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by Ido Rosenzweig and Yuval Shany
In a recent decision, the Israeli Supreme Court, sitting as the High Court of Justice, (hereinafter: "HCJ") validated the demolition of a house in East Jerusalem. The house belongs to the family of an East Jerusalem resident who killed eight students during a terrorist attack at Merkaz Harav Yeshiva in March 2008. This is the first time this method has been used since the State announced the suspension of the controversial House Demolition Policy in 2005.
Background
On March 6, 2008, a terrorist broke into Merkaz HaRav Yeshiva (a religious seminary) in Jerusalem and killed eight students. The assailant was shot and killed by an IDF officer who had arrived on the scene. The subsequent investigation established that the terrorist was an East Jerusalem resident who lived with his family in the Jabel Mukhbar neighborhood. Following his death, a mourning tent mounted with flags supporting Hezbullah and Hamas was erected outside his family's house.
Although the Israeli Security Services had no information that the family knew about the terrorist's plans, for the first time since 2005, they decided to issue a house demolition order authorizing the seizure and demolition of two of the four floors in the house in which the terrorist and his family dwelled. The order was based on Regulation 119 of the Defense (Emergency) Regulations – 1945 (hereinafter: "the Emergency Regulations"), which are still in force in Israel and in the occupied territories. The order was challenged before the HCJ by the terrorist's father (hereinafter: "the plaintiff") who owns the property in question.
Case Developments
On August 8, 2008, the State authorities informed the plaintiff that they were considering issuing a house demolition order concerning the property in which the terrorist resided. However, the IDF Home Front Commander, who is authorized by the State to issue such orders in Israel, announced that, pursuant to proportionality concerns, only two of the building's four floors would be seized and destroyed because the residents on the other floors were not part of the terrorist's "nuclear family".
In accordance with administrative procedure, the family was granted the right to a hearing to challenge the decision. Upon the examination and subsequent rejection of the family's objections, the IDF issued the demolition order in August 2008. According to the terms of the order, the two floors seized would be sealed with cement in order to make it impossible to access them. The plaintiff responded by challenging the legality of the order before the HCJ.
The Decision
In its ruling, issued on January 5, 2009, the HCJ rejected the petition and affirmed the State authorities' decision to partially demolish the house. In her opinion, Justice Naor presented a general overview of the legitimacy of the House Demolition Policy as a method designed to deter future terrorists. Since on numerous occasions in the past, the Court had authorized the lawfulness of the policy, the main question before the Court in this case was whether the State could reverse the previous decision of 2005 to suspend the House Demolition Policy.
In this regard, it should be noted that the Minister of Defense's decision to suspend the application of Regulation 119 of the Emergency Regulations was the result of an IDF internal deliberation process, which determined that this policy was "on the very edge of the law" and of dubious political legitimacy. As a result, the internal committee, headed by General Udi Shani, recommended the revocation of the policy while leaving open the possibility to revive the policy in "extreme cases".
The State presented two legal arguments in favor of the revival of the policy. First, it argued that the attack on Merkaz HaRav Yeshiva by an East Jerusalem resident constituted an extreme case and, therefore, qualified as the exception to the rule.
Second, the State claimed its right to change its policy as a result of a change in circumstances. According to information submitted to the Court by the Israel Security Authority (previously, the General Security Service), there has been a considerable increase in the threat of terrorism posed by East Jerusalem residents. This new circumstance permits the State to revive the policy it abandoned in 2005.
Justice Naor accepted both of the respondent's arguments. Moreover, she held that it is not for the HCJ to determine whether the House Demolition Policy is effective and that it suffices to establish the possibility of producing some deterrence – a standard of proof that was also endorsed by Justice Rubinstein's opinion. Hence, the Court rejected the petition and validated the demolition order.
A motion for a rehearing was rejected by the HCJ on January 6, 2009, and the permanent sealing of the seized floors took place on January 19, 2009.
Analysis
The House Demolition Policy has been criticized as being neither effective nor legal, especially under international humanitarian law. The effectiveness of this method (or the lack of it) is quite difficult to prove and, therefore, remains unclear. However, under international humanitarian law, the House Demolition Policy is generally regarded as unlawful collective punishment and as a disproportionate sanction. This method also appears to run contrary to Article 53 of the Fourth Geneva Convention, which prohibits the destruction of property in occupied territories (unless absolutely required due to military necessity).
According to the official Israeli position, house demolitions are not a punitive measure, but rather a form of deterrence. In cases of demolitions in the occupied territories, it was also argued that there were military grounds to justify them. However, these arguments appear to be based on a biased and strained interpretation of the international humanitarian law. Collective punishments are designed to deter, and, therefore, the fact that the aim of the State is deterrence does not negate the fact that the sanction constitutes collective punishment. Moreover, Article 53 of the Fourth Geneva Convention seems to have been designed to regulate operational demolitions and not punitive ones.
This case illustrates the limited degree of protection of basic human rights provided by the Supreme Court when confronted with strong pressure from the country's security establishment. Furthermore, the case also demonstrates the continuous spillover of Israeli policies previously used only in the occupied territories into Israeli territory (territory that is governed by Israeli law, such as East Jerusalem), and the problematic mandatory implementation of legislation against residents of Israel.
Since the State has already announced that it seeks to demolish the houses of a number of other East Jerusalem residents involved in terrorist attacks, the Court may soon have another opportunity to reconsider its position on this matter.
* The views expressed in this article are not necessarily those of the Israel Democracy Institute.
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