H.C. 2977/02, Adalah and LAW v. Commander of the Israeli Army in the West Bank
Filed: 8 April 2002. Decision: 9 April 2002.
Petitioners: Adalah and LAW.
Respondent: Commander of the Israeli Army in the West Bank, Yitzhak Eitan.
Petitioners' Requests
- A temporary injunction to stop the massive destruction and demolition of Palestinian homes in the Jenin refugee camp until a final decision is delivered by the Supreme Court.
- An order nisi (an order to show cause) requiring the respondent to explain why he should not refrain from demolishing homes in the Jenin refugee camp without giving prior notice to the residents, without giving residents the right to argue and to be heard, and without giving the opportunity for residents to evacuate their homes.
- That the Court hold an urgent hearing on the petition given the danger to the lives, safety and well-being of Palestinian civilians in the camp.
- Mr A.D., a resident of the Jenin camp, stated on 8 April 2002 that houses in the camp were being systematically destroyed by bulldozers in order to make it possible for tanks to enter the camp. He noted that residences and other civilian buildings were being heavily shelled, including a school and two hospitals.
- Mr. N., a resident of the Jenin camp, stated on 8 April 2002 that houses in the al-Damji neighborhood of the camp were demolished on top of the residents. He stated that many of the killed and injured were trapped under the ruins, and that it was not possible to remove them as the army was preventing the entry of rescue teams into the camp.
- The army is demolishing homes in the Jenin camp using bulldozers, shells fired from tanks, and missiles launched from helicopter gunships.
- These actions resulted in loss of life and injury to Palestinian civilians, some of whom were buried under the rubble of their homes.
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The army has a duty to respect the rights of residents of the camp to life, well-being and human dignity in accordance with the Israeli
Basic Law: Human Dignity and Liberty (1992); Articles 3, 27, 32, 33, and 147 of the Geneva Convention (IV); and Articles 11, 51, 75 and 85 of the
First Protocol Additional to the Geneva Conventions (1977).
- The respondent is prohibited from destroying civilian infrastructure and property in the camp, in accordance with Articles 3, 27, 32, 33 and 53 of the Geneva Convention (IV); and Article 52 of the First Protocol Additional to the Geneva Conventions.
- The army's actions constitute collective punishment of Palestinian civilians, which is prohibited under the Basic Law: Human Dignity and Liberty, and Articles 27 and 33 of the First Protocol Additional to the Geneva Conventions.
- The issue is not appropriate for judicial review, and should be dismissed.
- The army's operations were conducted to "destroy the Palestinian terrorist infrastructure" in the Jenin camp. When the army entered the camp, "They discovered that the town and the camp were organized as a military compound, prepared to defend itself."
- Houses in the camp are very close together. There was fighting from house to house, and in many cases, houses were booby-trapped. "In order to decrease the risk for the fighters, it was necessary to use bulldozers."
- Before demolishing homes, the army broadcasted warnings to residents via loudspeaker. Residents were given 1 to 1.5 hours to leave their homes. Many did not. Some residents left their homes after the bulldozers began to demolish them.
- The remedies asked for by the petitioners are too general.
- It is not possible to give effective remedies of the kind asked for while fighting is ongoing. The remedies asked for are not appropriate for judicial review in real time.
- The army is doing everything possible to minimize harm to civilian residents of the camp, in the context of very intense fighting.
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According to Article 23 (g) of the 1907 Hague Regulations, the army may destroy private property if such destruction is necessary to accomplish military objectives.
- Petitions dismissed.
- Stated that everything should be done, taking into account conditions on the ground and military necessity, in order to minimize possible harm to civilians.
- Accepted the State's claims that the respondent "is making every effort to avoid hurting innocents and that the Court is aware of the customary international law rules." Found that in such conditions, "giving the right for argument and the right to be heard is not practical."
- "The presumption concerning the respondent...is that he directed and will direct the fighting forces to do whatever is required to avoid the possibility of unnecessary harm to innocents."
- The state admitted that in certain cases, the army's bulldozers began demolishing houses, and only then did Palestinians leave their homes.
- During the hearing, Justice Levine questioned Adalah's insistence that the army must obey humanitarian law during war, that civilians targets should not be attacked, and that noncombatants should be given an effective opportunity to leave their homes before an attack commences. Justice Levine compared the Israeli army attack on the Jenin camp with the bombing of Dresden during the Second World War, and indirectly suggested that in Dresden there was no need to warn civilians of the impending attack, or to give them an effective opportunity to leave the area.