Challenging the Israeli Army's Use of the "Military Necessity" Exception to Justify its Home Demolitions Policy

In 5/04, Adalah, the Palestinian Centre for Human Rights - Gaza (PCHR) and Al-Haq filed a petition and a motion for injunction to the Supreme Court against the IDF Major General - Central Command, IDF Major General - Southern Command, the Chief of Staff, the Minister of Defense and the Prime Minister. Ten individuals from the south of Rafah also joined the case as petitioners one month later. The petitioners asked the Supreme Court to define, for the first time, the scope of the legal term “absolute military necessity” invoked by the army to justify its policy of extensive home demolitions in the 1967 Occupied Palestinian Territories (OPTs). According to UN reports submitted by the petitioners to the Court, between September 2000 and December 2004, some 4,170 Palestinian homes were demolished by the Israeli military; 60% of which were 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 23,900 Palestinians lived.

At a Court hearing in 3/05, the respondents informed the Court that the participation of Israel's Prime Minister Ariel Sharon and the Palestinian President Mahmoud Abbas in the Sharm al-Sheikh summit in 2/05, has led to a new era of calm in the Palestinian-Israeli conflict, which they hope will render further home demolitions unnecessary.

During a Court hearing on the petition in 6/05, Supreme Court Justice Barak asked the AG's legal representative about other recent declarations made by the Israeli military that it is ceasing home demolitions in the OPTs. The AG responded that the decision to cease home demolitions was 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.

Result: In 7/05, the Court dismissed the case, deciding that there was no need at this time to rule on the substantive arguments made in the petition in light of the Israeli military's statements that it intends to refrain from house demolitions, and that the petition was now theoretical and moot. The Supreme Court added, however, that, "[I]t 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." Adalah responded that the fact that the Court did not examine the legality of the military's conduct, during or after the events occurred, essentially amounts to granting domestic impunity to the Israeli military for grave breaches of International Humanitarian Law, given the extensive and well-documented evidence presented by the petitioners to the Court, their timely approach, and the Court's previous description of the case as one that raised principled issues.

H.C. 4969/04, Adalah, et. al. v. IDF Major General, Central Command, Moshe Kaplinski, et. al. (decision delivered 17 July 2005).

For more information:
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