Related Rule
Israel
Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Israel’s Manual on the Rules of Warfare (2006) states:
The population of occupied areas
International law governs the duty of the army and its authority over populations in occupied areas or in zones under military occupation during battle, The Fourth Geneva Convention includes a complete list of instructions that is binding upon the army in its dealings with the civilian population in an occupied area and regulate the army’s authority (for example, when is the confiscation of property permitted … and more).
The State of Israel claimed in the past that the Convention, at least in part, does not constitute customary international law, however, for political reasons it applies the humanitarian provisions of the Convention de facto, with respect to everything concerning the Occupied Territories. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 28.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s IDF General Staff Order No. 50.0303 of 1977 states:
Definitions
1. In this Order:
Occupied Territory – Territory outside the borders of State of Israel that was in enemy hands and passed to IDF [Israel Defense Force] control.
Area Commander – Territory for which the IDF appointed a military governor – the Military Governor. Territory for which no Military Governor was appointed – the Commander of the division whose forces are holding or securing said territory.
Seizure of property – taking over the property, including right of ownership.
Possession of property – taking over administration of property, including using it and benefiting from its produce, without having full ownership.
Land – Land of any kind and any form of possession, buildings, trees or anything else connected to the ground, such as orchards or railroads.
Movable property – Any property that is not land.
Abandoned property – Privately owned land or movable property, whose owner is unknown or had left the occupied area before the occupation or because of it.
General
2. This Order defines the powers of the military authorities regarding enemy property located in occupied territory. This Order does not relate to enemy property on the battlefield. That subject is detailed in General Staff Order 50.0301.
3. To remove all doubt, it should be clear that the provisions of this Order also apply to the police force, when operating under the command of the army owing to call up for reserve duty, or for a military or other type of mission.
4. No land or movable property in occupied territory may be seized or possessed or used without the consent of the owner unless it is necessary for the purposes of war and if allowed by the provisions of this Order.
5. When exercising his powers as per this Order, the Area Commander will take into account the needs of the civilian population of the occupied territory, and will ensure the availability of a supply of food and medical supplies.
6. The Area Commander will not exercise his powers as per this Order, except after consultation with the highest Quartermaster level in the occupied territory (representative of the General Staff-Logistic Branch, or of the command or division Quartermaster. If there is no such representative – the Formation Maintenance Officer, whose forces are in the area or are securing it).
7. In the event of doubt about the status of the property, the military legal adviser of the governing forces must be consulted before exercising powers, as per this Order, and if the governing headquarters are not yet established, with the appropriate Command Advocate.
8. No negotiations will be held with a civilian third party over compensation for property that has been seized or possessed or made use of as per this Order and no confirmations or statements will be offered to any civilian third party, except in accordance with the provisions of this Order.
9. All Commanders must ensure that their subordinates act as follows:
a. They will not commit acts of looting.
b. They will comply with the provisions of this Order and not abuse the powers it grants.
c. They shall not misuse the property covered by this Order.
10. This Order does not detract from what is stated in General Staff Order 33.0133 (Discipline – behavior in accordance with international treaties to which the State of Israel is party), rather supplements it.
11. General Staff – Logistics Branch may appoint a Commander of the Logistic Command or any other position with regard to occupied territory and grant him power to seize and take possession and give instructions regarding use of property, as specified in this command.
12. If a unit has seized land as per this Order, it will report immediately to the appropriate Command Lands Officer who will inform the Building Center and the General Staff-Logistic Branch. The latter will notify those concerned whether or not it had approved the seizure of the land.
13. The provisions of this Order shall deal with four types of property:
a. State-owned lands
b. Privately owned lands
c. State-owned movable property
d. Privately owned movable property
14. For the purpose of this Order, the movable property and lands will be considered state-owned also if owned by a corporation, where the state has shares granting it control over it or its assets or if it has the right to administer it.
Movable property owned by the occupied state
26. Instructions for handling movable goods and property of an enemy state, captured on the battlefield are detailed in General Staff Order 50.0301.
27. Occupation grants the State of Israel ownership and possession rights to movable goods owned by the occupied state that can be used for military operations (such as weapons, supplies, transportation and communication means, money and valuables and documents that are important for the war operations) and thus the IDF is entitled to seize such equipment. The Law of Movable Property, as mentioned above, is to be treated as the law of war booty, i.e. they become property of the State of Israel from the moment of seizure and should be treated according to General Staff Order 50.0301 regarding changes under the circumstances. If movable state property is held in private hands, they will be provided with confirmation of the seizure, according to clauses 30 to 37 below.
28. Movable goods that are the property of an occupied state may not be transferred or used, except according to the Order regulating handling of booty.
29. The provisions of this section do not apply to movable property that is not suitable for military use, and movable goods of the type described below that are private property and are to be treated as specified in sections 30 to 37 below:
a. Funds held by the occupied state, and which are in effect moneys belonging to people or private bodies.
b. Underwater cables linking the occupied territory with a neutral state.
c. Medical materials and medical warehouses of civilian hospitals.
d. Moveable property belonging to a local authority or movable property belonging to religious, charitable, educational, art or science institutions.
e. Art works and antiques.
Seizure of such movable property must always be approved, as specified in Section 30 below.
Obligations regarding enemy property
38. Whoever has acquired seized property, which is held or given for temporary use as per this Order, must take all measures to prevent breakage, damage or loss of the a/m property.
39. Destruction of property as mentioned above or use that compromises its integrity, are permitted only if military necessity so requires. 
Israel, IDF General Staff Order No. 50.0303, Seizure of enemy property in occupied territory, 15 July 1977, §§ 1–14, 26–29 and 38–39.
Israel’s IDF General Staff Order No. 50.0303 of 1977 states:
Definitions
1. In this Order:
Occupied Territory – Territory outside the borders of State of Israel that was in enemy hands and passed to IDF [Israel Defense Forces] control.
Area Commander – Territory for which the IDF appointed a military governor – the Military Governor. Territory for which no Military Governor was appointed – the Commander of the division whose forces are holding or securing said territory.
Seizure of property – taking over the property, including right of ownership.
Possession of property – taking over administration of property, including using it and benefiting from its produce, without having full ownership.
Land – Land of any kind and any form of possession, buildings, trees or anything else connected to the ground, such as orchards or railroads.
Movable property – Any property that is not land.
Abandoned property – Privately owned land or movable property, whose owner is unknown or had left the occupied area before the occupation or because of it.
General
2. This Order defines the powers of the military authorities regarding enemy property located in occupied territory. This Order does not relate to enemy property on the battlefield. That subject is detailed in General Staff Order 50.0301.
3. To remove all doubt, it should be clear that the provisions of this Order also apply to the police force, when operating under the command of the army owing to call up for reserve duty, or for a military or other type of mission.
4. No land or movable property in occupied territory may be seized or possessed or used without the consent of the owner unless it is necessary for the purposes of war and if allowed by the provisions of this Order.
5. When exercising his powers as per this Order, the Area Commander will take into account the needs of the civilian population of the occupied territory, and will ensure the availability of a supply of food and medical supplies.
6. The Area Commander will not exercise his powers as per this Order, except after consultation with the highest Quartermaster level in the occupied territory (representative of the General Staff-Logistic Branch, or of the command or division Quartermaster. If there is no such representative – the Formation Maintenance Officer, whose forces are in the area or are securing it).
7. In the event of doubt about the status of the property, the military legal adviser of the governing forces must be consulted before exercising powers, as per this Order, and if the governing headquarters are not yet established, with the appropriate Command Advocate.
8. No negotiations will be held with a civilian third party over compensation for property that has been seized or possessed or made use of as per this Order and no confirmations or statements will be offered to any civilian third party, except in accordance with the provisions of this Order.
9. All Commanders must ensure that their subordinates act as follows:
a. They will not commit acts of looting.
b. They will comply with the provisions of this Order and not abuse the powers it grants.
c. They shall not misuse the property covered by this Order.
10. This Order does not detract from what is stated in General Staff Order 33.0133 (Discipline – behavior in accordance with international treaties to which the State of Israel is party), rather supplements it.
11. General Staff – Logistics Branch may appoint a Commander of the Logistic Command or any other position with regard to occupied territory and grant him power to seize and take possession and give instructions regarding use of property, as specified in this command.
12. If a unit has seized land as per this Order, it will report immediately to the appropriate Command Lands Officer who will inform the Building Center and the General Staff-Logistic Branch. The latter will notify those concerned whether or not it had approved the seizure of the land.
13. The provisions of this Order shall deal with four types of property:
a. State-owned lands
b. Privately owned lands
c. State-owned movable property
d. Privately owned movable property
14. For the purpose of this Order, the movable property and lands will be considered state-owned also if owned by a corporation, where the state has shares granting it control over it or its assets or if it has the right to administer it.
State-owned land
15. Once the territory has been occupied, possession of land owned by the enemy whose territory has been occupied is transferred to the IDF, and the IDF is responsible for the administration and maintenance of the lands. The right to ownership of the land remains, however, in the hands of the enemy state.
16. As soon as possible after taking office, the Military Governor will conduct a list of lands under the ownership of the occupied state, indicating their nature, place and condition, and will send the list to the Lands Officer of the appropriate Command, who will coordinate the lists and hand them over to the General Staff-Logistic Branch. If it is not necessary or practical to register all the lands of the occupied state, the General Staff-Logistic Branch can order certain types of lands not included in the mentioned list.
17. The General Staff-Logistic Branch will instruct each Lands Commander about the modes of handling the lands owned by the enemy state.
18. The Area Commander may permit the IDF forces in the area temporary use of lands as mentioned above, for storage, storing or hospitalization or for operational purposes. Any other use of the land as mentioned above requires the approval of General Staff-Logistic Branch.
19.
a. The provisions of this paragraph do not apply to lands in the occupied area that belong to institutions dedicated to religion, charity, education, art, science or hospitalization, even if the land is owned by the state (such as churches, mosques, schools, homes for disabled and hospitals) as well as local authorities’ lands.
b. For the purpose of this Order, all assets listed in this paragraph shall be considered private property: i.e. possession of this property is not automatically transferred to the IDF and they should be treated as stated in paragraphs 20 to 25 below.
c. Such lands must be especially protected from any damage.
Obligations regarding enemy property
38. Whoever has acquired seized property, which is held or given for temporary use as per this Order, must take all measures to prevent breakage, damage or loss of the a/m property.
39. Destruction of property as mentioned above or use that compromises its integrity, are permitted only if military necessity so requires. 
Israel, IDF General Staff Order No. 50.0303, Seizure of enemy property in occupied territory, 15 July 77, §§ 1–19 and 38–39.
Israel’s Manual on the Laws of War (1998) states:
Private property that does not belong to the state is immune to seizure and conversion to booty. Nevertheless, a military commander is allowed to seize also private property if this serves an important military need. For example, a commander may commandeer a civilian vehicle to evacuate wounded urgently or take possession of a house porch if this is necessary for carrying out surveillance. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 63.
Israel’s Manual on the Rules of Warfare (2006) states:
Private property which is not governmental is immune from capture and turning into spoils of war. However, a military commander is also entitled to capture private property if it consists of weaponry or if it is something of important military use. For example, an officer can appropriate a civilian vehicle in order to evacuate the wounded urgently or capture a position on the balcony of a house if this is necessary for the purpose of creating a lookout post. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 40.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states the following with regard to the Israel Defense Forces’ powers of confiscation and destruction of property:
The military commander may exercise his powers pursuant to regulation 119 of the Defense Regulations (State of Emergency), 1945, regarding a house, structure or land located in the Area, [Judea and Samaria] [not only due to an act committed in the Area, but] also due to an act committed outside the Area which, if it had been committed in the Area, would allow exercising his powers pursuant to that regulation. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 264.
In the Ayub case in 1979, Israel’s High Court heard a petition from several Arab landowners whose lands in Al-Bireh and Tubas had been requisitioned in 1970 and 1975 pursuant to orders issued by the military commander of the region. The orders stated that the military commander deemed the requisition to be necessary for military and security purposes. At the initiative of the Israeli civilian government, Jewish settlements were established on the requisitioned lands in 1978, whereupon the Arab landowners petitioned the High Court of Justice for an injunction against the requisition orders and for the return of their lands. In considering the petition, the Court held:
The 1907 Hague Convention is generally regarded as customary international law, whereas provisions of the 1949 Fourth Geneva Convention remain conventional in their nature. Consequently the petitioners may rely in this Court on the 1907 Hague Convention – which thus forms part of Israeli internal law – but not on provisions of the 1949 Fourth Geneva Convention … It therefore remained for the Court to decide whether the requisition of the petitioners’ lands violates, inter alia, Articles 23 and 46 of the Hague Regulations prohibiting confiscation of private property. It was proven to the Court that the lands in question were seized only to be used and that rental was offered to the petitioners, who retained their ownership of the lands. This kind of seizure – namely requisition – is lawful under Article 52 of the Hague Regulations … The Court also adopts von Glahn’s view regarding the question of how to deal with land which the occupant army does not really need for its own purposes but which must not be left in the possession of the owners lest it serve the interests of the enemy. 
Israel, High Court, Ayub case, Judgment, 15 March 1979.
In the Sakhwil case in 1979, a petition was filed with Israel’s High Court by two Arab women from the West Bank. The women asked the Court to issue an injunction preventing the respondent from sealing off or demolishing or expropriating the houses in which they and their families resided. One of the rooms of the second petitioner had indeed been ordered to be sealed off. The Court, taking cognizance of the purpose for which the room had served (shelter for a member of the Al-Fatah organization and hiding place for a sack of explosives), “found the argument on the illegality of the respondent’s order to be groundless”. The Court stated that the room could be lawfully sealed pursuant to Regulation 119(1) of the Defence (Emergency) Regulations of 1945, which constituted Jordanian legislation that had remained in force since the period of the British Mandate. According to the Court, Regulation 119 permitted destruction of private property in certain circumstances. The Court added that “there is no contradiction between the provisions of [the 1949 Geneva Convention IV] … and the use of the authority vested in the respondent by legislation which was in force at the time”. Consequently, the petition was rejected. 
Israel, High Court, Sakhwil case, Judgment, 6 November 1979.
In the Al-Nawar case before Israel’s High Court in 1985, Judge Shamgar held that Article 46(2) of the 1907 Hague Regulations “does not extend to property ‘actually in use by the hostile army’”. 
Israel, High Court, Al-Nawar case, Judgment, 11 August 1985.
In its judgment in the Hess case in 2004, Israel’s High Court of Justice stated:
9. Sequestration of land is likely to be a necessary step for carrying out the authority and responsibilities of the military commander. It is likely to be needed both in order to realize military and security needs, and in order to realize the commander’s duty to protect the interests of the civilian population of the area.
The Laws of War, in international law, prohibit sequestration or destruction of private property in territory held in belligerent occupation, unless it is necessary for combat. According to Regulation 23(g) of the Hague Regulations, the occupying power is not allowed
“To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war“. [emphasis added by Court]
Regulation 52 of the Hague Regulations instructs that sequestration of land in the occupied territory is not to be carried out, except for the needs of the army. This provision has been interpreted in a wide fashion in caselaw, as including sequestration for erecting military positions and outposts, as well as for paving roads in order to protect the Israeli residents living in the area (HCJ 24/91 Timraz v. The Commander of IDF Forces in Judea and Samaria, 45 PD (2) 325; HCJ 2717/96 Wafa, at p. 856; HCJ 401/88 Abu Riyan v. The Commander of IDF Forces in Judea and Samaria, 42 PD (2) 767).
As for article 53 of the Geneva Convention, it prohibits destruction by the occupying force, of any real or personal property belonging to an individual or the state, subject to the following exception:
“except where such destruction is rendered absolutely necessary by military operations”.
In J. Pictet’s interpretative commentary of the Geneva Convention (of 1958, p. 302), he explains the nature of said exception, stating:
The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases ‘where such destruction is rendered absolutely necessary by military operations’. The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the convention. The occupying power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done”. [emphasis added by Court]
In the spirit of that interpretation, before he decides to sequester or destroy property of civilians in the occupied territory, the military commander is required by international law to exercise most stringent discretion. He is permitted to do so when imperative military-security needs require it, and when the sequestration proportionally balances between the importance of the military need and the intensity of the damage expected to be caused to the property owner by the sequestration. In the framework of this balance he must examine, inter alia, the existence of alternatives likely to prevent the impingement upon the rights of the individual (Timraz, at paragraph 4; HCJ 834/78 Salame v. The Minister of Defense, 33 PD (1) 471). Such sequestration of land is also possible in extreme situations, in which it is necessary in order to provide for the basic humanitarian needs of the population living in the area; thus, for example, the need to expropriate land for the paving of roads and access routes to various locations in the area has been recognized. In exceptional cases, even a certain extent of harm to individual property for granting appropriate protection to other constitutional human rights of the population living in the area is also possible, when those rights stand opposite to the property right of the individual in a given case. However, withstanding the test of proper balance, required by the standards of constitutional law, will always be a condition for the legal validity of such harm.
Alongside the rules of international law, the rules of internal Israeli law that apply to the military commander require him to refrain from harming the property of the residents of the area unless such harm is intended to attain an objective located within his authority, and an imperative need requires it. This authority of his, both from the standpoint of international law and from the standpoint of Israeli public law, must be exercised for a proper purpose, reasonably, and proportionally, while carefully and precisely weighing the necessity of the desired objective and the nature of the harm involved in attaining it, as well as its scope.
10. This Court performs judicial review of the legality of the exercise of the discretion of the commander of the area, as an official in a public capacity pursuant to law. In this review, the Court does not replace the discretion of the commander with its own discretion, nor does it purport to be an expert in security and military issues instead of the commander (HCJ 302/72 Hilo v. The Government of Israel, 27 PD (2) 169). According to international law as well, the military commander is granted broad discretion to decide regarding the level of intensity of the need (Hyde, International Law, 2d ed, Vol 3, Para. 656, p. 1802). The role of judicial review is guarding the boundaries, and ensuring compliance with the legal rules that serve as borders of the discretion of the commander of the area (Ajuri, at paragraph 30; HCJ 619/78 Altaliya v. The Minister of Defense, 33 PD (3) 505, 512). The examination of the legality of the exercise of the area commander’s discretion – including ensuring that his acts are based upon relevant reasons, are reasonable, and are proportional, considering the entirety of the circumstances of the case at hand – must be stringent (HCJ 1005/89 Aga v. The Commander of IDF Forces, 44 PD (1) 536, 539).
Property Rights
17. The right of private property in the land and buildings subject to the sequestration order is a protected constitutional right. It is recognized in international law, including in the Hague Convention and the Geneva Convention. It has been recognized as having constitutional status in Israel in Article 3 of Basic Law: Human Dignity and Freedom (HCJ 2390/96 Karasik v. The State of Israel, 55 PD (2) 625, 712, 716; CA 5546/97 The Local Planning and Construction Committee v. Holtzman, 55 PD (4) 629, 641). Even during war an individual’s property right does not expire (Gosin, at paragraph 4). The right of property has additional weight when dealing with a person’s house of residence (LCA 214/88 Tawil v. Deutsch, 44 PD (3) 752, 754). In this case, we are not dealing with inhabited houses of residence, as the buildings scheduled for demolition were abandoned years ago. The buildings in this case are buildings of archeological value, whose historic value is worth protecting (HCJ 270/87 Kando v. The Minister of Defense, 43 PD (1) 738, 742). The commander of the area has a duty, pursuant to the rules of international law, including the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, to protect cultural property in occupied territory, including treasures of archeological value. He must act on this matter according to the fundamental principles of administrative law.
A person’s property right is not an absolute right. It is a relative right. It is vulnerable to impingement when that is necessary in order to advance other worthy cultural objectives, including the advancement of other constitutional basic rights of other people (Ajuri, at p. 365). What is the permissible scope of impingement upon a property right, as a constitutional right, in that type of competition of rights?
In issuing the sequestration order, the commander of the area wished to perform a proportional balancing between the conflicting constitutional rights, in order to allow the exercise of the freedom of worship at a holy place, in conditions of relative security for the worshippers walking along the route.
All the alternatives to the worshippers’ walking to the cave, instead of the “prayers’ path”, were examined, and it was found that every other alternative involves costs that are much higher, in terms of the security risks for the worshippers and for the impingement and damage expected to be caused to the local residents. As the “prayers’ path” was found to be the preferential alternative, the commander of the area restricted the impingement upon private property along the sides of the route to the minimum possible. In the northern segment, he restricted the widening of the route to 2 meters on each side. In the southern segment of the route he restricted the widening to a total road width of 4 meters. This widening will allow only one-way traffic on the part of rescue vehicles, as opposed to the possibility of two-way traffic that had been considered previously. This restriction lessens the impingement upon property on one hand, and sets the security means for the worshippers at the necessary minimum only, on the other hand. All of the buildings to which the sequestration order applies are abandoned. One house that was found to be inhabited was removed from the application of the sequestration order, and the route was altered as a result. The cutback of the widening of the southern segment of the road today requires partial demolition of two buildings and of a part of a third, which have not been inhabited for many years. The demolition does not involve evacuating people from their homes. The demolition is supposed to be supervised by professionals in the area of building restoration and archeology, in order to protect the cultural-historic aspects of the environs to the extent possible. The property owners have a right to be paid rent and compensation for the sequestration and the demolition. The sequestration order is restricted in time. When the security situation changes and the area will be tranquil, the assumption is that the order will not be extended, and the property sequestered will be able to be returned to its owners.
The balancing between the competing constitutional rights is not easy, and is not obvious in the circumstances of this case. It involves aspects of the freedom of human expression, through expression of religious faith and worship, against rights and values regarding connections to land and property; beyond all that is the general value of responsibility for human life. The balancing point between the entirety of these factors is not easily located. However, ultimately, it seems that the sequestration order, in its narrow version, withstands the constitutional test, by making a relative balance between the constitutional rights. It allows exercise of the freedom of worship, while providing relative protection and security to the worshippers, which, in turn, is made possible by a limited impingement upon the scope of the conflicting private property right, along with monetary compensation. It does not violate accepted values in society, and it is done for a proper purpose, and does not stray beyond the required proportionality. If the commander of the area had refrained from a relative impingement upon the property rights, that would have meant prevention of security means which are necessary for protecting those walking on the route. In that scenario, that might have required absolute prevention of exercise of the worshippers’ right to come to the cave on Sabbaths and holidays, due to concern of a lack of sufficient security means for ensuring their safety. Such prevention would have constituted an absolute and improper violation of the freedom to worship at a holy place, and a severe impingement upon the freedom of movement and access required in order to exercise the freedom of religion. Alternatively, it might have led to permitting the worshippers to walk on the route without the special security means required under the circumstances, while increasing the imminent danger to the lives and safety of men, women and children walking along the route – at times in the thousands. These alternatives create great difficulty. Against that background, preservation of the freedom of worship in conditions of relative safety of the worshippers, alongside a relative impingement upon property rights of the property owners along the route, which was limited to a minimum, withstands, in the special circumstances of this case, the conditions of the constitutional balancing in a way that does not deviate from the standard of reasonableness.
Thus, I find no cause for intervention in the discretion of the commander of the area in issuing the sequestration order in its narrow version, according to which the order is to be amended. 
Israel, High Court of Justice, Hess case, Judgment, 4 March 2004, §§ 9–10 and 17.
In its decision in the Albassiouni case in 2004, Israel’s High Court of Justice stated:
In their application for an interlocutory order, the petitioners contend that the respondent is demolishing houses in the Philadelphi route without giving the possessor of the houses an opportunity to state their case. In response, respondent’s counsel explained that, in the area of the Philadelphi route there has been, and is taking place at this very time, complicated and hard combat. Bands of terrorists operating in the field use these structures as places of shelter. In coping with the terrorist bands, the IDF [Israel Defense Forces] must strike at these structures, while making every effort to prevent injury to innocent civilians. The respondent contends that the action does not involve demolition of houses as deterrence, but demolition of structures for immediate and imperative military needs. The IDF does not know the particulars of the owners of the houses in the area, and that, under the circumstances prevailing in the field, granting the right to be heard to possessors of the houses is not feasible. His response also points out that, so long as the houses involved are not abandoned, the army intends to demolish them to prevent terrorists from using them as convenient positions from which to fire, with the army taking especial care to evacuate the houses of their occupants prior to demolishing them.
After studying the application and the response, I decide to grant a restricted provisional order that shall remain in force until another decision is given. The order prohibits the respondent from carrying out pre-planned demolition of any of the petitioners’ houses, which, according to the description given by their counsel, are all situated in Block O on the border of Rafah, Egypt, near the Salah Aldin gate, but this order does not prevent the demolition of a house caused during the course of combat actions, or destruction of a house whose destruction is necessitated by immediate and imperative military necessity to prevent real danger to IDF soldiers operating in the area. 
Israel, High Court of Justice, Albassiouni case, Judgment, 14 May 2004.
In its judgment in the Beit Sourik Village Council case in 2004, Israel’s High Court of Justice stated:
27. We accept that the military commander cannot order the construction of the Separation Fence if his reasons are political. The Separation Fence cannot be motivated by a desire to “annex” territories to the state of Israel. The purpose of the Separation Fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative. The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:
The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology. However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations. It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.
32. The petitioners’ second argument is that the construction of the Fence in the area is based, in large part, on the seizure of land privately owned by local inhabitants, that this seizure is illegal, and that therefore the military commander has no authority to construct the obstacle. We cannot accept this argument. We found no defect in the process of issuing the orders of seizure, or in the process of granting the opportunity to appeal them. Regarding the central question raised before us, our opinion is that the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if this is necessary for the needs of the army. See articles 23(g) and 52 of the Hague Convention; article 53 of the Fourth Geneva Convention. He must, of course, provide compensation for his use of the land. See HCJ 606/78 Ayoob v. Minster of Defense; HCJ 401/88 Abu Rian v. Commander of the IDF Forces in the Area of Judea and Samaria; Timraz. Indeed, on the basis of the provisions of the Hague Convention and the Geneva Convention, this Court has recognized the legality of land and house seizure for various military needs, including the construction of military facilities (HCJ 834/78 Salama v. Minister of Defense), the paving of detour roads (HCJ 202/81 Tabib v. Minister of Defense; Wafa), the building of fences around outposts (Timraz), the temporary housing of soldiers (HCJ 290/89 Jora v. Commander of IDF Forces in Judea and Samaria), the ensuring of unimpaired traffic on the roads of the area (Abu Rian), the construction of civilian administration offices (HCJ 1987/90 Shadid v. Commander of IDF Forces in the Area of Judea and Samaria), the seizing of buildings for the deployment of a military force, (HCJ 8286/00 Association for Civil Rights in Israel v. Commander of the IDF Forces in the Area of Judea and Samaria). Of course, regarding all of these acts, the military commander must consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the Separation Fence falls within this framework. The infringement of property rights is insufficient, in and of itself, to take away the authority to build it. It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual’s land in order to erect a separation fence upon it, on the condition that this is necessitated by military needs. To the extent that construction of the Fence is a military necessity, it is permitted, therefore, by international law …
35. The approach of this Court is well anchored in the humanitarian law of public international law. This is set forth in Regulation 46 of the Hague Regulations and Article 46 of the Fourth Geneva Convention. Regulation 46 of the Hague Regulations provides:
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.
The rules in Regulation 46 of the Hague Regulations and in Article 27 of the Fourth Geneva Convention cast a double obligation upon the military commander: he must refrain from actions that injure the local inhabitants. This is his “negative” obligation. He must take the legally required actions in order to ensure that the local inhabitants shall not be injured. This is his “positive” obligation … In addition to these fundamental provisions, there are additional provisions that deal with specifics, such as the seizure of land. See Regulation 23(g) and 52 of the Hague Regulations; Article 53 of the Fourth Geneva Convention. These provisions create a single tapestry of norms that recognize both human rights and the needs of the local population as well security needs from the perspective of the military commander. Among these conflicting norms, a proper balance must be found. What is that balance?
Proportionality
36. The problem of balancing security and liberty is not specific to the discretion of a military commander of an area under belligerent occupation. It is a general problem in the law, both domestic and international. Its solution is universal. It is found deep in the general principles of law, which include reasonableness and good faith. See B. Cheng, General Principles of Law as Applied By International Courts and Tribunals (1987); T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989); S. Rosenne, The Perplexities of Modern International Law 63 (2002). One of these foundational principles, which balances the legitimate objective with the means for achieving it, is the principle of proportionality. According to this principle, the liberty of the individual can be limited (in this case, the liberty of the local inhabitants under belligerent occupation), on the condition that the restriction is proportionate. This approach applies to all types of law. In the framework of the petition before us, its importance is twofold: first, it is a basic principle in international law in general and specifically in the law of belligerent occupation; second, it is a central standard in Israeli administrative law, which applies to the area under belligerent occupation …
41. The first subtest is that the objective must be related to the means. The means that the administrative body uses must be constructed to achieve the precise objective that the administrative body is trying to achieve. The means used by the administrative body must rationally lead to the realization of the objective. This is the “appropriate means” or “rational means” test. According to the second subtest, the means used by the administrative body must injure the individual to the least extent possible. In the spectrum of means that can be used to achieve the objective, the least injurious means must be used. This is the “least injurious means” test. The third test requires that the damage caused to the individual by the means used by the administrative body in order to achieve its objectives must be of proper proportion to the gain brought about by that means. That is the “proportionate means” test (or proportionality “in the narrow sense.”) The test of proportionality “in the narrow sense” is commonly applied with “absolute values,” by directly comparing the advantage of the administrative act with the damage that results from it. However, it is also possible to apply the test of proportionality in the narrow sense in a “relative manner.” According to this approach, the administrative act is tested vis-à-vis an alternate act, whose benefit will be somewhat smaller than that of the former one. The original administrative act is disproportionate in the narrow sense if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act.
42. It is possible to say that the means used by an administrative authority are proportionate only if all three subtests are satisfied. Satisfaction of one or two of these subtests is insufficient. All three of them must be satisfied simultaneously. Not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a “zone of proportionality” must be recognized (similar to a “zone of reasonableness.”) Any means chosen by the administrative body that is within the zone of proportionality is proportionate. See Ben-Atiyah, at 13; HCJ 4769/95 Menachem v. Minister of Transportation, at 258.
58. The second subtest examines whether it is possible to attain the security objectives of the Separation Fence in a way that causes less injury to the local inhabitants. There is no doubt – and the issue is not even disputed – that the route suggested by the members of the Council for Peace and Security causes less injury to the local inhabitants than the injury caused by the route determined by the military commander. The question is whether the former route satisfies the security objective of the security Fence to the same extent as the route set out by the military commander. We cannot answer this question in the affirmative. The position of the military commander is that the route of the Separation Fence, as proposed by members of the Council for Peace and Security, grants less security than his proposed route. By our very determination that we shall not intervene in that position, we have also determined that there is no alternate route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants. In this state of affairs, our conclusion is that the second subtest of proportionality, regarding the issue before us, is satisfied.
59. The third subtest examines whether the injury caused to the local inhabitants by the construction of the Separation Fence stands in proper proportion to the security benefit from the Security Fence in its chosen route. This is the proportionate means test (or proportionality “in the narrow sense”). Concerning this topic, Professor Y. Zamir wrote:
The third element is proportionality itself. According to this element, it is insufficient that the administrative authority chose the proper and most moderate means for achieving the objective; it must also weigh the benefit reaped by the public against the damage that will be caused to the citizen by this means under the circumstances of the case at hand. It must ask itself if, under these circumstances, there is a proper proportion between the benefit to the public and the damage to the citizen. The proportion between the benefit and the damage – and it is also possible to say the proportion between means and objective – must be proportionate.
Zamir, id., at 131.
This subtest weighs the costs against the benefits. See Stamka, at 776. According to this subtest, a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual. The objective of the examination is to determine whether the severity of the damage to the individual and the reasons brought to justify it stand in proper proportion to each other. This judgment is made against the background of the general normative structure of the legal system, which recognizes human rights and the necessity of ensuring the provision of the needs and welfare of the local inhabitants, and which preserves “family honour and rights” (Regulation 46 of the Hague Regulations). All these are protected in the framework of the humanitarian provisions of the Hague Regulations and the Geneva Convention. The question before us is: does the severity of the injury to local inhabitants, by the construction of the Separation Fence along the route determined by the military commander, stand in reasonable (proper) proportion to the security benefit from the construction of the Fence along that route?
60. Our answer is that [the] relationship between the injury to the local inhabitants and the security benefit from the construction of the Separation Fence along the route, as determined by the military commander, is not proportionate. The route disrupts the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. This approach is based on the fact that the route which the military commander established for the Security Fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law. Here are the facts: more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the Separation Fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter. The separation is not hermetic: the military commander announced that two gates will be constructed, from each of the two villages, to its lands, with a system of licensing. This state of affairs injures the farmers severely, as access to their lands (early in the morning, in the afternoon, and in the evening), will be subject to restrictions inherent to a system of licensing. Such a system will result in long lines for the passage of the farmers themselves; it will make the passage of vehicles (which themselves require licensing and examination) difficult, and will distance the farmer from his lands (since only two daytime gates are planned for the entire length of this segment of the route). As a result, the life of the farmer will change completely in comparison to his previous life. The route of the Separation Fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired. The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe.
61. These injuries are not proportionate. They can be substantially decreased by an alternate route, either the route presented by the experts of the Council for Peace and Security, or another route set out by the military commander. Such an alternate route exists. It is not a figment of the imagination. It was presented before us. It is based on military control of Jebel Mukatam, without “pulling” the Separation Fence to that mountain. Indeed, one must not forget that, even after the construction of the Separation Fence, the military commander will continue to control the area east of it. In the opinion of the military commander – which we assume to be correct, as the basis of our review – he will provide less security in that area. However, the security advantage reaped from the route as determined by the military commander, in comparison to the proposed route, does not stand in any reasonable proportion to the injury to the local inhabitants caused by this route. Indeed, the real question in the “relative” examination of the third proportionality subtest is not the choice between constructing a Separation Fence which brings security but injures the local inhabitants, or not constructing a Separation Fence, and not injuring the local inhabitants. The real question is whether the security benefit reaped by the acceptance of the military commander’s position (that the Separation Fence should surround Jebel Mukatam) is proportionate to the additional injury resulting from his position (with the Fence separating local inhabitants from their lands). Our answer to this question is that the military commander’s choice of the route of the Separation Fence is disproportionate. The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a Fence which does not separate the two (or which creates a separation which is smaller and possible to live with). Indeed, we accept that security needs are likely to necessitate an injury to the lands of the local inhabitants and to their ability to use them. International humanitarian law on one hand, however, and the basic principles of Israeli administrative law on the other, require making every possible effort to ensure that injury will be proportionate. Where construction of the Separation Fence demands that inhabitants be separated from their lands, access to these lands must be ensured, in order to minimize the damage to the extent possible.
62. We have reached the conclusion that the route of the Separation Fence, which separates the villages of Beit Likia and Beit Anan from the lands which provide the villagers with their livelihood, is not proportionate. This determination affects order Tav/103/03, which applies directly to the territory of the mountain itself, and leads to its annulment. This determination also affects order Tav/104/03 which applies to the route west of it, which turns in towards the village of Beit Likia, in order to reach the mountain. The same goes for the western part of order Tav/84/03, which descends from the mountain in a southeasterly direction. The eastern part of the latter order was not a matter of significant dispute between the parties, but as a result of the annulment of the aforementioned orders, it should be examined anew. 
Israel, High Court of Justice, Beit Sourik Village Council case, Judgment, 30 June 2004, §§ 27, 32, 35–36, 41–42 and 58–62.
In its judgment in the Municipality of Bethlehem case in 2005, Israel’s High Court of Justice stated:
[T]he general power of the military commander to requisition land on the basis of the provisions of the Regulations Concerning the Laws and Customs of War on Land, which are appended to the Fourth Hague Convention of 1907 (hereafter: “the Hague Convention”) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter: “the Fourth Geneva Convention”), when the conditions under international and Israeli law are satisfied, has been recognized by this court in a series of judgments (see, for example, Beit Sourik Village Council v. Government of Israel [1], at para. 32; HCJ 940/04 Abu Tir v. IDF Commander in Judaea and Samaria [2], at para. 10; HCJ 10356/02 Hass v. IDF Commander in West Bank [3], at paras. 8–9; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [4], at p. 770; HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [5], at pp. 333–335; HCJ 2717/96 Wafa v. Minister of Defence [6], at p. 856). 
Israel, High Court of Justice, Municipality of Bethlehem case, Judgment, 3 February 2005, § 8.
In its judgment in the Zaharan Yunis Muhammad Maraabe case in 2005, the Supreme Court of Israel stated:
16. It is sometimes necessary, in order to erect a separation fence, to take possession of land belonging to Palestinian residents. Is the military commander authorized to do so? The answer is that if it is necessary for military needs, the military commander is authorized to do so. So we ruled in The Beit Sourik Case:
“… the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if that is necessary for the needs of the army. … He must, of course, provide compensation for his use of the land. Of course, … the military commander must also consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework, on the condition that it is necessary from a military standpoint. To the extent that the fence is a military necessity, infringement of private property rights cannot, in and of itself, negate the authority to build it. … Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers (Id., at p. 832).
It is worth noting that construction of the separation fence is unrelated to expropriation or confiscation of land. The latter are prohibited by regulation 46 of The Hague Regulations (see HCJ 606/78 Iyub v. The Minister of Defense, 33(2) P.D. 113, 122; hereinafter – The Iyub case). Construction of the fence does not involve transfer of ownership of the land upon which it is built. The construction of the fence is done by way of taking possession. Taking of possession is temporary. The seizure order orders its date of termination. Taking of possession is accompanied by payment of compensation for the damage caused. Such taking of possession – which is not related in any way to expropriation – is permissible according to the law of belligerent occupation (see regulations 43 and 52 of The Hague Regulations, and §53 of The Fourth Geneva Convention: see The Iyub case, at p. 129; HCJ 834/78 Salame v. The Minister of Defense, 33(1) P.D. 471, 472; The Iyub case, at p. 122; HCJ 401/88 Abu Rian v. The Commander of IDF Forces in the Judea and Samaria Area, 42(2) P.D. 767, 770; HCJ 290/89 Jora v. The Military Commander of the Judea and Samaria Area, 43(2) P.D. 116, 118; HCJ 24/91 Timraz v. The Commander of IDF Forces in the Gaza Strip Area, 45(2) P.D. 325, 333 – hereinafter The Timraz Case; HCJ 7957/04 Maraabe v. The Prime Minister of Israel 11 1890/03 The Bethlehem Municipality v. The State of Israel – The Ministry of Defense (yet unpublished) – hereinafter The Bethlehem Municipality Case; HJC 10356/02 - Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443, 456 – hereinafter The Hess Case; see also D. Kretzmer “The Advisory Opinion: The Light Treatment of International Humanitarian Law” 99 A.J.I.L. 88, 97 (2005) – hereinafter Kretzmer; N. Keidar “An Examination of the Authority of Military Commander to requisition Privately Owned Land for the Construction of the Separation Barrier” 38 Isr. L. Rev. 247 (2005) – hereinafter Keidar). Pursuant to regulation 52 of The Hague Regulations, the taking of possession must be for “needs of the army of occupation”. Pursuant to §53 of The Fourth Geneva Convention, the taking of possession must be rendered “absolutely necessary by military operation”. G. Von Glahn discussed the legality of taking possession of land, stating:
“Under normal circumstances an occupier may not appropriate or seize on a permanent basis any immovable private property but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity” (G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)).
The key question is, of course, whether taking possession of land is rendered “absolutely necessary by military operation” (on this question see Imseis “Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion”, 99 A.J.I.L. 102 (2005), and Keidar, at p. 247). This issue is for the military commander to decide. J.S. Pictet discussed this point, stating:
“[I]t will be for the Occupying Power to judge the importance of such military requirements” (J.S. Pictet, Commentary IV Geneva Convention - Relative to the Protection of Civilian Persons in Time of War 302 (1958); hereinafter - Pictet).
Of course, the military commander’s discretion is subject to judicial review by this Court (see The Timraz Case, at p. 335).
17. In The Beit Sourik Case and preceding case law, the Supreme Court held that the authority to take possession of land for military needs is anchored not only in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention, but also in regulation 23(g) of The Hague Regulations. The Advisory Opinion of the International Court of Justice at the Hague determined that the second part of The Hague Regulations, in which regulation 23(g) is found, applies only during the time that hostilities are occurring, and that therefore it does not apply to the construction of the fence (paragraph 124). The International Court of Justice added that the third part of The Hague Regulations – which includes regulations 43 and 52 – continues to apply, as it deals with military government (§125). This approach of the International Court of Justice cannot detract from this Court’s approach regarding the military commander’s authority to take possession of land for constructing the fence. HCJ 7957/04 Maraabe v. The Prime Minister of Israel 12 This authority is anchored, as mentioned, in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention. Regarding the principled stance of the International Court of Justice, we note the following two points: first, there is a view – to which Pictet himself adheres – by which the scope of application of regulation 23(g) can be widened, by way of analogy, to cover belligerent occupation as well (see Pictet, at p. 301; G. Schwarzenberger 2 International Law as Applied by International Courts and Tribunals: the Law of Armed Conflict 253, 314 (1968). Second, the situation in the territory under belligerent occupation is often fluid. Periods of tranquility and calm transform into dynamic periods of combat. When combat takes place, it is carried out according to the rules of international law. “This combat is not being carried out in a normative void. It is being carried out according to the rules of international law, which determine principles and rules for the waging of combat” (see HCJ 3451/02 Almandi v. The Minister of Defense, 56(3) P.D. 30, 34; see also HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16). In such a situation, in which combat activities are taking place in the area under belligerent occupation, the rules applicable to belligerent occupation, as well as the rules applicable to combat activities, will apply to these activities (see The Marab Case; HCJ 7015/02 Ajuri v. The Commander of IDF forces in the West Bank, 56(6) P.D. 352, and Watkin “Controlling the Use of Force: A Role of Human Rights Norms in Contemporary Armed Conflict” 98 A.J.I.L. 1, 28 (2004)). Regulation 23(g) of The Hague Regulations will apply in such a situation in territory under belligerent occupation, due to the combat activities taking place in it. 
Israel, Supreme Court, Zaharan Yunis Muhammad Maraabe case, Judgment, 15 September 2005, §§ 16–17
In its judgment in the Hebron Local Council case in 2006, Israel’s High Court of Justice stated:
4. … There is no need to discuss at length the authority of the military commander to requisition land under the laws of belligerent occupation, where military needs require execution of such action. This power, which is enshrined in the Hague Convention of 1907, in the humanitarian parts of the Fourth Geneva Convention of 1949, and in principles of Israeli public law, has been recognized by this court in a line of past decisions (see, for example, HCJ 10356/02, Hass v. Commander of IDF Forces in the West Bank, P. D. 58 (3) 443 (hereafter – Hass); HCJ 1890/03, Municipality of Bethlehem v. State of Israel (not reported), para. 8; HCJ 7862/04, Abu-Daher v. Commander of IDF Forces in Judea and Samaria (not yet reported), para. 7–8); HCJ 7957/04, Marabe v. Prime Minister of Israel (not yet reported), para. 14). The provisions relating to seizing possession of land by the military commander, among them articles 23(g), 43, and 52 of the Hague Regulations and article 53 of the Fourth Geneva Convention, restrict infringement of the right of property of a person to cases in which imperative military necessity requires it (for example, in the language of article 52 of the Hague Regulations, where requisition of land is allowed only for the “needs of the army of occupation”) while the exception found at the end of article 53 of the Fourth Geneva Convention uses the language “rendered absolutely necessary by military operations”). The provisions relating to the exception for “imperative military necessity” or “rendered absolutely necessary by military operations” has been discussed often in the case law. The meaning given these expressions is not limited to active combat needs, but also to actions taken by security forces to safeguard the lives of soldiers and civilians living in the region. Thus, it was held that various security actions, such as guarding military outposts (HCJ 24/91, Timraz c. Commander of IDF Forces in the Gaza Strip, P. D. 45 (2) 325 (hereafter – Timraz), housing of soldiers in friction areas (HCJ 290/89, Juha v. Military Commander for Judea and Samaria, P. D. 43 (2) 116) and guarding main transportation arteries or routes along which worshipers move (HCJ 401/88, Abu-Rian v. Commander of IDF Forces in Judea and Samaria, P. D. 54 (4) 626; Hass, supra) also come within the category of “imperative military necessity,” and can therefore justify requisition of land by the military commander. Indeed, study of the petitioners’ claims indicates that they do not dispute this power of the military commander.
5.The principle arguments of the petitioners are directed, therefore, against the judgment of the military commander in ordering requisition of the land. It should be mentioned that these decisions are subject, as are all decisions of a governmental authority, to review of this court (see, for example, Hass, 458; HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel, P. D. 58 (5) 807, 842–846). However, we observe that it may well be that there are disagreements over the scope of the review of such decisions. Our opinion is that in the cases before us, there was no defect in the actions of the military commander that justify our intervention. As will be explained immediately, we did not find substance in the arguments raised by the petitioners with respect to the failure to give a right to be heard, with respect to taking into account extraneous considerations, and regarding the lack of reasonableness that characterized, in their opinion, the military commander’s decisions.
One argument of the petitioners is that they were not given the right to state their case prior to receiving the decisions relating to requisition of the land. The existence of this right – which is available to every concerned person who is liable to be harmed by acts of governmental authorities – is not disputed. However, in the present cases, we do not believe that the petitioners were denied the possibility of stating their case before the governmental authorities. It should be recalled that, immediately following publication of the orders that designated the land for requisition, tours were made in the field by army officials and the holders of rights in the land. After that, the petitioners were given the possibility of raising their objections to the military commander. Some of the objections even led to meaningful changes in the army’s plans, when at a later stage, a certain change was made, at the request of the petitioners in HCJ 5968/05, in the route that was to be built around one of the camps (see the respondents’ statement of 30 January 2006). In these circumstances, we are satisfied that the landowners’ right to be heard was met (on this point, compare and see Hass, at p. 454; HCJ 1890/03, supra, para. 10).
7. Another condition for approving the requisition orders relates to the reasonableness of the military commander’s decision. The rule is that the military commander, in ordering the requisition of land, must exercise his authority in accord with the tests of reasonableness and proportionality that this court has delineated in its decisions (Hass, 458; HCJ 7015/02, Ajuri v. Commander of IDF Forces in the West Bank, P. D. 56 (6) 352, 375–377). I would say: a reasonable and proportionate relationship must be found between the military objective underlying the decision to requisition the land and the harm that is liable to be caused to residents of the region as a result of that action. It should be recalled that, in exercising his judgment whether to order the requisition of land for military purposes, the military commander is required to balance the army’s imperative security interests, on the one hand, and the needs of the local population, on the other hand. 
Israel, High Court of Justice, Hebron Local Council case, Judgment, 1 March 2006, §§ 4–5 and 7.
In its judgment in the Murar case in 2006, Israel’s High Court of Justice stated:
The relevant criteria when exercising the power to close areas
14. … The petition before us concerns agricultural areas that are owned by Palestinian inhabitants and that are closed by the order of the military commander. Therefore, the right to security and the protection of physical integrity is opposed by considerations concerning the protection of the rights of the Palestinian inhabitants, and in view of the nature of the case before us, we are speaking mainly of the right to freedom of movement and property rights.
[T]he residents in the territories held under belligerent occupation have a protected right to their property. In our case, there is no dispute that we are speaking of agricultural land and agricultural produce in which the petitioners have property rights. Therefore, when the petitioners are denied access to land that is their property and they are denied the possibility of cultivating the agricultural produce that belongs to them, their property rights and their ability to enjoy them are thereby seriously violated.
15. Thus we see that the considerations that the military commander should take into account in the circumstances before us include, on the one hand, considerations of protecting the security of the inhabitants of the territories and, on the other hand, considerations concerning the protection of the rights of the Palestinian inhabitants. The military commander is required to find the correct balance between these opposite poles.
16. There is no doubt that in cases where the realization of human rights creates a near certainty of the occurrence of serious and substantial harm to public safety, and when there is a high probability of harm to personal security, then the other human rights yield to the right to life and physical integrity (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [13], at p. 454; Hass v. IDF Commander in West Bank [3], at p. 465 {76}). Indeed, in principle, where there is a direct conflict, the right to life and physical integrity will usually prevail over the other human rights, including also the right to freedom of movement and property rights. The court addressed this principle in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [14], where it said:
“When there is a direct confrontation and there is a concrete risk to security and life, the public interest indeed overrides protected human rights, and the same is the case where there is a concrete likelihood of a risk to life.” (para. 11 of my opinion [14]).
Protecting the security of Palestinian farmers
24. The question of denying a person access to certain land, when he has a right of access to it, for the purpose of protecting his security and for the purpose of preserving public order is not new in Israel and it has been considered in our case law several times (see, for example, Temple Mount Faithful v. Jerusalem District Police Commissioner [13]; HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [16]; HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [17]; HCJ 5016/96 Horev v. Minister of Transport [18]).
[A]ssuming that the violation of the Palestinians’ right of access to their land is done for the proper purpose of protecting their lives, we should consider whether the closure of the agricultural areas to the Palestinians in order to protect them is a proportionate violation of their rights. After studying the written pleadings and hearing the arguments of the parties, we have reached the conclusion that in the prevailing circumstances the exercising of the military commander’s power to close land to Palestinians for the purpose of protecting them is disproportionate. Of course, no one disputes that closing the area and preventing the access of Palestinians to their land does achieve a separation between them and the Israeli inhabitants and thereby protects the Palestinian farmers. But the use of the power of closure for the purpose of protecting the Palestinian inhabitants violates the right of the Palestinian inhabitants to freedom of movement and their property rights to a disproportionate degree and it does not satisfy the subtests of the principle of proportionality. …
25. … A policy that denies Palestinian inhabitants access to land that belongs to them in order to achieve the goal of protecting them from attacks directed at them is like a policy that orders a person not to enter his own home in order to protect him from a robber who is waiting for him there in order to attack him. In the circumstances of the case before us, it is not rational that this policy should be the sole solution to the situation in the area, since it violates the rights of the Palestinian farmers to freedom of movement and their property rights disproportionately.
It is clear therefore that the use of the measure of closing the area to the Palestinian farmers when the purpose is to protect the Palestinians themselves is not an appropriate use of the aforesaid measure, and it is contrary to our sense of justice. This situation is not proper and therefore the use of the measure of closing areas as the standard and only measure for protecting Palestinian inhabitants who are attacked on their land is a use that is disproportionate and inconsistent with the duties imposed on the military commander.
Denying access summary
28. The inescapable conclusion is therefore that the manner in which the military commander exercised his discretion to deny Palestinians access to agricultural areas that belong to them, in order to realize the purpose of protecting their security, is not consistent with the proportionate measure test that governs the respondents, and therefore it is unacceptable. As a rule, the military commander should carry out his duty to protect the security of the Palestinian inhabitants in another manner, and not by closing the agricultural areas, provided that his command responsibility is not prejudiced. The conflict areas, which are closed to the Palestinians in order to protect the Palestinians themselves, should therefore remain open to the movement of Palestinians and the respondents should adopt all the measures that are required in order to ensure the security of the Palestinians farmers in those areas. The protection of the Palestinians should be afforded by providing proper security, giving clear instructions to the military forces and the police with regard to how they should act, and imposing restrictions that will be effective against those persons who harass the Palestinians and break the law. With regard to the closure of areas belonging to Palestinian inhabitants when the purpose that is being sought is the protection of the Israeli inhabitants against terrorist activity, in such a case the measure of closure may be proportionate, provided that the military commander exercises his power on the smallest scale possible and while observing the rules set out above.
Law enforcement in the territories of Judaea and Samaria
33. … [T]he protection of the security and property of the local inhabitants is one of the most fundamental duties imposed on the military commander in the territories.
Therefore, notwithstanding the difficulty in giving judicial directions in this matter, we have seen fit to address in general the principles that should guide the respondents in dealing with this matter. First, action should be taken to ensure the security of the Palestinian farmers when they go to work on the land and, if necessary, to protect them when the agricultural work is being carried out. Second, clear and unequivocal instructions should be given to the forces operating in the field as to how to act in order not to prevent those inhabitants who are entitled thereto from having access to their land, unless there is a lawful ground for doing so. Third, forces should be deployed in order to protect the property of the Palestinian inhabitants. Fourth, complaints that are made by the Palestinian inhabitants should be investigated on their merits and the investigation should be completed as soon as possible. Investigations should be made immediately when information is received with regard to acts of harassment, and patrols should be deployed by the army and the police in order to discover such acts.
Summary
35. The result is that we declare that except in cases of a concrete need, which arises from reliable information or real warnings in the field, the military commander should, as a rule, refrain from closing areas in a manner that prevents the Palestinian inhabitants from having access to their land for their own protection, since the use of this measure in these circumstances is disproportionate. Adopting the measure of closing areas, which should be restricted to the absolute minimum, may be proportionate only when it is done in order to protect the Israeli inhabitants, subject to the restrictions and the conditions that we discussed in paras. 20–21 above. 
Israel, High Court of Justice, Murar case, Judgment, 26 June 2006, §§ 14–16, 24–25, 28, 33 and 35.
[emphasis in original]
In its judgment in the Mayor of Dahariya case in 2006, Israel’s High Court of Justice stated:
12. According to the laws of belligerent occupation, the military commander is empowered to order erection of a concrete barrier, and, for that purpose, to take possession of land belonging to Palestinian residents. This power arises only when the reason underlying the decision is military-security. Under article 52 of the Hague Regulations, the requisition of land must be for the needs of the military occupation. Under article 53 of the Fourth Geneva Convention, the taking must be rendered absolutely necessary by military operations The military commander is empowered to seize land and build the concrete barrier also to protect the lives and security of Israelis living in Israeli communities in Judea and Samaria, even though the Israelis living in the area are not “protected persons” within the meaning of the expression in article 4 of the Fourth Geneva Convention This is the situation also in the petition before us. Indeed, the normative framework for deciding the matter before us is identical to the normative framework that was set for the hearing of petitions regarding the separation fence in Beit Sourik and Alfe Menashe (see, also, HCJ 4938/04, Shuqba Village Council v. The Prime Minister (not yet reported); HCJ 1348/05, Dr. Shaher Abd al Qader Shatiyah v. State of Israel (not yet reported) (hereafter – Ariel); HCJ 1998/06, Beit Ariyeh Local Council v. Minister of Defense (not yet reported (hereafter Beit Ariyeh). The principles guiding the military commander in building the separation fence apply also to his decision to seize land for another protective action, such as building the concrete barrier that is the subject of this petition.
13. In considering the decision to erect the barrier, the military commander must weigh a number of considerations. The first consideration is the military-security consideration, which involves protection of the security of the state and of the army. The second consideration involves the well-being of the protected residents in the area. The military commander must protect the human dignity, the lives, and the security of each of them. Third, the military commander must protect the human dignity, lives, and security of Israelis living in Israeli communities in the area. These considerations clash with each other. The military commander must balance the clashing considerations. Indeed, “The law of belligerent occupation recognizes the authority of the military commander to maintain security in the area and to protect the security of his country and her citizens. However, it imposes conditions on the use of this authority. This authority must be properly balanced against the rights, needs, and interests of the local population” (Beit Sourik, p. 833; and see Alfe Menashe, paragraph 29; Tene, paragraph 10).
14. The balance between the security needs and the interests of Palestinian residents and Israeli citizens is not simple. The responsibility and authority to balance between them is imposed on the military commander. A major criterion in this balancing is “proportionality,” with its three subtests. First, a rational connection between the means chosen and the objective to be achieved is required. Second, the means chosen must harm the infringed rights the least. The question is whether, among the means available to achieve the security purpose, the means that causes the least harm has been chosen. “The obligation to choose the least harmful means does not amount to the obligation to choose the measure that is absolutely the least harmful. The obligation is to choose, of the reasonable options that are available, the least harmful. One must therefore compare the rational possibilities, and choose the possibility that, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights” (HCJ 7052/03, Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior (not yet reported) (hereafter: Adalah), paragraph 68.) Third, it is necessary that the means chosen properly balance the purpose underlying its operation and the rights being violated (see Adalah, paragraphs 64–75); Beit Sourik, p. 841; Ariel, paragraph 22; HCJ 2942/05, Mantsur v. State of Israel (not yet reported), paragraph 23). In balancing proportionality, the military commander’s discretion is not absolute. His decision must be one that a reasonable military commander would make (see Alfe Menashe, paragraph 32 and the sources cited there). His decision is subject to judicial review. However, the Supreme Court, sitting as the High Court of Justice, does not substitute the discretion of the military commander with its own. This court exercises judicial review of the legality of exercise of the military commander’s discretion. In making this review, “we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations. We take no position regarding the way security affairs are run. Our task is to guard the borders and to maintain the boundaries of the military commander’s discretion” (Beit Sourik, pp. 842–843, and see Tene, paragraph 11; Beit Ariyeh, paragraph 8l; Ariel, paragraph 22). The court does not enter the shoes of the military official making the decision. The judicial review examines whether the actions and decisions of the military commander conform to the law. 
Israel, High Court of Justice, Mayor of Dahariya case, Judgment, 14 December 2006, §§ 12–14.
In its judgment in the Hassin case in 2010, involving a request by a Palestinian applicant for the return of money seized from him under the authority of the commander of the Israel Defense Forces in the West Bank when the applicant was held in administrative detention, the Military Court of Appeals for Judea and Samaria stated:
Where the military commander chooses to seize and confiscate property the rights of which belong to a resident of the region, he may exercise his authority in a few ways. He can act under section 120 of the Defense Regulations. He may also exercise his powers under section 80 of the Order Regarding Security Provisions (No. 378) (Judea and Samaria), 5730 – 1970 (hereafter: Order Regarding Security Provisions). However, I should observe that, in these circumstances, the decision to act by virtue of the Defense Regulations is somewhat problematic, in particular since they are draconian regulations that were drafted in an emergency, and courts prefer to avoid them where possible.
The legislative enactment that the military commander chose, as noted above, to use is section 120 of the Defense Regulations, which states:
The High Commissioner may by order direct the forfeiture to the Government of Palestine of all or any property of any person as to whom the High Commissioner is satisfied that he has committed, or attempted to commit, or abetted the commission of, or been an accessory after the fact to the commission of' any offence against these Regulations involving violence or intimidation or any Military Court offence
The right of property
There cannot be any dispute that the order that was given by virtue of section 120 seriously harms the applicant’s right of property.
As every beginner knows, the right of property is a basic right in every liberal system of law, and has also been enshrined in international law and in the constitutions of many countries:
The right of property is a cornerstone of the liberal regime. It grabbed a prominent place in the liberal ideology, as surety for the fulfillment of other rights (P’nina Lahav, “The Strength and the Task: The Supreme Court in its First Decade,” Iyuney Mishpat 14:479, 498 (5759 – 1999)).
This right is enshrined in article 46 of the Hague Regulations, of 1907, which establish the rights of protected persons in occupied territory:
… and private property … must be respected.
Private property cannot be confiscated.
The Fourth Geneva Convention, of 1949, too, in the part dealing with occupied territory, states [Article 53] … that the occupying power must protect the private property of protected persons:
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations is prohibited, except where such destruction is rendered absolutely necessary by military operations.
The right of property is also recognized in international law in contexts other than that of occupied territory. It is enshrined in article 17 of the Universal Declaration of Human Rights, as follows:
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
This right, as we know, has also been widely protected in constitutions of many countries, among them Israel, where the right is given supra-statutory status and is enshrined in the Basic Law: Human Dignity and Liberty, section 3 of which states:
There shall be no violation of the property of a person.
We clearly see from various provisions in international conventions that the right of property is a protected right. However, we cannot conclude from this that international law prohibits any harm to the property of protected persons. I am of the opinion that protected rights in international law, too, are not absolute rights (as has been held at times regarding basic rights in Israel), and that situations might arise in which, when balancing the right of property against contradictory rights and interests, the right of property of protected persons will be denied. The Fourth Geneva Convention establishes an exception to protection of the right of property, and the Universal Declaration of Human Rights does not state “No one shall be deprived of his property,” but that “No one shall be arbitrarily deprived of his property.” Thus, deprivation of property that is not a result of arbitrary action might be permissible. …
It should be remembered that confiscation of property by virtue of section 120 of the Defense Regulations is not incidental to a criminal proceeding, but is only an administrative proceeding. Therefore, and given the unequivocal wording, especially in the Geneva Convention whereby a person is not to be deprived arbitrarily of his property, the question arises whether confiscation of private property in an administrative proceeding without judicial supervision, even if for a proper purpose, comports with the provisions of the conventions on the obligation of the occupying power to protect the property rights of protected persons.
Legal status of military courts in the region
The Fourth Geneva Convention, which contains provisions relating to protection of protected persons, provides that confiscation of their property is prohibited. The Convention also requires the establishment of military courts. On the other hand, it does not deal with the obligation of the state to enable protected persons to gain access to its state courts, including the court authorized to conduct judicial review of the actions of the executive arm, which includes the commander of the forces in the occupied territory. Since the Convention does not contain this obligation, and given my conclusion that the Convention does not allow the taking of property of a person without judicial review, the inescapable conclusion is that the military courts, whose establishment is required by the Convention, are the entity that has the authority to conduct the aforesaid judicial review.
Invalidation of the law or interpretation of it
Now that we have held that the military courts are authorized to conduct judicial review under section 120 of the Defense Regulations, the question is: what is the decision resulting from this review? Must one conclude that we invalidate the regulation, in that it contradicts the provisions of international law, or should we reach a different result?
Conclusion
… I hold that the military court has the authority to conduct judicial review of orders issued by the military commander by virtue of section 120 of the Defense Regulations …
In light of the aforesaid, I am of the opinion that the authority for providing relief in matters such as the kind before us should be the military court sitting in the first instance, with each side being entitled to appeal its decision to the Military Court of Appeals. 
Israel, Military Court of Appeals for Judea and Samaria, Hassin case, Judgment, 21 November 2010, pp. 3–4, 12–13 and 21–25.
[emphasis in original]
Israel’s IDF General Staff Order No. 50.0303 of 1977 states:
Definitions
1. In this Order:
Occupied Territory – Territory outside the borders of State of Israel that was in enemy hands and passed to IDF [Israel Defense Forces] control.
Area Commander – Territory for which the IDF appointed a military governor – the Military Governor. Territory for which no Military Governor was appointed– the Commander of the division whose forces are holding or securing said territory.
Seizure of property – taking over the property, including right of ownership.
Possession of property – taking over administration of property, including using it and benefiting from its produce, without having full ownership.
Land – Land of any kind and any form of possession, buildings, trees or anything else connected to the ground, such as orchards or railroads.
Movable property – Any property that is not land.
Abandoned property – Privately owned land or movable property, whose owner is unknown or had left the occupied area before the occupation or because of it.
General
2. This Order defines the powers of the military authorities regarding enemy property located in occupied territory. This Order does not relate to enemy property on the battlefield. That subject is detailed in General Staff Order 50.0301.
3. To remove all doubt, it should be clear that the provisions of this Order also apply to the police force, when operating under the command of the army owing to call up for reserve duty, or for a military or other type of mission.
4. No land or movable property in occupied territory may be seized or possessed or used without the consent of the owner unless it is necessary for the purposes of war and if allowed by the provisions of this Order.
5. When exercising his powers as per this Order, the Area Commander will take into account the needs of the civilian population of the occupied territory, and will ensure the availability of a supply of food and medical supplies.
6. The Area Commander will not exercise his powers as per this Order, except after consultation with the highest Quartermaster level in the occupied territory (representative of the General Staff-Logistic Branch, or of the command or division Quartermaster. If there is no such representative – the Formation Maintenance Officer, whose forces are in the area or are securing it).
7. In the event of doubt about the status of the property, the military legal adviser of the governing forces must be consulted before exercising powers, as per this Order, and if the governing headquarters are not yet established, with the appropriate Command Advocate.
8. No negotiations will be held with a civilian third party over compensation for property that has been seized or possessed or made use of as per this Order and no confirmations or statements will be offered to any civilian third party, except in accordance with the provisions of this Order.
9. All Commanders must ensure that their subordinates act as follows:
a. They will not commit acts of looting.
b. They will comply with the provisions of this Order and not abuse the powers it grants.
c. They shall not misuse the property covered by this Order.
10. This Order does not detract from what is stated in General Staff Order 33.0133 (Discipline – behavior in accordance with international treaties to which the State of Israel is party), rather supplements it.
11. General Staff – Logistics Branch may appoint a Commander of the Logistic Command or any other position with regard to occupied territory and grant him power to seize and take possession and give instructions regarding use of property, as specified in this command.
12. If a unit has seized land as per this Order, it will report immediately to the appropriate Command Lands Officer who will inform the Building Center and the General Staff-Logistic Branch. The latter will notify those concerned whether or not it had approved the seizure of the land.
13. The provisions of this Order shall deal with four types of property:
a. State-owned lands
b. Privately owned lands
c. State-owned movable property
d. Privately owned movable property
14. For the purpose of this Order, the movable property and lands will be considered state-owned also if owned by a corporation, where the state has shares granting it control over it or its assets or if it has the right to administer it.
Privately owned lands
20. The occupation itself does not grant the State of Israel or the IDF the rights to own or possess land that is private property (including the property of public institutions and local authorities, as stated in paragraph 19 above, who are in occupied territory).
21. The Area Commander may allow the IDF forces in occupied territory the temporary use of lands as mentioned above, but only for necessary military purposes that are required for war such as: storage, hospitals and operational activity. The wording of the written permit will be as stated in Annex A to this Order.
22. Houses of worship may be used only as hospitals or clinics. Any other use requires prior approval from the regional Command. The regional Command will approve as mentioned above only if it is concluded that it is necessary and refraining to give the approval and will significantly harm the IDF’s war efforts.
23. Expropriation of land as mentioned above shall be made in accordance with international law will only be made after consultation with the Area Legal Advisor.
24. The area commander will not allow use of hospitals except for temporary use in order to treat wounded and sick troops, provided proper arrangements have been to satisfy the needs of the civilian population in the area. Seizing a hospital solely for the needs of the army is permitted only in emergency cases, and after adequate arrangements have been made for the civilian patients in the hospital, and the hospitalization needs of the population have been provided for.
25. A person who owns or possesses property is not entitled to compensation for the use of such property, unless the General Staff-Logistic Branch instructs otherwise. After the use, and provided it is possible under the circumstances of the time and place, the Area Commander, or an officer authorized to do so by him, will provide him with confirmation of the use, while detailing the period and scope of use and damages, if any, were caused to the property (see sample of confirmation of use in Annex B to this Order.)
Movable property that is private property
30. Occupation does not grant the State of Israel or the IDF any rights of ownership or possession of movable goods which are private property (including movable goods of the types listed in paragraph 29 above, which must not be seized or used, except in accordance with the provisions of paragraph 31 below).
31. War equipment – including weapons, means of transmitting information such as telephones, telegraph equipment, vehicles, vessels (except vessels exempted from seizure according to maritime law). Private property may be seized only if it is war equipment, necessary for directly managing a war. Movable property, as noted, will be returned after the military operations or compensation paid for them.
32. Movable property that is private property may be seized, if it is not intended for direct military use, but is needed to be used by IDF troops in the occupied territory, on condition that the needs of the civilian population in the area are first taken into account. Movable property of this type include: food, fuel, clothing, tobacco and medicines, as outlined in subsection 37 below.
33. No movable property may be seized, as per this section, other than by a written order of the local military commander. A receipt must be given in return for movable property. Logistics Branch personnel who seize property are authorized to pay cash for it and must pay in full and at a fair price.
34. The seizure will be carried out upon written seizure order, issued by the commander authorized to do so by the Area Commander in five copies (on the form as shown in the example in Annex C to this Order.) The distribution of the order will be as follows:
a. First copy – for the active holder of the moveable property before seizure.
b. Second copy – for the party carrying out the seizure.
c. Third copy – for Commander of the unit for which use the moveable property was seized.
d. Fourth copy – for the General Staff - Logistic Branch
e. Fifth copy – for the Ministry of Defense.
35. The seizure will be carried out if possible, by an officer or senior NCO.
36. It is absolutely forbidden to seize moveable property that is not war equipment or other moveable property needed by the IDF forces in the occupied territory, and certainly not jewelry or property of artistic or historic value (such as pictures and sculptures). See in this regard the Convention for the Protection of Cultural Assets during Armed Conflict (annex 62 to General Staff Orders).
37. Medical materials and storerooms in civilian hospitals must not be seized as long as they are needed by the civilian population.
Obligations regarding enemy property
38. Whoever has acquired seized property, which is held or given for temporary use as per this Order, must take all measures to prevent breakage, damage or loss of the a/m property.
39. Destruction of property as mentioned above or use that compromises its integrity, are permitted only if military necessity so requires.
Abandoned property
40. The Formation Maintenance Officer will make sure that abandoned property of residents of occupied territory is treated in accordance with the provisions of General Staff-Logistic Branch.
41. In the absence of special instruction of the General Staff-Logistic Branch the Maintenance Officer will make sure action is taken to prevent loss or theft of property.
42. In the event of abandoned property the following will be done:
a. Abandoned property taken by the IDF will be documented.
b. Appropriate action will be taken to leave authorized abandoned property in its place or concentrate it in one place.
c. The property will be handed over to the person responsible for abandoned property in the area, the minute such an appointment is made by the Regional Commander. 
Israel, IDF General Staff Order No. 50.0303, Seizure of enemy property in occupied territory, 15 July 77, §§ 1–14, 20–25 and 30–42.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
441. … Israeli forces were instructed to operate carefully at all times, and to minimise collateral damage to the extent possible. For purposes of the Law of Armed Conflict, the extent of the damage to private property and infrastructure is not itself indicative of a violation. Rather, as already explained, in each case it must be considered whether a legitimate military purpose existed and if the damage to property was proportional to this aim. …
442. … The Law of Armed Conflict allows the destruction of private property where, as here, it is a matter of military necessity. …
445. It should be emphasised that IDF orders and directions, dealing with the destruction of private property and applicable in the Gaza Operation, stressed that all demolition operations should be carried out in a manner that would minimise to the greatest extent possible the damage caused to any property not used by Hamas and other terrorist organisations in the fighting. 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 441–442 and 445.
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:
… Under the Law of Armed Conflict, the occurrence of damage to civilian property … during an operational activity does not necessarily indicate nor even imply criminal misconduct. Rather, criminal responsibility for violation of the Law of Armed Conflict requires evidence that military personnel intended to harm civilians or clearly foresaw that excessive harm to civilians would result, when balanced against the anticipated military advantage. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, § 51.
[emphasis in original; footnotes in original omitted]
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:
121. These incidents [involving damage to private property] highlight the difficulties posed by terrorist groups that operate within densely populated civilian areas and near economic facilities. During the Gaza Operation, Israeli forces made extensive efforts to avoid civilian casualties and unnecessary damage to civilian property. Even so, fighting an adversary that deliberately made use of civilian buildings to store ammunition, mount attacks, and conceal combatants – as well as booby-trapping civilian buildings with explosives along the expected path of advancing forces –created enormous operational dilemmas. Israel has acknowledged that significant damage was caused to civilian property as a result of the events of the Gaza Operation. …
154. In the aftermath of the Gaza Operation, the destruction of private property and infrastructure by ground forces was the subject of one of the five special command investigations ordered by the IDF [Israel Defense Forces] Chief of General Staff. One of the lessons learned from this investigation was that there should be a set of clear rules and guidelines to assist commanders in making such decisions.
155. Accordingly, upon the Chief of the General Staff’s instructions, a new Standing Order on Destruction of Private Property for Military Purposes was formulated. This new standing order, entered into force in October 2009, and addresses in clear terms when and under what circumstances civilian structures and agricultural infrastructure may legitimately be demolished in circumstances of imperative military necessity. It clarifies the applicable legal criteria and limitations and allocates specific command responsibility and hierarchical authority for decision-making. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: Second Update, 19 July 2010, §§ 121 and 154–155.