It seems that some views merit being heard only as a minority opinion in the Israeli Supreme Court. So, for example, then Justice Mishael Cheshin's firm stance against home demolitions as collective punishment.
The language of the Regulation clearly indicates that this is pure collective punishment. Such punishment contravenes the fundamental principles of democratic law
Israel demolishes homes as a punitive measure
[1] under the Defense (Emergency) Regulations which were enacted by the British Empire in 1945 as part of the latter’s battle against Jewish and Palestinian insurgent groups in mandatory Palestine. These regulations were an extreme measure of oppression and allowed, inter alia, for civilians to be subject to the jurisdiction of military courts, including capital punishment, arrest without trial, home demolition and deportation. Until 1948, the Jewish Yishuv despised these regulations as a symbol of tyranny and cruelty. In 1948, shortly before the end of the British mandate, the British authorities revoked the Defense Regulations in an order issued in London. The newly established State of Israel hastened to resurrect them like the phoenix from the flames: the order which was published in London was declared invalid as it was a “secret law”, not published in the official Palestine-Eretz Yisrael Gazette.
[2] The prohibition on secret laws was designed to protect citizens from being punished for violating a prohibition which was not made public. Absurdly, this rule, which is normally designed to protect individual rights, was used in order to revive draconian regulations that infringe on fundamental civil liberties. The Regulations, with certain changes, apply in Israel to the present day. Only in 1979, under the Begin government was the Regulation allowing for deportation cancelled. The Regulation allowing for administrative detention was replaced with a modern law in that same year, but the Regulation allowing punitive home demolitions remained valid. After seizing control of what became the Occupied Palestinian Territories (OPT) in 1967, Israel revived the Defense (Emergency) Regulations, which were revoked by the British 19 years earlier, there also. Here too, the reasoning was that the revocation was a secret law.
[3] Punitive home demolitions are carried out under Regulation 119 of the Defense (Emergency) Regulations. The power is broad and cruel:
A military commander may direct by order the confiscation for the benefit of the Government of Israel of any house, structure or land from which he has reason to suspect any firearm was illegally discharged, or any bomb, hand grenade or any other explosive or incendiary article thrown, set off, exploded, or otherwise fired; or any house, structure or land located in any area, town, village, neighborhood or street where the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact of the commission of an offence under these regulations involving violence or intimidation or an offence tried in a military court; and once a house, structure or land has been thus confiscated, the military commander may destroy the house or the structure or anything located inside the house, structure or land or on them.[4]
The language of the Regulation clearly indicates that this is pure collective punishment. Such punishment contravenes the fundamental principles of democratic law in general and the unequivocal rules of international humanitarian law. The prohibition on collective punishment is enshrined in Art. 50 of the Hague Regulations of 1907 and Art. 33 of the Fourth Geneva Convention. This article clarifies that the prohibition applies whether the measure is taken in order to “punish” “deter” or “intimidate”. The Israeli court used this distinction extensively, even though it is purely semantic. Deterrence is the core of punishment, particularly collective punishment. Art. 33 stipulates:
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.[5]
As for home demolitions specifically, Art. 23 of the Hague Regulations stipulates: “[I]t is especially forbidden […] (g) to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”;
[6] and Art. 53 of the Geneva Convention stipulates that:
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.[7]
According to B'Tselem figures, between 1987 and 2004, Israel fully or partially demolished or sealed some 1,600 homes in the OPT, pursuant to the Defense Regulations.
[8] In many cases, petitions were filed with the High Court of Justice (HCJ) against the demolitions and almost all of them were rejected. In a number of judgments throughout the 1990s, Justice Cheshin objected strongly, always in a minority opinion, to the collective nature of home demolitions under the Defense Regulations. As soon as the injury goes beyond the person who committed the terrorist act (his own residential unit) and affects those who live with him – it is unacceptable. In his strong objection to collective punishment, Justice Cheshin quotes the bible:
This is the human spirit, the Jewish spirit, which has carried us on its wings throughout the generations, and on which we have suckled with our mother’s milk: “Fathers shall not be put to death because of their sons, and sons shall not be put to death because of their fathers; a person shall be put to death for his own wrongdoing”.
So we are taught in the Book of Deuteronomy (24, 16 [6]), and thus we learn in the Second Book of Kings that this is the law of Moses: in the reign of Joash, king of Judah, his servants Jozachar the son of Shimeath and Jehozabad the son of Shomer rose up against him and killed him (II Kings 12, 21-22). Amaziah ruled after him in Judah, and Scripture tells us the following (ibid., 14, 5-6) [7]):
“And it came to pass when the kingdom was firmly in his control that he slew his servants who killed the king his father, but he did not put the sons of the killers to death, in accordance with what is written in the book of the law of Moses that God commanded him as follows: fathers shall not be put to death because of their sons, and sons shall not be put to death because of their fathers, but a man shall die for his own sin” (i.e. be put to death).
Thus is the spirit and thus we shall do:
“In those days people shall no longer say: fathers ate unripe fruit and their sons’ teeth shall be blunted, but a person shall die because of his own sin; any person who eats unripe fruit shall have his teeth blunted” (Jeremiah 31, 28-29 [8]).
No longer do fathers eat unripe fruit and their sons’ teeth are blunted, and no longer do sons eat unripe fruit and their fathers’ teeth are blunted, but a man shall be put to death for his own sin.[9]
According to B'Tselem figures, between 1987 and 2004, Israel fully or partially demolished or sealed some 1,600 homes in the OPT, pursuant to the Defense Regulations
And lo, in 1996, Justice Cheshin stumbled upon an opportunity to be in the majority opinion. The case addressed the authorities’ intention to demolish a number of homes as retaliation for suicide attacks perpetrated that spring. Among those were the homes of persons who had been involved in attacks a year (and more) earlier. The issue of the demolition of those homes had been previously reviewed and put on hold and now, following the new attacks, the demolition orders were to be executed. Justice Dorner, who also presided, thought these homes should not be demolished as it would mean that they would be demolished not for the actions of their dwellers (which is a condition for exercising the power) but for actions carried out by other individuals at other times. Had Justice Cheshin held on to the opinion he so vehemently expressed in previous cases, the demolition of these two families’ homes would have been prevented.
However, it seems that his objection to collective punishment is good as a minority opinion but not when it might actually decide the fate of real homes. In an earlier judgment, Justice Cheshin wrote:
In this distress which we find ourselves, I know naught but the path of the best, which is the path of law I was taught by my forefathers. In war and in peace, my tools are the tools of law – I know not the tools of war – and these I shall use.[10]
And what is this path of the best?
The fundamental principle will remain standing, moving neither right nor left: each man shall bear his own transgression and each person shall be put to death for his own sin.[11]
Yet, in the
Sabih judgment, in which he might have found himself in a majority opinion, he paraphrases himself:
I firmly rooted myself in a fundamental principle of law, from which – so I said – I would not move neither right nor left. And such fundamental principle, we all know it since childhood: each man shall bear his own transgression and each person shall be put to death for his own sin. According to the prophet, as stated in the Bible:
“The soul who sins is the one who will die. The son shall not share the guilt of the father, nor will the father share the guilt of the son. The righteousness of the righteous man shall be credited to him and the wickedness of the wicked will be charged against him” (Ezekiel, 18, 20 [a]).[12]
Yet, who is he to intervene in the military commander’s decision?
In war as in a war: what business does a court have to order a military commander what to do and what not to do? […] we shall not grow weak in our efforts to strengthen the rule of the law. We undertook an oath to dispense justice, to be servants of the law and we shall be loyal to our oath and to ourselves. Also when the trumpets of war sound the rule of the law shall make its voice heard, however, let us admit a truth: in such places its sound is like that of the piccolo, clear and pure but drowned out in the bustle.[13]
“In war as in war”, writes Justice Cheshin and denies the very heart of of the law of war – that it is the role of the law to subject war to rules and norms in order to minimize the injury to combatants and civilians alike. The justice is one step shy of denouncing the law of war itself, but settles for a finding that the issue is outside the jurisdiction of the courts:
The civilian population suffers greatly at times of war, however, this suffering, wherever it is, gives the individual neither rights nor standing against the enemy. The acts are not judicable as they “belong” to a field which is not under the court's authority.[14]
Justice Cheshin joined the majority opinion. The homes were demolished.
Years later, perhaps against the backdrop of the appearance of international tribunals which presided over actions taken to the sound of the trumpets of war, then Supreme Court President Aharon Barak commented in a hearing, that there was allegedly a difficulty in exercising the power to demolish homes under the Defense Regulations in the OPT. Even if this power was granted to the original sovereign under local legislation, the occupying power cannot use it when it contravenes the law of occupation. Subsequent to that hearing, Israel decided to halt (until further notice) home demolitions under the British regulations in the OPT, without admitting to the difficulty posed by international law. In the meantime, these demolitions were renewed in East Jerusalem, which is occupied territory par excellence, yet, as far as Israel is concerned, is part of the state. The concern voiced by President Barak toward the end of his term on the Supreme Court had been forgotten and the HCJ gave its support to the old-new demolition policy.
[16]Adv. Yossi WolfsonThe author is a lawyer and a human and other animals' rights activist, formerly a member of staff at HaMoked: Center for the Defence of the Individual.
