Practice Relating to Rule 55. Access for Humanitarian Relief to Civilians in Need
Section A. Access for humanitarian relief
In its judgment in the Albasyouni case in 2008, concerning a petition regarding the Israeli Government’s decision to reduce or limit the supply of fuel and electricity to the Gaza Strip, Israel’s High Court of Justice stated:
13. … The Respondents also referred to Article 70 of the First Additional Protocol to the Geneva Conventions, of 1977 … which represents, in their opinion, international customary law, and which sets forth a general and broader obligation, whereby the parties to the conflict must allow the rapid and unimpeded passage of vital goods to the civilian population …
15. The above indicates, therefore, that the Respondents do not disagree that they are bound by the humanitarian obligations imposed upon them, which require the State of Israel to allow passage of vital humanitarian goods to the Gaza Strip.
In its judgment in the Gisha case in 2008, concerning a petition regarding the Israeli Government’s decision to reduce or limit the supply of fuel and electricity to the Gaza Strip, Israel’s High Court of Justice stated:
8. … We … held [in the Albasyouni case in January 2008] that Israeli and international law do not require the respondent to allow the transfer of unlimited quantities of fuel into the Gaza Strip. Therefore, in these circumstances, the contention – whereby that periodic closing of the crossings, resulting from attempts to carry out attacks and from attacks carried out by the terrorist organizations, requires removal of all the quantity restrictions on supply of fuel to the Gaza Strip – should be rejected.
10. … The great danger to the lives of the soldiers and civilians who are posted at the crossings and operate them requires, at times, the closing of the crossings, in a way that disrupts the ability to transfer the fuel and other products to the Gaza Strip. In the framework of the necessary balancing resulting from the state’s obligation to enable the transfer of the fuel at the crossing as required by our judgment, and its obligation to protect the lives of its civilian population and its soldiers, the state is not required to take upon itself opening of the crossing and movement of the fuel in a situation that creates a real threat to life. Also, it is not proper to require the respondent to transfer an unlimited quantity of fuel during the few hours of calm, in a way that exposes the crossings to repeated attacks at other times.
11. … In these circumstances, the obvious conclusion is that the difficulties and the disruptions in the transfer of the various kinds of fuel to the Gaza Strip are not the result of the Cabinet decision on restricting the quantities of fuel transferred to the Gaza Strip or of the manner of the implementation of this decision by the respondent, but as a result of the actions of the Hamas government and from the security constraints created as a result of the events caused by the Palestinian side. Therefore, we do not deem it proper to change our judgment in Albasyouni,
and we stress that, in implementing it, the respondent may take into account the existence of circumstances that create a real and substantial threat to life.
In its judgment in Physicians for Human Rights v. Prime Minister of Israel in 2009, concerning the humanitarian situation in the Gaza Strip consequent to the start of Israeli military operations (“Cast Lead”) there in December 2008, Israel’s High Court of Justice stated:
[T]he protections given to the civilian population of all of the parties to the conflict also include the duty to allow free passage of humanitarian medical supplies, as well as consignments of essential foodstuffs and clothing for children, pregnant women and mothers at the earliest opportunity, subject to several restrictions (art. 23 of the  Fourth Geneva Convention). Article 70 of the First Protocol [1977 Additional Protocol I] provides a more general and broader duty, whereby parties to a conflict are obliged to allow the passage of articles that are essential for the civilian population, at the earliest opportunity and without delay. Article 30 of the Fourth Geneva Convention requires parties to a conflict to allow citizens to contact the Red Cross or similar international organizations, in order to receive assistance.
According to the Report on the Practice of Israel, it is the policy of Israel “to cooperate with all international humanitarian agencies and organisations, both in time of peace and in time of war”.
In 2008, at a press conference on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated:
Israel left the Gaza Strip and, from our perspective this was, or should have been, the end of an occupation, according to international law as well. But there are crossings and there is a border between Israel and the Gaza Strip, and according to our values and our responsibility these crossings are open for humanitarian needs.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
266. At the same time that the IDF [Israel Defense Forces] was taking substantial precautions to minimise civilian casualties, it was also implementing a far-reaching effort to ensure that the humanitarian needs of the civilian population in Gaza were met during the Gaza Operation. This humanitarian effort included several components:
- Ensuring continuous supplies of humanitarian aid through the crossing points, such as food, medical supplies and fuel.
- Coordination of evacuations and other humanitarian movements within the Gaza Strip and between Gaza and Israel.
- Unilateral suspensions of military operations to enable re-supply of the population and humanitarian relief activities.
- Ensuring the functioning of essential infrastructure in the Gaza Strip.
267. A central aspect of the IDF humanitarian effort was coordination with the various humanitarian agencies and organisations. Humanitarian facilities were marked on IDF operational maps and aerial photographs according to information provided by the various organisations in advance. Furthermore, a joint coordination map was prepared, to create a common language for the IDF and the international organisations operating in Gaza.
The report also stated that “beginning 7 January 2009, the IDF unilaterally suspended military operations for at least three hours each day (“humanitarian pauses”), to enable re-supply of the population and other humanitarian relief activities”.