Palestinian human rights groups ask Supreme Court to define scope of “military necessity”

Courtroom in Israel’s High Court (The Judicial Authority)

On Thursday, 27 May 2004, Adalah, the Palestinian Centre for Human Rights � Gaza (PCHR) and Al-Haq filed a petition and a motion for injunction to the Supreme Court of Israel against 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). The petitioners ask the Supreme Court to define, for the first time, the scope of the legal term �military necessity� 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).

Many home demolition cases have already been brought against the Israeli army before the Supreme Court. Thus far in these cases, the Supreme Court has ruled only upon the legal issues of �collective punishment� and homeowners� �right to a prior hearing� in advance of planned demolitions. In the vast majority of these cases, the Supreme Court has dismissed the legal challenges brought against home demolitions, effectively accepting the army�s arguments, and legitimizing the demolitions. In the current petition, Adalah, the PCHR and Al-Haq are legally challenging the army�s use of the justification of �military necessity� for its policy of home demolitions.

Under international law, destruction by an occupying power of civilian property belonging to the protected population of an occupied territory is prohibited. Moreover, �extensive destruction and appropriation of property, not justified by �military necessity� and carried out unlawfully and wantonly� is a grave breach of the Geneva Convention IV, and as such is a war crime under Article 8(2)(a)(iv) of the Rome Statute of the ICC. Although international law recognizes an exception to this principle, in instances of �military necessity�, this exception is subject to many strict limitations. The Supreme Court�s failure, to date, to precisely define the limitations of �military necessity� has contributed to the Israeli army�s implementation of a policy of extensive home demolitions throughout the 1967 Occupied Territories, exploiting the pretext of this exception as justification for its actions. The most recent examples of this policy have occurred during the Israeli army�s military operations in Rafah refugee camp, Gaza Strip, in May 2004, as well as in Jenin refugee camp and Nablus, West Bank, in 2002, in the course of which homes have been extensively demolished, rendering hundreds of families homeless.�

The petitioners argued that the circumstances in which civilian property may be destroyed during military operations under the �military necessity� exception are narrowly and precisely defined in international law. Firstly, a sharp distinction is drawn between civilians and civilian objects, and military objectives. Secondly, in cases of ambiguity as to whether a civilian property is being used for military purposes, it is incumbent on an army to consider it as a civilian object, and accordingly not to demolish it. Thirdly, a civilian property being used for military purposes can legitimately be demolished only when the military risk it presents is immediate and absolute. Fourthly, the means used for civilian property demolition must not inflict damage disproportionate to the military advantage gained. Finally, civilian property demolition must not be used at the army�s convenience as a method of providing increased protection against potential attacks.

In the petition, Adalah Attorney Marwan Dalal argued that the Israeli army grossly violates the pretext of �military necessity�. The petition draws on information detailed in reports from local and international human rights organizations, and the United Nations. These organizations have carried out extensive fieldwork and compiled lists of case studies, which demonstrate that the Israeli army�s home demolition operations are based on an untenably broad definition of �military necessity�.

For instance, Amnesty International reports that during the massive bulldozing of civilian property in the Jenin refugee camp in the West Bank during April 2002, aerial photographs reveal that civilian properties were demolished by the Israeli army after Palestinian armed resistance had ended. Hence, these properties cannot be regarded as military objectives posing an immediate, absolute military threat, as was claimed by the Israeli army. Other cases include �preemptive attacks� against civilian properties, which the Israeli army claims have been or could be used as bases for attacks on Israeli soldiers or settlers. Activities which the army has placed within this bracket are extremely wide-ranging, and include creating buffer zones in order to further consolidate Israeli control over land.

The petitioners argued that the misuse of the pretext of �military necessity� by the Israeli army to justify its policy of mass demolitions of civilian property in the 1967 Occupied Territories is not only illegal under international law, but has also been executed on a huge scale, and therefore constitutes collective punishment, which is a war crime under international law. In the petition, Adalah cited three cases from the ICTY to support its stance, in which a politician and high-ranking military commanders were indicted and convicted, inter alia, for the extensive destruction and appropriation of property, and imprisoned for between fifteen and forty-five years (The Prosecutor v. Blaskic, 2000, The Prosecutor v. Kordic, 2001, and The Prosecutor v. Naletilic, 2003). In each of these cases, the accused�s argument of �military necessity� was rejected. Adalah further argued that Israeli army�s policy of home demolitions violates Palestinian civilians� rights to dignity, life, and privacy; rights enshrined in the Basic Laws of Israel. Therefore, it is imperative that the Supreme Court should define, as a matter of urgency, the legal parameters of the term �military necessity�, in accordance with the international law treaties to which Israel is a signatory, in order to prevent any further illegal demolitions of Palestinian homes.

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