On October 26, 2004, the Supreme Court considered a petition filed in May 2004 by Adalah, the Legal Center for Arab Minority Rights in Israel on behalf of the Haqq Organization in Ramallah and the Palestinian Center for Human Rights in Gaza . Chief Justice Aharon Barak, Justice Mishael Cheshin, and Justice Eliyahu Matza heard the petition. Adalah was represented by attorney Marwan Dalal. The petition contests wide-scale house demolitions in southern Rafah and asks the court to define the scope of the term “absolute military necessity” invoked by the Israeli military to justify its wide-scale home demolitions throughout the occupied territories.
During the hearing, Chief Justice Aharon Barak suggested that the state establish an investigative committee to examine house demolitions conducted by the IDF in the southern Gaza Strip as part of its military activities in the area.
Responding to the judges questions concerning the number of homes that have been demolished, State prosecutor Anar Helman said, “Neither the army nor the state has detailed statistics on the number of homes demolished due to fierce war being waged by soldiers inside tanks. There is a problem in precisely identifying the number of homes demolished after the fighting stops.”
Justice Barak said that the entire world relies on various reports issued by the UN and international human rights organizations. “The entire world reads these reports, which constitute the basis of their view of us,” Justice Barak said. “We do not live on an island isolated from the world. We can ignore it, but the problem will continue. Why don't you investigate whether the demolition of these homes was necessary or not?” He added, “If we reject the petition, history will be written according to these reports.”
Helman responded that not everything can be investigated on the ground given the difficulty. “The relevant UN reports are frightening and serious. The entire world reads these reports, and there is no comment from Israel ,” Justice Barak responded.
The court was referring to a number of international reports on house demolitions in the occupied territories issued by international human rights organizations such as Human Rights Watch and the International Federation for Human Rights, in addition to UN humanitarian organizations such as UNRWA (the United Nations Relief and Works Agency for Palestinian Refugees) and OCHA (the UN Office for the Coordination of Humanitarian Affairs). For example, an UNRWA report issued on October 20 reported that during military operations in northern Gaza as part of Operation Days of Penitence, 91 homes were demolished, leaving 675 people homeless.
A report by John Dugard, a representative from the UN Commission on Human Rights, published on August 12, 2004, details wide-scale house demolitions by Israeli forces. Dugard notes in his report that as of August 2004, Rafah and Khan Yunis in the Gaza Strip were the center of house demolitions by IDf forces. Israeli military operations that took place in Rafah during May 18-24, 2004, left 167 houses destroyed or irreparably damaged. These buildings provided homes for 379 families, or 2,066 individuals. In May alone, 298 buildings were demolished in Rafah, inhabited by 710 families of 3,800 individuals.
Mr. Dugard wrote in the report that this is a flagrant violation of the Fourth Geneva Convention and that the international community must determine those responsible and try them before a court.
The Israeli army claimed that that objective of demolishing homes as part of Operation Rainbow in May 2004 was to find and destroy tunnels. According to an IDF statement issued on May 24, 2004, ultimately only three tunnels were found during the operation. IDF house demolitions in Gaza in 2004 have rendered 1,360 people homeless per month, or 45 persons each day, most of them already refugees. Over the past four years, the total number of Gazans rendered homeless as a result of military demolitions now exceeds 24,547 people.
Adalah argued in its petition that “absolute military necessity” must be defined in accordance with international humanitarian law, the Rome Statute of the International Criminal Court, and recent decisions of the International Criminal Tribunal for the Former Yugoslavia. It further argued that the term is subject to several restrictions under international law including: a sharp distinction must be made between civilians and civilian structures and military targets; if there is some question as to whether civilian property is being used for military purposes, an army is obliged to consider it a civilian structure and not demolish it; a civilian property being used for military purposes can only be demolished when the military risk it presents its immediate and absolute; and the means used to destroy civilians property must not inflict damage disproportionate to the military advantage gained. That is, one cannot use heavy military equipment to demolish homes that may inflict damage disproportionate to the absolute military necessity. Finally, one cannot use absolute military necessity to provide a military advantage that will facilitate the mission of occupation forces.
The High Court of Justice closed the hearing by asking attorney Dalal to provide details of specific homes demolished within specific locations before the hearing on the petition continues. |