During the military operation in Rafah, in May 2004, there have been reports of IDF plans to demolish hundreds of additional houses in the Rafah Refugee Camp. The purpose of the demolition, according to the IDF, is to widen the 'Philadelphi Route' along the Gaza-Egypt border in order to prevent the smuggling of weapons through tunnels dug under the route. The IDF has now asked Attorney General Menachem Mazuz to legally sanction these plans for widespread demolitions. Tomorrow (20 May, 2004), Mazuz will convene a consultation with senior officials from the Justice Ministry and the Military Judge Advocate General's Office regarding this issue. B'Tselem has submitted an urgent request to Mazuz to categorically reject the IDF's proposal, as it constitutes a blatant violation of international humanitarian law.
Israel, as the occupying force in the West Bank and the Gaza Strip, is obliged by international humanitarian law to protect the local population and ensure its safety and welfare. Israel may derogate from this obligation in the case of military necessity, but even then the welfare of the local population must constitute a primary consideration.
Article 53 of the Fourth Geneva Convention forbids the destruction of property by the occupying power, 'except where such destruction is rendered absolutely necessary by military operations.' Article 23(g) of the Hague Regulations (1907), which addresses hostilities, 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.'
The demolitions planned by the IDF in Rafah do not accord with the exception set out in international humanitarian law. Both the Fourth Geneva Convention and the Hague Regulations specify that military need is insufficient; rather that the military need must be absolute, essential. Furthermore, given that the protections afforded by these conventions are individual, the military need must also relate separately to each and every house that is to be demolished. The widespread nature of the planned demolitions renders it illegal as it cannot be argued that every one of the hundreds of houses slated for demolition meet these strict requirements.
In addition, Article 33 of the Fourth Geneva Convention, and Article 50 of the Hague Regulations, forbid actions which constitute collective punishment. These articles relate to administrative punishment imposed on individuals or groups for the actions of others. The houses that the IDF plans to demolish in Rafah belong to Palestinians whom, even the IDF acknowledges, are not accused of participating in hostilities. In addition, the IDF justifications for this action do not address the benefit of demolishing each individual house, but rather the general benefit of making this entire area into a sterile zone. The grave damage that would result to those whose homes are demolished, renders such an operation a form of illegal collective punishment, even if this is not the intention.
Furthermore, the possibility of harming civilian property is limited in international humanitarian law by the customary law principle of proportionality. This principle states that even if a military operation is intended to meet urgent military needs, it is forbidden if the harm to civilians is disproportionate to the military advantage anticipated. This principle obliges Israel to prove that it has considered other, less harmful, alternatives, and that such proposals have been rejected as they would not afford the necessary military benefit.
Were it not for the restrictions of the principle of proportionality, Israel could not only demolish that portion of the Rafah Refugee Camp which lies alongside the 'Philadelphi route,' but the entire refugee camp, or even the entire Gaza Strip. After all, there is no doubt that as the number of houses in the area decreases, it is easier for IDF forces to operate, and more difficult for Palestinians to smuggle weapons out of Gaza,
Therefore, the demolition of hundreds of houses in Rafah, even if it is intended to meet the essential military need of preventing the smuggling of weapons, it nonetheless constitutes a grave violation of the principle of proportionality given the severe harm it causes to thousands of civilians who are not taking part in the hostilities.