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by Ido Rosenzweig and Yuval Shany
Introduction
In a recent decision[1] by the Israeli Supreme Court (hereinafter: "HCJ"), the Court authorized the demolition of a house of the family of an East Jerusalem terrorist, who had killed three people and wounded dozens of others using a bulldozer before being shot dead by an IDF soldier. This is the second occasion on which this measure has been applied in East Jerusalem since the State renewed its controversial punitive house demolition policy (the policy was suspended between 2005-2008).
Background
On July 2, 2008, Husam Dwayat, an East Jerusalem resident, used a bulldozer to attack innocent bystanders on Jaffa Road in Jerusalem, killing three Israeli citizens and wounding dozens. Among the dead was Bat-Sheva Unterman, who had managed to save her 6-month-old baby daughter before being crushed to death in her car. An IDF soldier, who had arrived on the scene, shot and killed the assailant.
Four months after the terrorist attack, the Israeli security services issued a house demolition order, authorizing the seizure and demolition of the apartment in which the terrorist had lived with his wife and two daughters. The order is based on Regulation 119 of the Defense (Emergency) Regulations – 1945 (hereinafter: "the Emergency Regulations"), which remain in force in Israel and in the occupied territories. The terrorist's father, who owns the property in question, challenged the order before the Israeli Supreme Court, sitting as the High Court of Justice.
Case Developments
The IDF Home Front Commander, who is authorized by the State to issue house demolitions orders in Israel, announced that, pursuant to proportionality concerns, only the first floor of the building in which the terrorist and his family lived would be seized and destroyed since the residents on the other floors were not part of the terrorist's nuclear family. The plaintiff responded by challenging the legality of the order before the HCJ, claiming that the use of such a method is discriminatory inasmuch as it is applied only against Arabs, and that there is a lack of evidence to prove that the incident was indeed a terrorist attack.
The Decision
In its ruling, issued on March 18, 2009, the HCJ rejected the petition and affirmed the State authorities' decision to partially demolish the house. Speaking on behalf of the Court, Justice Edmond Levy reaffirmed his opinion that the house demolition policy, which is intended to deter future terrorists, is legitimate and, moreover, that it is not for the HCJ to determine the efficacy of this method.
Therefore, the main question, according to Justice Levy, is whether the demolition in question is proportionate. Since on numerous occasions in the past, the Court has held that this policy is lawful and proportional (including in the very recent case regarding the house demolition in East Jerusalem of the assailant who had attacked Merkaz Harav Yeshiva [2]), the Court rejected the petition and validated the demolition order.
However, it should be noted that Justice Levy specified that the security services are not exempt from an examination of each case in which the house demolition measure is sought in the future, and that the individuals who are affected have a right to a hearing in order to challenge the decision (as was granted to the terrorist's family in the present case).
Conclusions
The house demolition policy has been criticized repeatedly as being neither effective nor lawful under international law – especially since it represents a form of collective punishment, which is prohibited under international humanitarian law. This measure also appears to run contrary to Article 53 of the Fourth Geneva Convention, which interdicts the destruction of property in occupied territories (unless absolutely necessary for military reasons). The effectiveness of this method (or the lack of it) is also quite difficult to prove and, therefore, remains unclear.
According to the official Israeli position, house demolitions are not a punitive measure, but rather a form of deterrence; in cases relating to demolitions in the occupied territories, the State has argued that the measure may be justified on military grounds. However, these arguments appear to be based on a strained interpretation of 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 is the second time that the house demolition method has been applied since the State announced the renewal of its controversial house demolition policy in 2008. In a previous case, HCJ 9353/08 Abu-Dahim v. Aluf Pikud HaOref, [3] the HCJ approved the State's application of this method in "extreme cases". The recent decisions raise concerns that the State is now inclined to presume that terrorist cases are extreme in nature in order to justify taking these extreme measures.
* The views expressed in this article are not necessarily those of the Israel Democracy Institute.
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