Former Israeli Chief Justice Said He Sometimes ‘Let the Army Win Too Much’

Demolitions of the homes of assailants’ families is ‘one of the issues on which I’m not at peace with myself,’ Aharon Barak says

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Former Supreme Court President Aharon Barak, 2018.
Former Supreme Court President Aharon Barak, 2018. Credit: David Bachar

Former Supreme Court President Aharon Barak said Wednesday that some of his rulings “let the Israel Defense Forces win too much,” suggesting that the demolishing of the homes of assailants’ families was one example.

In an interview with Channel 13’s investigative program “Hamakor,” Barak was asked whether some of his rulings on security issues went too far.

“I don’t think there are any rulings I regret in the sense that I didn’t let the IDF win. There are no such rulings,” he replied.“But that doesn’t mean there are no rulings on security issues where I have a problem with the fact that I let the IDF win too much.”

Asked by interviewer Baruch Kra whether he was referring to rulings that upheld demolishing the homes of assailants’ families, Barak replied, “House demolitions are a very, very complicated issue, and one of the issues on which I’m not at peace with myself, that’s true in general.”

For years, the High Court of Justice has approved the demolishing or sealing of the homes of assailants’ families because this is authorized under the Emergency Defense Regulations that date back to the British Mandate. But the justices have sometimes limited or reduced the scope of the demolitions, and they have stressed the importance of using this tactic proportionately.

They have also voiced reservations about the entire idea because it harms the families rather than the assailants themselves. In one ruling, for instance, Justice Menachem Mazuz wrote, “Conscious, deliberate harm to innocents, even so that potential criminals will see and be afraid, is something that would be inconceivable in any other context.”

Barak himself addressed the issue in a 2009 interview, saying, “For a great many years I’ve thought and I still think that house demolitions are inappropriate and wrong. There’s no benefit to them. But I thought that as a judge I didn’t have discretion on this issue.”

In Wednesday’s interview, Kra also asked whether Barak “let the IDF win too much” in the ruling permitting "targeted assassinations of terrorists," which was his last ruling as Supreme Court president. “No, I think that ruling was very proper,” Barak responded.

Pushed as to whether he was really at peace with it, Barak said, “Completely. This is a ruling that is taught all over the world.”

In that decision, Barak said that it is acceptable to assassinate someone who is taking part in anti-Israel attacks, but only if there is no way to arrest him and if the assassination does not cause disproportionate harm to innocents.

Barak rejected the claim that the legal system ties the army’s hands in the "war on terror" – a claim made, for example, by former Defense Minister Avigdor Lieberman and Education Minister Naftali Bennett.

“The army itself says it has to be proportionate,” Barak said. “Army officers, people responsible for security, they’ll come and tell you, ‘You want to be a good officer? Be a proportionate officer.’”

On Tuesday, Haaretz reported that the military advocate general had recently stepped up training in international law for officers and soldiers. Last year, his office arranged 180 lectures on international law for combat soldiers, as well as exercises in which they had to respond to various scenarios while keeping the laws of war and the legal implications of their actions in mind.

This intensified training was prompted in part by the clashes along the Gaza border and the threat of legal action against officers and soldiers involved in them.