HaMoked: Center for the Defence of the Individual appeals to the Supreme Court: the state must compensate the owners of a five storey building, exploded during operation "Defensive Shield"
On the morning of April 7, 2002, during operation "Defensive Shield", military forces arrived at “the commissioner” building on Al-Quds Road in Nablus and instructed the occupants to vacate the building. The building included two commercial and three residential floors, inhabited by the owner's family and several lessees. Immediately after the evacuation calls, artillery shells were fired at the building causing a fire and forcing the occupants to flee. A military force entered the building and mined it, and in the early afternoon, the building was detonated, and destroyed with all its contents. The military gave the owner no opportunity to contest the demolition, nor did it allow the occupants to remove their belongings before the demolition.
In June 2002, HaMoked appealed to the legal advisor for the West Bank, to ascertain the circumstances surrounding the demolition. HaMoked argued there was no cause to destroy the building, and noted that, at the time, there was no shooting at the military from inside or around the building, and no gunmen or wanted persons were present inside it. After more than a year, the legal advisor's reply arrived, stating the building was detonated because it had been booby trapped to injure soldiers.
In June 2004, the building's owner's filed a civil suit
through HaMoked, for mental and financial damages incurred as a result of the destruction of the building. The plaintiffs argued, inter alia, that even if there were a military necessity to detonate the building, the military must compensate the owners for the damage, under international humanitarian law, as per Article 52 of the Hague Regulations. In their statement
, the defendants claimed the demolition had been carried out based on credible information which reached the soldiers, that the building had been booby trapped; furthermore, this was a wartime action which exempts the state from civil liability and indemnification. In an absurd claim, the state also added that the booby traps had damaged the building and that worse damage to life and property would have been sustained, had the military not defused them.
To assess the reliability of the intelligence information, the plaintiffs filed a motion for disclosure of evidence. The state claimed that the demolition relied on solid and credible information; however, in the hearing
it admitted it had no indications as to the source of information. The court deleted the motion. That same day, the state notified that it had located certain allegedly pertinent information regarding the booby trapping of the building, without providing details. Subsequently, the state submitted a witness affidavit by a member of the Israel Security Agency. Under cross examination he evaded giving pertinent answers to the questions. Therefore the plaintiffs filed another motion for disclosure of evidence, arguing, inter alia, that the state's conduct indicates one of two possibilities: either no information exists, or it is vague and unreliable at best.
In August 2010, the Jerusalem District Court ruled
the demolition was a "wartime action" and that it was reasonable, proportionate, and necessary; that no hearing was required; and that the plaintiffs were not entitled to compensation. Regarding the credibility of the intelligence information, the court held that "during war, there is no time to examine the credibility and source of information and it is also impractical to do so." The court dismissed the plaintiffs’ demand for redress, which is backed by international humanitarian law, and oddly, even intimated that Article 52 of the Hague Regulations is not applicable to a case of "wartime action".
In January 2011, the plaintiffs appealed
the judgment to the Supreme Court. The appellants argue, inter alia, that since it was not proven that under the circumstances the military force faced imminent mortal danger the prevention of which justifies exceptional measures, the court erred in finding that this constituted a "wartime action" and that the military’s conduct inside the building from the time it took possession thereof, precludes the possibility that the building had indeed been booby trapped, and proves that the forces on the ground did not give credence to the information they received. The plaintiffs also argued that the forces on the ground had alternatives for handling the building, such as seizing it, which render the demolition disproportionate.