Supreme Court President Aharon Barak on Tuesday blasted the state for failing to respond to charges by the UN and international human rights organizations that Israel has violated international law by carrying out massive and unnecessary destruction of Palestinian homes in the Gaza Strip.
"These reports are being read all over the world and serve as the factual basis regarding us," Barak told Attorney Aner Hellman. "We don’t live on an isolated island. We can go on like this, but the problem will fester without a solution. The army does not receive proper guidance and the world celebrates at our expense. Why not make the effort to investigate if there was really a need to destroy the thousands of homes that have been razed?"
Barak made these comments at the opening of a hearing on a petition by Adalah, the Legal Center for Arab Minority Rights in Israel, demanding that the state explain the term "immediate military necessity." The state has argued that Israel will grant the right of appeal to Palestinians whose homes it wants to demolish except in cases of "immediate military necessity," a term used in international law as the only justification for demolishing the house of a protected civilian in occupied territory.
In the petition, Adalah attorney Marwan Dalal charged that Israel exploits this term without justification to demolish thousands of Palestinian homes.
In preparation for Tuesday’s hearing, Dalal submitted a number of reports from UN and humanitarian organizations detailing their assessment of Israel’s actions in the administered territories.
For example, on August 12, 2004, John Dugard, the Special Rapporteur of the UN Commission on Human Rights, wrote a report about the destruction of homes in Rafah during the IDF’s Operation Rainbow, conducted between May 18 and May 24 to uncover Palestinian weapons tunnels. Dugard wrote that 43 Palestinians were killed in the operation and 289 buildings housing 710 families (3,800 individuals) were demolished.
"The Special Rapporteur was appalled at the evidence of wanton destruction inflicted upon Rafah," wrote Dugard. "The Special Rapporteur is mindful of article 53 of the Fourth Geneva Convention which provides that any destruction by the occupying Power of personal property is prohibited except when such destruction is rendered absolutely necessary by military operations and that failure to comply with this prohibition constitutes a grave breach in terms of article 147 of the Fourth Geneva Convention requiring prosecution of the offenders. The time has come for the international community to identify those responsible for this savage destruction of property and to take the necessary legal action against them."
Other reports referred to by Dalal also described the scope of IDF destruction during the past four years of the so-called Al Aqsa Intifada. UNWRA, the UN refugee agency, wrote that during the IDF’s Operation Days of Penitence in northern Gaza earlier this month, 91 houses were demolished, leaving 675 Palestinians homeless.
UNWRA also estimated that the house demolition rates in 2004 have reached "alarming levels." An average of 45 Gaza residents per day, or 1,360 a month, are left without a roof over their heads, wrote UNWRA. It estimated that 24,547 Gazans have been made homeless during the Intifada.
In responding to these charges, the state claimed it was aware of the need to limit harm to the Palestinian civilian population as much as possible. Nevertheless, it devoted more than half of its response to raising technical arguments as to why the court should reject the petition without hearing it.
Barak strongly rejected the state’s refusal to address Adalah’s charges substantively. When Hellman said that Israel refused to cooperate with Dugard, Barak retorted, "He’s a renowned expert. I know him personally."
Barak urged the government to appoint a committee to investigate the house demolitions in depth, or to have the army investigate them. "If we reject this petition, the history of these times will be written in accordance with these [foreign] reports. We will cooperate, we won’t cooperate, that’s all well and good. But we owe this to ourselves and our history."
When Hellman protested that it would be difficult to investigate individual instances of house demolitions retroactively and that it would involve painstaking work, Barak replied, "These UN reports, they are terrible. The world reads these reports and Israel does not have an answer."
Barak also asked Dalal to prepare details of specific cases in which houses were allegedly destroyed for non-security reasons.