Even following the transfer of parts of the West Bank and the Gaza Strip to the Palestinian Authority as part of the Oslo Accords, Israel remains the occupier of the Occupied Territories. As the occupier, it must comply with the duties of an occupying state, and act in accordance with the laws of occupation.

Hostilities are taking place in the Occupied Territories, but these events do not justify Israel's avoidance of its duties as the occupier, as if the occupation had ended. Every occupying army is obligated to protect the local population and ensure its safety and well-being. It is certainly permissible to derogate from this duty in the case of military necessity, but then, too, the welfare of the local population must be the primary consideration.

The occupying state must also protect the civilian population's property. Article 46 of the Hague Regulations provides that private property must be respected and that it cannot be confiscated. Article 53 of the Fourth Geneva Convention provides that the destruction of property by the occupying state is forbidden, "except where such destruction is rendered absolutely necessary by military operations." Because the occupier has special obligations toward the civilian population, it bears an extremely heavy burden of proof that the injury was necessary. Article 147 of the Convention provides that, "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" is a grave breach of the Convention.

Israeli officials use article 23(g) of the Hague Regulations, of 1907, to justify the demolition of houses and destruction of agricultural land. This article 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." Israeli officials argue that protecting security forces and settlers from Palestinian gunfire, and combating the digging of tunnels intended for smuggling weapons, are pressing military necessities that justify the demolition of property pursuant to article 23(g).

There is no significant difference between article 23(g) of the Hague Regulations, on which Israel relies, and Article 53 of the Fourth Geneva Convention, and the articles complement each other. The reason that Israel referred to the Hague Regulations is twofold: it seeks to emphasize that an armed conflict is currently being waged in the Occupied Territories, and that the Fourth Geneva Convention does not apply in the Occupied Territories, an argument it has made continuously since 1967, contrary to the position of the international community.

Even in the case of military necessity, which can provide an exception to the sweeping prohibition on destruction of property, the occupier must comply with the other provisions of international humanitarian law. Indeed, jurists and international tribunals have firmly rejected the argument that military necessity prevails over every other consideration and nullifies application of these other provisions. Every act must comply with international humanitarian law, and the parties are not free to choose the ways and means to wage combat.

To ensure that the exception set forth in article 23(g) of the Hague Regulations and Article 53 of the Fourth Geneva Convention is not broadly construed, international humanitarian law provides, inter alia, that it is forbidden to damage property as a preventive means where the danger has not yet been realized. It further provides that destruction of property is forbidden unless alternative, less injurious, means are not available to achieve the objective. In addition, it is expressly forbidden to destroy property with the intent to deter, terrify, or take revenge against the civilian population. Injury to property intended to cause permanent or prolonged damage is also forbidden.

Even though the claim that some cases of destruction entailed military necessity cannot be outright rejected, there is strong reason to believe that many cases involved considerations that were extraneous to the narrow definition of military necessity. However, we shall not examine the question of whether military necessity indeed existed in the Gaza Strip to justify the exception to the prohibition on damaging private property. For even if military necessity exists, Israel's policy flagrantly violates other rules of international humanitarian law, the violation of which are sufficient to make the policy illegal.

In the past, too, Israel relied extensively on a broad construction of the "military necessity" exception. Israel claimed "pressing military necessity" to justify the house demolitions committed pursuant to Regulation 119 of the Emergency Defense Regulations. Israel made its claim even though it had declared that the demolitions were intended to punish persons suspected of attacks against Israel and to deter other Palestinians from performing similar acts. The prohibition on destruction of property set forth in international humanitarian law is intended precisely to prevent using such reasons to justify damage to property.