The Israeli Supreme Court Debates Counterterrorism Home Demolitions

An interesting debate has developed recently among the justices of the Israeli Supreme Court over the legality of Israel’s use of home demolitions as a counterterrorism measure. This longstanding practice is highly controversial because it intentionally harms not only the person implicated in terrorist activity, but also family members and other residents who were not themselves involved in terrorism. Several justices, most recently in a decision delivered on Wednesday, have voiced serious concerns that the practice might be inconsistent with both international law and Israeli domestic law.

Regulation 119 of the Defence (Emergency) Regulations, 1945, dating back to the British Mandate, authorizes the Israeli military to seize and demolish the homes of perpetrators of terrorist attacks. The regulation applies both within Israel and in the West Bank, which is governed by a mix of military regulations, customary international law and pre-1967 local law. Based on regulation 119, the Israeli Supreme Court, in multiple decisions since the late 1970s, had determined that the use of this measure to destroy homes in East Jerusalem and in the West Bank is lawful. In 2005, home demolitions were suspended following the recommendations of a military review commission established to reevaluate the effectiveness of the practice in deterring terrorist attacks. No home demolitions were performed in the West Bank until 2014. Three demolition orders were issued for properties in East Jerusalem between 2008 and 2009, in the wake of a wave of violent attacks in the City (see HCJ 9353/08; HCJ 124/09; HCJ 5696/09. decisions are only available in Hebrew). However, in 2014, Israel resumed the practice in an attempt to curb a dramatic increase in Palestinian attacks against Israeli civilians. Petitions to the Supreme Court, which has original jurisdiction to review demolition orders in its capacity as the High Court of Justice, soon followed.

In several major cases decided since the demolitions were renewed in 2014, the Supreme Court reaffirmed its previous decisions holding that home demolitions for counterterrorism purposes are legal in principle (see, e.g, HCJ 4597/14; HCJ 5290/14; and especially HCJ 8091/14 (application for further hearing denied in HCJFH 360/15)). The Court accepted the government’s position that the purpose of this measure is not to punish those involved in terrorism and their families, but rather to deter potential attackers in order to protect innocent lives. The Court further held that deterrence is a legitimate purpose, particularly in the present circumstances of persistent violent attacks, and that deference should be given to the competent authorities’ assessment as to whether home demolitions in fact contribute to deterrence.

While approving the practice in principle, the Court warned that the use of home demolitions should be proportional, as required by Israeli domestic law. It reiterated that the military should consider the gravity of the terrorist acts committed; the strength of the evidence implicating the perpetrator; the number and identity of innocent persons that might be affected by the demolition; the extent to which the other residents of the home were aware of any terrorism-related activity, and their cooperation with law enforcement; possible damage to surrounding structures; and the availability of alternatives to demolition, such as sealing the part of the home in which the perpetrator resided. Finally, the Court urged the government to keep close tabs on the effectiveness of the practice in deterring future attacks.

The Court only briefly addressed the international law aspects of home demolitions, noting that previous decisions already established that they are consistent with international law. It remarked that the Hague and Geneva Conventions, designed for a very different era, are ill-suited for the fight against terrorism, and should be interpreted in a manner that preserves their spirit while allowing Israel to defend itself.

Although the Court remained loyal to its precedents, several justices have recently expressed concern about the legality of home demolitions. For instance, in October 2015, the Court denied a petition filed by the family and neighbors of Maher Al-Hashalamoun, who murdered an Israeli woman and wounded two others in an attack in November 2014. The petitioners sought an injunction to prevent the military from demolishing Al-Hashalamoun’s Hebron residence (HCJ 5839/15). In dissent, Justice Uzi Vogelman questioned the effectiveness of home demolitions in deterring future terrorist attacks. He underscored the severe consequences to the residents of a demolished home—especially in circumstances in which they had no knowledge of any terrorist activity. Vogelman thus concluded that demolitions under such circumstances do not satisfy the proportionality requirement under Israeli law. He called on the Court to revisit the existing precedents, taking all the relevant legal considerations—domestic and international—into account.

Subsequently, in December 2015, the Court denied a petition filed by the wife of Rajeb Ahmed Mohammed Aliwa, who was involved in the murder of an Israeli couple in October 2015. The petitioner sought to prevent the military from demolishing her home in the West Bank city of Nablus (HCJ 7220/15). In dissent, Justice Meni Mazuz, a former Israeli Attorney General (who, as AG, authorized demolitions in 2008 with reservations), wrote that the Court had failed to address important questions concerning the legality of home demolitions, and that the time has come to reevaluate the precedents. Justice Mazuz pointed out that most of the scholars who weighed in on the issue have argued that home demolitions are inconsistent with international human rights law, as well as the prohibitions against collective punishment and destruction of private property, unless it is absolutely necessary for military purposes (those prohibitions are enshrined in the Hague Regulations of 1907 and in the Fourth Geneva Convention). Mazuz further noted that there is evidence that regulation 119 was designed to punish, not only to deter. Like Justice Vogelman, he questioned the effectiveness of home demolitions in establishing deterrence. Lastly, Mazuz wrote that there are open questions about the extent to which Israeli domestic law restricts the ambit of regulation 119.

What’s next? Considering the Court’s refusal to overrule deep-rooted precedents authorizing home demolitions in principle, it is not likely to revisit the basic questions any time soon. Still, the dissenting voices on the Court, coupled with statements by some in the majority that had there been no clear and recent precedent, they might have decided differently, could affect the amount of deference given to the government.

Some evidence points in that direction. In November 2015, the Court annulled an order to demolish an apartment owned by a third party who had only rented it to the family of the person implicated in a terrorist attack. It also determined that as a general rule, the state must compensate third parties (excluding the perpetrator’s family members) for any damage caused to their property as a result of a home demolition (HCJ 7040/15). In December, the Court annulled another demolition order because it took the government too long (11 months) to issue it (HCJ 6745/15), deviating from a previous decision that upheld a demolition order in spite of a similar delay. Dissenting from a decision that upheld a demolition order in late February 2016, Justice Zvi Zilbertal found that the military did not provide sufficient evidence to justify the order in that particular case (HCJ 1014/16). In several cases the Court reviewed confidential evidence on the effectiveness of home demolitions in deterring future attacks.

Meanwhile, the critics within the Court continue to push for a reevaluation. In a case decided just this Wednesday, Justices Mazuz and Vogelman both repeated their harsh criticism of existing precedent and called for further consideration of the issue of home demolitions before an extended panel. Vogelman, however, reluctantly bowed to precedent and joined Justice Noam Sohlberg in upholding the demolition order at issue.

The restrictions set by the Court seem to have at least some impact in practice. In one of his first moves after taking office this February, the new Israeli Attorney General, Avichai Mandelblit, conducted a review of several planned demolitions. According to media reports, a total of 12 new orders were issued, some with limitations designed to comply with legal requirements. Mandelblit decided not to approve demolitions in two additional cases, and recommended that the government avoid the use of demolitions in cases where the families of the perpetrators turn them in to security forces (see here (Hebrew), here and here).

As the wave of violence in Israel continues, the contentious issue of home demolitions is likely to stay on the agenda of the Israeli Supreme Court. It remains to be seen whether the dissenting voices on the Court will translate into additional meaningful restrictions on the practice.

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Note: for those who are interested in reading more on the Supreme Court’s recent decisions, additional commentary can be found here and here (Hebrew).