The two different rulings handed down Tuesday by the High Court of Justice regarding home demolitions are a landmark in the legal debate on this controversial punishment. They serve as cracks, although not yet wide enough, in the High Court’s long-standing legal tradition that permits the destruction of terrorists’ homes even if it seriously harms their families.
For years, many jurists have argued that using this measure violates international law, which forbids collective punishment and bans the destruction of civilian property in occupied areas unless military operations renders it absolutely necessary. On the other hand, the High Court has consistently ruled that Regulation 119 to the Emergency Defense Regulations, legislation from the British Mandate period that permits such demolitions, takes precedence, making the measure legal.
Between 2005 and 2008 this sanction was not used, following recommendations by a committee headed by Maj. Gen. Ehud Shani, which cast doubt on the legality of the policy and its effectiveness. Moreover, the committee believed that the demolitions did more harm than good because they sowed hatred and hostility among the Palestinians. A study entitled “Cost Without Benefit,” written by Amichai Cohen and Tal Mimran and soon to be published by the Israel Democracy Institute strengthens this conclusion, stating that there is no data backing the position that home demolitions increase deterrence; on the contrary, there are statistics showing they not only do not deter terror, but may actually encourage it.
Demolitions on rise
Since 2014 there has been an increase in the use of this measure, and a few High Court rulings over the past two years have confirmed its legality, primarily by relying on long-standing precedents from the past in which demolitions were ruled to be legal. In the court’s ruling last month, when it permitted the demolition of five homes and invalidated the demolition of a sixth, Supreme Court President Miriam Naor noted that the court had requested and received classified material that pointed to several instances in which potential terrorists refrained from carrying out attacks for fear of the loss of the family home. She stressed, however, that this was not “research” but a “collection of information,” and that the material does not show that damaging the house of a person who is not close to the terrorist or who has no knowledge of his intentions creates a deterrent.
On Tuesday, the case law on this issue was challenged somewhat by two opinions written by Justice Menachem Mazuz. His criticism of the case law was particularly prominent in the decision in which Mazuz was the minority opinion, with the High Court permitting the demolition of the home of the family of one of those involved in planning the October attack in which Eitam and Naama Henkin were murdered. Mazuz’s opinion threw a giant shadow on the precedents that permit home demolitions under these circumstances. Justice Uzi Vogelman had already cast doubt on the precedents in a different ruling in October, but on Tuesday Mazuz expounded on this opposition.
Mazuz addressed the argument that Regulation 119 contravened international humanitarian law, which forbids collective punishment and harm to property, and also conflicts with human rights law and constitutional law, along with the arguments regarding the effectiveness of the practice and its discriminatory nature, since it is never used against Jewish attackers. He stated that these are weighty arguments worthy of a thorough investigation. In what can be described as piercing and courageous criticism of dozens of rulings permitting house demolitions, Mazuz stated that these arguments have never been given the comprehensive and contemporary examination they deserve.
Mazuz’s remarks are especially profound because only last month Naor rejected a request for another rehearing of a ruling from a year ago that permitted home demolitions, on the grounds that these issues had already been debated and decided in previous rulings. By contrast, Mazuz, who noted that the majority of those who had researched the matter believe that Amendment 119 contravenes international law, found that debate on these precedents has not been exhausted.
Mazuz, in fact, aimed a sharp barb at the way the High Court of Justice has dealt with the argument that home demolitions are collective punishment without trial. The High Court has ruled several times that the demolitions are a deterrent, not a punishment, but Mazuz cast doubt on this assertion, given the nature of the sanction, particularly given the uncertainty over whether this sanction has a deterrent effect. Mazuz, who believed that the court should demand a detailed response from the state to the difficult questions that home demolitions pose, therefore opposed the majority position that rejected the petition against the demolition.
At the same time Mazuz led the majority in the second ruling, which accepted a petition against razing the home of the terrorist who stabbed soldier Almog Shiloni to death in a Tel Aviv train station over a year ago. Mazuz found that in this case, the fact that the demolition order was issued 11 months after the attack invalidated it. The court ruled that because the Israel Defense Forces did not exercise its authority to raze the home immediately after the event did not mean that it could change its mind after a significant amount of time, and with no connection to the event itself. Mazuz was critical of the argument that the recent escalation of terror incidents justified issuing the demolition order now, saying this proved that the decision was the result of events that had nothing to do with the specific attack in question.
‘Fathers shall not ...’
Razing the homes where terrorists’ families live is indeed an unacceptable move that contravenes international and constitutional law, along with the fundamental principle of human conscience as expressed in the biblical verse, “Fathers shall not be put to death because of the sons.” Serious studies conducted by the IDF have also proven that demolitions are not effective and may even be counterproductive. The classified information presented to the court, which even Naor stated did not constitute genuine research, doesn’t provide a sufficient response to the questions raised by the Shani Committee and the ones Mazuz asked on Tuesday. Given that home demolitions seriously undermine human rights, particularly those of people who were not themselves involved in an attack, it is hoped that Mazuz’s minority opinion will become a majority approach and that the court will put an end to the use of this draconian measure, which should have been eliminated long ago.
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