On 13 July 2005, the Supreme Court of Israel dismissed a petition filed in May 2004 by Adalah: The Legal Center for Arab Minority Rights in Israel, the Palestinian Centre for Human Rights-Gaza, Al-Haq, and ten individuals from the south of Rafah (who joined the case one month later) seeking the cessation of home demolitions by the Israeli military in the 1967 Occupied Palestinian Territories (OPTs) and the issuance of orders regarding the use of the “absolute military necessity” exception in accordance with international humanitarian law (IHL).
According to UN reports submitted by the petitioners to the Court, from September 2000 to December 2004, approximately 4,170 Palestinian homes have been demolished, with some 60% destroyed as part of “clearing operations” to meet Israel’s alleged military needs; in Gaza alone, as part of these “clearing operations,” the Israeli military has demolished 2,540 housing units, in which lived 23,900 Palestinians.
Filed by Adalah Attorney Marwan Dalal, the petition asked the Court to define - for the first time - the legal parameters of the term, “absolute military necessity,” invoked by the Israeli army to justify its extensive home demolitions throughout the OPTs, in accordance with IHL, the Rome Statute of the International Criminal Court, and recent decisions of the International Criminal Tribunal for the Former Yugoslavia. While IHL recognizes “absolute military necessity” as an exception to the basic principle prohibiting the destruction by the occupying power of civilian property, as stipulated in Article 53 of the Fourth Geneva Convention of 1949 and, similarly, Article 23(g) of the Hague Regulations of 1907, it is subject to many stringent limitations under the principles of distinguishing at all times between civilian objectives and military objects and proportionality. The extensive scale and planned nature of the overwhelming majority of home demolitions, including the widely publicized operations which occurred in Rafah, Gaza in May 2004 and in the Jenin refugee camp and Nablus, West Bank in April 2002, clearly show that the Israeli military violates the terms of the exception, the petitioners argued.
The named respondents are 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).
In its three-page judgment, the Supreme Court, by Chief Justice Aharon Barak and Justices Mishael Heshin and Dorit Beinisch, ruled that, “in light of the statement of the respondents regarding the intention to refrain from house demolitions, there is no need at this time to hear the substantive claims made in the petition … Indeed, in light of the new situation in the field, as stated by the respondents, the petition has become theoretical, and is moot … It seems that the cessation of the house demolitions in the region is part of the respondents’ overall policy.” As for the merits of the petition, the Supreme Court added: “However, it is understood that dismissal of the petition herein does not constitute rejection of any of the petitioners’ arguments, and they remain available to them, should they decide to file another petition if the policy that the respondents declared before us in this matter should change.”
Responding to the decision, Adalah Attorney Marwan Dalal stated that, "Despite the ample, well-documented evidence presented to the Court, our timely approach, and the Court’s description of the case as one that raised principled issues, the fact that the Court did not examine the legality of the military’s conduct – during or after the events occurred – amounts essentially to granting domestic impunity to the Israeli military for grave breaches of the Fourth Geneva Convention.”
The Question of Relevance
The petitioners submitted the petition together with a motion for injunction on 27 May 2004. From 17-25 May 2004, the Israeli military escalated its home demolition operations in the densely-populated areas of Rafah, Gaza during "Operation Rainbow," resulting in the demolition of 167 houses and the rendering of 2,066 people homeless. The stated purpose of this operation was a search for weapons-smuggling tunnels, although the military later admitted that only three such tunnels had been found. Subsequent motions for injunction were filed in June 2004 and July 2004 to prevent the army from demolishing homes, in addition to those destroyed between April and May 2004, in order to create a buffer zone in Rafah and the vicinity of the border area between Gaza and Egypt (the “Philadelphi Route”).
Supreme Court Justice Mishael Heshin ruled in September 2004 that no injunction would be issued, but he also affirmed that, “Nothing in this decision prevents the petitioners from presenting their arguments before a panel of judges due to hear their petition on its merits.” Moreover, on 20 June 2005, in dismissing another case involving home demolitions which raised different legal issues, the Supreme Court noted that it had before it a “principled petition”; the “principled petition” referred to by the Court was the petition at hand.
While the Supreme Court has repeatedly expressed its reluctance to intervene in cases raising issues regarding the legality of conduct during ongoing military operations, the petitioners argued that the Court has emphasized that it usually considers cases relating to the actions of state agencies, including the military, after such actions have taken place. According to the Court, ordinarily, judicial review is retroactive and sometimes a significant period of time passes between the event and the examination of its consequences under the law.
At a hearing on the petition held in October 2004, Chief Justice Barak emphasized the scathingly critical UN and international human rights organizations’ reports on the Israeli military’s home demolition practices provided to the Court by the petitioners in their legal filings. Reports of the UN Special Rapporteur for the Occupied Territiories, Prof. John Dugard, Amnesty International, Human Rights Watch, and the International Federation for Human Rights (FIDH) have all emphasized that the specific home demolitions identified by the petitioners are not only illegal, but could well amount to grave breaches of the Fourth Geneva Convention and thus constitute war crimes.
Justice Barak stated that the entire world reads and relies on these reports, and that they amount to the existing facts available on this issue. He warned the state that the practices and data provided in the reports must be thoroughly examined, even if a committee needs to be established for this purpose and the process is costly, or history will be understood according to what is written in the reports. Although requested by the Court, the state never provided alternative data on the scale of home demolitions undertaken by the Israeli military.
By refusing to issue an injunction, despite repeated requests by the petitioners while the military operations were ongoing, and by dismissing the petition without ever reaching the merits of the case, the Supreme Court did not examine the legality of the military’s conduct – either during the operations or in their aftermath. Thus, the Court failed to provide any effective judicial review to the petitioners. In fact, during the proceedings, the home of one the petitioners was demolished, while that of another was seriously damaged by the Israeli military in Rafah.
Ceasing Home Demolitions
In March 2005, the respondents informed the Court that the participation of Israel's Prime Minister Ariel Sharon and Palestinian President Mahmoud Abbas in the Sharm al-Sheikh summit on 8 February 2005, has led to a new era of calm in the Palestinian-Israeli conflict, which they hope will render further home demolitions unnecessary. During a hearing on the petition in June 2005, Justice Barak asked the AG’s legal representative about other recent declarations made by the Israeli military that it is stopping home demolitions in the OPTs. The AG responded that the decision to cease home demolitions is made in the context of Regulation 119 of the Emergency (Defense) Regulations -1945, which the Israeli military invokes to justify home demolitions it carries out as a "deterrence." Based on these representations, the state asked the Court either to dismiss the case entirely, or suspend it.
Countering the representations of the AG at the hearing, Attorney Dalal emphasized that the Israeli military cannot claim that it is ceasing home demolitions in the case at hand, as the home demolitions challenged in this petition are those allegedly undertaken during military operations for reasons of “absolute military necessity.” Thus, it is impossible and illogical for the military to be able to commit to stopping these home demolitions because it amounts to agreeing to cease military operations. As stressed by Adalah in the petition, the case at hand does not concern Regulation 119, but challenges the majority of home demolitions, which are allegedly carried out based on the justification of “absolute military necessity.”
The petitioners also argued that the threat of further home demolitions in the OPTs by the Israeli military remains very real and that the Court should decide on this matter in order to protect further Palestinian civilians from being rendered homeless as a result of illegal home demolitions.
H.C. 4969/04, Adalah, et. al. v. IDF Major General, Central Command, Moshe Kaplinski, et. al. (decision delivered 17 July 2005).
For further information, please see:
The Supreme Court’s Decision (English)
Update to Adalah's Briefing Paper: The Israeli Army's Exploitation of the "Absolute Military Necessity" Exception to Justify its Policy of Home Demolitions in the 1967 Occupied Palestinian Territories: Case Developments from October 2004 to June 2005 - July 2005
Adalah's Briefing Paper: The Israeli Army's Exploitation of the "Absolute Military Necessity" Exception to Justify its Policy of Home Demolitions in the 1967 Occupied Palestinian Territories - February 2005