House Demolition at the Israeli Supreme Court: Recent Developments

In its fight against terrorism, Israel has often been proud of its ability to effectively fight terrorism, while remaining faithful to democratic principles. House demolitions were always considered a necessary evil, which could be resorted to in very exceptional circumstances - are we now facing populist trends that runs contrary to the traditional ethos of subjecting counterterrorism policies to rule-of-law constraints.

Supreme Court | Flash 90

In recent weeks, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ) for administrative matters, handed down three decisions regarding house demolitions. The first one—Naji v. IDF Commander of the West Bank, issued on Dec. 2—regarded an order by the Israeli military authorities to demolish of the house of Islam Naji, who earlier this year killed an IDF soldier during IDF military activity of the in Ramallah and was captured by IDF soldiers. The order of the IDF Central Command chief was to demolish the four floors of the house, since according to his view, destroying only the two floors where the militant himself lived (as is the normal practice in house-demolition cases) would not create the required deterrent effect. This is because restoring the house to its original conditions if only part of it were to be destroyed might prove too easy.

The second case—Na'alawa v. IDF Commander of the West Bank, decided, Dec. 6—involved the destruction of the house of Ashraf Na'allwa, who killed two Jewish civilians who worked with him in a factory in the Barkan industrial center, near the Ariel settlement. Na’allwa was killed recently in a clash with IDF soldiers.

The third case—Jabbarin v. IDF Commander of the West Bank, published on Jan. 10—dealt with demolishing the third floor of a building in which Halil Jabbarin, a 16 year-old resident of the West Bank village of Yata who killed an Israeli civilian (with American citizenship) at a Jewish settlement in September. Jabbarin was captured by Israeli security forces shortly after perpetrating the attack.

In all cases, the High Court of Justice approved the house-demolition measure. But a close examination of these cases exposes the increasing tensions on the court around the legality of the house-demolitions policy on one hand, and the increased political (and populist) tensions pushing for an expansion of the policy on the other.

House Demolitions 101

The policy of house demolitions for punitive or deterrence reasons constitutes one of the most controversial measures taken by Israel in its fight against terrorism. The policy involves the partial or complete destruction of the residences of suspected terrorists in response to lethal attacks against Israeli civilians and soldiers. The authority to demolish houses arises from Article 119 of the Defense (Emergency) Regulations (1945) enacted by the British mandate in response to the Arab revolt in the then British-controlled Palestine. By virtue of the continued application of some pre-1948 legislation in both Israel and the West Bank (unless explicitly amended or revoked), Israeli military commanders still possess this authority in both Israel proper, East Jerusalem, and the West Bank. In practice, the measure is used exclusively against Palestinians in the West Bank and East Jerusalem.

According to Article 119, the military commander (i.e. the IDF Central Command Chief, responsible for the West Bank or the IDF Homefront Command Chief, responsible for the application of military measures in East Jerusalem) is authorized to confiscate and demolish any property, if he determines that the inhabitant of the said property resorted to terrorist violence. The authority, it should be stressed, is an administrative one: There is no need for a court order to authorize the house demolitions, and the evidence required in order to approve the measure has to pass the lower administrative threshold (convincing in the eyes of a reasonable decision maker), and not the more stringent criminal one (beyond reasonable doubt).

In practice, Israel has only sought to use house demolitions in response to lethal terror attacks. Although the exact number of houses demolished pursuant to the Article 119 authority in the West Bank and East Jerusalem since 1967 is not exactly clear, it is estimated to run at around 2,000. Israeli authorities temporarily halted the use of the measure in 2005, citing doubts about the usefulness of the policy. It was reintroduced in a limited number of cases in 2008, against residents of East Jerusalem following a short-lived wave of terror attacks. The policy of house demolitions was fully reinstated in 2014, following a series of terror attacks. Since then, more than 50 houses have been either fully or partially demolished.

The rationale underlying the house-demolition policy is that would-be terrorists might not commit attacks if they know that their actions would incur harm to the homes of their families, considering in particular the centrality of the home in Palestinian culture. Moreover, the logic of the policy goes, family members of terrorists would be more keen to “keep an eye” on potential terrorists in order to avoid the demolition of the family house (a consideration which may offset the social prestige enjoyed by families of so-called “martyrs” in Palestinian society).

House demolitions have been harshly criticized by many legal scholars in and outside Israel. The main criticism directed against the measure is that house demolitions constitute a form collective punishment as they are directed not to punish the terrorist (who is either dead, if committed a suicide attack, or is charged with serious criminal offences and is likely to face many years in prison), but rather, on family members residing in the house. Collective punishment is forbidden both according to basic principles of human rights law and Articles 33 of the Fourth Geneva Convention of 1949 and Article 50 of the 1907 Hague Regulations. The house-demolition policy may also constitute a form of cruel, inhuman and degrading punishment. In addition, some critics claim that even if house demolitions are not a form of collective punishment, the policy nonetheless violates the prohibition on the destruction of private property found in the Article 53 of the Fourth Geneva Convention and Article 23(g) the 1907 Hague Regulations. Others argue that house demolitions are discriminatory measures since they are used exclusively against Palestinians— never against Jews who committed acts of terrorism. In addition, scholars have questioned the effectiveness of the house-demolition policy. These scholars stressed that there is very little empirical proof that the house demolitions actually deter terrorists; to the contrary, in the long run, such practice is likely to create an atmosphere of hate that would breed the next generation of terrorists.

The question of the legality of house demolitions in the West Bank and East Jerusalem was discussed in the Israeli High Court of Justice (HCJ) hundreds of times. Since the 1980s, the Court required the IDF commander to hold a hearing for the residents in the property about to be demolished and to allow them to submit a petition to the Israeli Supreme Court before the demolition takes place. In all these cases, the court rejected the principled legal arguments raised against the authority of the military commander to use this measure. The court did, however, stress that house demolitions are a harsh security measure that should be used only in extreme circumstances—and “proportionately.”

Traditionally, the jurisprudence of the court has accepted house demolitions as an effective measure of deterrence. According to the court, the focus on deterrence and not retribution, proves that the measure is not aimed to punish; hence, it cannot be regarded “collective punishment.” But this position is hardly convincing. Deterrence is one of the declared goals of any criminal punishment, and the fact that a certain measure is primarily intended to deter does not negate the possibility that that it also serves as a form of punishment.

This legal debate notwithstanding, the majority of justices on the high court still maintain the view that the military commander has the legal authority to order house demolitions. Undoubtedly, this position is to no small measure affected by the insistence of the Israel Security Authority (known in Hebrew as Shabak or, often, by its Hebrew characters, Shin Bet) that the measure is effective in curbing terrorism. Still, in recent years, is has become clear that there is a significant minority of justices on the court who oppose the policy of house demolitions. Most of these justices feel compelled, however, to adhere to the court’s existing precedents on the matter unless and until the HCJ will decide to convene a larger panel to review the jurisprudence on house demolitions. (The HCJ consists of 15 justices and usually sits in panels of three. In major cases, involving the possibility of overturning an established precedent, the panel is sometimes enlarged to between 5 and 11 justices.)

It should be noted that over time, the HCJ did introduce some specific limits on the authority of the military commander to order house demolitions. First, the court decided that there are several exceptions to this authority: for example, if too much time had elapsed between the terrorist act and the order to demolish the house; if the terrorist has not actually lived in the house; if the family actively attempted to prevent the terrorist from committing the crime etc. Second, the court adopted a proportionality test vis-à-vis the demolition order. If, for example, the terrorist lived in only part of the house, and his extended family lived in another part, the court would only allow partial demolition of the house, or substitute, where appropriate, demolition with sealing (rendering the part in question inhabitable).

Finally, it should be noted that the Israeli public overwhelmingly supports the house-demolition policy. A survey conducted recently by the Israeli Democracy Institute found that over 90 percent of Jews in Israel support the policy. Correspondingly, right-wing Israeli politicians express growing opposition to any limits on the authority of the military commander. Family members of victims of terrorism often appear now in the media demanding full and speedy demolition of terrorist houses and harshly criticize the HCJ for even hearing petitions submitted by the families of the terrorist and for ordering temporary stays of demolition pending the hearing.

The Three Recent Decisions

The three cases discussed in this post exemplify some recent trends in the house-demolition jurisprudence of the High Court of Justice.

First, they illustrate the deepening rift among the court on the topic. Justice Kara, one of the recent appointments to the court, joined in the Naji and Jabbarin cases the “liberal” camp of justices who call for reconsideration of the position of the court regarding house demolitions. This camp also includes Justices Mazuz, Fogelman, Barak-Erez, and Brun, and perhaps others too. Two other recent appointments—Justice Vilner and Justice Grosskopf—have expressed support for the existing policy, albeit with some nuance.

Special attention should be paid in this regard to the positions of Justice Grosskopf in the Na'allwa case and Justice Brun in the Jabbarin case, which appears to construe the policy narrowly, but go in very different directions. Justice Grosskopf explicitly stated that there is a prohibition on applying a sanction against a person who was not the perpetrator of the crime. Still, he is of the view that house demolitions do not violate this principle because the demolished houses are ones to which the terrorist has a clear connection as the inhabitant of the house. Hence, this administrative form of punishment is directed against the actual perpetrator, and harm to other civilians living in the house is merely incidental—and not prohibited.

We believe that this reasoning of Justice Grosskopf in unpersuasive. Granted, every criminal punishment causes the family of convicted person some incidental suffering. For example, when a person is sent to jail, his entire family suffers economically and emotionally. This suffering, however, is not the intended result of the sanction. It is a mere byproduct. By contrast, in house demolition, the harm suffered by family members is the directly intended result of the measure because the whole point of the house-demolition policy is to deter future terrorists from taking action that would harm their families. The punishing impact on family members is precisely why house demolitions should be regarded as a form of collective punishment.

Justice Brun reiterated in Jabbarin her position that given the doubts surrounding the effectiveness of the house-demolition policy, until the court reexamines the legality of the policy, it can only be justified in specific cases where family members knew or should have known of the impending attack. In the circumstances of Jabbarin, she was of the view that the family ignored prior warning signs and expressed support for the attack after it was perpetrated. The fact that the perpetrator of the attack was a minor living in the family home increased the burden on his family members to show that they were unaware of his intentions.

Thus, Justice Brun takes a position that is diametrically opposed to that of Justice Grosskop by focusing on the need to direct the policy against family members who could have, but did not prevent a terror attack. This approach also suffers from serious flaws, given the lack of proportionality between the offense (failure to prevent an attack by a family member in the absence of clear knowledge of the attack) and the administrative sanction (demolition of the family home); the lack of due process in applying the sanction through administrative law rather than criminal law; and the harsh nature of the sanction itself. Importantly, the specific circumstances of the Jabbarin case are particularly murky about the facts implicating Justice Brun’s position: Jabbarin’s mother alerted the IDF that her son had disappeared shortly before the attack (resulting in a failed manhunt for Jabbarin), a fact that casts doubt on the degree of family complicity in the attack. In any event, the sharp difference of opinion between the justices exposes the fundamental uncertainty surrounding the very rationale employed by the High Court for this controversial policy.

Second, comments made by the justices in two of the three cases reveal the pressure applied on the high court by families of victims of terrorism. In the Naji case, the family of the slain soldier wrote to the military commander demanding that he orders the demolition of the entire building, and not only of two floors (and indeed, the court approved the demolition of the whole building). In the Na'alwa case, Justice Barak-Erez noted that families of the victims spoke to the court, but questioned the propriety of this interaction. If the justification for house demolition is not retribution but, rather, deterrence of future acts, then the families of the specific victims have no say in court proceedings regarding the demolition. To the contrary, for Justice Barak-Erez, their appearance in the proceedings might create an impression that house demolition are actually a measure of punishment.

Finally, one may note that the particular facts of the Naji case do not seem to support claims about the deterrent effect of house demolitions. The Naji family house was already demolished and rebuilt twice before in response to terror activities of another member of the same family. Yet, several members of the family are now incarcerated for life in Israeli jails for committing security offences and Naji himself was recently captured. While anecdotal in nature, the information in this case shows that demolitions may at times fail to deter, and perhaps even generate the opposite effect.

More Collective Punishment?

Calls for a reconsideration of the legality of the house-demolition policy notwithstanding, it seems that Israeli politicians have identified the high level of support that the Israeli public shows for applying sanctions against family members of terrorists. In December 2018, the Knesset passed in a preliminary reading a proposal that calls for the removal of family members of terrorists from their dwelling to another location in the West Bank. This draft bill still has to pass three readings in the Knesset before it becomes law, but even the fact that the it has advanced to this stage, with support of the present Israeli government is telling. Particularly worrying is the fact that the bill was put to a preliminary vote despite the position of Israel’s attorney general, who declared that the bill contravenes both Israeli constitutional law and Israel's international obligations (as laid out in a previous High Court of Justice decision,- the September 2002 ruling in Ajuri v. IDF Commander in the West Bank.

In its fight against terrorism, Israel has often been proud of its ability to effectively fight terrorism, while remaining faithful to democratic principles. House demolitions were always considered a necessary evil, which could be resorted to in very exceptional circumstances. In recent years, however, the political winds have changed course. Limitations put on military and security forces by international and human rights law are not considered legitimate in the eyes of large parts of the Israeli public. The decisions of the HCJ regarding house demolitions reflect an increase in the use of the policy—in the aftermath of almost every lethal terror attack—and an intention to increase the harm inflicted on families. This development and the new draft bill regarding terrorist family removals appear symptomatic of a populist trend that runs contrary to the traditional ethos of subjecting counterterrorism policies to rule-of-law constraints.

The article was published in Lawfare.