B'Tselem has written to the Israeli Attorney General, Adv. Yehuda Weinstein, requesting him to reject the Israel Security Agency (ISA) recommendation to demolish the 'Awarta homes of the families of Amjad and Hakim Awad, who murdered five members of the Fogel family in March 2011.
The letter was also addressed to Prime Minister Benjamin Netanyahu, Minister of Defense Ehud Barak, and Deputy Prime Minister Shaul Mofaz. B'Tselem Executive Director Jessica Montell wrote that the attack carried out by Amjad and Hakim Awad is shocking and horrifying. Nothing about that attack, however, makes harming their relatives, who were never found guilty of involvement of any kind, legal or moral. The murderers were sentenced to long prison terms. If it is found that family members were involved in obstruction of justice or destruction of evidence, as the ISA claims, then they should be tried in accordance with due process.
B'Tselem's letter notes that early in 2005, Shaul Mofaz, then Minister of Defense, decided to end the policy it had implemented for years of demolishing Palestinians’ homes, which was carried out under Article 119 of the Emergency Regulations. While the policy was in force, hundreds of homes in the occupied territories were demolished and thousands of Palestinians were left without shelter. The Minister’s decision was taken in the wake of conclusions reached by a committee appointed by then Chief of Staff Moshe Ya’alon, indicating that there is no evidence that house demolitions offer an effective deterrent to terror and that the use of this method may even be harmful.
Home demolition which is not required by immediate military necessity, is illegal under international humanitarian law. Article 53 of the Fourth Geneva Convention prohibits the occupying power from demolishing the property of citizens residing in the occupied territory, “unless rendered absolutely necessary by military operations.” The International Red Cross, designated as interpreter of the Convention, defined the term “military operations” as “movements, exercises, and other actions taken by armed forces for combat purposes.” House demolitions used as a penalty or deterrent, by contrast, are not carried out as part of combat. Hence, they cannot be viewed as part of “military operations” as meant in the Geneva Conventions and certainly are not “absolutely necessary” military operations.
Punitive demolition of houses contradicts the Basic Law: Human Dignity and Liberty. Although Article 119 of the British Mandate Emergency Regulations is cited as providing the authority for these demolitions and predates the Basic Law, legal rulings have held that the spirit of the Basic Law should be used to govern the interpretation even of laws that predate it.
Moreover, home demolition for punitive and deterrent purposes also violates one of the most basic norms of justice: the prohibition against punishing someone for acts carried out by another person, or in other words collective punishment. This prohibition is especially severe when the punishment victimizes children. Article 33 of the Fourth Geneva Convention completely prohibits collective punishment, without exception.