House demolition is an administrative procedure carried out without trial and without proof in court of the guilt of the person because of whom the action is taken. In the past, before the policy of punitive house demolitions was renewed during the al-Aqsa intifada, the demolitions were carried out following a military order given by the regional commander pursuant to Section 119 of the Emergency Defense Regulations of 1945. The section empowers the military commander to demolish a house - in any community, neighborhood, or street - of a resident of that area who carried out a violent offense. After the demolition order was delivered to the family, the IDF allowed the family to appeal to the military commander within forty-eight hours. In a decision made in 1989, the High Court of Justice held that, in the event the appeal is denied, the family must be allowed to petition the High Court before the house is demolished.
During the current intifada, until recently, the IDF acted differently. Israel treated the action as an imperative military action. Most of the house demolitions took place at night without any prior warning and without giving the occupants a demolition order, as required by Section 119 of the Emergency Defense Regulations. The occupants were given a few minutes to remove their possessions to avoid having them buried in the rubble. Israel remained vague in its statements relating to whether the demolitions were carried out pursuant to Section 119 or were an imperative military operation.
Whatever the legal basis, punitive house demolitions flagrantly breach international law which allows destruction of property only when necessary for a military operation (article 53 of the Fourth Geneva Convention). According to the official commentary of the International Committee of the Red Cross, “military operation” is defined as “the movement, maneuvers, and actions of any sort, carried out by the armed forces with a view to combat.” Punitive house demolitions do not meet this definition.
International law also prohibits collective punishment, i.e. the punishment of persons for acts committed by others (article 33 of the Fourth Geneva Convention and Article 50 of the Hague Regulations). House demolitions are a clear case of collective punishment in that the primary victims are relatives of the persons suspected of committing an offense.
Over the years, more than 150 judgments have been given in petitions against punitive house demolitions. The petitioners raised fundamental arguments contesting the legality of the measure, made contentions on the manner in which it was implemented, and argued against the use of the measure in specific cases. Other than in rare instances, the High Court denied the petitions and accepted the state's position that the measure, which is intended to deter Palestinians from carrying out attacks, is lawful. The High Court has ruled continuously that, insofar as the offenses involved are violent, aggressive action is needed, and demolition of the houses of the suspects is proper punishment.
The High Court rejected the argument that the measure constitutes collective punishment, holding that the purpose of the demolition is not punitive, but deterrent. According to the High Court, there is no distinction between house demolition and the imprisonment of someone who happens to be the head of a family, which also results in harm to his family. This comparison is flawed, however. The purpose of imprisonment is to deny certain rights of the offender. The suffering of his family is only a side-effect. If it were possible to neutralize the effect of incarceration on the family, the objective of the imprisonment would still be achieved. It would not be affected in the least.
The argument that Section 119 is inconsistent with the Hague Regulations and the Fourth Geneva Convention was also rejected. The High Court has held several times that the two instruments are not relevant because Section 119 is part of the domestic law in the West Bank and the Gaza Strip, and according to the two instruments, the domestic law prevails when inconsistent with their provisions. This position conflicts with the accepted understanding of international law, whereby the actions of an occupying state are limited by international law, despite the powers given to the authorities by domestic law.
Regarding the refusal to give prior warning and to permit the family to appeal to the High Court of Justice before their home is demolished, the High Court accepted the state's position that giving prior notice is liable to endanger IDF forces and thwart the action. However, this reason is inconsistent with reality. In the West Bank, at least, during the period in which houses were demolished as punishment, the IDF had effective control over the entire area and was regularly present in almost all the cities, villages, and refugee camps. Also, having turned the action into a declared policy, the families were able, in some cases, to anticipate the demolition. In some cases, following a suicide attack, the Israeli media even reported on the intention of the IDF to demolish the house of the perpetrators. Therefore, Israel could no longer justify refusal to grant the right to be heard as grounds for maintaining the “element of surprise.”