Israeli Supreme Court Judges Question Legality of Razing Terrorists’ Homes

While court's president rejected a request to reconsider the issue, other justices claim demolitions raise problems under both domestic and international law.

The High Court of Justice.
Michal Fattal

Five Supreme Court justices – a third of Israel's top court – have argued in a series of recent rulings that the court should reconsider the legality of demolishing homes of terrorists.

However, that view is not shared by Supreme Court President Miriam Naor, who rejected a request to allow an expanded panel of justices to reconsider that question in November.

An Israeli police officer walks near a bulldozer as it demolishes a home in Arab East Jerusalem's Sur Bahir neighborhood April 7, 2009.
Reuters

Two of the five – Daphne Barak-Erez and Zvi Zylbertal – have joined rulings approving house demolitions, but nevertheless said the court should reconsider their legality. Two others, Menachem Mazuz and Salim Joubran, have repeatedly dissented from such rulings, arguing that such demolitions are unconstitutional. The fifth, Uzi Vogelman, has dissented from some demolitions but approved others.

The most recent such ruling was handed down Thursday, in a petition by the families of the three terrorists who murdered policewoman Hadar Cohen in Jerusalem last month. The court upheld the demolitions of their homes, but Joubran dissented.

“I’ll admit and won’t deny that I’m not comfortable using the authority granted by law to issue confiscation and demolition orders against the homes of terrorists when the other residents of these homes weren’t involved in terrorist activity,” he wrote.

Such demolitions raise problems under both domestic and international law, he argued, and the court hasn’t yet examined these issues thoroughly.

Barak-Erez, in contrast, joined with Justice Elyakim Rubinstein to approve the demolitions. Nevertheless, she wrote, “the practice of demolishing a terrorist’s home as a deterrent isn’t at all simple and raises weighty questions ... This court should continue to examine the precedents’ suitability to changing circumstances and the lessons learned from cases in which demolition orders were carried out.”

One day earlier, on Wednesday, the court approved demolishing the home of the terrorist who killed Gennady Kaufman in Hebron in December. Here, too, the three justices had three different opinions. Noam Sohlberg upheld the demolition unreservedly; Vogelman joined him in approving it, but once again urged the court to reconsider the constitutionality of such demolitions; and Mazuz dissented.

“Given the different opinions expressed in the rulings, my view is that we ought to revisit the weighty questions entailed in exercising this authority,” Vogelman wrote. He then quoted his own dissent in an earlier case, in which he argued against approving a demolition order, because “it’s one thing” to do so when the terrorist lives by himself, but “another thing” when the house is shared by other members of his family, “who weren’t involved in his evil plans, and yet their house is brought down upon them through no fault of their own.”

Mazuz, in his dissent, said the court should cancel the demolition order. He, too, then proceeded to quote one of his own earlier opinions, in which he wrote that such demolitions “raise a series of difficult legal questions, which in my view haven’t yet been given a sufficient and up-to-date response in this court’s rulings.”

Like Vogelman, Mazuz was mainly concerned with the fact that demolitions often leave other members of the terrorist’s family homeless, even though they aren’t suspected “of any involvement in, knowledge of or assistance in the terrorist’s acts.”

Sohlberg, in his own opinion, rejected the argument that the court hasn’t sufficiently examined the issue, saying all these difficult questions had been discussed “in a long list of recent rulings.”

Many of his colleagues evidently agree. A panel comprised of Sohlberg, Rubinstein and Esther Hayut rejected a request to reconsider the legality of house demolitions last year, and when the petitioners then sought to have the issue reheard by an expanded panel of justices, Naor turned down their request.