Analysis / When military necessity outflanks rights

The High Court of Justice ruling yesterday on a petition against the demolition of houses near the Philadelphi route encapsulates a general legal principle: that house demolitions by the Israel Defense Forces are legitimate only "for an immediate and definitive military need" connected to protecting the lives of soldiers in the field.

The justices rejected the petition in light of the state's announcement that the military operation in question had been halted. But an earlier decision in this case - the temporary injunction issued Saturday night that forbade the IDF from carrying out the planned demolitions - reveals a principled approach that is relevant to other cases liable to arise in the future. This approach holds that someone can be deprived of his right to appeal a demolition before it happens if the demolition is carried out in the context of actual fighting, or when it derives from "an immediate and definitive military need to prevent a genuine risk to IDF soldiers operating in the region."

This ruling accords with the principles laid down in other High Court rulings from 1989 and 1990. In the former, then court president Meir Shamgar wrote that a resident must be allowed to appeal the planned demolition of his house before it is carried out, because this is a "fundamental legal right." Nevertheless, he added, there could be military circumstances that would require the demolition to be performed on the spot, such as if "a military operation cannot be delayed," and this would supersede the right of appeal.

The second ruling, written by then deputy president Menachem Elon, dealt with a case in which houses in a Gaza refugee camp were demolished without the residents being given a prior right of appeal. The state argued that military necessity required the demolition to be carried out without delay. Elon accepted this argument, given that a soldier had died due to "the narrow, winding conditions of the place, which did not enable the slain life to be protected." In such circumstances, he said, delaying the demolition would create "a real danger to human life, and a genuine fear that execution of the necessary operations would be foiled."

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