JURIST Guest Columnists Yaël Ronen, of Sha’arei Mishpat Academic Center, and Jeremy Telman, of Valparaiso University Law School, discuss the policy of demolishing the homes of those considered as terrorists in light of petition filed with the Israel Supreme Court challenging legality of such policy…

The Petition Challenging Regulation 119 on Home Demolitions

In November 2014 eight Israeli human rights organizations filed a petition [PDF] before the Israel Supreme Court, sitting as the High Court of Justice, challenging the Israeli military forces’ renewal in the summer of 2014 of the practice of demolishing and/or sealing off the homes of those deemed terrorists. The policy is grounded in Regulation 119 of the Defense (Emergency) Regulations, which were introduced by the British Mandate authorities in 1945 and constitute part of the law in the West Bank.

Although the court has heard hundreds of challenges to the policy, it has not undertaken a fundamental review of the policy’s legality since the 1980s but has limited itself to a review of its appropriateness in individual cases. The petitioners sought review of the policy, both because the court has never addressed the criticism directed at its position on the merits in the early decisions and in light of subsequent developments in international law. The petition was supported by an opinion [PDF] by four Israeli international law experts.

On December 31, 2014, a three-justice panel of the court issued its judgment [PDF] in the case, HaMoked v. Minister of Justice, in which it unanimously rejected the petition, with each justice writing separately but joining in the main opinion. For the most part the court reiterates its past positions relating to the policy. We will review the court’s analysis on six issues raised in the petition and identify fundamental issues that we think the court failed to address adequately.

Regulation 119 Viewed in the Light of International Law

In its first judgments on the legality of Regulation 119 in the late 1970s and 1980s, the court held that the Regulation was not subject to a test of legality under international law, since as the law of the land, Regulation 119 trumps international law. Moreover it held that Regulation 119’s validity is protected by Article 43 of the Hague Regulations, which requires the occupying power to respect the “laws in force” in the occupied territory unless absolutely prevented.

The petitioners in HaMoked argued that this jurisprudence was flawed both from an international and a domestic legal perspective. From an international legal perspective, domestic law cannot trump international law. Article 43 certainly does not, as the court had held, raise the normative status of domestic law above that of the laws of occupation; indeed, the incompatibility of Regulation 119 with the law of occupation renders it the sort of “law in force,” that under a proper application of Article 43 Israel is “absolutely prevented” from respecting. Moreover because Regulation 119 grants a discretionary power, no “law in force” would be violated by its abandonment. From a domestic legal perspective, the petitioners argued that the perspective of the Israeli legal order, under which international law defers to contrary domestic legislation, does not apply to the law applicable in occupied territory. As a consequence the validity and use of Regulation 119 must be reviewed from the perspective of international law.

None of the opinions address petitioners’ arguments that Article 43 cabins Regulation 119 rather than entrenches it. Justice Rubinstein who authored the primary opinion in the case essentially reiterates existing jurisprudence, according to which the use of Regulation 119 is compatible with the law of occupation. Regulation 119 is a “law in force” that the Israeli authorities must respect under Article 43. He concludes that Article 43 could not be held to limit the powers granted to the occupant under the law of the West Bank.

The opinion distinguishes between the authority to use Regulation 119 and the discretion to do so. It states that authority undoubtedly exists and so the main question was whether the Israeli authorities have exercised their discretion in a reasonable manner.

Does Use of Regulation 119 Deter Terrorism?

Rubinstein states that the purpose of Regulation 119 is deterrence rather than punishment. However, as the petition notes, Israel suspended the policy in 2005 on the recommendation of a committee of high-ranking Israeli military officers (the Shani Committee). The Shani Committee found that the policy operated at the threshold of legality and may have done more harm than good in terms of deterrence. Rubinstein notes that the court will not second-guess a determination by the military as to the deterrent effect of any particular demolition. Such determinations follow normative guidelines developed in the case law.

According to Rubinstein, the history of Israel’s implementation of the policy illustrates the Israeli authorities’ sensitivity to the need to ensure that its use is reasonable in light of the circumstances, including the abandonment of the policy following the Shani Committee’s findings. In light of the recent rise in attacks on civilians in Jerusalem, Rubinstein determines that the renewed use of the policy is reasonable. Rubinstein acknowledges the difficulty in establishing that the policy is effective as a deterrent and the need for state agencies to continuously re-evaluate the policy’s efficacy. Justice Hayut echoes this sentiment in her separate opinion. Justice Sohlberg wrote separately to stress the “moderate, balanced and responsible” manner in which the Israeli authorities have made use of Regulation 119. Much of Sohlberg’s opinion summarizes empirical studies indicating that demolitions are an effective deterrent.

The court’s approach more or less assumes that the policy’s lawfulness is to be analyzed with respect to its purpose as a deterrent but the court does not seem to have settled on an understanding of deterrence. Rubinstein mentions that one purpose of the demolition may be to prevent the house from being reused for terrorist purposes and prevention is distinct from deterrence. Sohlberg’s reference to the role of the family in morally supporting the perpetrator of the terrorist attack suggests that the measure is punitive to some extent. The policy may further the different goal of encouraging families to actively dissuade perpetrators from realizing their plans, but it strains logic to characterize such a goal as within the bounds of deterrence.

Does the Policy Amount to Collective Punishment?

The petition, supported by numerous authorities, claims that the policy violates the prohibition on collective punishment found in Article 50 of the Hague Regulations and Article 33 of the Fourth Geneva Convention. Rubinstein rejects petitioners’ argument that “any demolition whatsoever … necessarily amounts to collective punishment … .” Instead Rubinstein holds that the extent to which persons not accused of terrorist action are harmed by the demolition should be examined in light of the principle of proportionality.

It is not clear why and how the court regards proportionality as a relevant criterion in identifying collective punishment. For one thing the prohibition on collective punishments is absolute and not subject to a proportionality analysis. Moreover the court fails to distinguish between measures that cause incidental injury to uninvolved persons (in which an inquiry into proportionality would be appropriate) and those that target the uninvolved (in which it would not be appropriate). The justices also distinguish harm to persons from deprivation of property, again disregarding the absolute prohibition on collective punishment.

The court had held that the people subject to house demolitions are not in all cases innocent in that they were (at the very least) aware of the terrorist activities of family members that led to the demolition order. As noted above, this suggests that the purposes of the policy extend beyond deterrence. Moreover a demolition can proceed even if the Israeli authorities cannot “show that the inhabitants of the house knew of the suspect’s terrorist activity.” Indeed in petitions submitted in 2009, the state acknowledged that demolitions targeted innocent family members. The court does not explain why such demolitions are not collective punishment.

Article 53 and the Prohibition on the Destruction of Private Property

Rubinstein also rejects petitioners’ claim that any house demolition violates Article 53 of the Fourth Geneva Convention, noting that Article 53 itself permits demolitions where “rendered absolutely necessary for military operations.” Rubinstein holds that deterrence was a legitimate military necessity. Only disproportionate use of demolitions would violate Article 53.

Proportionality

Having rejected petitioners’ allegation that the policy inherently violates the prohibition on collective punishment, Rubinstein focuses on the need to ensure that the demolition is necessary and does not cause harm that is disproportionate to its goal. A demolition is proportionate if the injury caused by the demolition does not violate the property rights of the affected people in a manner disproportionate to the deterrence benefit to be obtained.

Discrimination

The petitioners argued that the policy was applied in a discriminatory manner, since only the homes of Palestinians suspected or convicted of terrorist acts are demolished and not those of Jews involved in comparable conduct. Rubinstein and Sohlberg depart from their usual methodological approaches in their treatment of the issue of discrimination. Rubinstein simply states that the petitioners failed to present an adequate factual basis to refute the presumption of the legality of administrative action and thus rejects petitioners’ claim. However once the undisputed facts have been presented, it should have been for the state to indicate a relevant difference that justifies the different treatment.

Solberg’s opinion is inconsistent in that he defends the policy based on empirical evidence that demolition is an effective deterrent, but he subjects the question of the effectiveness of the demolition of Jewish homes to no such empirical inquiry. Instead he simply declares that the scale of Jewish terrorist acts and the social reproach with which such acts are received make deterrence unnecessary. He provides no empirical basis for his reasoning here, in contrast to the extensive evidence he marshals in arguing that demolitions have a deterrent effect.

In HaMoked the petitioners asked the court to consider the legality of house demolitions as a matter of policy, unrelated to any specific incidents. The court rejected the petition, summarily dismissing some of the arguments without any serious engagement with their merits and ignoring others altogether (such as the illegality of house demolitions under international human right law).

Yaël Ronen is Professor of Public International Law at Sha’arei Mishpat Academic Center (Israel). Her area of expertise includes International law, international human rights law and private international law. Jeremy Telman is Professor of Public International Law at Valparaiso University Law School. His scholarly and teaching interests include public international law, comparative jurisprudence, contracts and commercial law.

Suggested citation: Yaël Ronen, Jeremy Telman, The Israeli Supreme Court and House Demolitions in the West Bank, JURIST – Academic Commentary, Jan. 27, 2015, http://jurist.org/academic/2015/01/ronen-telman-israel-demolitions.php.