By Meredith McBride
On June 8, two Palestinian men from Yatta, a small town near Hebron in the occupied West Bank, opened fire on a café in Tel Aviv, killing four Israelis. On June 9, the Times of Israel reported that the homes of the men’s families were marked for demolition by the Israeli Defense Force (IDF).
Khaled Mahamra, one of the shooters, was in third grade in 2002 when the IDF destroyed his family’s house. According to Israeli newspaper Haaretz, the IDF demolished the home where Khaled Mahamra’s extended family lived in response to accusations that his uncle, Taleb Mahamra, had killed Israelis. In October 2002, as family members looked on, the IDF launched a missile at the three-and-a-half story house while Taleb Mahamra was trapped inside by bulldozers.
The IDF completed the demolition of the Mahamra home in 2003. Mohammad Mahamra, Khaled Mahamra’s cousin who was also detained for the attack in Tel Aviv, watched on in 2002 as the IDF arrived at 1 a.m., surrounded the home with tanks, and ordered the family out, not allowing them to remove their personal belongings before demolishing the home. The explosion destroyed documents, clothing and schoolbooks, and left the family homeless.
The Mahamras’ story raises questions about the punitive nature of home demolitions and whether they comply with local and international law and serve as effective deterrents.
This year marks the 50th year that Palestinians have been living under occupation and subject to Israeli military law. Israeli Military Order 378 grants the military courts broad jurisdiction to apply military law to both occupants and non-occupants of the Occupied Palestinian Territories, regardless of where an alleged offense took place. In practice, however, outside of IDF disciplinary proceedings, military law is applied only to persons of Palestinian origin. Occupants of Israel’s more than 100 settlements within the Occupied Territories are governed by Israeli civil and criminal law rather than military law.
In the Yale Journal of International Law, Dan Simon wrote that home demolitions can be divided into three categories: administrative, military-need, and punitive. Administrative demolitions are granted by Articles 43 and 55 of the Hague Regulations to restore and maintain “public order and safety” while Article 53 of Geneva Convention IV grants that a demolition can be used to secure an area in an operation that requires the use of military force.
A third type of demolition used by the IDF is a punitive measure taken against the family members of Palestinians who have allegedly committed crimes. Israel’s use of home demolitions against innocent persons in the Palestinian Territories, East Jerusalem and the Gaza Strip has been documented and discussed extensively by academics, NGOs, and the press, and even prompted the creation of NGOs such as Israeli Committee Against House Demolitions (ICAHD).
According to the ICAHD, such demolitions do not narrowly target suspects, but rather they are a form of collective punishment. One report documents an instance when a suspect’s rented home was demolished, which suggests that demolitions are not limited to homes owned by the suspect. The report also notes one demolition of the suspect’s father’s home which displaced dozens of the suspect’s extended family members, including young children, who were left homeless as a result of the demolition. After a home is destroyed, the IDF confiscates the land, and prevents the family from rebuilding on it. ICAHD estimates that since 1967, total of around 48,038 Palestinian structures have been demolished in East Jerusalem, the West Bank and Gaza Strip, using a variety of justifications.
Israel justifies its use of regular house demolitions under military law, a colonial holdover from the British mandate, which governed Palestine from 1923 to 1948 and authorized punitive demolitions of Arab homes in the 1936-39 Arab Rebellion. According to Israel, regulation 119 of Britain’s Defense (Emergency Regulations) which granted Britain the authority to demolish structures, was never repealed when the territory came under Israeli power, and now applies to the whole of the West Bank. The United Kingdom says that it repealed the Regulation.
Many human rights bodies and organizations have expressed that Israel’s policy of home demolitions is illegal under international human rights mechanisms to which Israel is a signatory. Examples include violations under Articles 12 and 17 of the International Covenant on Civil and Political Rights protecting freedom of movement and the family, respectively. Freedom from all forms of violence and right to health and welfare listed in numerous Articles in the Convention on the Rights of the Child and in Article 11 of the International Covenant on Economic, Social and Cultural Rights, protecting the right to adequate housing and living conditions.
Protection from arbitrary deprivation of property is protected by the Universal Declaration of Human Rights, which some argue has the status of binding customary law. The UN Committee against Torture also expressed regret over Israel’s resumption of “punitive” house demolitions in the Gaza Strip and East Jerusalem and said Israel should stop these violations of international law when it reviewed Israel’s policy in 2009. The Committee also noted in its 2016 review that Israel’s policy violated Article 16 of the Convention Against Torture, which expressly prohibits cruel and unusual punishment.
Citing international humanitarian law, Human Rights Watch has called house demolitions “a war crime” that collectively punishes innocent families, often women, children, and the elderly that rely on the family home. The Hague Regulations of 1899 in Article 50 expressly prohibit general penalty, pecuniary or otherwise from being inflicted upon “the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” Collective punishment is also prohibited in Israel’s Manual on the Laws of War.
Israel has not ratified the Rome Statute of the International Criminal Court (ICC) , which in article 8(2)(a)(IV) prohibits extensive destruction of property, defining it as a war crime. However, in April 2015, Palestine became a party to the ICC, and lodged a complaint against alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” These crimes include home demolitions.
Geneva Convention IV also provides protections for persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Geneva IV shifted the emphasis of law of the law from the occupying powers, to better protect the interest of the local population. Though Israel had intended to apply Geneva Convention IV to the Palestinian Territories after the beginning of its occupation in 1967, the influence of politics encouraged an ideology that the West Bank was rightfully part of Israel, and was ‘liberated’ rather than ‘occupied.’ Thus, the order enacted for governing the territories had no reference to the Convention, meaning that Israeli law continues to trump customary international law in these circumstances.
The Israeli military suspended most punitive demolitions in 2005, based on a report which found that demolitions did not prevent attacks or serve as a deterrent. The report was conducted by a military commission under Maj. Gen. Udi Shani, whom was appointed by then Chief-of Staff Moshe Ya’alon. Despite this, Israel recommenced demolitions in 2014 after the abduction and murder of three Israeli students in East Jerusalem, and the High Court of Justice has since then refused to prohibit the practice. The Court has also continued to uphold the legitimacy of Rule 119, despite arguments that it contravenes Israel’s obligations under international law.
In 2006, in Awawdeh et al v. Military Commander of the West Bank Area, the Court acknowledged that it would be impossible to conduct a scientific study to prove the effectiveness of the home demolition policy in preventing terror. The resulting stalemate in the efficacy of home demolitions as a means to prevent crime indicates that such considerations should be left out of the debate altogether, focusing instead on the relevant law and principles of equal justice and human dignity.
Despite recognizing the difficulty in proving any efficacy of the policy of house demolitions, the Court stated in 2014 “that the terrorist is expected to be punished in a criminal proceeding does not prevent the exercise of the authority” [to demolish the home]. The Court’s frequent reference to suspects as ‘terrorists’ is problematic as it often predicts the outcome of a criminal trial that has yet to finish. The Court additionally stated that the exercise of the authority to demolish is not conditional on the court finding the person guilty of the offense. Rather, the IDF can rely on their own evidence and independently determine whether or not there was sufficient reason to proceed with the demolition outside of the criminal justice system.
Justice Turkel in Sa’ada v. GOC Home Front Command, heard in 2003, stated in a frequently cited opinion:
“The idea that the terrorists’ family members, that as far known did not help him nor were aware of his actions are to bear his sin, is morally burdensome… However, the prospect that the demolition or sealing of a house shall prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be victims of terrorists’ heinous acts, more than it is appropriate to spare the people dwelling in the house. There is no other way.”
In this opinion, Justice Turkel expresses clearly to value the security of Israeli citizens, whom are often seen as the victims of attacks, more than the lives and security of Palestinians who have no role in the violence.
RENEWED CALLS TO END HOME DEMOLITIONS
Since an upsurge in violence began in October 2015, Israeli human rights NGO B’Tselem estimates that the Israeli authorities’ policy of home demolitions has displaced 149 people, of which 65 are minors. Ten more families await rulings on their petitions to stop demolitions of their homes from Israel’s High Court of Justice.
As recently as June 12, 2016, the Israeli High Court approved the demolition of the homes of family members of two 21-year-old men who carried out a knife attack in Jerusalem in December 2015, despite the attackers themselves dying from gun wounds shortly after the attack. The Court denied an appeal by the family who argued that the policy was discriminatory against Arabs as home demolitions are almost exclusively used against Arabs, and that the attackers could no longer be punished as they were deceased.
Israel’s justification for its policy of punitive home demolitions is that it deters others in the community from committing crimes against Israel by making a suspect’s family homeless and robbing them of the value of their land (though Israel also has a parallel policy of demolishing Palestinian homes to make way for Israeli settlements and even forests). But in a case brought by HaMoked Center for the Defense of the Individual and seven other human rights organizations, Justice Sohlberg acknowledged that the goal of the program was collective punishment: “…the demolition of terrorists’ houses will add to the cost-benefit calculation conducted by a potential terrorist the knowledge that his family members will pay the price for his actions.”
Despite the questionable foundation of international and domestic law seeking to justify the legality of home demolitions, Israel’s own justification for this policy is all the more problematic in light of the aforementioned 2005 study undertaken by the Israeli military that home demolitions are not effective deterrents. This is exacerbated by the fact that home demolitions are almost exclusively used against Palestinians, not Israelis who have committed similar attacks.
In addition, the Courts’ complicity with the IDF to condone the policy of home demolitions against Palestinians shows a clear disregard for the dignity and worth of individuals by seeking to punish them outside of the criminal justice system. The June attacks on civilians in Tel Aviv cannot be condoned, but neither can the collective punishment of innocent Palestinians through the wanton destruction of family homes.
Meredith McBride is a 2016 Leitner Center Summer Fellow.
The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.