Denial of the right to be heard

Israel argues that it is not required to give Palestinians an opportunity to be heard by any official before the army destroys their property.

The right to be heard is surely not an absolute right, and the existence of "significant, pressing security interests" might justify denial of this right. However, the manner in which Israel implements its policy undermines the argument that the military necessity is pressing, thus justifying denial of the right to be heard.

Firstly, according to the comments of the head of the Civil Administration, Brigadier General Dov Zadka, presented above in the section on the principle of proportionality, the decision to destroy certain property is made only after a lengthy process and after several officials examined the matter. Clearly, if the military needs were indeed pressing, it was unnecessary to employ such a process.

Secondly, the testimonies given to B'Tselem indicate that, in some of the cases, the IDF forces went to the areas intended to be destroyed to examine the site, left, and later returned to destroy the crops and uproot trees. In some of the cases, the IDF forces left the area in the midst of carrying out the destruction and returned a day later to complete the action.

Thirdly, in some of the cases, the IDF Spokesperson himself contended that the actions were planned long before they were implemented. For example, the demolition of the houses in the Khan Yunis refugee camp on 10 April 2001 were planned a month earlier. The IDF Spokesperson also contended that "the IDF held back for a long time, until it acted."

Even according to the state's argument that there is insufficient time for a hearing prior to carrying out the destruction, the state still must, at least, enable the people to leave their houses and remove their property before the houses are demolished. Gunfire in the middle of the night at houses in which civilians, among them small children, are living, cannot be deemed an acceptable way to remove people from their homes.

Granting the right to be heard is also important to enable public and judicial oversight of IDF actions. The army has almost never offered evidence supporting its contention that Palestinians fired from the houses that were demolished or from the orchards that were destroyed. When the army is exempt from proving that the injury to property is absolutely necessary and that alternative actions did not achieve the objective, it is reasonable to surmise that the property damage was excessive. This conjecture is supported by the testimonies and data presented above.

In these circumstances, where gross violation of a person's rights is involved, the authorities must enable the individual whom they intend to harm to be heard. In this context, the Supreme Court held:

Demolition of a structure is, everyone would agree, a harsh and severe means of punishment, and its deterrent value does not lessen its nature as described. One of its primary features is that it is irreversible, i.e., it is not subject to subsequent repair; thus, a hearing after execution of the order is always of very limited practical import. According to our legal conception, there is, therefore, importance for the person involved to be able to lay out his objections before the commander prior to the demolition, to inform him of facts and considerations of which he may not have been aware. This court accepts the proposition that holding fair-hearing rules in an individual's matter is reflected, in part, by a person who is expected to suffer severe injury to his person or property being given prior notice of such and the opportunity to raise his objections in this matter.