Chief Justice Barak to Attorney General: Entire World Reads International Reports about Home Demolitions in Rafah and Thus for Israel's Interest State Should Respond to Petition in Detail
On 26 October 2004, the Supreme Court of Israel held a first hearing on a petition filed in May 2004 by Adalah, the Palestinian Centre for Human Rights - Gaza (PCHR), and Al-Haq, and ten individuals from the south of Rafah who joined the case in June 2004. The petitioners asked the Court to define, for the first time, the scope of the legal term “absolute military necessity” invoked by the Israeli military to justify its wide-scale home demolitions throughout the 1967 Occupied Palestinian Territories (OPTs) 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). Adalah Attorney Marwan Dalal represented the petitioners at the hearing.
Chief Justice Aharon Barak and Justices Eliahu Matza and Mishael Heshin presided over the case. At the hearing, Chief Justice Barak emphasized the scathingly critical United Nations 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. He stated that the entire world relies on these UN and international human rights organizations reports, that the entire world reads them, and that they amount to the existing facts available on this issue. He warned the Attorney General (AG) that the practices and data provided in the reports must be thoroughly examined, even if a body needs to be established for this purpose, and the process is costly, or history will be understood according to what is written in these reports.
The Court was referring to a number of recent reports which support the petitioners' arguments that the Israeli military demolishes homes in the absence of an "absolute military necessity." According to UNRWA assessments, the scale of the demolitions executed in Gaza in 2004 has rendered 1,360 people homeless per month, or 45 persons each day. Over the past four years, the total number of Gazans rendered homeless as a result of military demolitions now exceeds 24,547 people, according to a UN OCHA report. The report also states that 1,200 Palestinians each month are being made homeless. In Rafah alone, the rate of home demolitions has increased from 15 homes per month in 2002 to 77 homes per month in the first nine months of 2004, according to OCHA. Since the start of the Intifada in September 2000, 1,497 buildings have been demolished in Rafah, affecting over 15,000 people according to Professor John Dugard of the UN Commission on Human Rights. His August 2004 report noted that the Israeli military operation, code named "Operation Rainbow," which took place in Rafah between 18 and 24 May 2004, resulted in the demolition of 167 houses, rendering 2,066 individuals homeless.
Professor Dugard made clear that the Israeli military's policy of home demolitions involved instances of "wanton destruction" and called on the international community to "identify those responsible for this savage destruction of property and to take the necessary legal action against them."
As Adalah argued in its legal filings, “absolute military necessity” is a narrowly defined exception under international law, which prohibits the destruction by an occupying power of civilian property belonging to the protected population of an occupied territory. The scale of the demolitions executed by the Israeli military totally exceeded the justification of "absolute military necessity," rendering the position legally untenable.
The Court was notably disappointed with the insufficient detail provided by the state in its 21 October 2004 response to the petition. In its response, the state claimed that the petition was too general and that the Court should refrain from intervening during ongoing military operations. In his response, the AG also claimed that homes had only been demolished where there was “absolute military necessity,” and cited the military's hunt for weapons smuggling tunnels, which took place in Rafah between 18 and 24 May 2004. According to a recent report released by Human Rights Watch, also submitted to the Court, several tunnel experts verified that, "A number of less destructive alternatives exist for the effective detection and destruction of smuggling tunnels," including the installation of underground seismic sensors. Adalah also brought statements from an Israeli military press briefing, noting that only three tunnels had been found during "Operation Rainbow," despite the fact that the central aim of this operation was purported to be the detection and destruction of such tunnels, and that 167 homes had been demolished in the process. Adalah contested the notion that the demolition of homes served the detection and destruction of tunnels, arguing that the search for tunnels could have been conducted in the Israeli-controlled zone between the borders of Rafah and Egypt, thereby obviating the need to enter the densely-populated neighborhoods of Rafah at all.
At the hearing, the Supreme Court, like the AG, questioned the relevancy of the three ICTY cases submitted to the Court by the petitioners - The Prosecutor v. Blaskic, 2000; The Prosecutor v. Kordic, 2001; and The Prosecutor v. Naletilic, 2003 - stating that the Israeli military was not "wiping out" whole villages. Attorney Dalal argued before the Court that the ICTY cases were relevant for their legal discussion of the issue of extensive destruction of property in particular, and that such practices constitute a grave breach of Geneva Convention IV, regardless of whether or not ethnic cleansing is taking place. In these cases, a politician and high-ranking military commanders were convicted and sentenced for between 15 and 45 years, inter alia, for the extensive destruction and appropriation of property, and their argument of “absolute military necessity” was rejected.
The Supreme Court closed the hearing by requesting that the petitioners file an additional submission within 45 days focusing on a specific event within a specific location related to the petition. The respondents then have 45 days to submit their response. The Court added orally that its ruling on the specific case would affect all military operations concerning home demolitions. The Supreme Court did not issue an injunction, as requested by the petitioners in May 2004, June 2004 and July 2004, or an order nisi.
