On 27 May 2004, Adalah, the Palestinian Centre for Human Rights – Gaza (PCHR) and Al-Haq filed a petition and a motion for injunction to the Supreme Court of Israel against IDF Major General, Central Command (Moshe Kaplinski), IDF Major General, Southern Command (Dan Harel), the Chief of Staff (Moshe Ya’alon), the Minister of Defense (Shaul Mofaz) and the Prime Minister (Ariel Sharon). The petitioners ask the Supreme Court to define, for the first time, the scope of the legal term “military necessity” in accordance with international humanitarian law, the Rome Statute of the International Criminal Court (ICC), and recent decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Many home demolition cases have already been brought against the Israeli army before the Supreme Court. Thus far in these cases, the Supreme Court has ruled only upon the legal issues of ‘collective punishment’ and homeowners’ ‘right to be heard’ in advance of planned demolitions. In the vast majority of these cases, the Supreme Court has dismissed the legal challenges brought against home demolitions, effectively accepting the army’s arguments, and legitimizing the demolitions. In the current petition, Adalah, the PCHR and Al-Haq are legally challenging the army’s use of the justification of “military necessity” for its policy of home demolitions.

Under international law, destruction by an occupying power of civilian property belonging to the protected population of an occupied territory is prohibited. Moreover, “extensive destruction and appropriation of property, not justified by “military necessity” and carried out unlawfully and wantonly” is a grave breach of the Geneva Convention IV, and as such is a war crime under Article 8(2)(a)(iv) of the Rome Statute of the ICC. Although international law recognizes an exception to this principle, in instances of “military necessity”, this exception is subject to many strict limitations. The Supreme Court’s failure, to date, to precisely define the limitations of “military necessity” has contributed to the Israeli army’s implementation of a policy of extensive home demolitions throughout the 1967 Occupied Territories, exploiting the pretext of this exception as justification for its actions. The most recent examples of this policy have occurred during the Israeli army’s military operations in Rafah refugee camp, Gaza Strip, in May 2004, as well as in Jenin refugee camp and Nablus, West Bank, in 2002, in the course of which homes have been extensively demolished, rendering hundreds of families homeless.

The petitioners argued that the circumstances in which civilian property may be destroyed during military operations under the “military necessity” exception are narrowly and precisely defined in international law. Firstly, a sharp distinction is drawn between civilians and civilian objects, and military objectives. Secondly, in cases of ambiguity as to whether a civilian property is being used for military purposes, it is incumbent on an army to consider it as a civilian object, and accordingly not to demolish it. Thirdly, a civilian property being used for military purposes can legitimately be demolished only when the military risk it presents is immediate and absolute. Fourthly, the means used for civilian property demolition must not inflict damage disproportionate to the military advantage gained. Finally, civilian property demolition must not be used at the army’s convenience as a method of providing increased protection against potential attacks.

In the petition, Adalah Attorney Marwan Dalal argued that the Israeli army grossly violates the limitations on “military necessity” as stated in international law. The petition draws on information detailed in reports from local and international human rights organizations, and the United Nations. These organizations have carried out extensive fieldwork and compiled lists of case studies, which demonstrate that the Israeli army’s home demolition operations are based on an untenably broad definition of “military necessity”.

For instance, Amnesty International reports that during the massive bulldozing of civilian property in the Jenin refugee camp in the West Bank during April 2002, aerial photographs reveal that civilian properties were demolished by the Israeli army after Palestinian armed resistance had ended. Hence, these properties cannot be regarded as military objectives posing an immediate, absolute military threat, as was claimed by the Israeli army. Other cases include ‘preemptive attacks’ against civilian properties, which the Israeli army claims have been or could be used as bases for attacks on Israeli soldiers or settlers. Activities which the army has placed within this bracket are extremely wide-ranging, and include creating buffer zones in order to further consolidate Israeli control over land.

The petitioners argued that the misuse of the pretext of “military necessity” by the Israeli army to justify its policy of mass demolitions of civilian property in the 1967 Occupied Territories is not only illegal under international law, but has also been executed on a huge scale, and therefore constitutes collective punishment, which is a war crime under international law. In the petition, Adalah cited three cases from the ICTY to support its stance, in which a politician and high-ranking military commanders were indicted and convicted, inter alia, for the extensive destruction and appropriation of property, and imprisoned for between fifteen and forty-five years (The Prosecutor v. Blaskic, 2000, The Prosecutor v. Kordic, 2001, and The Prosecutor v. Naletilic, 2003). In each of these cases, the accused’s argument of “military necessity” was rejected. Adalah further argued that Israeli army’s policy of home demolitions violates Palestinian civilians’ rights to dignity, life, and privacy. Rights enshrined in the Basic Laws of Israel. Therefore, it is imperative that the Supreme Court should define, as a matter of urgency, the legal parameters of the term “military necessity”, in accordance with basic international law norms, in order to prevent any further illegal demolitions of Palestinian homes.

Upon the filing of the petition, on 27 June 2004, the Supreme Court decided that the petition would be heard before a panel of justices, yet did not schedule a date for the hearing. The Court further decided that the state's response must be submitted ten days prior to the hearing. However, the Court did not grant the order of injunction, owing to the “generality of the petition”.

On 2 June 2004, Adalah submitted a motion to the Supreme Court requesting an urgent hearing of the petition. In the motion Adalah argued that the Israeli military is continuing to demolish homes, specifically in the vicinity of the Rafah refugee camp, on the pretext of “military necessity”. Thus for example, on the night between 29-30 May 2004 the Israeli military demolished some 20 homes belonging to Palestinians. Adalah further argued that holding an urgent hearing of the petition is necessary in light of the harshness of the infringement on the basic rights of the Palestinian civilian population involved, rights which are protected under the Geneva Convention IV and the Hague Regulations Respecting the Law and Customs of War on Land – 1907. In addition, Adalah stated that past experience indicates that the families residing in the demolished homes have been prevented from petitioning the Court on the matter. “On the one hand, there has been a systematic erosion of the right to be heard prior to the demolishing of homes, and on the other hand, while the “military necessity” argument has been invoked, it has not undergone any judicial review, in particular the restrictions on invoking it as specified under international law”, Adalah further contended. Thus, argued Adalah staff attorney Marwan Dalal, an urgent hearing must be held in order to secure the right of Palestinian civilians to access the Court prior to infringements of their basic rights, which may result in irreversible damage, in order to provide even a minimal pretense of due process, and in order to enable the Court to exercise relevant judicial review.

The office of the State Attorney opposed the motion, and claimed that it is unnecessary to hold an urgent hearing due to the fact that the petition is too general. The Supreme Court rejected the request for an urgent hearing, stating that, “there is no justification for giving precedence to this petition over other cases”.

 Petition      Motion for Urgent Hearing      Supreme Court Decision      Special Report