The Israeli government has been demolishing houses in East Jerusalem and across the West Bank and Gaza Strip since it commenced its belligerent occupation of the Palestinian territories in 1967. There are three main types of house demolitions: operation, administrative and punitive. The last type is not only the most barbaric from a moral point of view but more importantly, from a legal perspective, constitutes collective punishment in the form of property destruction and generates some of the gravest violations of international humanitarian law, constituting a war crime when amounting to intentional and systematic “wanton destruction”.
Administrative demolition of homes in East Jerusalem has been a tool at the hands of the Israeli government for the purpose of pursuing the quiet transfer policy, displacing Palestinians out of occupied East Jerusalem (See here and here). Just recently, over over 80 homes demolished in Al-Bustan part of the East Jerusalem neighbourhood of Silwan. The houses were issued demolition orders for to violating building laws and building without a building permit. It should be noted that the reality is that such permits are not accessible to Palestinians residents of East Jerusalem due to both bureaucratic barriers and an overarching practice of discrimination testified also by the constant expansion of Jewish settlements in occupied East Jerusalem (See background information on the policies implemented by Israel in East Jerusalem here).
Most topically, however, the Israeli government has recently decided to reinstate punitive house demolitions, which it stopped practicing back in 2005 after an extensive government consultation process. Two recent judgments of the HCJ on this legal question have not only accepted the state’s position without properly examining the relevant points of law. More so, most abominable is the fact that the Court proceeds to reason through a practice that is illegal ab initio under international law, without for a moment considering its inherent illegality or even noting the applicable international legal provisions. The following presents a short analysis on both cases and discusses the future use of this tactic in the context of the Israeli occupation of the Palestinian territories.
The Abu Dahim case and the reinstatement of punitive house demolitions
The practice of punitive house demolition was recently reinstated with the judgment of the Israeli Supreme Court in the case of HCJ 9353/08 Abu-Dahim v. Commander of the Rear Forces (rendered on 5 January 2009) regarding the demolition of the house in East Jerusalem belonging the family of Alaa Abu-Dahim, who killed eight students in a school in West Jerusalem in March 2008 (See the English translation of the petition filed by HaMoked-Center for the defence of the Individual; See also a case note on the decision).
Although the Israeli General Security Services (GSS) could not objectively show that the Abu Dahim family knew about Alaa’s plans, they decided to issue a house demolition order authorizing the seizure and demolition of his family home in East Jerusalem (the announcement on the issuance of an order by the Commander of the Homefront is available here; See also the article in the Jerusalem Post from July 2008). The order was issued under Regulation 119 of the Defense (Emergency) Regulations 1945, which have been in force since the time of the British Mandate (See Darcy’s writing on the use of the Regulations). The provision provides that
119 – (1) A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land.
(2) Members of His Majesty’s forces or the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (1), after eviction without compensation of the previous occupiers if any.
The Minister of Defense’s decision to suspend the application of Regulation 119 of the Emergency Regulations in the beginning of 2005 was the result of an internal Israeli military deliberation process, which concluded that this policy was “on the very edge of the law, and this is despite it completely being legal under the tests of international law, the test of the international community, the test of democracy, the test of self-image and the test of amounts” (para. 9 of the Abu Dahim judgment). The Shani committee, which was convened by the Israeli government for the purpose of reviewing the Regulation and the practice, did not however produce any kind of report on its concluding observations and recommendations. What was therefore available to the Court as it examined the government’s intention to reinstate the practice, was a confused set of slides making up a Powerpoint presentation produced by the Committee.
The Court’s rationale observed primarily the legitimacy of the purpose of the particular provision. Justice Naor of the HCJ notes, despite it being immoral that the attacker’s family members should be punished for his actions, “the chance that the demolition of a house, or its sealing, would prevent future bloodshed obliges us to harden our hearts and to spare the lives that may become victims of the atrocities committed by attackers, more than it would be appropriate to spare the lives of the residents of the house. It is inevitable.” (para. 6)
In examining the validity of the position that house demolitions deter future attacks, the Court notes, “it is not possible to conduct a scientific research that would prove how many attacks were prevented and how many persons saved as a result of the deterrence effects of house sealing and demolitions, but it suffices that it cannot be denied that a certain deterrence exists…for some years the Court has upheld that the use of the Regulation is meant to deter, to deter and not to punish or to avenge” (emphasis added) (para. 8).
Moreover, it proceeds, “the Court does not tend to interfere with the assessment of the security services concerning the effectiveness of the use of house demolitions and sealing as a practice that deters others” (para. 11). It affirms that “the reality has changed and with it the intensity of the events. The conclusions from this are a prima facie matter for the security services to assess” (ibid.).
Justice Rubinstein adds to this, despite the fact that the GSS was not able to present any evidence to this effect, that “the attacker and his family were associated with the Hamas movement” basing this solely on “the ‘Shahid’ posters that were spread close-by [the family house]”.
Despite having noted that “every knowledgeable person understands that these means should be made use of only in the most extreme cases” (para. (b) of Justice Rubinstein’s judgment), he proceeds to conclude, without having examined the meaning or extent of the proportionality or reasonableness of the use of the Regulation in the particular case with the following: “at the end of the day, the hope for deterrence is ahead of us, for the saving of the lives of persons, as against the targeting of property, even though it is painful. Even in the framework of proportionality there is no place, as my friend has written [i.e. Justice Naor], for our involvement” (para. (g)).
A case-by-case approach? The Dawiat decision
The home of the Abu Dahim family was partially sealed off with cement on 19 January 2009. The Israeli government has since announced that it is going to demolish the homes of the family members of the two East Jerusalem residents involved in the bulldozer incidents, which meant that the Court would soon have another opportunity to reconsider its position on the issue. With this came the judgment rendered on 18 March 2009 in the case of HCJ 124/09 Dawiat v Minister of Defense et al. that reaffirmed the legality of the practice, again without any discussion whatsoever of the relevant provisions of international law, and validated its use in the particular case of the Dawiat family home.
The destruction order was issued for the family home constructed by Dawiat’s father. As a result of the family’s appeal against the decision, the state attorney presented the state’s position as follows,
“The security aspect of the demolition, and its origin in the need to deter others from going in Dawiat’s way, especially when it appears that the engagement in terror activities returns and persists amongst the residents of the Arab neighbourhoods. Such a basis for deterrence is, from the state’s perspective, is essential to cease the Palestinian terror activities, to the extent that there is no recourse, on top of directly targeting terrorists and their property, from also charging a price from the family members that reside with them. To the argument about discrimination, the state responds that although Jewish terror also exists, it cannot be compared in its scope or the extent of support that it gets from the public to that of the Palestinians.” (para. 3 of the judgment)
The Court’s decision accepts the state’s position without examining the legality of the adoption of the practice beyond a laconic transfer of responsibility to the security services who had decided on this course of action,
“I do not believe that we can provide the petitioner with the remedy that he requests. The needs of the security services to have available the Emergency Regulations…should be done in the most adequate way and out of appropriate taste. To my mind, these requirements have been complied with in the case of the petitioner. It is difficult to challenge the adequateness of the purpose. The need to deter attackers with force is obliging. As for the conclusions of the security services that deterrence is a central pillar in the struggle against this cruel evil, I cannot interfere with them, and it is difficult to think that there is someone who would challenge this position.” (para. 4)
Despite the Court’s choice not to examine the state’s decision to demolish the house or consider the relevance of any of the possible alternatives that would involve a more proportionate infringement of rights, it recalls that
“In all of the above, of course, there is no intention to rid the Court or the security services of the obligation to examine each case according to its specific circumstances… The grounds for appeal lie in each case in challenging the basis, factual as well as normative, on which the state bases its position to the extent that, in the framework of the struggle against terror, the taking of harsh measures such as the demolition of a home, is inevitable in the specific case that is being considered.” (emphasis added) (para. 6).
The Court’s final statement stands on its own to attest to the fact that its reasoning was prejudiced. Since after having failed to question the ab initio legality of the use of the Emergency Regulation for the purpose of demolishing homes, it also avoids conducting a proper analysis of the “The petitioner did not present any argument that rebuts the deterrence power of the demolition… The considerations that were brought up pertaining to the violation of his and his family’s rights – a violation that cannot be denied, do not weigh against the chance that the operation [of demolition] will deter others from joining the blood-path.” (para. 6)
On 18 March 2009 the Supreme Court rejected the petition filed by the Dawiat family against the issuance of the demolition order. On April 7, 2009 police and border police sealed off the house of the Dawiat family.
Concluding remarks on a worrying future
The Dawiat case arouses tenable suspicions as to whether the ‘case-by-case’ approach established in Abu Dahim is a feasible regulatory tool or only a means for achieving the ends of perpetually stretching the state’s margin of appreciation with regards to the use of this already dangerously formulated Regulation from the times of the British Mandate. One should also question whether the case of Dawiat is comparable on its facts to that of Abu Dahim, and where, in this light, should the line be drawn with regards to the exceptionality of the circumstances in which the invocation of the Regulation is justified.
Altogether it should be recalled that there is a fundamental fallacy in both judgments as well as the Powerpoint released by the Shani Committee, on the overall legality of the practice of punitive house demolitions. This erroneous basis for legal discussion not only follows Israel’s policy of distortion towards its international legal obligations, but also makes the analysis conducted by the Court in either judgment entirely obsolete, and having no jurisprudential value whatsoever.
As a final note, it should be recalled that cases of this kind are based on secret evidence provided by the state security services directly to the judges, who are in turn meant to examine the value of the classified materials to the petitioner’s claim and the extent to which the evidence concerns the petitioner himself, ‘personally and directly’. Cases about house demolition orders, being in their nature measures of collective punishment, are the exception to the Court’s generally accepted practice of examining secret evidence, which has become the rule in this type of cases. Consequentially, this practice stands firmly on the acceptance of the admittance of guilt by association.
Not apart from this, the recognition of an effect of deterrence implies as a consequence that such guilt may often be based on hollow suspicions and preemptive speculations about possible connections with inciting individuals or groups based on hearsay. Evidently, the use of a preventative approach in the examination of such evidence presented by the state, in the sense that a socio-political association or family membership is sufficient to signal activity of a certain type, goes against the deterrence philosophy of house demolitions. In other words, a family member or friend of an attacker can easily be seen as guilty by association for the purpose of restricting or derogating from his human rights in other cases as long as he may be considered to have been incited to engage in future attacks by the demolition of his friend’s or family member’s home, and thereby solely this basis would legitimise the imposition of restrictions on his rights. Indeed, a very slippery slope.