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From the field

Home Demolition as Collective Punishment

Demolishing homes as a form of collective punishment is one of the most extreme measures that Israel has employed in the West Bank, including East Jerusalem, since the occupation began in 1967 (and until 2005, in the Gaza Strip). Over the years, Israel has demolished hundreds of houses as part of this policy, leaving thousands of Palestinians homeless.

The policy of punitive house demolition is, by definition, meant to harm people who have done nothing wrong and are suspected of no wrongdoing, but are related to Palestinians who attacked or attempted to attack Israeli civilians or security forces. In almost all cases, the individual who carried out the attack or planned to do so no longer lives in the house, as they were killed by Israeli security forces during the attack or were arrested and face a long prison sentence in Israel.

This policy constitutes collective punishment, which is prohibited and violates binding provisions of international law. This is not a complicated, theoretical legal principle but a matter of basic morality: Punishing innocents for the sins of others is unconscionable. This human principle in enshrined both in the Bible (“The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin”, Deut. 24:16) and in the Geneva Convention (“No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited”).

This is not a complicated, theoretical legal principle but a matter of basic morality: Punishing innocents for the sins of others is unconscionable.

Israeli officials claim that the house demolition policy is supposed to deter other Palestinians from planning or carrying out such attacks, out of concern that their families’ homes would be demolished.

Even if this deterrent effect were achieved, it would not render the policy moral or legal. By harming innocents to achieve a goal that has nothing to do with them, the authorities treat these persons as a means rather than as independent human beings with rights. Such a policy is inherently immoral and unlawful.

Moreover, the state has never presented any figures to prove that the demolitions do, in fact, deter Palestinians from carrying out attacks, nor has it ever been pressed to do so . Without proof of efficacy, the utilitarian justification for such an extreme and injurious measure is lost. On the other hand, contradicting proof indicates that house demolitions have actually increased motivation among Palestinians to carry out attacks.

In February 2005, an Israeli military committee chaired by Major General Udi Shani determined that the efficacy of this policy as a deterrent was questionable, and that by engendering hate it caused more damage than good. A review of the committee’s findings stated that the policy “pushes the limits of the law, although everything passes muster in terms of international law, the international community, democracy, self-image and quantity.” The review went on to say that, “in a Jewish, democratic state, the IDF cannot walk the line of legality, let alone of legitimacy!!!”. The minister of defense at the time, Shaul Mofaz, adopted the committee’s recommendations and Israel stopped demolishing homes as punishment for about 10 years – with the exception of the demolition of a home and the sealing of two others in East Jerusalem in 2009.

In the summer of 2014, after three Israeli yeshiva students were abducted and killed in the West Bank, Israel resumed punitive house demolitions without explanation. In a hearing held by Israel’s High Court of Justice (HCJ) on a new demolition order, the state argued that it had never intended to stop using this measure altogether and that given the change in circumstances – i.e., increased attacks – it saw no impediment to resuming the policy. The state did not explain how this position could be reconciled with the Shani committee recommendations. Since then, dozens of homes have been demolished as punishment.

House demolition is an administrative procedure. It is carried out without trial and without any requirement to present evidence, pursuant to Regulation 119 of the British Mandate Emergency Defense Regulations of 1945. After the demolition order is delivered, the family has 48 hours to appeal to the military commander. In a 1989, the HCJ ruled if the appeal is denied, the family must be allowed to petition the court before the demolition.

Nevertheless, the HCJ itself appears to view such petitions as mere formalities – a technicality intended to create a semblance of upholding the owners’ right to plead their case. Over the years, scores of petitions against house demolition orders have been brought before the HCJ. The petitions argued against the use of this measure as a matter of principle, against the ways in which the procedure is carried out, and made arguments relating to specific cases. Yet the court denied these petitions wholesale, with the exception of rare cases and several minority opinions.

In their judgments, the justices sided with the state’s position that demolishing homes is aimed at deterrence rather than punishment. Without receiving or requesting statistics on the subject, the court accepted the state’s argument that this is an effective deterrent and held that it could not intervene in the professional assessment of security agencies. The justices also dismissed the claim that home demolition constitutes collective punishment that is prohibited under international law, citing the state’s argument that the objective is solely deterrence. In any event, the justices held, domestic law trumps the provisions of international law. The resumed demolitions in 2014 also passed the court’s test without question, with the justices ruling it was not their role to interfere in the considerations of the security establishment, and accepting the state’s contention that the authorities may change their policy, certainly when circumstances change.

By giving this policy its legal seal of approval, the HCJ allowed the authorities to proceed unhindered. This does not render the systematic destruction of innocents’ homes moral or legal; rather, it makes the justices accomplices in the crime.