As violence erupted in Israel and in the Occupied Palestinian Territories over the past several months, the Israeli government has returned to one of its most controversial practices — demolishing the houses of Palestinian attackers, often leaving their families — and sometimes extended families — homeless. While the overwhelming majority of commentators view this practice as prohibited collective punishment, Israel insists that these demolitions are not punitive, but are aimed at deterring future attackers. The supposed logic is that if potential attackers know that their families’ homes would be razed, they will think twice; and moreover that family members will be incentivized to intervene against possible attackers ex ante. In effect, family members are used as means to the stated deterrent end.

House demolitions have been carried out on and off since the occupation of the territories in 1967. The practice ceased in 2005 following a military commission’s conclusion that house demolitions do not deter attackers, and only cause more hatred and hostility towards Israel. Yet the practice was renewed in the summer of 2014 following public outrage in response to the West Bank abduction and murder of three Jewish teens, and has intensified in recent months as violence escalated. Whether it indeed achieves any kind of deterrence remains highly disputed in Israeli discourse.

Throughout the years, Israel’s public diplomacy takes pride in the judicial review of the Supreme Court over government action in the Occupied Territories. Whether this oversight is in fact effective in promoting human rights or chiefly serves to legitimize the occupation is debated among scholars. Be that as it may, the Court’s jurisprudence concerning house demolitions is particularly troubling considering the extent to which it bends international law in light of perceived security interests. More than anything, it exemplifies how the language of counterterrorism, whenever and wherever it is used, can defang international law by legitimizing legal interpretations far removed from its object and purpose.

As a legal basis for house demolitions, the State relies on Regulation 119 of the Defence (Emergency) Regulations enacted by the British Mandate in 1945 — which, in an ironic historical twist, were vehemently condemned at the time by the Jewish establishment. The longstanding approach of the Israeli Supreme Court is that Regulation 119 remains the law of the land in the West Bank (and Israel). In the West Bank, it was inherited by the Jordanian occupation in 1948, and in turn by the Israeli military commander in 1967. As the “local law,” the Court has repeatedly ruled that Regulation 119 trumps the Geneva Conventions, and accordingly has brushed off arguments invoking the Convention to challenge the practice. Having ruled for decades that the legal basis for house demolitions exists, the Court treats international legal claims as “already decided” and moves to review specific demolition orders according to “proportionality” and “reasonableness” standards adopted from domestic public law.

Nonetheless, in a series of recent cases challenging the renewed policy, petitioners have reasserted that house demolitions are unlawful under international law. While the Court largely stuck to the “already decided” approach, it did give some minimal attention to these arguments. This treatment reveals a withdrawn Court majority, largely oblivious to the understanding of relevant law by the mainstream of the international legal community — in Israel and abroad. This process should be understood in light of an increasingly toxic environment against the Supreme Court created by the agitated right wing in Israel, led by the settler lobby. Even a preliminary injunction against a demolition, issued in order to give the Court time to consider the homeowners’ petitions, was vehemently attacked by senior politicians. 

Rendering International Humanitarian Law Meaningless

Current petitions against home demolitions usually invoke several international legal arguments (a representative case can be found here). The basic claim is that demolitions are collective punishment prohibited by Article 33 of the Fourth Geneva Convention (GC-IV) and similar provisions. However, the Court has consistently accepted the State’s argument, ruling that house demolitions are not “punitive” since their aim is “deterrence.” This distinction is unsustainable, since deterrence is almost always a basic goal of punishment and thus the terms are virtually interchangeable (unless we adopt an untenably narrow retributivist definition of punishment). Essentially, every form of collective punishment can be rephrased as aimed at “deterrence,” thereby making the prohibition meaningless.

Another claim is that house demolitions violate Article 53 of GC-IV, which prohibits the destruction of private property “except where such destruction is rendered absolutely necessary by military operations.” Again, the Court’s interpretation makes the Article almost meaningless. The Court has held that international humanitarian law (IHL) norms, being outdated, should be interpreted against the challenges of the “war against terror,” in a manner that “would uphold their spirit … but still allow Israel to defend the security of its residents” (para. 22). According to this view, the phrase “absolutely necessary by military operations” should be understood to include the aim of deterring future attacks by terrorists.

The reliance on “war on terror” discourse to justify the erosion of individual rights should be all too familiar to Just Security readers. Article 53’s language, however, was meant precisely to overcome such interpretations. “Absolutely necessary” must refer to pressing operational considerations (say, destroying objects that block troop advancement in risky situations), and not to quasi-law enforcement operations, especially when they are aimed at a remote objective such as “deterrence.” If deterrence can be viewed as “absolutely necessary by military operations,” then indeed nearly every security interest could be understood as such.

The Court’s interpretative approach was perhaps best articulated in a discomforting statement by Justice Solberg, in another case: “[D]uring times when terrorist actions do not distinguish between soldier and civilian … expecting the State to uphold the dichotomies created by international law might bind its hands in its war against terror, and risk the security of its citizens” (para. 3). This reasoning stands the basic logic of international law on its head not only by subjugating its interpretation to the perceived interest of a specific state rather than that of its general object and purpose, but also by implying an expectation that law would not limit state action when security interests are at hand.

Nonetheless, these interpretations of GC-IV remain dicta. The Court still maintains that in any case, Regulation 119, as the local law in the occupied territories, trumps the Geneva Conventions. But this too contradicts the logic of occupation law: Since international law is the source of the occupier’s powers to begin with, it is clear that occupation law cannot be trumped by local legislation that explicitly contradicts it (just as, from an international standpoint, domestic law does not trump international law). This idea underpins Article 64 of GC-IV, which authorizes the occupying power to amend local legislation when “essential to enable the Occupying Power to fulfil its obligations under the present Convention.”

Overall, the Court’s interpretation of international legal standards renders them effectively toothless. Indeed, once the vague goal of “deterrence” is used as a trump card, it becomes questionable what remains of the limiting power of the principle of military necessity.

Proportionality as a Cozy Fallback

Once ruling that Regulation 119 provides a legal basis for house demolitions, the Court frequently decries the “moral dilemma” it presents, before moving to analyze each demolition in light of procedural standards (such as receiving a fair hearing) and in relation to a three-pronged proportionality test, derived from Israeli constitutional law (familiar from its rulings on the Separation Wall/Barrier, available in English). This three-tiered standard consists of a rational connection test, a least-harmful means test, and a harm/benefit analysis.

Specifically, the Court has ruled that for proportionality to be satisfied, the state must consistently reconsider whether demolitions promote “deterrence” in general, as well as the cost/benefit of each particular demolition. However, as Aeyal Gross has rightly noted, applying this type of analysis under occupation can bring about skewed results, namely because the “proportional” violation of rights (the cost) is not measured against the public interest (the benefit) of the protected population — it’s measured against that of the occupying power.

Perhaps more problematic is that the readily available standards of proportionality make it easier for judges to gloss over complex questions of legal basis and proper cause (see here, in another context). Rather than facing these tough questions head on, judges opt for a case-by-case utilitarian approach that sidesteps the principle question. In one recent case, Justice Amit held that “the claim that using house demolitions for deterrence treats the terrorist’s family as means … cannot be dismissed lightly. However … it seems that the debate concerning house demolitions increasingly focuses on the effectiveness of deterrence, meaning on the utilitarian rather than deontological level” (para. 2). Indeed, judges seem significantly more comfortable in assuming that the authority to act exists, when they have the cozy fallback position of proportionality. This is not to say that employing constitutional proportionality analysis in situations of occupation is per se wrong, but only that we should be extra vigilant concerning the ends it considers as legitimate.

Moreover, from a humanitarian perspective, proportionality tests applied to house demolitions can have inverted results. For instance, in a recent ruling, the Court (in a rare instance) annulled the demolition order of the West Bank home of a Palestinian who killed an Israel soldier — Staff Sergeant Almog Shiloni — where the attacker’s parents and their five children resided. The reason for this was that the order was issued 11 months after the killing, a significant delay from the act it was in response to. The minority opinion ruled that the passage of time made the demolition order “disproportionate,” and then suggested — perhaps inverting the Judgment of Solomon — that only part of the home be demolished. The majority, conversely, accepted the petition in whole, generally because the passage of time severed the “rational connection” (a part of proportionality under Israeli law) between the demolition and the alleged goal of deterrence. It further ruled that “the obligation to act in due promptness is a basic principle of proper administration.” While the ruling certainly benefited the specific petitioners, the danger is of course that proper administration will now be understood as an obligation to demolish houses faster. This is but one example of skewed results achieved when proportionality is applied in reference to an extremely problematic objective: Fancy constitutional law standards can never remedy a measure so basically at odds with constitutional thinking.

Culturalism and the Palestinian Other

Recent cases highlight another alarming trend — the openly culturalist treatment of Palestinians. In short, Palestinians are viewed as a collective — concerning which loosely based assumptions can be made — while Jews retain their individuality. Palestinian acts of violence are thus collectivized while Jewish violence is individualized. The problem surfaced in full force when the Court recently addressed discrimination claims in relations to house demolitions.

Jewish violence against Palestinians in the West Bank is on the rise, sometimes even in front of Israeli security forces. However, nobody seriously suggests demolishing Jewish homes even in the most extreme of these cases, such as the murder of Muhammad Abu Khdeir or the torching of the Dawabshe home. Accordingly, petitioners in recent cases have challenged home demolitions by invoking, as an additional argument, the right to equal protection. Importantly, they do not demand that the State raze Jewish homes (this of course would violate human rights law), but only that Palestinian homes should not be demolished either.

The Court has responded to this claim in two ways. One is to sidestep the question by holding that the petitioners failed to satisfy the high burden of evidence required to establish selective enforcement claims. However, at least one justice did not shy away from going further. Again, Justice Solberg’s reasoning is especially revealing:

The claim [of discrimination] is baseless. The reason that Regulation 119 is not used against Jews is that there is no need for the same societal deterrence in the Jewish sector. To be sure, there are indeed attacks by Jews against Arabs. This of course requires the exhaustion of criminal procedure and imposition of due punishment. Tragically, we have even come to the horrible murder of Muhammad Abu Khdeir. But the difference is beyond any comparison … especially concerning the attitude of the surroundings: there is complete and total condemnation in the Jewish sector [for Jewish violence], which does not exist on the other side. (para. 15)

In a different case, Justice Solberg added that “the Jewish public, in general, is deterred and not incited” and that since in “traditional Palestinian society, the family occupies a central space,” placing pressure on the family can result in their effective intervention (paras. 1, 2).

These statements, in which a member of a Court of an occupying power, as an external observer, makes sweeping, self-evident assumptions about the culture and society of a population under military control — while asserting the moral supremacy of the ruling group — are eerily reminiscent of the justification discourse frequently employed in the distant past by imperial powers (see examples in Susan Pedersen’s brilliant new book). The assumptions about the nature of the ruled people are of course collective — bundling the entire society into a monolithic unity — while members of the ruling group are generally “cultured” and thus their violations are individual. The former society is thus subject to administrative collective deterrence, while the latter to individual criminal proceedings.

A Progressive Backlash?

I won’t end this analysis on such a grim note. Unease seems to be stirring in recent weeks among several justices. In one separate opinion, Justice Uzi Vogelman opined — while conceding that valid case law holds otherwise — that a home is not merely “property,” that the Court should reconsider relevant questions of international law, and that when family members are unaware of violent activities the demolition would be disproportionate per se.

More significant, perhaps, is the dissent filed by Justice Meni Mazuz in another case concerning the demolition of the home of a suspected killer of a Jewish couple — Eitam and Na’ama Henkin — in the West Bank. There, Justice Mazuz recounted the various challenges to the demolitions under international law, and maintained that these were never properly addressed by the State or the Court. He therefore ruled that the State should have responded to these claims before the majority’s decision was rendered.

Considering the approach and composition of the current Court, a ban on house demolitions is unlikely. Nonetheless, perhaps the seeds are being sown for an eventual rectification of this historical taint in the Court’s jurisprudence. It is interesting, in this context, to see whether mounting criticism will bolster the Court’s emerging opposition or otherwise.