The Israeli Supreme Court on Military Demolition of Palestinian Homes

Over the past three months, the Israeli Supreme Court has been called upon in at least three cases to revisit the issue of military demolition of the homes of Palestinians who have committed (or are suspected of having committed) acts of terror against Israelis. While the Court has declined to reconsider the constitutionality of home demolitions, in two of these cases Justices Vogelman and Mazuz have expressed concern about this measure, with Justice Mazuz calling on the Court to re-examine home demolitions as the relevant jurisprudence dates back at least two decades.

The military’s authority to demolish the homes of Palestinians involved in terrorism is granted by regulation 10 of the Defense Regulations (Time of Emergency) 1945, which essentially empowers a military commander to seize in favor of the Israeli Government any real property (broadly defined as anything from a house to a city) whose residents have committed, attempted to commit, or assisted in the commitment of a violent or intimidating offense for which they could be prosecuted in a military court. Once the property has been seized, the military commander is authorized to order the demolition of anything erected or growing on the property.

Because Israeli law considers home demolition as an act of deterrence rather than a criminal sanction, the question of its efficacy came up in HCJ 5839/15, Sidar v. IDF Commander in the West Bank (October 14, 2015). In addressing efficacy, Justice Vogelman relied upon the Court’s precedent and on a previous military decision not to pursue home demolition because the measure had been “corroded.” Justice Vogelman concluded that it was difficult to evaluate the true measure of home demolitions’ efficacy, if at all. He then added his own concerns – that perhaps when the home demolition order is given after a relatively long time had elapsed since the resident committed the attack, as in this case,  that order is actually motivated by a desire to punish for other, general events, such as the recent knife terrorist attacks around Israel. On a philosophical level, Justice Vogelman questioned whether, in cases where the home subject to demolition is that of family members, the demolition  treats the family members  as means toward an end whereas the right to dignity seeks to ensure that people are not utilitarian tools.

A more substantive analysis came about a month and a half later, with Justice Mazuz’s dissent in HCJ 722/15, Alewa v. IDF Commander in the West Bank (December 1, 2015). While the majority of justices denied the petition to review the constitutionality of home demolitions – with Justice Hendel finding persuasive the military material regarding the efficacy of deterrence– Justice Mazuz urged the Court to revisit the issue once more (a) because of the changes in Israeli and International law since the existing jurisprudence was developed, and (b) because the distinction between punishment and deterrence is not sufficiently clear, particularly in terms of the possibility of collective punishment. On the first point, Mazuz explained that the Court last explored the constitutionality of home demolitions in the 80s and 90s, before the legislation of the Israeli Basic Laws and Israeli law’s “constitutional revolution.” Significant changes have occurred in international law over this time period as well. On the second point, Justice Mazuz noted that most scholars agree that regulation 119 violates the prohibition on collective punishment under the Hague Regulations and the Geneva Convention, as well as the prohibition on seizing and destroying the property of a protected population. He added that the regulation appears in the part of the Regulations detailing various penal provisions, though he commented that serving as both a penal sanction and an act of deterrence is not necessarily mutually exclusive. Justice Mazuz hypothesized about the potential outcomes of the Court re-examining home demolitions, including the possible need for distinctions between homes that are owned by the attacker and a home where he was only an incidental resident, cases where the home was actually used for terrorist activity, cases where the family participated in the terrorist activity as opposed to families that were not involved or even discouraged the activity, a potential restriction as to the time frame between the attack and the demolition, limiting demolition to cases of convictions for terrorism as opposed to mere suspicions, and, lastly, proportionality, specifically whether the demolitions serve as a least restrictive means to achieve deterrence.

Justice Rubinstein responded to Justice Mazuz’s dissent in his opinion in HCJ 8567/15, Halabi v. IDF Commander in the West Bank (December 21, 2015). In this case, the Court again declined to explore fully the question of home demolitions, against Justice Mazuz’s urging. Justice Rubinstein rejected Justice Mazuz’s proposal and framed the matter as one of proportionality rather than a question of authority. He deferred to security bodies who believe home demolitions are necessary and constitutional, rather than a way to merely satisfy public opinion after difficult terrorist attacks. As to the question of proportionality, Justice Rubinstein briefly explained that, in his view, damage to property that may prevent loss of life (and even more so if it may prevent the loss of many lives, including those of children and the elderly) is justified under the principle that sanctity of life is paramount.