In recent weeks Israel’s High Court of Justice approved the punitive home demolition of five family homes of Palestinians involved in attacks against Israelis. Under most circumstances when a Palestinian attacks an Israelis civilian or solider, he is neutralized, which means killed or injured and arrested. Therefore punitive home demolitions punish family members and neighbors. The humanitarian implications of the policy revived in 2014 after Israel’s near abandonment of the policy in 2005 are well documented and discussed. Since 1 June 2014, the Israeli authorities have demolished,or sealed 16 structures, displacing 90 Palestinians, including 51 children, according to UN figures. In addition, at least 12 adjacent apartments were damaged, temporarily displacing at least 55 people.1 At least 14 of these have taken place this October and November, pundits suggest as a result of government needing to demonstrate a show of force in response to the most recent wave of conflict.2
This form of collective punishment is illegal under the Fourth Geneva Convention. Recent headlines reported High Court freezes on demolition orders, followed by petitions, angry politicians, state appeals, but all generally leading to the same end: homes destroyed. This reinstatement of Israel’s practice again raises critiques and questions regarding the policy. The HCJ is not interested; it heard them last year
Regulations sanctioning punitive home demolitions were first enacted in the British Defense Emergency Regulations of 1945.3 These were a set of regulations imposed by the British Mandate in response to the Arab Revolt and the rising violence between Arabs and Jews. The British later used these regulations in attempts to curb Jewish immigration to control militant Jewish organizations The regulations gave power to military courts, sanctioning curfews, closures, arrests without detention and censorship of publications. Local communities opposed the measures; the Jewish population protested them. According to the British government the regulations were repealed, however because this was not published in the Palestinian Gazette, the repeal was never official, and Israel adopted them as part of the status quo in 1948.4
The regulations were used in military rule over Palestinian populations in Israel from 1950-1966, and are still the legal basis for military occupation and activity in the Palestinian Territories from 1967 until today. In 1951, the Knesset drafted a bill for their repeal, which did not pass.5 In a debate related to the bill, Menahem Begin pursued repealing the emergency regulations calling them “tyrannical and facististic laws. “The existence of such regulations raises questions regarding the fundamental rights of every Israeli citizen. Borrowed freedom is not freedom. It has been said that perhaps the British did us a favor by bequeathing the 1945 Regulations to us when they left the country. That is a very strange claim. . . . If it is inappropriate for the State of Israel to enact such laws, why would it be appropriate to retain them? 6
Using article 119 of the emergency regulations as their legal foundation, Israel implemented administrative and punitive home demolitions.7 Between 1967 and 1997, approximately 1,750 homes were destroyed or sealed in punitive demolitions. The policy was suspended during the period of the Oslo agreements.8 The practice was resumed in 2001, when during the period of the second intifada, 664 Palestinian homes were demolished as forms of punishment leaving 4,182 innocent people displaced according to Btselem.
In 2005, Israeli Defense Minister Shaul Mofaz announced the suspension of the policy of punitive demolitions on the basis of the recommendation of a military appointed commission headed by Maj. General Udi Shani. The committee concluded that punitive home demolitions had no deterrent effect, except in a few cases, and that the impact they had inciting and provoking far outweighed their intended effect9. Until the summer of 2014, one punitive home demolition was carried out and two homes were sealed in 2009 10
In 2014, Israeli policy of punitive home demolitions was reinstated following the abduction of 3 Israeli yeshiva students, and four homes were destroyed, leaving 27 displaced, 13 of them minors.11 This October and November, over 14 homes (including neighbors of the intended targets) have been destroyed, some documented here. In recent months the HCJ and the state have gone back and forth regarding the destruction orders for these homes, the Court approving demolition of 5 of 7 homes after delaying the orders for the purposes of satisfying their questions about implementation and procedure, and ruling on 9 petitions raised by families and neighbors with the assistance of HaMoked.12 One of the demolitions in Nablus provoked clashes between armed Palestinians and Israeli forces resulting in the death of 3 Palestinian gunmen. 13 Most recent activity regarding the HCJ ruling on home demolitions was a ruling conferred December 1 on a petition from HaMoked in which the Court revoked a demolition order that was to be conferred on the family of a youth suspected in a Tel Aviv stabbing in 2014. The court ruled that demolition one year after the incident had no deterrent effect and “exercising the authority must have a causal link to the legal grounds for its exercise.”14 The HCJ’s objections were related to the implementation of punitive demolition orders and not to the fact that the orders themselves violate international law and do not stand up to moral and ethical criticism.
Since the return to punitive home demolitions, many have raised objections and questions about the reversion in policy. (Last year Jeff Halper wrote about this here.) How is it that something the army and state in 2005 determined ineffective as a deterrent has suddenly resumed as a strategy? In the latest HCJ rulings, the court rejected a petition for another hearing on the policy of house punitive demolitions, on the basis that it rejected the motion last year. Echoing years of previous rulings, Haaretz reported the High Court as stating, “House demolitions are indeed a harsh and difficult step, especially because of harm to the members of the terrorist’s family who often did not assist him and did not know of his plans….But given the deterrent power of the use of this regulation, sometimes there is no choice but to use it. When the actions attributed to the suspect are very serious, use of the extraordinary sanction of demolishing a house might be justified for reasons of deterrence.”15 Justice Miriam Naor said she had received documents from the state indicating that militants who planned attacks did not follow through because of the implications for their family and home.16
Assuming the deterrent argument provides a foundation for what are widely accepted as collective punishment and gross violations of international law, what is this new information?
In November, several media sources reported that the attack on Rabbi Ya’akov Litman and his son Netanel by Shadi Ahmen Matawa who according to the Shin Bet was turned in by his father and brother out of fear of possible home demolition. One can’t help but speculate if the Shin Bet is eager to draw and publicize a connection between the policy and issues on the ground.
Anecdotal support for or against effectiveness of the practice has its limits and is highly interpretative and subjective. Perhaps influencing policy is a new academic study carried out by Efraim Benmelech, a professor at Northwestern’s Kellogg School of Management, and Hebrew University economists Claude Berrebi and Esteban Klor. According to the New Republic, Klor says that the study has been seen by influential Israeli officials.17 The findings identified two correlations between demolitions and suicide attacks: Precautionary demolitions [those justified by a home’s location and strategic military importance] resulted in a significant increase in suicide attacks. Punitive demolitions led to a significant decrease in terror attacks in the months immediately following the demolition.
But what about the months after that? The study’s authors are divided on the application of their research. According to Klor, the evidence does not point to a long-term change.18
Even if the policy achieved its purported goal of deterring future terrorism and undermining a culture of terrorism, is the deterrent argument adequate justification for a policy that punishes the bystanders? At the point of home demolitions, the attackers are usually dead or in custody. The ones who suffer the consequences are the family and neighbors, who are left with unlivable structures. Assumptions – with no investigation – are made that relatives and community members colluded or somehow supported the attacks; but these allegations are rarely investigated before the demolition. The violations of international law and human rights are well-argued and documented. The practice of incorporating already oppressive British emergency regulations, which were experienced as tyrannical, into contemporary law repeatedly upheld by the HCJ, somehow finds legal justification in the deterrence argument, but does not stand up to the moral and ethical questions.
These questions and issues are not new. They keep getting asked; international, Israeli and Palestinian reports and articles are all abundant with them but with no change. Despite the years of petitions by Hamoked and others, as well as repeated critique of the policy internationally and locally, no challenge is able to penetrate what seems like an indefensible position.
6 Menachem Begin on Democracy and Constitutional Values Mordechai Kremnitzer and Amir Fuchs.