B'Tselem's position on the IDF's plan to build a trench along the Philadelphi Route

Following Operation Rainbow last May in Rafah, the IDF drew up a plan to widen the Philadelphi Route along the Gaza-Egypt border. The plan called for the destruction of hundreds of houses in the Rafah refugee camp. The army has already demolished hundreds of homes in this area over the past four years. Israel contends that the expansion of the Philadelphi Route is needed to prevent the smuggling of weapons into the Gaza Strip and protect IDF forces guarding the route. The IDF presented the plan to Attorney General Menachem Mazuz to review its legality. Ha'aretz reported that Mazuz firmly opposed the plan because of the extensive harm it would cause to residents of the refugee camp.

The press recently reported that the IDF has proposed a new expansion plan, which is similar to the initial plan in terms of its effects on residents of the camp. The plan calls for digging a trench that would be filled with water and serve as a means to deal with the tunnels used to smuggle weapons. According to Israeli press reports, the IDF offered three options for the trench. The most extensive plan calls for the destruction of about 3,000 houses, the second calls for the destruction of some 700 houses, and the "limited" plan requires the demolition of about 200 houses.

B'Tselem believes that the destruction of homes of Palestinians that would result from the various plans to expand the Philadelphi Route flagrantly breaches international humanitarian law, which applies to Israel's actions in the Occupied Territories. As the occupying power, Israel is required to protect the local population and ensure its well-being. Exceptions to this obligation are permitted in cases of imperative military needs. Yet even in such instances, Israel must balance military necessity with the welfare of the local population.

Article 53 of the Fourth Geneva Convention states that an occupying power is forbidden to destroy the property of the local population "except where such destruction is rendered absolutely necessary by military operations." Article 23(g) of the Hague Regulations states that it is forbidden "to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war." Pursuant to Article 147 of the Fourth Geneva Convention, the extensive destruction of property that is not justified by military necessity constitutes a war crime.

Israel has the right to act in order to achieve its military objectives. However, the destruction of so many homes (as would be the case even with the "limited plan") for the purpose of thwarting the smuggling of weapons through tunnels violates the exception permitting the destruction of property of the local population. Both the Fourth Geneva Convention and the Hague Regulations explicitly state that mere military necessity is not sufficient grounds to destroy property, but rather the need must be absolute. One of the main tests in determining whether the destruction of property is an absolute military necessity is that it be the last measure taken, and that it is adopted only after other measures that are less harmful to the local population have been tried and failed.

The obligation to chose a measure that causes lesser harm also stems from the principle of proportionality, which is one of the pillars of international humanitarian law. According to this principle, a military act is forbidden even if it is aimed at a legitimate military target, if the harm it will cause to civilians is excessive in comparison with the anticipated military advantage. Therefore, according to the principle of proportionality harm to the civilian population, which includes damage of civilian property, is legitimate only when options that would cause lesser harm were examined and rejected after it has been proven that they would not achieve the anticipated military advantage.

Human Right Watch recently published a report on the demolition of houses in Rafah carried out by the IDF over the past four years. The army contended that the demolitions were needed to cope with the construction of tunnels for smuggling weapons as well as to protect IDF soldiers in the area. The report, which was written with the aid of military experts on locating and destroying tunnels, offered a number of alternative actions that have not taken by the IDF, which could be used against the digging of tunnels of the kind used for smuggling weapons. These methods, which do not damage surrounding areas, have been used successfully elsewhere, including along the border between North Korea and South Korea and along the US-Mexico border. Despite the existence of these alternatives, the IDF has preferred the extreme and more harmful method - the mass demolition of houses. The fact that Israel has refrained from officially responding to the HRW report hints that the state does not have a substantive response to the report's findings.

In light of the above, B'Tselem urges the Attorney General to rule that the IDF's demolition plans regarding the Philadelphi route, including the "limited" plan, are illegal, and to order the IDF to cancel them.