Israel's High Court Turns Down Request to Stop Demolition of Terrorists' Homes

'The circumstances here, of cruel killing, time and again, of innocents' necessitates the use of the emergency regulations,' wrote one judge.

Emil Salman

The High Court of Justice on Wednesday rejected a petition filed by eight human rights groups against the policy of demolishing terrorists’ homes under the section 119 of the emergency defense regulations. The justices also rejected the petitions filed by the families of those convicted in the terrorist attack at the synagogue in Jerusalem’s Har Nof neighborhood and a tractor attack in Jerusalem.

In their petition, filed by attorney Michael Sfard, the organizations claimed that the policy has not been subject to legal review for many years, and that the time has come to examine the justification of the practice from court rulings made in the 1980s. It was also argued that since then, there have been many developments in international law, which classify destroying homes as a form of collective punishment. The petition included opinions from various experts on international law, including professors Yuval Shani, Mordechai Kremnitzer, Orna Ben Naftali, and Guy Harpaz.

“I will not deny that this petition raises difficult questions,” wrote Justice Elyakim Rubinstein, who was joined by Justices Esther Hayut and Noam Sohlberg. “As I pointed out in the court room, it is perhaps easier and more convenient to side with petitioners rather than respondents, and no one can deny that there are serious moral dilemmas here,” continued Rubinstein’s statement.

The primary basis for rejecting the position was that the High Court has previously ruled on the issue. “We did not find it necessary to reopen questions already ruled upon by this court, even if the reasoning does not satisfy the petitioners, especially after similar claims were raised and rejected only a few months ago,” read the ruling.

Rubinstein added that “use of section 119 must be done sparingly, and in fact it had not been used for many years but it has been argued before us that the circumstances here, of cruel killing, time and again, of innocents – necessitates the use of section 119.”

Rubinstein also commented on the claim that demolition constitutes a punishment rather than deterrence, and stated that the court has previously ruled on that question. “It was ruled that this court does not fill the shoes of the defense establishment, which is responsible for determining when methods are effective, and when they should be used as a deterrent.”

Rubinstein ruled, however, that in future cases, defense officials must provide data on the effectiveness of the demolition policy, in order to justify the damage done to individuals neither suspected nor convicted of any crime – specifically, the terrorists’ families. “I believe that the principle of proportionality does not allow us to continue assuming forever that choosing the drastic measure of demolishing homes or sealing them up achieves the pre-stated goal of deterrence, without presenting data to that effect,” wrote Rubinstein.

The justices also rejected claims of discrimination against Arabs as opposed to Jewish terrorists. “The reason that Section 119 is not utilized against Jews is rooted in the fact that there is no need for the same amount of deterrence among the Jewish population,” wrote Justice Sohlberg. “We cannot deny that there have been attacks carried out by Jews against Arabs, which necessitate appropriate criminal punishment. Tragically, we saw the murder of Mohammed Abu Khdeir,” noted Sohlberg, referring to the East Jerusalem teenager kidnapped and murdered by Jews in the summer. “But the differences outweigh the similarities. The gap is huge – in terms of the types of attack, the amount of attacks, and most importantly, for our purposes, the way in which they are received: wall to wall denouncement among the Jewish population, which is not true on the other side.”