Within a Matter of Hours: Israeli Supreme Court Revokes a Prohibition Order Preventing the Israeli Military from Demolishing Ten Buildings in Southern Rafah Requested by Adalah

On 30 June 2004, Adalah, the Palestinian Centre for Human Rights – Gaza (PCHR) and Al-Haq submitted a motion for an order of injunction to the Supreme Court to prevent the Israeli military authorities from demolishing homes in southern Rafah and the vicinity of the border area between the Gaza Strip and Egypt, known as the Philadelphia Road, based on the pretext of 'military necessity,' pending a final ruling on the petition submitted in May 2004. The motion included a request for a specific prohibition against the demolition of the homes of ten families from Blocks J, L, N and O, and the Brazil neighborhood in southern Rafah, as well as an urgent hearing on the petition.

On 21 July 2004, at approximately 17:30, Supreme Court Justice Mishael Hishin issued an order prohibiting the Israeli military from destroying the ten houses specified in the motion for injunction. At approximately 22:30, however, the Supreme Court announced that the Attorney General had submitted a motion to revoke the Court's prohibition order. The Supreme Court asked for Adalah's response to the Attorney General's motion as soon as possible. Adalah submitted its response within one hour of being contacted by the Court. Approximately forty minutes later, the Supreme Court announced its decision to cancel the prohibition order against the Israeli military, issued only hours earlier.

In his motion, the Attorney General argued that the Court's prohibition order should be revoked because the Israeli military is unable to identify the exact location of the ten homes. He also added that the Israeli military is engaged in military operations in southern Rafah, and therefore Israeli soldiers' lives are under threat in this area. Finally, the Attorney General argued that the state will guarantee the right of the owners of the ten homes to be heard prior to any demolition being executed, a right to which they are entitled under the 'Amer ruling,' delivered by the Supreme Court in 2002. This ruling grants the right to owners of civilian property to be heard prior to demolitions of their property during a military operation, except in three instances: where there is an absolute military necessity for a demolition to be carried out; where not carrying out a demolition would present an immediate danger to soldiers' lives; and where not carrying out a demolition would cause a military operation to end in failure.

On the day of these proceedings, the Israeli military demolished 18 homes in the Brazil and al-Salam neighborhoods of southern Rafah, leaving 292 people homeless, according to the PCHR.

In Adalah's response to the Attorney General's motion, Adalah attorney Marwan Dalal maintained that the ten homes in question had been adequately described in Adalah's motion for injunction, both in terms of their locations and their physical characteristics. Attorney Dalal further argued that the Attorney General's claim that the Israeli military is unable to identify the exact location of these ten homes is unconvincing, particularly as it is being raised in the context of the Israeli military's duty under international law to fulfill some of its obligations towards protected persons. The Attorney General's claim is further undermined by the Israeli military's capabilities in pinpointing individuals and homes when it is in the military's interest to do so (for carrying out assassinations and arrests, for example).

Adalah's response to the Attorney General also gave details of a recent case which illustrates the dangers and grave consequences associated with the implementation of the Israeli military's policy of home demolitions. On 12 July 2004, Mr. Ibrahim Khalafallah, an elderly, physically disabled Palestinian from Khan Yunis, was killed by Israeli military bulldozers which demolished his home in the Khan Yunis refugee camp, whilst he was still inside the building. The Israeli military proceeded with the demolition in spite of attempts to alert the military to his presence made by his family, who had been unable to carry him out of the house.

The response further argued that the motion for injunction submitted by Adalah does not concern the right to be heard before demolition operations, cited by the Attorney General in his motion to revoke the Court's prohibition order. Rather, the motion and petition ask the Supreme Court to define the scope of the legal term 'military necessity,' used by the Israeli military to justify its policy of individual and mass demolitions of civilian property in the 1967 Occupied Territories. The right to be heard prior to a home demolition and the meaning of the legal concept of military necessity, as it appears in the latter parts of Article 53 of Geneva Convention IV and Article 23(g) of the Hague Regulations, are two separate issues. Thus, since the exception to the basic rule under international law of prohibiting home demolitions is not defined under the 'Amer ruling,' it is an irrelevant legal reference for the motion for injunction.

In the motion of 30 June 2004, Adalah submitted a report published on 6 June 2004 by the United Nations Relief and Works Agency (UNRWA) and the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), which supplies details of demolition operations executed by the Israeli military in Rafah. The report, entitled Rafah Humanitarian Needs Assessment, specifies that, "During May 2004, 298 buildings were demolished in Rafah and almost 3,800 people were made homeless. A further 270 residential buildings housing 502 families were damaged during the May incursions. The incursions which took place in May were larger in scale than any other month since September 2000. However, a total of 1,497 buildings have been destroyed in Rafah as a result of IDF activities since September 2000, and 15,009 individuals have been made homeless. 82.5% of these homeless people are refugees. 2,041 homes in Rafah have been registered as damaged or in need of repairs as a result of IDF activities since September 2000." The request also included satellite photographs of southern Rafah, taken in June 2001 and May 2004, which clearly reveal the vast extent of home demolitions carried out by the Israeli military in the area over this period.

Moreover, as Adalah argued in the motion, recent statements and actions by the Israeli military authorities constitute solid grounds for fears that further home demolition operations will be executed in Rafah in the near future. For instance, according to an article published in Ha'aretz on 17 May 2004, Chief of Staff Moshe Ya'alon claimed at a government meeting held the previous day that the Israeli military would be forced to demolish many homes in southern Rafah in order to widen the Philadelphia Road. Ministers attending the meeting were reportedly under the impression that the figures involved would amount to many tens of civilian properties.

The government's Disengagement Plan for the Gaza Strip provides another indication of the likelihood of further home demolitions along the Philadelphia Road; Article 7, Appendix A of the plan states that, “… in certain areas there may arise a need to physically broaden the areas where military activities can take place.” In this connection, on 17 May 2004 Ha'aretz reported senior Israeli military officers describing the implementation of the government's plan for withdrawal from Gaza as the last opportunity for the Israeli military to put security facts on the ground.

In addition, during an interview with Yediot Ahronot on 11 June 2004, the commanding officer of the southern Gaza zone, Colonel Pinhas Zuaretz, expressed his willingness to destroy hundreds of homes in the area. The same article cited operators of the D-9 bulldozers used in razing operations claiming to enjoy carrying out home demolitions.

Moreover, on 17 June 2004, the Ministry of Defense invited tenders for the construction of a massive trench south of Rafah, which could entail the destruction of homes in the area. On the subject of this scheme, Ha'aretz reported on the same day that, “High ranking defense personnel stated the trench would be dug along the Philadelphia Road, in preparation for the Israeli withdrawal from the Gaza Strip, which is projected to be completed by the end of 2005.”

The motion for injunction was filed as part of a petition submitted on 27 May 2004 to the Supreme Court by Adalah, PCHR and Al-Haq, filed against IDF Major General, Southern Command (Dan Harel), IDF Major General, Central Command (Moshe Kaplinski), the Chief of Staff (Moshe Ya'alon), the Minister of Defense (Shaul Mofaz) and the Prime Minister (Ariel Sharon). The petitioners asked the Supreme Court to define the scope of the legal term 'military necessity,' as used by the Israeli military to justify its policy of mass demolitions of civilian property in the 1967 Occupied Territories. The most recent examples of this policy have occurred during the Israeli army's military operations in Rafah refugee camp during May 2004, as well as in Jenin refugee camp and Nablus, West Bank, in 2002, during the course of which homes were extensively destroyed, rendering hundreds of families homeless.

The petitioners argued that, in accordance with international law, destruction by an occupying power of civilian property belonging to the protected population of an occupied territory is prohibited, and that although international law recognizes an exception to this principle, in instances of 'military necessity,' as stipulated in the latter parts of Article 53 of Geneva Convention IV and Article 23(g) of the 1907 Hague Regulations, this exception is subject to many stringent limitations. The petitioners further contended that the abuse of the pretext of 'military necessity' by the Israeli army to justify its policy of demolitions of civilian property in the 1967 Occupied Territories is not only illegal under international law, but has also been executed on an extensive scale, and is therefore considered a war crime under international law. The hearing is currently scheduled for November 2004. The Court has not yet ruled on the request for an urgent hearing on the petition.