The Punitive Demolition of Homes

The British Mandate enacts the Defense (Emergency) Regulations Under Regulation 119, a home may be confiscated and demolished, if it is suspected to have been used for the commission of an offence involving violence or intimidation, or if the military commander is satisfied that one of its occupants was involved in the commission of such an offense. This draconian regulation, set out in a section entitled “Miscellaneous Penal Provisions”, also allows to demolish the homes of his relatives, neighbors and others in his community. Upon termination of the British Mandate, the British Parliament abolishes all Mandatory legislation in Palestine-Eretz-Yisrael, including the Defense (Emergency) Regulations.

1945

Israel adopts the Mandatory Defense (Emergency) Regulations under the Law and Administration Ordinance, 5708-1948 Section 11 of the Ordinance stipulates that the law that was in effect in Palestine-Eretz-Yisrael on the day the State of Israel was established would remain in effect so long as it does not contradict the Ordinance or any future laws, and with the necessary changes emanating from the establishment of the state and its authorities. Israel contends that the revocation of the Mandatory Defense (Emergency) Regulations was never published in the official Palestine Gazette, and therefore, its revocation constituted a “secret law”, as defined in Section 11 of the Ordinance: a law that “is not and never has been valid”. The adoption of the Defense (Emergency) Regulations into Israeli domestic law allows for use of the powers to confiscate and demolish homes throughout the country. But, in practice, the power is used only against Palestinian residents of annexed East Jerusalem.

1948

The signing of the Fourth Geneva Convention which prohibits collective punishment and determines that home demolition for non-military purposes constitutes a war crime Under Article 53 of the Convention, the occupying power is prohibited from destroying homes or other property "except where such destruction is rendered absolutely necessary by military operations". Under Article 33, "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. […] Reprisals against protected persons and their property are prohibited". The Fourth Geneva Convention

1949

The military punitively demolishes or seals more than 1,300 homes in the OPT From the beginning of the occupation until the outbreak of the first intifada, the military demolishes homes – mostly late at night – without trial or proof of any wrongdoing. Most of the homes, some 1,000, are demolished in the first five years of the occupation of the West Bank and Gaza Strip. See B’Tselem report, September 1989, p. 11 ; Al-Haq report, 2003, p. 7

1967

First evidence of punitive demolitions in the OPT: the Military detonates 8 homes in the Gaza Strip According to a classified document [H] written by an official at the Ministry of Foreign Affairs on June 15, 1967, the homes were detonated as collective punishment for a mine planted to injure Israeli soldiers.

1967

The military issues a proclamation that applies the Defense (Emergency) Regulations to the OPT Section 2 of the Proclamation regarding Regulation of Administration and Law (West Bank Area) (No. 2) 5727-1967 stipulates that the law that was in force prior to the occupation of the Territories by Israel is to remain in force. A similar proclamation was issued in the Gaza Strip. Over the years, the High Court of Justice rejects arguments that the Defense (Emergency) Regulations do not apply in the West Bank under the Proclamation, since the Jordanian Constitution revoked them in 1952. The HCJ rules the Regulations continue to apply in the West Bank subject to an order issued by the Jordanian military governor, which left Mandatory legislation intact. With respect to the Gaza Strip, the HCJ notes that there has been no substantive change to the law in Gaza since the British Mandate, such that no claim disputing the validity of the Defense (Emergency) Regulations in that region was ever made.

1967

The UN Human Rights Council calls on Israel to desist from demolishing the homes of Palestinians in the OPT> Following a New York Times item about punitive home demolitions in East Jerusalem, the Council passes a resolution, with a majority of seventeen to one (Israel), to send the Israeli government a telegram expressing its displeasure with home demolitions in the OPT. The US representative on the Council, who abstained, reads out a notice issued by the American State Department, according to which the Fourth Geneva Convention applies to Israel’s actions in the OPT, including East Jerusalem. See Davar newspaper article, March 10, 1968 [H]

1968

The legal advisor to the Ministry of Foreign Affairs in a classified legal opinion: punitive home demolitions in the OPT are a breach of international law Following international criticism over Israel’s policy in the OPT, the director general of the Ministry of Foreign Affairs commissions a legal opinion on “Blasting Homes and Deportation”. The opinion, written by Theodore Meron, later a leading world expert on international law, determines, among other things, that using Regulation 119 to demolish Palestinian homes is a clear violation of the Fourth Geneva Convention. Meron also notes that the legal argument that domestic law overrides international law – used by the Military Advocate General to defend the home demolition policy – “is unpersuasive”. Despite the clear determinations made in the opinion, it does not gain the attention of decision makers. On the contrary, it is filed away, fading from memory.

1968

The International Committee of the Red Cross condemns the demolition of homes in the OPT: collective punishment of innocent people cannot be justified under any circumstances. Internal correspondence of the Ministry of Foreign Affairs reveals that in Israel’s view the demolition of homes is “a lighter punitive action as compared to any other punitive act” On December 2, 1968, the ICRC President sends a telegram to the Israeli Minister of Foreign Affairs protesting the “new series of home demolitions committed in the last days of November by the security forces in Nablus and in Hebron”. The President notes that acts of reprisal or collective punishment – such as home demolition – are absolutely prohibited under the Fourth Geneva Convention, and demands that the Israeli government intervene to stop use of this illegal measure. The Ministry of Foreign Affairs refrains from responding to the issue raised in the telegram, but according to internal correspondence [H] between the Israeli ambassador in Geneva and various foreign ministry officials, Israel considers that “the demolition of homes cannot be avoided”, and even perceives it as a “lighter punitive action as compared to any other punitive act, which we would have had to use to deter hostile entities from committing terror activities”.

1968

Israel decides to reduce punitive home demolitions in the West Bank and to stop their use in East Jerusalem According to a letter titled “House demolition as punitive action” [H], sent to the Ministry of Foreign Affairs Deputy Head on December 16, 1970, “in light of the reduction in terror activities in Judea and Samaria”, the Ministry of Defense has decided to restrict use of the home demolition measure: “The basic policy remains – punishing active participation in hostile terrorist activity – but with the intent to follow the criterion more stringently. The penalty is to be employed only over the depositing of explosives or the possession of a weapon”. It is further stated that the Committee for the Security of Jerusalem has decided “to adopt the same policy and refrain from bombing or demolishing homes” given the “importance of maintaining the quiet in the east [side] of the city”.

1970

Internal brief of the Ministry of Foreign Affairs: Application of the Fourth Geneva Convention to the occupied territories would create complicated legal and political problems, among other things, regarding the demolition of homes The document [H] is written ahead of the visit to Israel of a member of the ICRC Assembly Council, and reviews the controversial issues the ICRC representative is expected to raise during his visit. According to the document, Israel’s refusal to recognize the applicability of the Fourth Geneva Convention to its actions in the oPt stems, among other things, from concern that the ICRC would intervene “in matters we have no wish for them to be interfered with”, such as the home demolition policy. On this matter, states the document, it must be explained to the visitor that “the demolition is carried out according to a law dating back to the British Mandate; and that also Jordanian legislation in the West Bank and Egyptian legislation in the Gaza Strip grant the authorities the power to demolish structures for reasons of security or defense. Our claim is that this punishment has a certain level of warning power, especially as we avoid imposing the death penalty”.

1971

The High Court of Justice legitimizes punishment as a deterrent... In a constitutive judgment [H] on the issue of home demolitions, the HCJ determines that Regulation 119 of the Defense (Emergency) Regulations, 1945 – being the domestic law which applied in the OPT even before the entry of the Israeli military – outrides other substantive provisions of international law, and therefore the military may use it to seal a room in a home, which was used by an OPT resident who was convicted of an offence. See also para. 6 of the opinion of President Shamgar in HCJ 897/86 [H] The court also rules that the unusual nature of the sanction, the express purpose of which is the deterrence of many, warrants its selective use.

1979

The High Court of Justice: exercising the authority to demolish a home under Regulation 119 is not conditional on a criminal conviction of any of its inhabitants The court rejects [H] a petition against the intended demolition of two homes of families whose members admitted to (but have not yet been convicted of) a murder. The court determines that the military commander may act pursuant to Regulation 119 without a criminal conviction; all that is required is that the evidence before him be such that a reasonable person would find it sufficiently inculpatory. However, the court also ruled that the Regulation may be used only in exceptional circumstances and following due discretion and diligent examination.

1982

The High Court of Justice rules punitive home demolition is not collective punishment In a judgment [H] upholding the demolition of three homes in the West Bank, the court rules that Regulation 119 is aimed at deterring also the people around the offender, and yet, does not constitute collective punishment. According to the justices, embracing an interpretation that precludes home demolitions when they may harm innocents would empty it of meaning, “leaving only the possibility of punishing a terrorist who lives alone and by himself in a home”.

1986

During the first intifada, Israel demolishes or seals over 860 homes in the OPT See B’Tselem report from November 2004, p. 17 A decision to demolish a home is largely arbitrary. It lacks clear criteria and depends on the military commander on the ground. The military demolishes the homes of individuals suspected of committing acts that threatened the lives of Israeli citizens or soldiers, and often, also of the homes of "suspected agitators" and those who forcibly resisted arrest. Additionally, the military demolishes the homes of people who are not immediately related to the suspect, and homes which suspects have rented and whose owners have no connection to the grounds for the demolition.

1988

The High Court of Justice rules that except when "military-operational needs" are concerned, prior warning of the impending home demolition must be served, and the occupants must be allowed to challenge the decision before the military commander and if need be, before the HCJ In "urgent cases", the openings of a home may be sealed – a reversible action – but in such a case also, the occupants must be advised of their right to contest, as stated. The judgment

1989

The High Court of Justice approves use of Regulation 119 even if the offender is only a renter According to the court [H], “were it to come out that any sanction can be avoided in advance by the perpetrator of terrorist actions using a rented apartment, the deterring power anticipated from use of said legal provision would be nullified”.

1989

The High Court of Justice revokes a punitive demolition order due to flaw in the factual basis underlying the decision to use Regulation 119 The court accepts, by majority vote, a petition against the planned demolition of a suspect’s home, given that some of the facts underlying the military’s decision had been wrong. The court rules the case should be referred for reconsideration by the military commander, stressing: “The decision of a public authority must be rooted in facts and figures which have been properly collected and examined prior to serving as the factual basis for its decision”. The judgment [H]

1990

The High Court of Justice rules that the reasonableness of a decision to issue a punitive demolition order can be measured also according to information revealed after the order is issued The court rules [H] that so long as the demolition order has not been implemented, justification and grounds for it can be found in all acts attributed to the suspect, “whether they were known at the time the order was issued or revealed thereafter”.

1990

The High Court of Justice lowers the threshold for use of Regulation 119, ruling the sealing of a home is a justified response to stone throwing that resulted in no damage The court allows [H] to seal the room of an OPT resident who was twice convicted of throwing stones at a moving vehicle, ruling that given the prevalence of such offenses, and the difficulty in apprehending the perpetrators, partial sealing does not exceed the proportionality required between the severity of the act and the severity of the response.

1991

An amendment to military law, which expands the military commander’s authority to use Regulation 119 and fills a legal gap, makes it easier for the state to demolish Palestinians’ homes Section 5b [H] of the Amended Order on Punitive Measures (Judea and Samaria) (No. 332), 5729-1969, stipulates that the military commander may use Regulation 119 inside the OPT also with respect to offenses committed outside them. The Amendment seeks to overcome the legal difficulty in using Regulation 119 against OPT residents when the offenses were planned and committed entirely within Israel, which is not subject to the military commander’s control.

1991

The High Court of Justice revokes a punitive demolition order because the targeted home was not the suspect’s permanent residence... The court revokes an order for the demolition of a home owned by a man whose teenage nephew admitted to attacking a suspected collaborator. The court rules that the uncle’s home, where the boy lived only temporarily, cannot be seen as the latter’s permanent residence, and therefore, the military commander may not use Regulation 119 in this case. The judgment [H] In early September 1991, the military issues a demolition order for the home of the boy’s father in Qalandiya Refugee Camp.

1991

The High Court of Justice rules that the military commander's authority to demolish a person's home pursuant to Regulation 119, is not restricted to the specific residential unit but applies to the entire building, regardless of the innocence of the other occupants ... In a minority opinion, Justice Cheshin determines that only the residential unit of the convicted offender should be demolished, otherwise the demolition constitutes collective punishment. However, he does rule that this would not be the case if family members knew of the actions, or “undertook” to turn a blind eye. The judgment [H]

1992

Justice Cheshin: the “spirit” of Regulation 119 has utterly vanished; the Regulation must now be interpreted according to Basic Law: Human Dignity and Liberty ... The High Court of Justice rules that the military commander's authority to demolish a home pursuant to Regulation 119 extends to every part of the home not used or owned by the suspect but by others, without need to prove that these occupants participated in the deed, encouraged it, or knew about it. Justice Cheshin, in the minority, reaffirms his position that "the military commander is not authorized to impose collective sanction".

1992

Israel demolishes or seals 65 homes in the OPT as punishment... See B’Tselem report from November 2004, p. 17 Following the Oslo Accords – namely, the establishment of the Palestinian Authority and the military’s practical difficulty to operate inside designated Area A the OPT – as well as public criticism and petitions filed to the High Court of Justice, the number of home demolitions declines. In this period, Israel only demolishes the homes of families of suspected perpetrators and instigators of suicide attacks.

1993

In a rare step, the High Court of Justice orders the reduction of scope of a planned punitive demolition due to “proportionality” and “reasonableness” ... The court partly grants the petition of a mother of a man convicted of murder, against the demolition of her home, in which ten members of the family live. The court finds the intended demolition of the entire home disproportionate and hence unreasonable, and orders a partial sealing instead. The judgment [H]

1993

During the Oslo Accords period, Israel removes twelve sealings in the West Bank and approves reconstruction of one demolished home... See response of the Coordinator of Government Activities in the Territories from 8.6.1994 to B’Tselem’s letter [H]

1994

The High Court of Justice approves the demolition of the home of a Palestinian who died while carrying out a suicide attack: this is the first time the court legitimizes use of collective punishment against relatives of a dead man ... In the minority, Justice Cheshin opposes the ruling and reaffirms the basic principle whereby "each person shall be liable for his own crime and each shall be put to death for his own wrongdoing". The judgment [H]

1994

HaMoked to the High Court of Justice: the demolition of the homes of assailants' families constitutes collective punishment, which is prohibited under international law and violates the basic principles of Israeli law ... HaMoked petitions the court on behalf of two families whose homes are subject to military demolition orders. One is the family of a suicide bomber and the other of a man who was arrested for planning an attack against Israelis. HaMoked argues, among other things, that the innocent should not be punished, and that the action is expressly intended for deterrence, which has been proven ineffective. Petitions HCJ 1824/96 [H] and HCJ 1825/96 [H]

1996

The High Court of Justice rejects HaMoked's petitions. The court rules that demolition orders for homes where assailants resided may be suspended and implemented following attacks against Israelis perpetrated by others ... In a minority opinion, Justice Dorner holds that a demolition order should not be implemented following attacks by assailants unrelated to the household in question. Justice Cheshin, however, no longer stands by the principle that “each shall be put to death for his own wrongdoing”, and sides with the majority: “In a war like in a war: what business does the court have to order a military commander what to do and what not to do?”. The judgment Critical commentary of the judgment

1996

The High Court of Justice: the Defense (Emergency) Regulations remain valid although they conflict with the provisions of Basic Law: Human Dignity and Liberty ... The court, however, determines [H] that the authority vested by the Defense (Emergency) Regulations must be interpreted in light of the limitations clause set out in the Basic Law.

1996

Israel de-facto ceases to demolish homes under Regulation 119 of the Defense (Emergency) Regulations

1998

During the second intifada, Israel demolishes 664 homes for punitive reasons; about half of the homes are demolished only because they are adjacent to the homes of suspected assailants... See B’Tselem report from November 2004, pp. 7-8, 17; Data on B’Tselem’s website Starting in October 2001, Israel resumes its policy of demolishing homes of suspected assailants’ families as a means of "deterrence" in its fight against suicide attacks. The military rarely issues demolition orders or gives the occupants prior notice of the intended demolition as required under its undertaking to the High Court of Justice. Throughout this period, home demolitions are carried out not only following suicide attacks, but also following other violent activities and attempted assaults against soldiers, for which the perpetrators have been sentenced to long prison terms.

2001

HaMoked files nine more petitions to the High Court of Justice: order the military to grant the right to a hearing ... The petitions concern cases of exceptional circumstances, such as an occupant's medical condition. On the following day, the court dismisses the petitions and determines that each family may appeal to the military in writing ahead of time and explain its exceptional circumstances. The judgment, which has no bearing on reality, all but eliminates the possibility of challenging this matter in court.

2002

The High Court of Justice: the military may deny the right to a hearing prior to demolition ... In its judgment on HaMoked's petitions, the court rules that the right to a hearing can be denied if there is cause for concern that such a hearing would jeopardize the lives of soldiers or the success of the operation. The court decision gives the military the power to grant or deny the right to a hearing – not just in wartime operations, but also in punitive operations against civilians. The military regards this judgment as a blanket approval. Given its contention that prior notification increases the risk that the home would be booby-trapped and the demolition force injured, the military sees no need to revise its practice – which contravenes international law – and unfailingly continues to refrain from issuing demolition orders and granting the occupants the right to a hearing.

2002

HaMoked to the High Court of Justice: order the military to allow 35 families of suspected assailants to exhaust legal procedures before the demolition of their homes ... The petitions are filed after the military demolishes nine homes of assailants' families in early August, without providing prior notice or even allowing the families to remove their belongings from the homes. With first news of the military operation, HaMoked sets up a 24/7 hotline for emergency calls on home demolitions. By the time the petitions are filed, the military has already demolished three of the homes at issue. The petitions seek to compel the military to abide by the judgment of the High Court of Justice issued during the first intifada: prior notice of demolition must be given to allow the families the right to contest the demolition ahead of time, and to rescue their belongings. Petitions HCJ 6696/02 [H] and HCJ 6738/02 [H]

2002

The Israeli security cabinet resolves to renew the policy of home demolitions for deterrence ... The decision is passed nine months after the policy is renewed in practice. See para. 9 of the state’s response to HaMoked’s petition in the Bahar case [H]

2002

Following HaMoked's petition, the High Court of Justice stipulates: a decision to demolish a home without a prior hearing, must be supplemented by a well-supported document from the military legal advisor for the West Bank ... The petition The judgment [H]

2003

The UN Human Rights Committee: Israel contravenes international law; it must immediately cease all punitive home demolitions in the OPT ... The Committee deplores the demolition of homes of families of individuals suspected of involvement in terrorist activities and concludes that Israel contravenes their rights to housing, equality before the law and protection from inhuman treatment. Para. 16 of the Concluding observations of the Human Rights Committee

2003

The High Court of Justice rules that the military must present a written order citing the source of authority and the reasons for the decision ... In its judgment [H] on HaMoked’s petition, the court reaffirms the obligation to grant, as far as possible, a hearing in advance, as well as the obligation to present a written explanation for a decision to deny such a hearing.

2003

Internal military report determines: there is no proof that home demolitions have a deterring effect ... The report is circulated within the military to sum up the first 1,000 days of fighting of the second intifada; it also states that the number of attacks against Israelis rose some months after the resumption of the home demolition policy in the West Bank. See Amos Harel and Avi Issacharoff, "The Seventh War: How We Won and Why We Lost the War with the Palestinians", p.163 [H]

2003

The Chief of the General Staff appoints a committee to review the policy of punitive home demolition in the OPT... The committee, headed by Major General Ehud Shani, is established following fierce criticism voiced by the international community as well as intensive legal work by HaMoked (including 67 High Court petitions against punitive demolitions filed between January 2002 and October 2004). The committee is tasked with examining the effectiveness of home demolition of two kinds: as a punitive measure officially presented as deterrence, and as an act of “military need” as part of operational activity.

2004

The Minister of Defense accepts the recommendations of the military committee headed by Major General Shani, and decides to cease use of home demolitions as punishment... Haaretz newspaper article, February 17, 2005 The policy shift is announced as part of the state's supplementary notice [H] in response to HaMoked's petition to order the military to refrain from demolishing the home of a suspected assailant’s family. The summary of the Shani Committee Report was submitted in 2008 (as a computer presentation [H]) during proceedings in another petition by HaMoked. The military committee has recommended ceasing the use of home demolitions as a deterrent, and asserted that "the IDF […] cannot tread the line of legality, let alone, the line of legitimacy!!!” (sic).

2005

Israel temporarily ceases to demolish homes under Regulation 119 of the Defense (Emergency) Regulations

2005

Contrary to the recommendations of the military committee (the Shani Committee): Israel announces its intention to demolish the home of an assailant's family in the East Jerusalem neighborhood of Jabal al Mukabber... Military notice of intention to seize and demolish the home

2008

The High Court of Justice approves the resumption of the punitive home demolition policy: for the first time since 2005, a home is sealed under Regulation 119 of the Defense (Emergency) Regulations... The HCJ rejects HaMoked’s petition and approves the sealing with concrete of two floors in a home where the family of an assailant lives in the East Jerusalem neighborhood of Jabal al Mukabber. The court rules there is no flaw in the state’s decision to resume the home demolition policy, given the change of circumstances.

2009

Israel temporarily ceases to demolish homes under Regulation 119 of the Defense (Emergency) Regulations

2009

The High Court of Justice continues to legitimize use of Regulation 119 of the Defense (Emergency) Regulations, and allows the military to demolish part of an East Jerusalem apartment building owned by an assailant's father ... The judgment

2009

The Jerusalem Magistrates' Court rejects HaMoked's civil claim, filed on behalf of the family of a suicide bomber, for substantial property damage caused in the demolition of their home ... The court rules [H] that the demolition of the family's home – carried out a year after the suicide attack – constitutes a wartime action, for which, under the Civil Wrongs (Liability of the State) Law, the state is exempt from paying any compensation to those harmed. The court further determines that the demolition was valid, regardless of the fact the plaintiffs were denied their right to a hearing and a demolition order was not issued in writing. Moreover, the court finds it acceptable that the family was given 25 minutes to remove their possessions from the home. Despite the extensive damage caused by the blast – including dead livestock, uprooted fruit trees, destroyed cars and damage to adjacent buildings – the judge determines that "The plaintiffs have failed to prove any negligence on the part of the defendant’s soldiers. On the contrary, they have proven maximum caution [had been exercised], which I hardly think is similarly exercised by any other military in the world". The civil claim

2009

The military retracts its plan to demolish the home of a tractor driver who ran over and wounded passersby in Jerusalem, after it is revealed he was under the influence of drugs at the time... Further details

2010

Eight years after the military demolished a home in Hebron: Israel will compensate a neighbor whose apartment and possessions were damaged by the uncontrolled blast... In May 2003, the military demolished the fourth-floor apartment of a residential building in Hebron. The entire building was severely damaged in the explosion. The family living in the apartment directly below filed through HaMoked a civil claim against the State of Israel for the substantial and unjust damage to their property, caused by the blast of the neighbor’s apartment. The court endorses the settlement reached by the parties, whereby the state will pay the plaintiff a total of NIS 45,000 in compensation. Further details

2011

The High Court of Justice permits the demolition of an East Jerusalem home, slated for punitive demolition since April 2009... The court rules [H] that the state’s decision to demolish one floor and seal one residential unit in a building that belongs to the family of an assailant is “reasonable and proportionate”. However, the court does recommend the state refrain from implementing the demolition given “the elapsed time between the incident and issuance of the order at issue, and since [the petition] hearing and until today, and [in consideration for] the changes in the security situation, insofar as such occurred”. On 5.7.2012, the Minister of Defense signs a partial pardon, revoking the demolition order for the top floor of the building, where the assailant’s parents and sister live. The order for the sealing of the unit occupied by the assailant himself remains intact, but is unimplemented to date. See para. 6 in the state’s notice in HaMoked’s petition in the Atrash case

2012

The State Attorney's Office: the authority to demolish assailants’ homes will be exercised in "extreme cases"... In response to HaMoked's letter against the resumption of the punitive home demolition policy, the State Attorney’s Office says: "The security establishment is well aware of the ramifications of exercising the authority [granted] under Regulation 119”, and therefore the authority is "very prudently" exercised. It further holds that according to the security establishment, the two attacks which prompted the recent decision to exercise this authority were "extremely severe", adding that "any other case will be examined according to its specific circumstances".

2014

The High Court of Justice dismisses the public petition against the punitive demolition policy: the state has the authority to demolish homes pursuant to Regulation 119, but must use it proportionately... The court accepts the state’s argument that home demolitions are carried out as a deterrent rather than a punitive measure, but adds that the issue of the actual deterrence produced by the policy should be addressed in future. The court also adds that in future cases, it will ask the state to produce actual evidence of the existence of such deterrence. On November 12, 2015, the court denies the petitioners’ request to hold a further hearing in the petition before an expanded panel of justices. Court President Naor rules that “the proceeding of further hearing is not designed for renewed discussion of matters not addressed in the judgment”, and therefore “is not the appropriate setting for presenting such arguments”.

2014

The High Court of Justice issues an order nisi requiring the state to explain why it should not refrain from demolishing an East Jerusalem home... In the case concerning the family home of the shooter of a right wing activist, the court rules that “part of the considerations for using the Regulation [119] is the outcome of the act”, and concludes that given as fact that the right wing activist survived the attack and his medical condition has been improving, is significant in determining the proportionality of the demolition decision. In this case, the court opts to ascribe value to the fact that no allegation was made regarding involvement by family members in the attack, or even knowledge of the plan to commit it. In light of this, the court orders the state to again provide reasons why the demolition is required, and implies that a partial sealing of the home would be a more proportionate course of action. Following the state’s announcement that it would seal the room used by the shooter without harming the rest of the home, the court rules on June 15, 2015, that the decision is “moderated” and proportionate, and approves the sealing.

2014

HaMoked leads a public petition by a group of human rights organizations asking the High Court of Justice to instruct the state to desist from the illegal practice of punitive demolitions in the OPT, including East Jerusalem... In the petition, the organizations claim the court should revisit arguments regarding the legality of using Regulation 119, as they have not been reviewed on their merits since the 1980s, when the two earliest judgments on home demolitions were handed down. The petition is supported with an expert opinion from leading Israeli experts on international, constitutional and military law. The opinion maintains that the punitive home demolition policy constitutes a grave breach of international humanitarian law, the international law of occupation and international human rights law, and that it also contradicts the fundamental principle of Israeli law, whereby individuals should not be punished for acts they did not commit. The opinion also stresses that in certain circumstances, the home demolition policy may constitute a war crime, and that employing it legally jeopardizes everyone involved in its implementation

2014

Following a succession of attacks against Israelis in Jerusalem and the West Bank: the Prime Minister instructs military officials to advance the demolition of the homes of the attackers... PMO press release, November 10, 2014 PMO press release, November 18, 2014

2014

The High Court of Justice allows the military to demolish three Hebron homes belonging to the families of the suspects in the abduction and murder of three Israelis... The court accepts that state’s position that there is a "substantial and urgent need" to deter West Bank residents from committing abduction and murder attacks against Israelis, and rejects HaMoked’s petitions on behalf of the three families.

2014

The High Court of Justice rejects HaMoked’s petition against the demolition of the Idhna home, sanctioning the resumption of the punitive demolition policy ... The court dismisses the argument that the military’s decision is tainted with extraneous considerations prompted by the abduction of three Israelis, and rules that the military may change its policy due to changing circumstances. The judgment

2014

After five years of refraining from punitive home demolitions: Israel announces its intention to demolish a home in the village of Idhna in the Hebron District, belonging to the family of a suspected assailant... Notice of intent to seize and demolish the structure The demolition order, relating to an attack from April 14, 2014, is issued in response to the abduction of three Israeli youths in Gush Etzion. Haaretz newspaper article, June 16, 2014

2014

The High Court of Justice: once approved by the court, the timing of a punitive demolition is at the military’s discretion... The court dismisses HaMoked’s argument that it is impossible to still rely on the claim of deterrence eight months after the attack which prompted the decision, upheld by the court, to demolish a home in East Jerusalem. The court rules that a delay in implementation is not a flaw justifying revocation of a punitive demolition order. The judgment

2015

The High Court of Justice: the proportionality principle, which restricts the military commander’s discretion in issuing demolition orders, also applies to the duration of the confiscation of the structure, including the land on which it stood, subsequent to the demolition... In a judgment upholding the demolition of a cooperative-owned home in Surda, the HCJ rules that that if, after a certain period, an application is submitted to cancel the structure’s confiscation for the purpose of rebuilding, it must be considered according to the principle of proportionality.

2015

Justice Mazuz: the onus of substantiating the facts that support targeting a residence under Regulation 119 lies entirely with the state... The High Court of Justice dismisses HaMoked’s petitions against the military’s decision to demolish two homes in Jabal al-Mukabber, East Jerusalem, where the families of two men who carried out attacks in the city live. One of the assailants, it should be noted, witnessed the punitive demolition of his cousin’s home a week before carrying out his own attack. Justice Mazuz, in the minority, repeats his principled position that “a sanction which directs itself to harm innocent people, cannot be upheld”. In reference to one of the petitions, where the identification of the assailant’s apartment has been called into question, Mazuz stresses that in cases involving a serious impingement of constitutional rights, the level of proof required of the state is “clear, conclusive and compelling evidence”.

2015

The High Court of Justice orders the revocation of another punitive demolition order due to the state’s significant delay of some 11 months in its issuance... With a two to one majority, the court accepts HaMoked’s petition to order the military to refrain from demolishing a home in Askar Refugee Camp in Nablus. Justice Mazuz rules that “refraining from using the authority soon after the incident constitutes a decision not to use the authority; and therefore, after a significant period of time has elapsed – and particularly against the backdrop of new and different circumstances – the military commander may not turn back time and decide to employ the sanction for the original incident”. On the other hand, Justice Zylbertal rules the order must be revoked due to the unreasonable exercise of authority, rather than the lack of authority per se. According to Justice Zylbertal, “exercise of the authority […] a year or so after the murderous acts of […] would not, in any case, lead to the desired and legitimate outcome of deterrence”. The practice of delaying the implementation of a demolition order comes to an end following this judgment. Dozens, if not hundreds, of homes in which Palestinian assailants once lived are thus saved from demolition.

2015

Justice Mazuz: the renewed use of Regulation 119 in the OPT raises serious questions not only with respect to international law, but also in terms of Israeli law... The High Court of Justice dismisses HaMoked’s petition against the military’s decision to demolish a Nablus home where a suspect in the planning of an attack has lived. In a minority opinion, Justice Mazuz notes that the determination that home demolitions pursuant to Regulation 119 are a deterrent rather than punitive measure is “not free of doubts”, and so is the determination that this regulation is valid as a provision of domestic law, which prevails over international law. Mazuz also notes that an examination of Regulation 119 according to the rules of Israeli administrative and constitutional law might compel restrictions and qualifications as to its use, including: A distinction between a home which is the home and property of the assailant and a home in which the assailant is an “additional resident”, such as the home of their parents; A distinction between cases in which the home was actively used for the assailant’s criminal acts, and cases in which the assailant used the home solely as a residence; A distinction between cases in which the assailant’s family members, living in the home slated for demolition, were accomplices in his acts, and cases in which the family members were not even aware of the assailant’s plans; Restrictions on the timing of the order’s issuance and implementation; A distinction between cases in which use of Regulation 119 must be subject to a criminal conviction, and cases where this is either unnecessary or impossible; Proper correlation between the severity of the acts and the severity of the sanction (seizure only; sealing – partial or complete; demolition – partial or complete).

2015

In a judgment revoking a demolition order issued for a rented apartment and upholding the demolition of five other housing units located in residential buildings, the High Court of Justice rules: when innocent third parties may sustain harm, the rule should be compensation or repairs... The judgment concerns 11 petitions (ten of them filed by HaMoked) against plans to demolish six family homes of Palestinian attackers or suspected attackers; six petitions on behalf of the targeted families and five on behalf of the neighbors or the owners. The court rules that the classified material presented by the state ex parte does not indicate that the harm to a third party – who has no family or other tie to the assailant and his family – produces deterrence. The court also rules, for the first time, that in cases where the assailant and his family lived in a rented home on a short term basis – which does not evoke a strong “residency tie” to the home – the demolition is disproportionate given that the lessor would sustain most of the damage. Therefore, the justices rule in favor of the Silwad lessor and decide that the apartment he has leased for a year to the suspect’s family would not be demolished, subject to the eviction of the family. The court elects not to intervene in the decision to demolish the other five housing units, but rules that should any collateral damage occur, the state would have to repair it or provide compensation to any injured party who is not related to the assailant or suspect and did not know about his plans; compensation and repair are warranted even when there was no negligence on the part of the security forces. Following this ruling, the state reduces use of explosives in home demolitions and employs more cautious methods (using mechanical equipment, manual demolition of internal walls, injecting foaming materials to fill up spaces, etc.), in order to avoid having to pay compensation.

2015

The High Court of Justice allows the military to demolish an apartment in a residential building in Hebron, where an assailant has lived. Justice Vogelman, in the minority, expresses doubts over the effectiveness and proportionality of using Regulation 119 for deterrence... The court dismisses two petitions filed by HaMoked against the planned demolition of an apartment – one petition on behalf of the assailant’s wife and two young children, the other on behalf of the eight other families living in the same building, given the potential damage to their apartments and belongings. The justices note that in the case of unreasonable damage to the neighbors’ apartments, “the possibility of compensation remains open”. On the issue of the amount of time – over nine months – that elapsed from the attack until the issuance of the demolition order, the court rules this is insufficient to tip the scale. However, for the first time, the judgment includes a normative directive that “insofar as there is an intention to demolish, it must be communicated at the closest date possible to the criminal act in question”. Justice Vogelman, in the minority, maintains that the delay in exercising the authority calls for the issuance of an order nisi in the petition of the assailant’s family; and notes that, were it not for the binding precedent, he would have suggested “that we revisit the judicial precedent to fully examine all issues which may arise under domestic and international law”.

2015

After a string of “lone-wolf” attacks: the Security Cabinet gives the go ahead to continuing home demolitions for deterrence ... The cabinet also affirms no new construction is to be permitted where a home was demolished pursuant to Regulation 119. PMO press release, October 14, 2015

2015

The High Court of Justice revokes a punitive demolition order: Regulation 119 can be used against individuals “indirectly” involved in an attack only if it has been proved that their actions had a decisive effect on the “attack’s materializing”... The court revokes the demolition order, ruling unanimously that the state had not established a sufficient evidentiary basis for using Regulation 119. In the case of another demolition order, also considered in the judgment, the court rules that the home occupant’s involvement in the attack was central and significant and that his actions had met the “high bar of gravity”, which is sufficient for exercising the authority under Regulation 119. Justice Baron, in a minority opinion, rules the demolition order should be canceled in this case as well, given that the family was not involved in the suspect’s actions either directly, indirectly or “constructively” (i.e. by “turning a blind eye”). In these circumstances, she stresses “the demolition of the home constitutes a disproportionate violation of human rights of the highest order”. And compare with the judgment in HCJ 8031/16 [H]

2016

The High Court of Justice, in a majority decision, approves another planned punitive demolition in Hebron, although Justices Vogelman and Mazuz favor a revisitation of the binding precedent... Justice Vogelman writes his position has been strengthened “that the weighty questions associated with the exercise of the authority under Regulation 119 should be revisited”, but that “as long as the binding precedent stands… I see no alternative in this case but to hold that there is no cause for our intervention”. Justice Mazuz, who, in a minority opinion, finds the petition should be granted, joins the call for a revisitation by an expanded panel of the issues of principle affecting use of the Regulation. The judgment

2016

The High Court of Justice: the proportionality principle requires refraining from demolishing an entire home when it is possible to make a “clear distinction” between the part of the home used as the perpetrator’s dwelling and the parts used by his family... In a unanimous judgment upholding two punitive demolition orders – one of them partially – the court stresses that “the principles of reasonableness and proportionality should be meticulously adhered to also when a severe and deadly attack is concerned”.

2016

HaMoked: the practice of surveying Palestinian homes with no intention of using Regulation 119 is clearly a measure of intimidation against innocents and the military must desist from it immediately... Further details

2016

The High Court of Justice issues an order nisi in two petitions filed by HaMoked: the suspects were part of the outer circle of perpetrators and their cases warrant further review... The court rules that expanding use of Regulation 119 also toward indirect perpetrators is not a simple matter and requires in-depth review, both in terms of the factual basis and in terms of proportionality.

2016

UNRWA: punitive demolition of homes located within UN refugee camps in the OPT is an inhuman act, and a blatant violation of international law and the human rights of Palestinian refugees In a position paper submitted to the state in a petition filed by HaMoked, UNRWA condemns Israel’s decision to demolish two homes in Qalandiya Refugee Camp. The High Court of Justice ignores the position, and, on June 14, 2016, permits the demolition [H] of the homes.

2016

HaMoked to the High Court of Justice: the time has come to revisit the legality of using Regulation 119 before an expanded panel... In the framework of a petition against a punitive demolition order issued for a Qabatiyah home, HaMoked asks for a hearing before an expanded panel on the issues of principle connected to punitive demolitions. HaMoked notes HCJ justices increasingly voice reservations regarding use of Regulation 119 – some criticizing the demolition policy outright, while others consider themselves bound by existing precedent, fearful that a departure from it would turn this “court of justice” to a “court of justices”. This judicial conformity, on one hand, and the increased use of Regulation 119 on the other, result in the demolition of scores of family homes. See Haaretz newspaper op-ed, April 4, 2016 [H] On May 2, 2016, the President Naor denies the request: “I have not been persuaded that there is at present instability in the case law to such a degree as warrants the expansion of the panel”.

2016

The High Court of Justice rules that the military’s decision to seal three homes in East Jerusalem is disproportionate and must be revoked: the severity of the measure does not correlate to the severity of the act ascribed to the defendants ... The HCJ accepts three of four petitions filed by HaMoked against the military’s decision to seal the homes of four families from Sur Bahir, whose members were accused of involvement in a rock throwing attack, in which an Israeli civilian was killed. The court rules that in the case of the youth suspected of having thrown the rock, the measure was proportionate, but not so in the case of the other three youths who played a small part in the incident. In a minority opinion. Justice Vogelman rules there is room to consider confining the sealing to the youth’s room alone, explaining that though he is alleged to have thrown the lethal rock, no “intent to kill” is ascribed to him. Justice Vogelman also notes that as no allegation has been made regarding involvement on part of the family, the sealing of the entire home cannot be considered proportionate.

2016

The High Court of Justice permits the demolition of three homes in Qabatiyah in a majority decision: Justice Joubran, in the minority, joins the call for an expanded panel to revisit the issue of punitive demolitions... Justice Joubran notes that he has not been convinced that the classified material the state presented during the hearing sufficiently supports the conclusion that use of home demolitions creates substantive, effective deterrence against future attacks. Justice Joubran writes, “In my view, an abstract possibility to save lives does not suffice while confronted by actual, real and tangible violation of the right to property and human dignity”. The Judgment

2016

The High Court of Justice orders the revocation of a punitive demolition order due to lack of sufficient residency tie between the suspect, a student who lived in the dorms, and his parents’ home, slated for demolition... By a majority of two – against the opinion of President Naor – the HCJ grants HaMoked’s petition to instruct the military to refrain from demolishing a home in Qarawat Bani Hassan, Salfit District, where the parents and siblings of a student suspected of involvement in an attack live. Justice Mazuz rules that since the suspect has lived in student dorms for the past three years, he cannot be considered an “occupant” of the parents’ home and as such, the military is not authorized to take action against the home under Regulation 119. Justice Mazuz also rules that even if the student could have been considered an “occupant” of the home, the decision to demolish it would not have met the tests of proportionality and reasonableness, given the family’s lack of involvement and the lack of connection between the home and the attack in question. Justice Baron, on the other hand, finds the student does have a residency tie to the home, albeit a “weakened tie”, and chooses to focus on the question of the family’s involvement in the son’s actions in order to review the proportionality of the demolition decision. Baron holds that the weakened residency tie in this case indicates that even constructive knowledge (“turning a blind eye”) of the son’s plans cannot be ascribed to the family, therefore the decision to demolish the home is disproportionate and must be revoked.

2016

Justice Zylbertal: any decision to use Regulation 119 should be made only after the exhaustive collection of administrative evidence is complete... The High Court of Justice rules in a majority decision that the fatal running over of a border police officer by a Palestinian was a terrorist attack rather than a car accident, and approves the demolition of the family home in Hebron. Justice Zylbertal, in a minority opinion, rules that the military did not make enough effort to collect evidence that might have cast the incident in a different light, and stresses that given the severity of this measure, weight should be given also to the evidentiary “gap” that could have been filled.

2016

The military retracts its plan to demolish a home in the village of Beit Ur a-Tahta, after it has come to light that this had been rented property and that the assailant’s family had moved out of it some time ago... The response [H] to an objection on behalf of the owner, filed by JLAC, states: “Having reviewed the details of the objection, the military commander has decided that there is no room for use of the authority in the case at hand”. This retraction is a result of the High Court of Justice’s judgment from November 12, 2015, which established that the demolition of a home on short-term lease from a nonrelated person is disproportionate and unproved to serve as a deterrent.

2016

A public spectacle: the police allow slain victim’s parents to attend the punitive sealing of the assailant’s family home Video footage from the Arutz Sheva website, March 22, 2017 Following HaMoked’s complaint regarding this improper and distasteful step, the state undertakes not to approve further requests for the presence of victims’ families during the implementation of demolition or sealing orders.

2017

The High Court of Justice rejects a petition for the demolition of the Jewish assailants’ family homes: “we are dealing with a deterrence tool and not a punitive one”... The court dismisses the petition of a Palestinian family for the demolition of the homes of three Israeli Jews who burned to death the family’s son in July 2014. The grounds for the rejection is the excessive delay between the murder and the filing of the petition. The justices do not accept – on the principle level – the state’s position that there is no need to employ the home demolition measure towards Jewish assailants. However, the court rules that “given the difficulties arising from the exercise of the authority under Regulation 119, and with deterrence being the only justification for its exercise, it seems that it would not be right to extend it to other attribution groups, regarding whom, even the state, at this stage, considers [this measure] unnecessary”.

2017

Justice Mazuz: Refraining from employing the sanction under Regulation 119 towards innocent family members does not contradict the deterrence purpose but rather is in line with it... The High Court of Justice approves [H] the demolition of a three-story building in Beit Sourik, among other things, having been convinced that the assailant lived there alone prior to the attack: “In the circumstances at hand, this is not a matter of demolishing the family members’ place of residence but of monetary damage, and there is no concern that the petitioners would remain without a roof over their heads”. Justice Mazuz, in the minority, holds that as the assailant had been killed and in view of his relatives’ non-involvement in his deeds, the demolition order should be cancelled and thus form an incentive to prevent attacks once the intention to carry them out is known”.

2017

The military retracts its intention to demolish a home in ‘Aqraba given “the circumstances at hand”... Haaretz newspaper article, September 5, 2018 [H]

2018

Justice Karra: Expansion of a demolition order to achieve extra deterrence is an irregular step that is both unreasonable and disproportionate ... The High Court of Justice adopts [H] the military’s position that the four-story residential building in al-Am’ari Refugee Camp should be completely demolished, despite the fact that initially, the military notified the assailant’s family it would only demolish the building’s first and fourth floors – to which the assailant had distinct residential affinity. Justice Karra, in the minority, holds that the decision to expand the demolition’s scope does not meet the tests of proportionality and reasonableness, especially as it relies on a demolition order issued in the matter of the building back in 1990. He concludes that “the authority [pursuant to Regulation 119] must be used in a degree that does not exceed the necessary, such that the chosen measure should cause the least degree of damage possible for attaining the purpose” and determines that only the two floors should be demolished.

2018

During proceedings in a petition against the punitive demolition of a home in Shweikah, it is revealed that in his will, the assailant referred to punitive demolitions as one of the motives for the attack... In the judgment [H], Justice Barak-Erez writes: “Personally I find it disturbing that the will left by the assailant in this case mentioned ‘house demolitions’ as one of the motives underlying his lethal decision, rather than as a deterring factor”. Nonetheless, the High Court of Justice rejects HaMoked’s claim that it is questionable whether the extreme measure of home demolition is effective as a deterrent, and allows the military to demolish the home.

2018

Justice Karra: The minor age of an assailant should be taken into account when considering use of Regulation 119 ... The High Court of Justice allows the demolition of the top floor of the family home of 16.5-year-old Palestinian who stabbed a man to death at the Gush Etzion junction, rejecting HaMoked’s argument that the young age of the stabber – who quarreled with his family and sought to bring ruin on them – affects the attributable severity of his actions and also the deterrence purpose. Justice Karra, in the minority, maintains the demolition order should be revoked: “The issuance of a demolition order for the entire residential apartment by the military commander, without his restricting it to the room in which the assailant had lived, shows that no weight was given to the minor age and the motives that drove the assailant [to the act]”.

2019

Israel continues to employ its shifting and arbitrary policy of punitive home demolitions which defies international law... The High Court of Justice rejects a petition against the military’s decision to demolish two apartments in a residential building; the intended future apartment of a man charged with the assault and murder of a young Israeli woman, and the apartment where he lived with his parents. Justice Karra, in the minority, holds that special weight must be given to the fact that the parents expressed clear disavowal of their son’s deed and asked that their son should face the full weight of the law; and determines that the demolition should be limited to the accused man’s apartment only.

2019

The High Court of Justice revokes a punitive demolition order: the excessive delay in its issuance casts doubt on its effectiveness for deterrence – particularly as it was issued some two months after the demolition of homes of others involved in the attack ... In a majority of two justices to one, the court accepts HaMoked’s petition to order the military to refrain from demolishing a second floor apartment in a building in Beit Kahil, Hebron District. In the judgment, Justice Baron rules that “The passage of time results in the severing of the ‘mental link’ between the murder and the sanction for it, so that already when the demolition order was issued, its power of deterrence was questionable; and in the absence of the deterrent effect, the demolition order appears to be merely punitive, and as such is unreasonable and disproportionate”. She also stresses that the family members living in the home were not involved in any way in the attack – neither at the time nor by showing support after the fact – and therefore, “already on these grounds, there is a real concern that the demolition order is used as a purely punitive sanction”. Justice Vogelman rules that the delay in exercising the authority harms both the private interest of the occupants of the home – as it leaves them in complete uncertainty about the fate of their home – and the public interest in the deterrence of many, and as such it tips the scale between the alleged benefit of deterrence and the violation of the petitioners’ rights.

2020

The High Court of Justice rules the military’s decision to completely demolish an apartment of a family of nine is disproportionate and must be cancelled: Those who have done no wrong must not be punished for another person’s actions... In a majority opinion, the HCJ accepts HaMoked’s petition to order the military to refrain from demolishing an entire floor of a residential building in Ya’bad, Jenin District, from which a Palestinian man, the father of the family, threw a block, killing an Israeli soldier. Justice Mazuz rules that “the principle of proportionality requires mitigating the harm, by replacing the demolition with the partial sealing of the home”. This, given that the demolition of the home would primarily harm the wife and children, who continue living there and to whom no involvement in the act is attributed – neither in giving assistance, foreknowledge, or support after the fact. Justice Karra stresses that the innocent must not be punished by demolishing their home; however, “given the particular link” of the targeted home to the attack, he joins Justice Mazuz’s comment as to maintaining the military commander’s authority to replace the demolition order with an order to seal one room in the apartment. The two justices repeat their principled position that using the authority under Regulation 119 raises a range of difficult legal questions that have not yet been adequately addressed by the HCJ’s case law; hence, there is room to revisit these questions before an extended panel of the court.

2020

Justice Karra: Disproportionate damage to the property of innocent family members who did not support and even disapproved of their relative’s actions, constitutes collective punishment and might achieve the opposite of deterrence ... From the time punitive home demolitions were resumed in July 2014 until the end of August 2020, the military had demolished 58 homes in the West Bank (6 of them in East Jerusalem), and sealed 10 (5 in East Jerusalem). During the same period of time, following petitions filed by HaMoked, the High Court of Justice revoked 9 punitive home demolition orders. In each of these cases, the court focused its criticism on the reasonability and the proportionality of the decision. The justices acknowledge that the home demolition policy raises constitutionally and morally “difficult questions”, but refrain from addressing these questions on the claim that case law is binding and cannot be departed from so long as the “judicial climate” has not changed. The exceptions are Justice Mazuz and Justice Karra, who consistently challenge the existing case law on the legality of the policy and insist on renewed deliberations over Regulation 119.

2020