "law of belligerent occupation" does not apply in the current situation, and that Israel has exceeded the minimum requirements of international humanitarian law (IHL) in its management of aid deliveries into Gaza during the war. 

Justice Noam Sohlberg wrote in his supporting opinion, “From the mouths of experts and experienced people from abroad, we learned (albeit more in private than out loud); the mobilization of the Israel Defense Forces to bring humanitarian aid deep into Gaza, simultaneously with intense combat activity, is unparalleled in the armies of the world.” 

The court stated that the petitioners had “not even come close” to proving that Israel had violated legal prohibitions against using starvation as a tool of war or as a form of collective punishment against the civilian population. 

The requests from the petitioners were based primarily on the argument that Israel represents the occupying power in Gaza due to its control over most of the ports of entry into the enclave. 

However, the Supreme Court ruled that Israel does not meet the legal, accurate definition of an occupying power in Gaza. 

In brief, the determination of an occupying power status is based on three facts that must be clearly established: 

1) The occupying power must have established a physical presence in the territory;

2) the occupying power must exercise the determining civil and governmental power over the territory; and

3) the previous governing force is unable to exercise its governing power. 

The Supreme Court found that only one of these conditions, that of physical presence, had been met, and that only partially, citing the IDF’s decision not to maintain a presence in many of the areas it controlled.

Regarding the second and third criteria, the court held that the available facts did not support classifying Israel as an occupying power.

Supreme Court President Isaac Amit, a liberal whose appointment to the court was strongly opposed by the Netanyahu government, authored the court’s lengthy opinion, while justices Solberg and David Mintz, both considered conservatives, wrote supporting opinions. 

The court accepted the government’s interpretation of its obligations under international humanitarian law concerning the provision of humanitarian aid, noting that such obligations are subject to specific conditions. Two of the conditions include a lack of adequate provision for the civilian population, which the court found had not been sufficiently demonstrated, and the assurance that the aid would not be diverted for the IDF"s benefit.

All justices noted that Israel does not directly supply the humanitarian aid entering Gaza but only facilitates its entry, while also noting that the Hamas terrorist organization seizes significant amounts of it.

Mintz went even further in his opinion, noting that Israel is not obligated to provide aid for Gaza. He also noted that Hamas’ seizure of the aid presented a risk to Israel. 

“Even if there is a legal basis for allowing humanitarian aid to uninvolved civilians, there is no obligation to provide broad, unlimited aid, nor dual-use materials that could reach enemy hands and be used against Israel,” Mintz wrote. “The IDF and the respondents have gone above and beyond to facilitate aid to Gaza, even at the risk that it could be seized by Hamas and used for its war efforts. In this regard, I agree with my colleague, Justice Sohlberg. As noted, the provision, scope, and nature of aid are matters for the government and the IDF’s broad discretion, and there is no justification for judicial intervention.” 

Regarding the seizure of humanitarian aid by Hamas, Sohlberg wrote, “Such 'humanism' does not bring the message of peace on its wings, but perpetuates pain and suffering.”

International Humanitarian Law allows aid to be restricted if its seizure by enemy forces would subsequently pose a threat to the party facilitating its delivery.

The court acknowledged that Hamas has repeatedly embedded itself within civilian and humanitarian infrastructure for military purposes and has seized aid intended for the civilian population. Based on these findings, the court concluded that Israel is not legally obligated to allow humanitarian aid into Gaza under such circumstances.

Amit, in his principal opinion, wrote, “As emerges from the materials submitted, throughout the war, the terrorist organizations worked to assimilate among the civilian population in the Gaza Strip – that is, among those residents who do not belong to the terrorist organizations and do not take part in the fighting. In the meantime, the terrorist organizations strove to hide among concentrations of the civilian population, and carried out terrorist operations (including rocket fire) from the heart of the civilian population, and more than once even from within the humanitarian spaces that were defined in advance. The terrorist organizations did not hesitate to use civilian structures – such as hospitals and schools – as bases of operations and as hiding places, and as will be detailed below, they even strove to take control of humanitarian aid shipments for the purpose of military and economic strengthening, while neglecting the civilian population for whom the aid was intended.”

The justices also highlighted that no quantitative restrictions were imposed on the amount or type of aid entering Gaza, while extensive efforts were made to improve the infrastructure for aid delivery. 

Because the court did not consider the situation following the early March decision to restrict and to stop selling electricity to Gaza, it is likely the petitioners will file a new petition, based on the new facts on the ground.