October 18, 2004

VIII. PROPERTY DESTRUCTION UNDER INTERNATIONAL AND ISRAELI LAW

Israel's conduct in the OccupiedPalestinianTerritories (OPT) is regulated by two distinct but overlapping legal regimes: international humanitarian law (IHL) also known as the law of armed conflict and human rights law.Both regimes aim to enhance the protection of the civilian population, and in a complex situation such as a belligerent occupation, they complement and reinforce each other.

International Humanitarian Law

Under IHL, Israel is the Occupying Power in the West Bank and Gaza Strip.As such, it is bound by a subset of IHL that deals specifically with occupation, codified primarily in two legal instruments: the 1907 Hague Regulations[301] and the 1949 Fourth Geneva Convention.[302]As discussed in Chapter 3, Israel has rejected the applicability of the Fourth Geneva Convention to the OPT, a position that is not shared by the international community.

Since 2000, Israel has also argued that the uprising in the OPT constitutes an "armed conflict short of war" in which it can lawfully use military force but where the laws of international armed conflict do not fully apply since the IDF is not fighting a state.Maj. Noam Neuman, the IDF Deputy Legal Adviser in the Gaza Strip, summarized this position concisely: "Although we don't have the duty to obey all the rules as a policy we obey the laws of war."[303]In effect, Israeli authorities have tried to place themselves in a situation in which they are free to choose when they can invoke the privileges afforded by IHL while avoiding its responsibilities.[304]

While there have been a series of armed engagements throughout both the OPT and Israel, Israel still retains overall effective control in the OPT and is therefore bound by the duties of an Occupying Power, as well as its obligations under international human rights law.

Responsibilities of an Occupier: Military Operations vs. Security Measures

An Occupying Power has two roles: as an administrator with security responsibilities, and as a potential belligerent in the event of fighting.The Occupying Power is always responsible, however, for protecting the civilian population in its hands.[305]

As an administrator responsible for maintaining law and order, an Occupying Power can take preventive measures to enhance the security of its forces, such as patrols, fortifications, checkpoints, and taking control of private property.

Adopting preventive security measures entails assessment of potential risks rather than direct and actual threats.These measuresare by definition taken outside of a context of fighting or preparations for battle. In this situation, a fuller range of human rights protections and due process guarantees should apply.The Israeli Supreme Court has heard cases involving house demolitions for decades, but it has consistently sanctioned policies that violate both human rights law and IHL.

In the event of hostilities, an Occupying Power may also engage in military operations, which the Commentary to the Additional Protocols to the Geneva Conventions defines as "movements, manuvres and actions of any sort, carried out by the armed forces with a view to combat."[306]A belligerent occupation cannot be considered a "military operation" in itself, nor can every activity conducted by the Occupying Power be considered a military operation.Rather, military operations must be concretely linked to fighting.

IHL strictly limits the destruction of property to military operations.According to Article 53 of the Fourth Geneva Convention, "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations" [emphasis added].General security measures not connected to actual fighting are not included in this exception.[307]For this reason, the ICRC stated during the May incursions in Rafah that "the destruction of property as a general security measure is prohibited."[308]Article 53 adapts Article 23(g) of the Hague Regulations, which is now recognized as customary law by the Israeli Supreme Court, more restrictively to occupation.[309]Article 23(g) forbids destruction or seizure of property unless "imperatively demanded by the necessities of war."One leading commentator argues that:

not everysituation of military necessity but only imperative reasons of military necessity, i.e. most serious military reasons which are of an imperative nature, may justify [destruction or seizure of property]. Accordingly, the pure fact that the acts under consideration do serve security needs or contribute to the security of the area at large is not in itself sufficient to justify any of the otherwise prohibited acts, unless it can be proven that there is indeed an imperative need to do so, i.e. that there are no other means to secure military safety.In particular, national-security needs in a broad sense may not justify takings or private property.[310]

As documented in this report, the IDF frequently destroyed houses, roads, and agricultural land for reasons not linked to combat.The most widespread demolitions have been in the context of the expansion of the buffer zone.Other demolitions have proceeded on the basis of a general assumption, without verification, that roads are mined.Houses near the border used in past attacks have also been destroyed, usually accompanied by an internal legal review."We destroy a house if it was used [against us] before and as long as we think it will be used again," said Major Neuman.[311]The IDF has also spoken of other non-combat rationales for mass demolition, including "weaken[ing] the fear of the existence of tunnels."[312]

IDF doctrine appears to inappropriately conflate military operations linked to fighting with security measures intended to reduce the general risk to the Occupying Power.This inherently expansive interpretation of military operations, with the broader latitude for destruction, has been a recipe for incremental expansion of the buffer zone as well as for excessive destruction during incursions into the camp.As one IDF officer put it, "I have no doubt that the clearing actions [i.e. house demolition and land razing] have an element of tactical value, but the question is, where do we draw the line?According to that logic, what prevents us from destroying Gaza?"[313]

Destruction of Property in Occupation: Military Operations and Absolute Necessity

Once engaged in military operations in other words, actions taken with a view to fighting an occupying power can destroy property only "when rendered absolutely necessary by military operations."Military necessity is one of the most difficult concepts to define under IHL, as too broad a definition could easily undermine many IHL norms and revert to an unacceptable "everything is fair in war" standard.The Commentary to the Fourth Geneva Convention is especially aware of this danger with regard to property destruction and expresses concern that "unscrupulous recourse to the clause concerning military necessity would allow the Occupying Power to circumvent the prohibition set forth in the Convention."[314]

In the case of property destruction, military necessity must be "absolute," which the ICRC has interpreted to mean "materially indispensable" in the framework of military operations.[315]The Canadian military manual's section on occupation stipulates that:

Property of any type or ownership may be damaged when such is necessary to, or results from, military operations either during or preparatory to combat.Destruction is forbidden except where there is some reasonable connection between the destruction of the property and the overcoming of the enemy forces.[316]

Similarly, the U.S. military field manual's regulations for destruction in the context of hostilities require a "reasonably close connection between the destruction of property and the overcoming of the enemy's army" [emphasis added].[317]The U.K. military manual is more explicit in a reference to conduct in recently captured areas, where the army has not yet established the degree of control required for an occupation:

once the defended locality has surrendered or been captured, only such further damage is permitted as is demanded by the exigencies of war, for example removal of fortifications, demolition of military structures, destruction of military stores, or measures for the defence of the locality.It is not permissible to destroy a public building or private house because it was defended [emphasis added].[318]

The IDF manual on the laws of war on the battlefield interprets military necessity and property destruction much more permissively:

The Hague Conventions state that unnecessary destruction of enemy property is forbidden. The emphasis here is on unnecessary, for as opposed to [sic] civilians, there is no absolute protection of property in wartime.It is only natural that property sustain damage in war.The only restriction is to refrain from destroying property senselessly, where there is no military justification, for the sheer sake of vandalism [emphasis in the original].[319]

Under this standard, any destruction that could have some hypothetical military value is permitted.There is no mention of the need for "absolute" necessity required in contexts of occupation.Indeed, the IDF manual does not even establish that the destruction must conform to other rules of IHL.Yet one of the oldest and most widely accepted definitions of military necessity states that it consists of "measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war."[320]In other words, military necessity cannot be used as an excuse to violate explicit IHL provisions, because the requirements of military necessity have already been incorporated into IHL rules.The military manuals of the U.S., U.K., Canada, and other major armies emphasize this point but it does not appear anywhere in the IDF manual.[321]

In explaining house demolitions during military operations, Israeli officials frequently cite the example of civilian houses being used to shelter gunmen while they attack the occupying army.[322]The IDF's guidelines for permissible demolition, however, encompass far more than this example.During the May 18-24 incursions, the IDF said that it also destroyed homes if trip wires for explosives originated from them, if "terrorists" resided in them, or if they covered tunnel entrances.[323]The IDF field commander reportedly indicated that he also considered any house from which an armed person emerged to be a military target.[324]Finally, the IDF acknowledges destroying homes on a preventive, hypothetical basis during incursions.According to Major General Dan Harel, head of the Southern Command, "20 structures were demolished around the uncovered tunnels, this in order to prevent terrorists from opening fire and activating explosive devices against the operating forces."[325]

These broad criteria for house demolitions, undoubtedly shaped by the disturbingly permissive interpretation of military necessity in the IDF military manual, undermine two fundamental principles of IHL: distinction and proportionality.

The principle of distinction is enshrined in the duty to "at all times distinguish between civilian objects and military objectives" and to accordingly direct "operations only against military objectives."[326]In a meeting with Human Rights Watch researchers, Major Neuman said that the IDF only destroys civilian homes that have become military objectives.To stress the point, he read out loud Article 52(2) of Additional Protocol I, which stipulates that military objectives can include objects "which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

The next provision (Article 52(3)), however, makes clear that the mere potential for military use does not eviscerate the protection enjoyed by a civilian object: "In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."As a result, it is unlawful to destroy a civilian object without sufficient evidence that it is being put to military use or is about to be so used.The U.K. military manual illustrates the rule with the following example: "If, for example, it is suspected that a schoolhouse situated in a commanding tactical position is being used by an adverse party as an observation post and gun emplacement, this suspicion, unsupported by evidence, is not enough to justify an attack on the schoolhouse."[327]Similarly, civilian objects used for military purposes only lose their civilian status for as long as they make an effective contribution to military action.

Even when a clear military objective has been identified, an occupying power also "must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done."[328]Proportionality dictates that the civilian cost of a military action should not be excessive in relation to the concrete and direct military advantage anticipated.The phrase "concrete and direct" appears several times in Additional Protocol I and in various expressions of customary international law.The U.K. manual interprets the phrase to mean that "the advantage to be gained is identifiable and quantifiable and one that flows directly from the attack, not some pious hope that it might improve the military situation in the long term."[329]An IDF legal advisor explained to Human Rights Watch that the military assesses the proportionality of house demolitions primarily by taking into account whether a building is inhabited.This determination is often made on the basis of intelligence reports or soldiers' observations of inhabitation signs, such as internal lights or hanging laundry.[330]

Using the category of "uninhabited" homes as the main yardstick of proportionality, however, ignores the fact that IDF shelling or incursions are often the reason for civilians to temporarily vacate their homes in the first place.The mere absence of people from a building at a particular moment in time does not make it uninhabited, especially when the residents have been compelled to flee by hostilities.Moreover, it is not enough simply to ensure that civilians are not physically harmed; the principle of distinction also applies to civilian objects, including property.In particular, an attacker should refrain from launching an attack if the expected cost, including "damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated."[331]Protocol I, Article 57 ("Precautions in attack") requires those who plan and/or execute an attack to cancel or desist from the attack in such circumstances.In theory, an abandoned home has less value in a proportionality analysis than an inhabited one.But the IDF's assessment of proportionality must be considered in light of the indiscriminate shooting that is a feature of daily life along the Rafah border.

"Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly" is a grave breach of the Fourth Geneva Convention, or a war crime.[332] As the first international judicial institution to try cases of destruction as a grave breach of the Geneva Conventions, the International Criminal Tribunal for ex-Yugoslavia (ICTY) has determined that such a crime has been committed when property is destroyed extensively and without military necessity, and if the perpetrator acted with the intent to destroy the property or in reckless disregard of the likelihood of its destruction.[333]

Control of Property in Occupation: Security Measures and Rights

While IHL strictly regulates the destruction of all kinds of property, an Occupying Power may take control of property under a number of different circumstances.Nevertheless, it is difficult to reconcile the planned expansion of the buffer zone with any of them.

According to Article 23(g) of the Hague Regulations, seizure of property is forbidden unless "imperatively demanded by the necessities of war."As this provision is located in the section of the Hague Regulations on hostilities (rather than occupation), it is relevant only in the context of military operations and is also subject to the recognized limitations on military necessity.

An Occupying Power cannot confiscate private property.[334]It can requisition use of buildings for the maintenance of the army of occupation, in proportion to the resources of the territory.[335]It also acts as an administrator of public buildings and lands, but cannot reduce their value.[336]As an administrator, an Occupying Power may also expropriate property for public use as part of its obligation to maintain civic life.[337]According to the U.S. army field manual, "an occupant is authorized to expropriate either public or private property solely for the benefit of the local population."[338]

The U.S. and Canadian military manuals argue that an Occupying Power is also allowed to control property "to the degree necessary to prevent its use for the benefit of the enemy or in a manner harmful to the occupant.Property control is temporary in nature.The property must be returned to the owners when the reason for the control no longer exists.Therefore, the control must not extend to confiscation."[339]

The IDF manual says that "Private property that does not belong to the state is immune to seizure and conversion to booty.Nevertheless, a military commander is allowed to seize [sic] also private property if this serves an important military need."[340]As with IDF doctrine on destruction, this provision does not require that seizure be in conformity with IHL.None of the limitations and restrictions associated with property control stipulated in the Hague Regulations such as the requirement that seizure be "imperatively demanded by the necessities of war" or that requisitions be in proportion to the resources of the territory are mentioned.Nor does the manual mention that control of private property for military use should be temporary.

Human Rights Law and Occupied Territories

Unlawful house demolitions and expulsions also violate fundamental human rights norms that continue to apply in situations of belligerent occupation.International human rights law seeks to protect individuals from forced evictions and guarantees the right to adequate housing even when they are lawfully removed.It also guarantees individuals the right to adequate remedies, which should include access to impartial courts to seek compensation for destroyed property or to challenge the legality of property seizures.Whether the IDF desires to expand the buffer zone through incremental incursions or to widen it after going through the Israeli Supreme Court, these fundamental rights should be respected and should also inform policy.

While Israel has ratified the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social, and Cultural Rights (ICESCR), it denies their applicability to the OPT.Israel has argued that these treaties apply only to Israel's sovereign territory, that the establishment of the PNA should relieve it of its international responsibilities under these covenants in the OPT, and that the existence of hostilities in the OPT merits the application of IHL at the exclusion of human rights norms.[341]The ICCPR, however, explicitly applies to "all individuals within [a state's] territory and jurisdiction" (Article 2(1)), which would include Palestinians in the OPT.U.N. treaty bodies have repeatedly affirmed Israel's responsibilities under these human rights instruments in the OPT, as has the ICJ.[342]As the U.N. Human Rights Committee affirmed in its most recent concluding observations on Israel:

The Committee reiterates the view that the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of the Covenant The Committee therefore reiterates that, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party's authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.[343]

Similarly, the U.N. Committee on Economic, Social, and Cultural Rights has repeatedly stressed in relation to Israel and the OPT that "even in a situation of armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law and are also prescribed by international humanitarian law."[344]

IHL also recognizes the continued relevance of human rights in belligerent occupation.The Fourth Geneva Convention balances the protections afforded to civilians against the right of the Occupying Power to take security measures. "The various security measures which States might take are not specified," notes the ICRC Commentary to the Fourth Geneva Convention."What is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned.As has been seen, those rights must be respected even when measures of constraint are justified."[345]

Forced Evictions and the Right to Adequate Housing

International law seeks to protect people from forced eviction, which has been defined as "the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection."[346]The U.N. Commission on Human Rights in 1993 concluded that "forced evictions are a gross violation of human rights, in particular the right to adequate housing."[347]

International human rights bodies have sought to limit the scope for allowable forced evictions as much as possible.The U.N. Committee on Economic, Cultural and Social Rights (CESCR) considers "that instances of forced eviction are prima facie incompatible with the requirements of the [ICESCR] and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."[348]

Forced evictions occur in both peacetime and in the context of armed conflict.[349]States are prohibited from carrying out forced evictions in all areas under their control, including those under belligerent occupation.[350]

Forced evictions and unlawful house demolitions also constitute a form of arbitrary interference with the home, which is prohibited by Article 17 of ICCPR.It is important to note that even the removal of people from their homes through a legal process can violate this rule:

In the Committee's view the expression "arbitrary interference" can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.[351]

Even in situations where individuals may lawfully be removed from their homes, the right to adequate housing, guaranteed by Article 11(1) of ICECR, remains.[352]Unlike many civil and political rights, it cannot be derogated from in the name of national security.It can be subject "only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society."[353]As the CESCR explains, "the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity.Rather it should be seen as the right to live somewhere in security, peace and dignity."[354]As the Occupying Power, even if Israel enacts a legal process to remove Palestinians from their homes, it must ensure that they are adequately housed.

Right to Effective Remedies

An Occupying Power should make available effective remedies to those whose property has been destroyed.It should also ensure that property control measures do not amount to de facto confiscation by taking such measures only in response to specific and well-defined threats, and allowing owners to legally challenge decisions before impartial bodies on a regular basis.

Article 2(3) of ICCPR guarantees the right to "effective" remedies for those whose rights have been violated.States are obligated "To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy."They must also "ensure that the competent authorities shall enforce such remedies when granted."

In relation to forced evictions, the CESCR has also stressed the importance of consultation and access to legal remedies:

States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force.Legal remedies or procedures should be provided to those who are affected by eviction orders.States parties shall also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.[355]

As noted above, the existence of a belligerent occupation or even of armed conflict does not automatically preempt the right to an effective remedy.It is noteworthy that even assigned residence and internment, described in Article 78 as the Fourth Geneva Convention as the most severe security measures allowed to an Occupying Power, require a number of procedural safeguards, most notably the right to appeal.Appeals shall be decided on with the least possible delay and assigned residence or internment should be subject to review every six months if possible.[356]Furthermore, fifty-seven of the 159 articles of the Convention (Arts. 79-135) are exclusively dedicated to regulating various aspects of internment.The Commentary on Article 78 notes that "such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved."[357]

Israeli Jurisprudence and Law

For decades, Israel's judiciary has effectively sanctioned unlawful property destruction and forced evictions by the IDF.This does not bode well for the prospects of a plan to legalize the destruction of homes in order to widen the Philadelphi corridor.Simply destroying homes and handing out compensation, as has been discussed in the Israeli media, is not enough; residents must be able to mount legal challenges to expropriation with full human rights guarantees.

Exceptions Over the Rule: Israeli Courts and Destruction of Property

For decades, the Israeli Supreme Court has heard petitions related to property destruction, mostly in the context of urgent petitions filed regarding punitive demolitions.The Court has consistently legitimized house demolitions[358] while developing a limited and deeply flawed jurisprudence regarding the right of owners to be heard in advance of demolitions.

The Israeli Supreme Court has in recent years expanded the scope of the IDF's discretion to dispense with the right to a hearing.For years, demolitions could go ahead without a hearing if imperative military reasons, usually linked to combat, allowed.During the current uprising, other exceptions were added.The 2002 'Amer case represents the latest evolution in the Court's jurisprudence on the right of an owner to be heard in advance of demolitions.The Court ruled that the right could be revoked in three instances:

  • If destruction is absolutely necessary for military operations;
  • If providing advance notice would endanger the lives of soldiers;
  • If providing advance notice would endanger the success of the demolition.[359]

The cumulative effect of the "three exceptions" rule is to give the IDF discretion to circumvent the already limited role of the Court and to avoid having to justify demolitions in the first place.The first "exception" conforms to the general rule for destruction under IHL.The second "exception" has been proposed by the IDF on the basis that giving advance notice can entail significant risks to troops, for example by allowing the homes in question to be booby-trapped with explosives or giving fighters an opportunity to set up ambushes.While this may be possible in some cases, the court's jurisprudence is vague about the level and nature of the risks required to render such destruction "absolutely necessary" for military operations.The third exception is so vague that it allows for demolitions without due process on almost any basis.

Even if none of the three exceptions apply, the "right to be heard" granted by the Court is not an adequate remedy.There are no clear guidelines for the appeal process, and the Court invariably defers to the IDF's invocation of "military necessity."Even when faced with expert opinions on the military necessity or efficacy of proposed actions, the Court as a rule sides with the IDF without assessing the merits of competing arguments.As the Israeli Supreme Court ruled in 1979 and reaffirmed as recently as June 2004:

In security issues, where the petitioner relies on the opinion of an expert in security affairs, and the respondent relies on the opinion of a person who is both an expert and also responsible for the security of the state, it is natural that we will grant special weight to the opinion of the latter.[360]

According to human rights lawyers who litigate house demolition cases, appeals to the Court at best elicit temporary injunctions that give residents several hours or days to evacuate their belongings.Occasionally, the IDF announces that it has no intention of demolishing the homes in question for the time being, leaving residents in fear that the threat of demolition could reemerge later.In conceding that it has the luxury to carry out some demolitions later on at its convenience, the IDF undermines any argument for the "absolute" necessity of such destruction.[361]

The jurisprudence of the "three-exception" rule was mostly developed in the case of punitive house demolitions, i.e. in cases where the IDF did not claim any security or military threat from the houses themselves.In cases such as in Rafah, where the IDF claims that houses are actually military objectives, there is virtually no space for appeals.Israeli State Attorney Aner Hellman has essentially argued that at least one of the three exceptions exists at nearly all times in Rafah: "In 99 percent of the cases in the Rafah area, which is different from the West Bank or elsewhere in the Gaza Strip, the moment we announce our intention of razing a home, the Palestinians immediately set booby-traps there."[362]As one Israeli commentator noted, the Court effectively "hear[s] petitions by Palestinian residents calling for the right of appeal, and hand[s] down decisions which seem to offer a certain degree of hope even though both sides, the court and the petitioners, know the hope is hollow."[363]

The vast permissiveness that the "three exceptions" rule permits the IDF in property destruction has prompted a change in litigation tactics by local human rights organizations.In May, three groups Adalah, al-Haq, and the Palestinian Centre for Human Rights (PCHR) jointly filed a petition to the Israeli Supreme Court asking it to define the scope of "military necessity" regarding property destruction under IHL.The human rights groups argued that "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."[364]As of September 2004, the Court had not responded on whether it will hear the petition.

Pending a decision on the petition, the three groups filed a motion to the Court on June 30 for an injunction to prevent the demolition of the homes of ten families in various high-risk neighborhoods of Rafah.On July 21, Judge Mishael Cheshin issued an order forbidding the destruction of the ten homes mentioned in the motion, but the Court canceled the order several hours later.The reversal came after the Attorney General argued that the military could not locate the ten houses in question and that military operations in southern Rafah are continuing in which soldiers' lives are at risk.Furthermore, the State Attorney assured the Court that the houses will not be demolished without a hearing subject, of course, to the "three exceptions" rule.[365]

Reparations

Under IHL, reparation is required for violations, though not for damage that is incidental to lawful military acts.Israeli law, however, makes obtaining compensation for IDF abuses, including unlawful property destruction, almost impossible.[366]In July 2002, the Knesset amended the law on claims related to IDF activities in the OPT, sharply curtailing the already limited ability of civilians to obtain compensation for damage or injury caused by negligent or unlawful acts of Israeli forces.[367]

Under the previous law, the state was exempt from any liability in connection with "wartime action."The 2002 amendment expanded the definition of "wartime action" from actual hostilities to include virtually all IDF activities in the OPT, including those not related to combat, such as patrols, operating checkpoints, searches and arrests, and dealing with demonstrations.The law also places the burden of proof on the plaintiff and drastically reduces the time period in which cases can be brought.[368]According to a coalition of Israeli human rights groups, the amendment "renders worthless the rules of Israeli law and international law that are intended to limit the use of force. Violation of the law would bear no consequences, and enforcement of the law would be subject solely to the good will of the soldiers."[369]

[301] Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, 1907 (hereinafter "Hague Regulations").

[302] Geneva Convention (IV) relative to the protection of civilian persons in time of war, 1949 (hereinafter "Fourth Geneva Convention").

[303] Human Rights Watch interview with Major Noam Neuman, IDF Deputy Legal Adviser for the Gaza Strip, Tel Aviv, July 20, 2004.

[304] Human Rights Watch has previously encountered similar attempts by the IDF to obfuscate its legal obligations by attempting to create or exploit ambiguities in the law or gaps between legal regimes.See Human Rights Watch, Center of the Storm: A Case Study of Human Rights Abuses in Hebron District, April 2001.

[305] Fourth Geneva Convention, Arts. 4 and 27.

[306] ICRC, Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, p. 67.Virtually identical language (" with a view to fighting") is used in "Interpretation by the ICRC of Article 53 of the Fourth Geneva Convention of 12 August 1949, with particular reference to the expression 'military operations,'" Letter to al-Haq signed by Jacques Moreillon, Director of Department of Principles and Law and Jean Pictet, ICRC, November 25, 1981.

[307] The Convention "makes a clear distinction between military operations, requirements, or considerations and requirements or considerations of security" (emphasis in original), David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, NY: SUNY Press, 2002), p. 148.

[308] "ICRC Deeply Concerned Over House Destructions in Rafah," ICRC press release, May 18, 2004.

[309] ICRC Commentary on Art 53 of Fourth Geneva Convention, p. 301.

[310] "Commentary on destruction prohibited except where imperatively by necessities of war," Otto Triffterer (ed.), "Commentary on the Rome Statute of the International Criminal Court" (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 232.

[311] Human Rights Watch interview with Major Noam Neuman, IDF Deputy Legal Adviser for the Gaza Strip, Tel Aviv, July 20, 2004.

[312] "Transcript of GOC Southern Command Regarding the Findings of the Investigation of the Demolition of the Buildings in Rafah (10-11.01.02)," IDF Spokesperson's Unit, January 27, 2002.

[313] Avihai Becker, "The Black List of Captain Kaplan," Ha'aretz, April 27, 2001, cited in B'tselem, Policy of Destruction: House Demolitions and Destruction of Agricultural Land in the Gaza Strip, February 2002, p. 34.

[314] ICRC, Commentary on the Fourth Geneva Convention, p. 302.

[315] "Interpretation by the ICRC of Article 53 of the Fourth Geneva Convention of 12 August 1949, with particular reference to the expression 'military operations,'" Letter to al-Haq signed by Jacques Moreillon, Director of Department of Principles and Law and Jean Pictet, ICRC, November 25, 1981.

[316]The Law of Armed Conflict at the Operational and Tactical Level (Office of the Judge Advocate General, Canadian military, September 2001), section 12-9.

[317]U.S. Army Field Manual 27-10: The Law of Land Warfare (Department of the Army, July 1956), pp. 23-24.

[318] U.K. Ministry of Defence, The Manual of the Law of the Law of Armed Conflict (Oxford: OxfordUniversity Press, 2004), p. 88.

[319]Laws of War in the Battlefield (IDF Military Law School, Department of International Law, 1998), p. 69.The manual is available in English at http://www.ihlresearch.org/opt/bounce.php?a=12623, (accessed October 4, 2004)

[320] ICRC, Commentary on Protocol I, p. 393, paraphrasing Francis Lieber, Instructions for the Government of Armies of the United States in the Field (Lieber Code), 1863, Art. 14.

[321] See, inter alia, U.S. Army Field Manual 27-10: The Law of Land Warfare, p. 4; The Manual of the Law of the Law of Armed Conflict, pp. 21-23; The Law of Armed Conflict at the Operational and Tactical Level, section 2-1.

[322] See, inter alia, "The Demolition of Palestinian Structures Used for Terrorism - Legal Background," Israel Ministry of Foreign Affairs, May 18, 2004, available at: http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Terror+Groups/Demolition+of+Palestinian+Structures+Used+for+Terrorism+-+Legal+Background+-+May+2004.htm.

[323] Letter from Major Sam Wiedermann, Head of International Organizations Desk, IDF Spokesperson's Unit, to Human Rights Watch, August 22, 2004.

[324]Tsadok Yehezkeli, "Regards from Hell," Yediot Ahronoth, June 11, 2004 (Hebrew).

[325]"A summary of the briefing held today by the GOC southern command, Maj. Gen. Dan Harel, regarding the operation in Rafah," IDF Spokesperson's Unit, May 25, 2004.

[326] Protocol I, Art. 48.While Israel has not ratified Protocol I, the provisions on indiscriminate warfare are considered to be a codification of customary rules of international law."The basic rule of protection and distinction is confirmed in this article.It is the foundation on which the codification of the laws and customs of war rests" (Commentary on Protocol I, p. 598).

[327] U.K. Ministry of Defence, The Manual of the Law of the Law of Armed Conflict, p. 55.

[328] ICRC, Commentary on Art. 53, Fourth Geneva Convention, p. 302.

[329] U.K. Ministry of Defence, The Manual of the Law of the Law of Armed Conflict, p. 86.

[330] Human Rights Watch interview with Major Noam Neuman, IDF Deputy Legal Adviser for the Gaza Strip, Tel Aviv, July 20, 2004.

[331] Protocol I, Art. 51(5).

[332] Fourth Geneva Convention, Art. 147.

[333] ICTY, Prosecutor v. Naletilić, Trial Chamber judgment, March 31, 2003, para. 577.See also ICTY, Prosecutor v. Kordic and Čerkez, Trial Chamber judgment, February 26, 2001, paras. 335-341; ICTY, Prosecutor v. Blakić, Trial Chamber judgment, March 3, 2000, para. 157.

[334] Hague Regulations, Art. 46.As opposed to seizure, confiscation also involves a transfer of ownership as well as control.

[335] Ibid., Art. 52."Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible."

[336] Ibid., Art. 55.Municipal property, and religious, cultural, and scientific institutions are considered private, even if state-owned (Hague Regulations, Art. 56).

[337] Ibid., Art. 43.

[338] See, inter alia, U.S. Military Field Manual 27-10, p. 158.

[339]The Law of Armed Conflict at the Operational and Tactical Level, section 12-10; almost identical language can be found in U.S. Field Manual 27-10, p. 150.

[340]Laws of War in the Battlefield, p. 70.

[341] See, inter alia, Second period report of Israel to the U.N. Human Rights Committee, CCPR/C/ISR/2001/2, December 4, 2001, para. 8; Second periodic report of Israel to the U.N. Committee on Economic, Social and Cultural Rights, E/1990/6/Add.32, October 16, 2001, paras. 5-7.

[342] See, inter alia, "Concluding observations of the Human Rights Committee: Israel," CCPR/CO/78/ISR, August 21, 2003, para. 11; "Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel," E/C.12/1/Add.90, May 23, 2003, para. 15; ICJ advisory opinion on Legal Consequences of the Construction of a Wall in the OccupiedPalestinianTerritory, July 9, 2004, paras. 111-112.

[343]"Concluding observations of the Human Rights Committee: Israel," CCPR/CO/78/ISR, August 21, 2003, para. 11.

[344] U.N. Committee on Economic, Social, and Cultural Rights, "Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel," E/C.12/1/Add.90, May 23, 2003.Similar language can be found in previous Concluding Observations on Israel: E/C.12/1/Add.69, August 31, 2001, para. 12.

E/C.12/1/Add.90. (Concluding Observations/Comments)

[345] Commentary to the Art 27(4) of the Fourth Geneva Convention, p. 207.

[346] CESCR, General Comment 7, "The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions," U.N. Doc. E/C.12/1997/4 (1997).

[347] U.N. Commission on Human Rights, E/CN.4/RES/1993/77, para. 1.

[348] CESCR, General Comment 4, "The right to adequate housing (Art. 11 (1))" (1991), para. 18.

[349] CESCR, General Comment 7, paras. 5-6.

[350] This point is stressed in the Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, a nonbinding elaboration of international law completed by a group of independent experts in 1997: "The dominating or occupying power bears responsibility for violations of economic, social and cultural rights" (Art. 17).This is especially pertinent when the violation takes place through an act of commission rather than the failure to realize a standard of living.

[351] U.N. Human Rights Committee, "General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17)," April 8, 1988, para. 4.

[352] ICESCR, Art. 11(1).

[353] ICESCR, Art. 4.

[354] CESCR, General Comment 4, para. 7.

[355] CESCR, General Comment 7, para. 13.

[356] Fourth Geneva Convention, Art. 78; see also Arts. 41-43 for application of such measures in territory of parties to a conflict.

[357] Commentary on the Fourth Geneva Convention, p. 368.

[358] For an overview of the Court's jurisprudence on the legality of demolitions, see, inter alia, Yoram Dinstein, "The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses," Israel Yearbook on Human Rights, Vol. 29 (2000).

[359]'Amer v. Commander of Israel Defense Forces in the West Bank, HCJ 6696/02, August 6, 2002.

[360] See, inter alia, Duikat v. Government of Israel, HCJ 390/79, cited in BeitSourikVillage Council v. The Government of Israel, HCJ 2056/04, June 30, 2004, para. 47.

[361] Human Rights Watch interview with Dalia Kerstein and Yossi Wolfson, HaMoked, Jerusalem, July 1, 2004.

[362] Yuval Yoaz and Gideon Alon, "High Court Allows Gaza Demolitions," Ha'aretz, May 17, 2004.

[363] Dan Izenberg, "High Court shows emperor has no clothes," Jerusalem Post, May 20, 2004.

[364] "Adalah the PCHR and Al-Haq Ask the Supreme Court to Define the Legal Scope of the 'Military Necessity' Exception, and Issue an Injunction Against the Israeli Army's Home Demolitions Policy, which Violates this Exception," Adalah press release, May 27, 2004.The petition is available in Hebrew at http://www.adalah.org/features/rafah/petition.pdf (accessed October 4, 2004).

[365] "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," Adalah press release, July 22, 2004.

[366] The Supreme Court has noted that the IDF should compensate owners of land seized for the construction of the separation barrier inside the West Bank.See, inter alia, BeitSourikVillage Council v. The Government of Israel, para. 8.

[367]Torts Law (State Liability) 5712-1952, amended July 2002.

[368] "Position of Human Rights Organizations on the Proposed Law to Deny Compensation to Persons Injured by Israeli Security Forces in the Occupied Territories," Joint Statement of B'tselem, Physicians for Human Rights (Israel), HaMoked, and Association for Civil Rights in Israel, 26 June 2002, available at: http://www.btselem.org/English/Special/Compensation_Law/Position_Paper.asp.A translation of the amended law is available at: http://www.hamoked.org.il/items/310_eng.pdf, (accessed October 4, 2004).

[369] "Position of Human Rights Organizations on the Proposed Law to Deny Compensation to Persons Injured by Israeli Security Forces in the Occupied Territories."