1. Introduction
The practice of house demolition (HD) in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to HD pursued for planning or operational purposes) has attracted voluminous literature, most of which is critical.Footnote 1 Scholarship has established that the practice is immoralFootnote 2 and ineffective,Footnote 3 that it is contrary to Jewish moralsFootnote 4 and international law,Footnote 5 and that it may amount to an international crime.Footnote 6 Some of the critical writings focus on the practice of the Israel Defence Forces (IDF); others concentrate on the failure of the Israeli Parliament to curb the practice,Footnote 7 while others examine the practice in its wider context, namely the Israeli–Palestinian conflict.Footnote 8 This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, KretzmerFootnote 9 and Simon,Footnote 10 who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive.
This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's HD jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories.Footnote 11 This comparison supports the article's thesis: in handling HD measures the Court is unfaithful to its own jurisprudence.Footnote 12 Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions and concludes with the call that if and when the issue of HD is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law. The findings of this article serve as a stepping stone for an analysis, to be published elsewhere, of the alternative explanations for the Court's deviation from its own principles.Footnote 13
2. Legal Apparatus
In its capacity as the Mandatory Power in Palestine, the United Kingdom promulgated the Emergency Defence (Temporary Provisions) Regulations of 1945, pursuant to the Emergency Powers (Defence) Act 1945 (British Imperial Statute).Footnote 14 Regulation 119 of this enactment (‘the Regulation’) granted the British Commander in Palestine broad discretionary authority to demolish and seal off houses and that authority was exercised inter alia, for deterrence purposes.Footnote 15 With respect to the West Bank and East Jerusalem, Jordan inherited the Regulation following the end of the Mandate and adopted it through its internal laws; in the aftermath of the Six Days War (June 1967) and in the wake of the occupation of the West Bank, East Jerusalem and the Gaza Strip, Israel applied the Regulation with respect to the Territories in its capacity as a belligerent occupant.Footnote 16 In times of relative tranquillity, the practice is rarely used, whereas in times of escalation of terrorist activities – such as during the first Intifada (1987–91) and the second Intifada (2000–05) – the IDF has more readily resorted to the practice.Footnote 17 Over the years, the more reversible and hence less severe measure of sealing off houses has largely replaced demolitions; this article will use the generic term of ‘house demolitions’ to cover both practices, unless otherwise stated. HD, carried out as an administrative procedure by an executive order of the Military Commander of the relevant geographical area, is considered an administrative sanction.Footnote 18 This sanction may be imposed in addition to the criminal-judicial sanction, yet it is usually performed in lieu of criminal proceedings.Footnote 19 Regulation 119 does not explicitly grant the owners of the house a right to a hearing prior to demolition. Yet the IDF's practice, developed in light of the Court's jurisprudence, is that, as a general rule, demolition is carried out after the inhabitants of the house are given an opportunity to appeal to the Military Commander to reconsider his decision and to petition the Court against the demolition order.Footnote 20
3. Being Unfaithful to One's Own Principles
3.1. Excessive Deference
The Court's supervisory role with regard to Israel's conduct in the Territories has been reinforced since the early 1990s. During this period, it has displayed less deference towards the military authorities, exerting a growing degree of formal and informal, overt and covert pressure,Footnote 21 requiring the military authorities to ascribe more importance to the need to abide by international law,Footnote 22 showing a willingness to undertake ‘live’ judicial review with regard to operational decisions,Footnote 23 to prohibit some operational techniquesFootnote 24 and to mitigate others.Footnote 25 During the same period, the Court has subjected the military authorities to both Israeli administrative law and to international law.Footnote 26 This reinforced scrutiny has been facilitated by reliance on the doctrines of reasonableness, necessity and proportionality.
Initially it was the doctrine of reasonableness that served the Court as the main ground for curbing the exercise of discretion by administrative authorities.Footnote 27 The doctrine was first used within Israel ‘proper’, but soon such usage was extended to cover the exercise of emergency powers in the Territories,Footnote 28 holding that in cases where the security authorities seek to deny existing rights, the evidentiary apparatus upon which such denial takes place must be ‘clear, unequivocal and convincing’.Footnote 29 The Court has also relied on the doctrine of necessity, insisting that emergency measures may be resorted to only ‘when there is no alternative legal way’ of safeguarding state security.Footnote 30 This criterion has been applied in numerous areas analogous to HD, such as targeted killings, detention of those classified as illegal combatants and orders of assigned residence.Footnote 31 Since the early 2000s, the Court has placed more reliance on the principle of proportionality.Footnote 32 Most judicial reversals of administrative decisions in the Territories were in fact premised on the doctrine of proportionality.Footnote 33 The more robust reliance on the doctrines of reasonableness, necessity and proportionality have rendered the Court's scrutiny of the military authorities more meaningful. This conclusion is supported by the work of Davidov and Reichman, who examined petitions submitted between 1990 and 2005 and found a dramatic decline in the deference accorded to the Military Commander – manifested, inter alia, by a significant increase in the willingness to intervene in the context of Palestinian petitions concerning infringement of proprietary rights.Footnote 34
Thus, in proceedings related to administrative detention, the Court has inquired whether there is sufficient evidence to demonstrate that if the detainee were to be released, he would almost certainly pose a danger to public or state security;Footnote 35 in the case of detention of those classified under Israeli legislation as ‘illegal combatants’, the Court has demanded proof ‘that the prisoner took a substantial, direct or indirect part in hostile acts against the state, or that he belonged to an organization that perpetrates hostile acts’. Internment in such circumstances has been held to be legal only when it ‘may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of … Israel’.Footnote 36 Similarly, with regard to assigned residence orders issued under Article 78 of the Fourth Geneva Convention,Footnote 37 the Court has established that such authority ‘may usually only be exercised if there exists administrative evidence that … shows clearly and convincingly that if the measure … is not adopted, there is a reasonable possibility that he will present a real danger of harm to the security of the territory’.Footnote 38
The Court proceeded in that case to hold that the authority to assign residence should be carefully exercised ‘only in extreme and exceptional cases’,Footnote 39 and that ‘just as with any other measure, the measure … must be exercised proportionately’.Footnote 40
These high thresholds, combined with the Court's growing willingness to intervene in cases in which the authorities failed to reach them, must be contrasted with the Court's jurisprudence in the HD area, where the Court displays only an amorphous and broad reliance on the doctrines of reasonableness and proportionality. It must be stressed that the argument raised is not a binary one, according to which there is absolute deference in HD cases and no deference in the comparable areas. Indeed, the Court's tendency is to display considerable deference in relation to all security measures, in general, and in relation to the authorities' cost–benefit analysis, in particular (such as in respect of targeted killings and deportations). The argument of this article is more nuanced and relativist: the deference granted in the HD cases is by and large much greater than that granted in the comparable cases.
As will be established below, the legality of HD orders depends, according to the Court's own jurisprudence, on their deterrent impact.Footnote 41 In the first years of their use, the official line was that demolitions were required for military operational purposes;Footnote 42 yet it soon became clear they were being carried out for general deterrent purposes.Footnote 43 Outside the security circles there is general consensus that the HD policy does not support its stated rationale. Highly convincing legal scholarship provides qualitative and quantitative analysis that refutes the deterrence rationale,Footnote 44 forcefully arguing that demolition orders are more of a reprisal measure than a deterrent measure.Footnote 45 This scholarship is supported by the work of Merari, a renowned scholar who devoted his research to the psychology of terror and who concluded that such measures not only fail to deter terrorist activities, but they may actually incite them.Footnote 46 The empirical work of Zilber adds strong probative support for such critical scholarship.Footnote 47 These works are supported, in turn, by extensive research conducted by Israeli non-governmental organisations (NGOs),Footnote 48 forming together a systematic, consistent and well-substantiated argument against the policy's rationale. Numerous prominent Israeli politicians such as Abba Eban,Footnote 49 and high-ranking IDF officers upon their retirement, have expressed their doubts as to the deterrent effect.Footnote 50 In fact, Amnon Strasnov, former IDF Attorney General, has acknowledged that the IDF has never published evidence to show that the practice does indeed deter terrorists,Footnote 51 leading Merari to speculate that the Army actually never carried out such a study.Footnote 52 Another legal adviser to the IDF, Amos Guiora, has also expressed his strong doubts about the policy's effet utile.Footnote 53
This critical approach should be examined in its wider scholarly context – namely, the research that has established that harsh counter-terrorism measures backfire by fostering hatred and promoting attempts to exact revenge,Footnote 54 and that indiscriminate measures particularly might prove to be counter-productive because they create new grievances, fail to generate a clear structure of incentives, and allow insurgents to resolve collective action problems, which lead to an increase in popular support for terrorism resulting in larger cadres and increased violence.Footnote 55 The extremely detrimental impact of the policy in terms of human rights combined with this scholarship has led even those scholars who did not insist on the illegality of the policy, per se, to demand that the courts impose a particularly heavy burden of proof regarding the likely effectiveness of any proposed measure.Footnote 56
Yet the Court has chosen to ignore this scholarship. It has refused to examine the question of whether demolition orders serve as an effective instrument of deterrence,Footnote 57 and has preferred to accept the military's position as virtually axiomatic.Footnote 58 The above-mentioned ordinary evidentiary benchmark of ‘clear, unequivocal and convincing’ evidence was replaced in the domain of HD by an almost blind faith in the military's stance.Footnote 59 This, in turn, has led the Court to dismiss calls for the submission of supportive statistical dataFootnote 60 or expert evidence:Footnote 61 ‘Scientific research has not and cannot be conducted that shows how many attacks were prevented and how many lives were saved as a consequence of the deterrent effect … but the opinion that a certain deterrence existed was sufficient to desist from interfering in the judgment of the Military Commander’.Footnote 62 By abandoning the requirement of statistical evidence or expert evidence, the Court could content itself with anecdotal arguments or axiomatic assumptions supporting deterrence, establishing a uniquely lenient burden of proof. In one case this enabled the Court to approve measures if ‘the pressure of the families may deter the saboteurs’,Footnote 63 and in another if ‘the respondent believes that this measure is necessary to prevent further loss of lives. He argues that the families’ pressure on the terrorists may deter the latter. There is no absolute certainty that such a measure will be effective but … this measure should not be dismissed either'.Footnote 64 Such a low threshold cannot be reconciled, for example, with the judicial utterance in the assigned residence verdict under which ‘not any degree of danger is sufficient.’Footnote 65
Such low standards, moreover, have been caused by and manifested in a cautious reliance on the doctrines of necessity, reasonableness and proportionality. As to necessity, in deviating from the normal judicial course and in ignoring academic findings that established that the test of necessity should be applied particularly to measures based exclusively on emergency powers, such as HD,Footnote 66 the Court has either ignored that requirement or merely paid lip service to it.Footnote 67 In contrast, at least rhetorically, the Court has imported the reasonableness doctrine into the sphere of HD.Footnote 68 Yet, when it came to applying the doctrine in concrete cases, it has not offered guidelines regarding the reasonableness of HD decisions, nor has it been willing to employ the test, as it has in other spheres, in an assertive manner. The end result has, once again, been a deferential approach.Footnote 69
Instead of focusing on the tests of necessity and reasonableness, the Court placed heavier reliance on the doctrine of proportionality.Footnote 70 Yet, when it applied the doctrine, it did so in two alternative ways: either in order to approve the proposed measures by summarily concluding that they are proportionate,Footnote 71 or by using it as a judicial ‘micro-management’ instrument, transforming HD measures into sealing-off measures or restricting the scope of the measures only to certain parts of the relevant house.Footnote 72 Admittedly, this use of the doctrine of proportionality as a mitigating instrument is not unique. In fact, it may be argued – drawing, for example, on the string of verdicts pertaining to the Wall/security fence – that the principal use of that doctrine by the Court is in fact as a micro-management, mitigating tool vis-à-vis the enforcement of occupation by the Israeli security authorities. Yet, contrary to other comparable areas of law (such as assigned residence orders,Footnote 73 the security barrier cases,Footnote 74 restrictions of movement of PalestiniansFootnote 75 and prohibiting entry onto one's own agricultural terrain),Footnote 76 the doctrine was used in the HD context in a much more guarded, submissive, deferential manner,Footnote 77 either as a means to legitimise the proposed measures or in order to mitigate them, not as a prelude to establishing their illegality either in abstracto or in concreto.
Moreover, the doctrine of proportionality has been used only partially. Its application entails a balancing act and, as the Court established, without an assessment of the likely prejudicial impact on the Palestinian rights, it is impossible to assess the proportionality of the alternative measure chosen.Footnote 78 Yet, in the vast majority of HD cases, there is no meaningful attempt to analyse such adverse effects. Voices within the Court itself, which suggested the need for a stricter judicial approach,Footnote 79 remained unheeded.
It must, however, be noticed that the comparison between the thresholds employed in the HD domain and those employed in comparable areas of security measures (such as detention or deportation) is not free from methodological problems. As argued elsewhere, in dealing with HD measures aimed at general deterrence, the Court faces a greater challenge than it does in dealing with pre-emptive measures aimed at particular individuals. The Court takes up that challenge by adopting in the HD domain a deferential approach, and such approach entails a deviation from its own principles with respect to similar (non-deterrent) security measures.Footnote 80
The timid reliance on the doctrines of necessity, reasonableness and proportionality and the resultant light evidentiary burden of proof imposed upon the military authorities have provided the military authorities with almost a carte blanche. The military authorities used this benchmark in proposing measures and when the issue came back to the Court, it approved the proposed measures. A vicious circle was thus created, the military authorities and the Court reinforcing each other in setting a low evidentiary bar. Thus, in one case the Court stated that the burden to adduce evidence showing that HD may have a deterrent effect may be lifted simply by asserting that the proposed measures are deterrent in nature.Footnote 81 In such a case the burden would, in effect, shift to the petitioner who is not in a position to furnish contradictory information. In fact, there are instances in which the Court explicitly refers to the petitioner's need to lift the evidentiary burden with regard to deterrence.Footnote 82 This insignificant burden of proof and the shift of the evidentiary burden are in conflict with Israel's lex lata and lex ferenda administrative law.Footnote 83 In the same verdict, the Court added the following statement, ignoring prima facie evidence of the lack of deterrent effect: ‘The fact that disruptions of the public order in the area continue does not mean that resort thereto is not effective … We have no reason not to accept Respondent 2's claim that were it not for use of Regulation 119, the disruptions of public order would be more numerous and more severe.’Footnote 84 The Court speculated that even if acts of terrorism had not diminished in number, it is ‘conceivable’ that, had the policy been left dormant, conditions would have been far worse.Footnote 85 Other judicial utterances were equally deferential. Thus, in one verdict the Court concluded that ‘this is a case of a terrorist belonging to an extremist Islamic terrorist organization …This is an entirely new dimension of crazy fanaticism. Given the necessity of dealing with this phenomenon, the competent authorities are entitled, inter alia, to adopt the measures of seizure, and demolition of the home of the suicide bomber’.Footnote 86 This reasoning does not, in fact, address the questions of necessity and deterrence. Contrary to its other verdicts, the Court was not searching for proof of the necessity of the measure but for the necessity of a response. In the same verdict, the Court added that the measures ‘may even preclude any chance that those living together with the terrorist, and who are aware of his intention to do a suicide bombing, will attempt to prevent him’.Footnote 87 Yet again, this reasoning is irrelevant to the numerous verdicts, including the most recent measure of sealing-off, in which the Court approved proposed measures notwithstanding the fact that the family members who lived in the house to be sealed off had been unaware of and uninvolved in the terrorist activities.Footnote 88
In one more line of reasoning, which can be attributed only to the very lenient evidentiary burden of proof employed by the Court, President Shamgar stated that ‘if it is clear to the suicide terrorist that his death will constitute a sufficient condition for leaving his house intact, he is liable to choose to go through with the suicide attack. Thus instead of being deterred from the perpetration of murderous acts, the suicide terrorist will be encouraged to do them. I see no reason for disputing this approach’.Footnote 89 The Court may thus be seen to transform its passive, submissive, almost blind support for the measures and to adopt an active, supportive stance, again unsupported by statistical data or other convincing evidence.
Another flaw in this line of reasoning is the assumption, based on no hard evidence, that the very prospect of demolition might deter the prospective suicide bomber from pursuing his heinous activity. Yet this reasoning neglects to address the very fact that a person who is willing to kill so many innocent citizens and to lose his own life might not adopt such a rational line of thinking. Moreover, if a terrorist is not deterred, notwithstanding his understanding that he would leave his parents and other close family members to face the consequences of the loss of their beloved relative, why would he be deterred by much milder consequences, namely the demolition of the family's house? In contrast with the spirit of its judicial approach in analogous cases, never has the Court taken up that challenge; nor has it addressed the works of scholars and NGOs which establish that HD provides the family with enhanced communal status and the award of significant compensation granted by Palestinian organisations – facts that may encourage prospective suicide bombers. These works, together with the extensive scholarship analysed above, undermine the deterrence rationale of the policy, yet the Court has chosen to ignore them altogether – further proof of the blind faith that it places in the security forces.Footnote 90
In one of the most recent verdicts on a sealing-off order, the Court lowered even further the benchmark for reviewing the authorities' discretion. Justice Naor found that ‘the impossibility of disproving the view that a certain deterrence exists is sufficient in order not to interfere with the discretion of the military commander’,Footnote 91 while Justice Rubinstein based the deterrence rationale on no more than a ‘hope’:Footnote 92
The inability to disprove the view that a certain deterrence exists, is sufficient in order not to interfere with the discretion of the military commander ... At the end of the day, before us is a hope of deterrence for saving human lives versus damage, although painful, to property.
In sum, in demolition cases the Court adopts a deferential attitude towards the military authorities, manifested in and facilitated by a very low evidentiary burden of proof, and that low burden is inconsistent with its own approach in comparable reviews.Footnote 93 The HD judgments are in most instances unanimous, jurisprudentially brief, abstract, formalistic and unrefined,Footnote 94 displaying ‘almost uniform support of the practice’.Footnote 95 Moreover, little effort is made to provide in-depth analysis, or to substantiate the verdicts with a comparative dimension. No genuine attempt is made to effectively regulate the practice, or to outline the considerations that should influence the exercise of the discretion embodied in Regulation 119.
Such a judicial approach is both the cause and the consequence of some of the Court's most unconvincing attempts to subscribe to the underlining rationale of the policy. Consequently, the military authorities are entrusted with unsatisfactorily monitored discretion in an area which entails severe consequences in terms of fundamental human rights. Out of the dozens of justices dealing with HD over 35 years, only one – Justice Cheshin – has acknowledged the exceptionally low standard of proof required;Footnote 96 yet, as Kretzmer noted, his voice ‘has been alone in a judicial wilderness’.Footnote 97
It should thus not come as a surprise that a recent empirical study conducted by Hofnung and Weinshall-Margel, which examined the Court's verdicts and classified them under six categories (administrative detentions, HD, confiscation of private land for the purpose of erecting the security barrier, restrictions related to due process of law, curfews and closures, and military operations), established that HD cases are not susceptible to covert or overt judicial intervention. In fact, these cases had the second highest rate of verdicts expressing full approval of the military's ordersFootnote 98 and judicial deference was even more noticeable in that category compared with the category of military operational activities. In the same vein and in contrast to the categories of confiscation of private land for erecting the security barrier and curfews and closures, the Court has not been willing to exert overt pressure on the military authorities in HD cases.Footnote 99
This deferential approach in HD cases was caused by and manifested in the Court's refusal to pursue a more restrictive interpretation of Regulation 119 (see below, Section 3.2), in its neglect to require proof of the individual responsibility or dangerousness of the person inhabiting the house (Section 3.3), in its failure to scrutinise the policy in accordance with public international law (Section 3.4) and in its failure to engage international and national courts (Section 3.5).
3.2. Refusal to Pursue a Dynamic Interpretation
The Regulation's historical context is that of an unelected and undemocratic ruler, struggling to enforce law and order against Jewish and Arab national movements which were conducting a violent struggle. Admittedly, the Israeli occupation authorities in the occupied Palestinian territory serve too as an unelected and undemocratic ruler; yet the new conditions of post-British Mandate are very much different from those prevailing in the era of the British Mandate. Thus, for example, the Court could have adapted the interpretation of the Regulation to meet these new conditions, in particular:
• the creation of a democratic, Jewish State (1948);
• the occupation by Israel of the West Bank and Gaza Strip and East Jerusalem, with these Territories becoming subject to the laws of belligerent occupation (1967);
• Israel's ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1991);
• the adoption by the Israeli Parliament in 1992 of two Basic Laws and the corollary pursuance by the Court of a ‘constitutional revolution’ (1990s); and
• the enhanced robustness of international law and international institutions (1990s onwards).
Some of these events led the Court to adopt in the mid-1990s a much more activist stance, drawing, inter alia,Footnote 100 on the dynamic canon of interpretation. Indeed, this canon was, by and large, the interpretive route chosen in the last two decades with respect to the Territories, manifested, for example, in the security barrier cases and the assigned residence case.Footnote 101 In the words of President Barak, a judge ‘should not advance the intent of an undemocratic legislator. He … must avoid giving expression to undemocratic fundamental values’.Footnote 102 Had the Court employed this canon of interpretation, this would have painted Regulation 119 with more democratic, human-rights laden colours, thereby establishing its illegality or promoting its more restrictive interpretation. Yet, when it has come to HD measures, the Court has adopted the opposite interpretative path. Although in some cases it did pay lip service to the need to construe the Regulation in a democratic, human-rights laden context,Footnote 103 it continued to contextualise it in the era in which it was adopted, thereby adhering to its broad interpretation, one that even if appropriate during that era is inappropriate today.
This choice enabled it to widen the ratione materiae of the Regulation. Initially HD measures were carried out in response to alleged grave security offences. Over the years their usage was expanded to cover suspected offences of much less gravity in nature.Footnote 104 Similarly, orders were initially confined to properties from which offences had been committed, but were subsequently extended to apply to homes where offenders merely resided,Footnote 105 and ultimately to cases of constructive residency in the absence of actual, permanent or continuous residencyFootnote 106 or to cases where the occupants are mere tenants.Footnote 107 The refusal to carry out a dynamic interpretation also facilitated the expansion of the Regulation's ratione personae. Initially, the military authorities avoided demolishing houses owned by family members who were unaware of the terrorist's activities.Footnote 108 Yet, over the years that limitation has been set aside and the degree of (un)awareness of the family member was held not to affect the very existence of the authority to demolish, but only the scope of its exercise.Footnote 109 When the Court was willing to depart from this historical interpretive approach and to adopt a more dynamic one, it chose to take cognisance of those developments that could have supported the expansion of the Regulation's interpretation, thereby broadening rather than narrowing the boundaries of the discretion held by the Military Commander. Thus, for example, when the second Intifada broke out in 2000, it took into account the extreme modes of Palestinian violence associated with it in order to relax the procedural requirement of a hearing prior to the execution of demolition orders.Footnote 110
3.3. No Requirement of Individual Responsibility, Complicity or Dangerousness
According to the principle of individual responsibility, an individual is responsible for his or her own actions and not for those of another.Footnote 111 The corollary is the prohibition on imposing sanctions against those who are not responsible for carrying out the prohibited action. The interrelated principle and prohibition, which have their roots in the Old Testament,Footnote 112 are nowadays enshrined under international humanitarian law and international human rights laws,Footnote 113 under the laws of belligerent occupation,Footnote 114 as well as under Israeli law.Footnote 115 Accordingly, criminal sanctions should be premised on individual responsibility and administrative sanctions upon individual responsibility and dangerousness. Deviation from that principle amounts to prohibited, collective punishment. This truth is also enshrined in the Court's jurisprudence,Footnote 116 which prohibits collective punishment, both under Israeli administrative and criminal lawFootnote 117 and under international law.Footnote 118 The Court has reiterated and reinforced that principle vis-à-vis the military authorities in the Territories in different areas, citing the Old Testament to the effect that ‘a person will be liable for his own offences and die for his own sins’.Footnote 119
One comparable area of law in which this principle was implemented is that of administrative detentions. Detention is justified on the basis of the danger posed by a particular person against whom the detention order was issued.Footnote 120 Thus the Court has established that detention would be legal only where there is sufficient evidence that if the detainee were released, he, in his personal capacity, would almost certainly pose a danger to public or state security:Footnote 121 ‘One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee’.Footnote 122 Another analogous area of law is the administrative detention of enemies as ‘bargaining chips’. In the Further Hearing proceedings in A v Minister of Defence, President Barak, leading the majority in an expanded bench of nine justices, held that a democratic society may hold a person in administrative detention only if such person poses a ‘direct threat and real danger to the state’. Thus, the detention of a person who did not pose such a threat and who was being held solely as a ‘bargaining chip’ for the release of a captured Israeli soldier was found to be in breach of both Israeli law and international law.Footnote 123 The Court insisted that without such personal dangerousness, his detention would amount to an infringement of his human dignity, the detainee being treated as a means of achieving an objective and not as the object himself.Footnote 124 The Court underscored that the prohibition against inflicting harm on a person in the absence of personal responsibility is absolute and hence the Court may not entertain an interpretation of a legislative instrument that would lead to such a result.Footnote 125 The same approach was adopted by the Court in the case of detention of those classified under Israeli legislation as ‘unlawful combatants’.Footnote 126 Similarly, in respect of targeted killing aimed at pre-empting terrorist activities, the Court found that one of the prerequisites of the legality of this practice was the existence of well-supported intelligence showing that the targeted terrorist is classified as a combatant who takes part directly in hostilities against Israel.Footnote 127
Yet another analogous area where the Court has supported the requirement of individual responsibility and dangerousness is the area of orders of assigned residence, issued by the military authorities by virtue of Article 78 of Fourth Geneva Convention. In Ajuri the Court adjudicated the legality, under both Israeli law and international law, of an order, forcing the temporary transfer, from the West Bank to Gaza, of members of families of terrorists who aided and abetted terrorism.Footnote 128 President Barak, delivering the opinion on behalf of the unanimous bench of nine justices, found that orders are permitted only if they serve as a means of preventing the assignee ‘from continuing to constitute a security danger’.Footnote 129
Thus the Military Commander may take into consideration only the need for ‘preventing [further] danger … by a person whose place of residence is being assigned’.Footnote 130 Orders may be issued only against those who have committed a terrorist act and who, in addition, continue to present a danger to the security of the area;Footnote 131 administrative evidence must be produced that demonstrates clearly and convincingly that if the measure is not adopted, there is a reasonable possibility that ‘he will present a real danger of harm to the security of the territory’.Footnote 132 Consequently, any assignment of those who had not taken part in terrorist activities was held to be illegal, even if such assignment would have deterred others from pursuing terrorist activities.Footnote 133 The Court reaffirmed that general deterrence may be legitimately achieved as a secondary objective to that of the principal objective, namely tackling the individual danger posed by the assigned person.
The golden threads that run through these judgments are the principle of individual responsibility and individual threat posed by the subject matter of the security measures and the prohibition of measures intended to advance general deterrence as the sole or primary purpose thereof.Footnote 134 The principle of individual culpability was found by the Court to be consistent with the norms of international humanitarian law and ‘our Jewish and democratic values’.Footnote 135 In the words of President Barak:Footnote 136
From our Jewish heritage we have learned that ‘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’ (Deuteronomy 24, 16[38]) … [E]ach person shall be arrested for his own wrongdoing – and not for the wrongdoing of others.
The following statement of the President is of particular importance, because, as demonstrated below, it stands in sharp contrast to the HD jurisprudence: ‘The character of Israel as a democratic, freedom-seeking and liberty-seeking State implies that one may not assign the place of residence of a person unless that person himself, by his own deeds, constitutes a danger’.Footnote 137 In the same vein, even in the decisions on deportation, where the Court has invested a great deal of effort in establishing the legality of such measures notwithstanding their prima facie illegality under the Fourth Geneva Convention, it still demanded that those whom the military authorities wished to deport be shown to be dangerous.Footnote 138
The HD jurisprudence does not correspond with this large corpus of judgments. Initially the Court insisted on the existence of some individual responsibility.Footnote 139 Yet, soon after, acting under the pressure of the military authorities, it relinquished that requirement: lack of such knowledge was found not to preclude the imposition of the demolition order.Footnote 140 Indeed, there are dozens of verdicts, including the latest one reviewing a sealing off order, in which orders were approved despite the lack of any individual responsibility on the part of the owner of the demolished house and his family residing with him. As demonstrated above, the degree of (un)awareness of the family member was held to be relevant to the exercise of the authority under Regulation 119 (that is, affecting the extensiveness and severity of the demolition order) but was not deemed to affect the very existence of the authority.Footnote 141
The willingness of the Court to uphold the legality of the measures notwithstanding their collective nature has evoked fierce academic criticism.Footnote 142 Numerous scholars concluded that the Court was giving its imprimatur to illegal, collective punishment. Zemach went further than that, arguing that such illegality stemming from the collective nature of the measures may amount to a war crime.Footnote 143
Being aware of its deviation from its own jurisprudence, the Court has employed various means to dismiss this criticism. In an earlier case, Justice Ben-Dror offered an analogy between HD and a sentence of imprisonment, the two imposed on the criminal with negative spillover to his family.Footnote 144 This analogy is an affront to common sense and cannot furnish a cogent explanation of the Court's willingness to depart from its own jurisprudence.Footnote 145 Another judicial technique to disguise the collective nature of the punishment is to refer to its administrative nature.Footnote 146 Yet, as Kremnitzer and Hörnle underscore, the fact that an administrative body decides to impose the sanction need not mean that the sanction is administrative, as the classification of the sanction need not derive from the type of entity that imposes it.Footnote 147 Moreover, the Court's reasoning in denying the collective punishment nature contradicts a consistent line of verdicts analysed above, under which other administrative measures were subjected to the prohibition on collective punishment, notwithstanding their administrative apparatus or the administrative nature of the entity imposing them. The collective nature of the punishment was not considered in these cases to be a matter of legal formalism but one of substance (namely its well-calculated impact on unknowing members of the family). Another line of reasoning employed in denying the collective nature of the punishment placed emphasis on the declared purpose of the measures.Footnote 148 Yet the collective nature of the measure should be determined by its inherent nature and its likely impact, and not by its declared purpose.Footnote 149
In more recent HD verdicts one may discern other means to disguise the Court's deviation from its own approach towards collective punishment – namely the alleged existence of an abstract, passive, communal support for terrorism by the community in which the petitioner lived.Footnote 150 Yet this reasoning cannot be justified under international law,Footnote 151 nor can it be found in analogous cases. Another recent judicial justification is the enunciation that the family link with the suicide bomber per se imposes moral culpability and hence legal responsibility on his family members.Footnote 152 This justification, like the others, cannot be found elsewhere in the Court's jurisprudence.
Thus in sharp contrast with comparable areas of law, the Court is willing to approve a sanction which to all intents and purposes is a collective punishment. Only a few justices were courageous enough to critically recognise this willingness. Justice Cheshin's distinct voice in the Court led him to refuse the approval of the demolition order when its result would be the destruction of the residence of the uninvolved wife of the suicide bomber and of his four small children.Footnote 153 The collective nature of HD measures was also indirectly acknowledged when the Court addressed the issue of administrative detention for bargaining purposes.Footnote 154
3.4. No Meaningful Scrutiny According to International Law
On submission of a petition opposing security measures, based on international law, the Court in most instances adopts a consistent approach: (i) it accepts jurisdiction; (ii) procedurally, it imposes significant restrictions on the authorities; (iii) substantively, it invests judicial efforts in construing the measure as being compatible with the relevant provisions of international law.Footnote 155 The instances in which the Court chooses to ignore international law have diminished significantly over the years, while the instances in which considerable effort is made to establish compatibility with it have been growing both quantitatively and qualitatively.Footnote 156 Scholarship indicates that such an ever-growing rigorousness may be explained as part of an attempt to convince the international legal community that international norms are taken seriously in Israel.Footnote 157
The approach towards petitions against HD is similar to the general approach of the Court jurisdictionally and procedurally, but rather different substantively. Prominent scholars argue that the HD policy is in direct contradiction to the spirit and letter of international humanitarian law.Footnote 158 More specifically, extensive scholarship argues that it breaches the following provisions of the 1907 Hague Regulations:Footnote 159 Article 23 (which prohibits the destruction of enemy property ‘unless such destruction or seizure be imperatively demanded by the necessities of war’), Article 46 (which requires the respect of family honour and rights)Footnote 160 and Article 50 (which prohibits collective punishment).Footnote 161 Similarly, an extensive corpus of scholarship blames Israel for violating Article 27 of the Fourth Geneva Convention (which stipulates that the civilian population ‘shall at all times be humanely treated’),Footnote 162 and Article 33 of the same Convention (which prohibits collective punishment).Footnote 163 Similarly, numerous scholarsFootnote 164 postulate that the HD policy contradicts Article 53 of the Fourth Geneva Convention, which states that ‘any destruction by the Occupying power of real or personal property belonging individually or collectively to private persons … is prohibited, except where such destruction is rendered absolutely necessary by military operations’. Similar arguments are raised with respect to Article 64 of the Fourth Geneva Convention, which requires an Occupying Power to repeal existing laws which represent ‘an obstacle to the application of the present Convention’. Numerous scholars,Footnote 165 as well as the United Nations,Footnote 166 the United States,Footnote 167 and foreign and Israeli NGOs,Footnote 168 argue too that the demolition orders do not comply with international humanitarian law.
In light of these alleged breaches and an almost international consensus, it is no wonder that petitions have been premised on arguments drawn from international humanitarian law.Footnote 169 At times the petitions have been supported by expert opinions, including that of the International Committee of the Red Cross.Footnote 170 Yet, contrary to the Court's overall approach and the significant effort that it usually invests in establishing compatibility between the various security measures and international humanitarian law, in the HD domain the Court adopts two alternative approaches: the first is to ignore that law or to state that it is irrelevant;Footnote 171 the second is to simply state, axiomatically, that Regulation 119 and the policy premised upon it are consistent with the Hague Regulations and the Fourth Geneva Convention.Footnote 172 This distinct approach is manifested, more concretely, in relation to the doctrine of proportionality. As Shany establishes, this doctrine may be treated as a general principle of international law and of international human rights, in particular.Footnote 173 Moreover, under international humanitarian law, it restricts the exercise of army authorities, particularly in the Territories.Footnote 174 The principle is construed broadly by the Court, which treats it as a general principle, applicable to any form of military action pursued under international law:Footnote 175 ‘Indeed, both international law and the fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing between the authority of the military commander in the area and the needs of the local population … a common thread running through our case law.’Footnote 176 Yet, when it enters the HD arena, the Court refuses to engage in judicial review based on the principle of proportionality under international law, confining itself to a summary review according to that principle under Israeli administrative law.Footnote 177
Even in the rare cases in which the Court has quashed the proposed measures or in which a dissenting opinion challenged the majority that approved the measures,Footnote 178 the justices relied on Israeli law. International law thus did not serve as the legal grounds for establishing the illegality of measures in even one single case out of over one hundred cases in which the legality of the policy was adjudicated. In none of these cases did international humanitarian law receive any meaningful judicial attention. Thus, the Court's treatment of international humanitarian law is different in the HD context.
The same is true with respect to its treatment of the laws of belligerent occupation. Since 1967, the Court has delivered a vast number of judgments dealing with most aspects of the Israeli occupation.Footnote 179 The instances in which it ignored the laws of belligerent occupation have significantly diminished over the years, while the instances in which considerable effort was made to examine compatibility between security measures and this body of law have been growing.Footnote 180 Much criticism of the Court's jurisprudence has been expressed,Footnote 181 yet the fact remains that this jurisprudence is detailed and analytical. In most instances, the exercise of discretion by the Military Commander is subjected to extensive review. This is particularly so in relation to security measures that impinge on proprietary rights, an area which was prominent in the Court's balancing act between security interests and the Palestinian civilian needs.Footnote 182 Such extensive reliance on the laws of belligerent occupation is particularly apt in relation to HD, given the significant protection granted by it to proprietary rights.Footnote 183
Yet, contrary to its overall approach, in the HD domain the Court either ignores the laws of belligerent occupationFootnote 184 or summarily holds that Regulation 119 and the HD policy are consistent with the Hague RegulationsFootnote 185 and the Fourth Geneva Convention.Footnote 186 The only meaningful treatment of the laws of belligerent occupation may be detected in the context of reviewing procedural aspects of HD (such as the right of prior hearing).Footnote 187 The judicial willingness to ignore the laws of belligerent occupation in the context of HD in East Jerusalem may be explained, from the perspective of Israeli law, on the grounds that East Jerusalem is part of the State of Israel.Footnote 188 Such explanation cannot, however, account for the failure to review HD orders in the West Bank in accordance with the laws of belligerent occupation.
The Court's treatment of HD under international human rights law is similar. In no small number of cases the Court has relied upon, or at least referred to, that body of law when examining measures justified on security grounds.Footnote 189 This is not the case with the HD jurisprudence. In a consistent and sweeping manner the Court ignores a significant number of scholarly works and reports issued by human rights NGOs which establish that HD measures are in breach of substantive international human rights law, including the right to protection of property,Footnote 190 the right to shelter,Footnote 191 the prohibition against cruel, inhuman or degrading punishment,Footnote 192 and the prohibition against collective punishment.Footnote 193 The same is true of the Court's disregard for, or dismissal of, the argument that the execution of HD without a prior hearing – which is legal under the Court's case law albeit under narrow conditions – amounts to a breach of the procedural international human rights to due process.Footnote 194 In more than one hundred HD cases, there is not one recorded case in which the Court addressed these prima facie breaches. The same is true with regard to international criminal law, notwithstanding the research that has established that Israel's HD policy may amount to a war crime. The restricted reliance on international humanitarian law and on the laws of belligerent occupation, and the failure to rely on international human rights and international criminal law may be caused by and manifested in a lack of any meaningful engagement with international and foreign national courts.
3.5. Engagement with International Law and National Courts and Tribunals
Scholarship has devoted much attention to the ever-increasing transnational dialogue taking place between national and international courts and tribunals.Footnote 195 Such a dialogue manifests itself formally and informally,Footnote 196 explicitly and implicitly,Footnote 197 thereby advancing the creation of a supranational body of laws,Footnote 198 supported, institutionally, by ‘a global community of courts’.Footnote 199 In this context national judges may be seen as strategic players who take into account the long-term implications of their adjudication, including interests that are external to their domestic perception of justice, such as the willingness to belong to the international judicial community.Footnote 200
The Court has not remained detached from that development. In the last two decades, especially under the leadership of President Barak, it has participated, albeit diffidently, in that dialogue.Footnote 201 Its human rights jurisprudence corresponds more frequently and more extensively with that of international tribunals (such as that of the International Court of Justice (ICJ),Footnote 202 the European Court of Justice (ECJ)Footnote 203 and the European Court of Human Rights (ECtHR)Footnote 204) as well as to that of the national constitutional courts of the United States, the United Kingdom, Canada, Germany and South Africa.Footnote 205 Thus in numerous important cases – such as those relating to the security barrier,Footnote 206 physical means of interrogation,Footnote 207 detaining terrorists for bargaining purposes,Footnote 208 the prohibition of the acquisition by Palestinians of Israeli citizenship through marriage to an Israeli-Palestinian,Footnote 209 sovereign immunityFootnote 210 and diplomatic immunityFootnote 211 – the Court has quoted from, relied upon and at times distinguished foreign national and international judgments in the course of developing its own jurisprudence. Admittedly, not all justices participate in that dialogue, not all cases are substantiated by itFootnote 212 and not all references to foreign jurisprudence are comprehensive. Still, an ever increasing dialogue has been taking place in the Court, culminating in the Alfei Menashe verdict concerning the legality of the security barrier,Footnote 213 in which the Court's reasoning vividly demonstrates that it is gingerly conducting a delicate dialogue with the ICJ, the political and juridical international community, and the international public at large.Footnote 214 One manifestation of this ever growing attempt to engage with international and foreign national courts is the official translation into English offered by the Court of some of its seminal judgments relating to the balance between human rights and security. The translation of these judgments and their posting on the Court's official internet site reflect its desire to overcome linguistic barriers. The Court's official internet site in its English version serves as a platform for conveying to the international judicial community the message that Israel operates under the rule of law. In fact, the Court's search engine in English includes a banner bearing the motto ‘Fighting Terrorism within the Law’.Footnote 215
Yet when it comes to HD, the Court's jurisprudence does not correspond with international and other national judgments. The Court does not even avail itself of verdicts delivered by the ICJ,Footnote 216 the ECJFootnote 217 and the ECtHRFootnote 218 which specifically address the equilibrium between security and proprietary rights in the context of the struggle against terror. Similarly, it ignores the jurisprudence of the ECtHR, which has established that a fair balance is to be achieved between proprietary rights and the conflicting interests at stake in the context of national security.Footnote 219 When it refers to relevant US constitutional judgments it does so only in relation to HD procedural aspects.Footnote 220 The Israeli HD verdicts, uninfluenced by relevant foreign jurisprudence, are in turn not being translated into English and hence are unavailable to the international legal community. In fact, out of the hundreds of verdicts appearing in English on its official site, only two relate to HD, one of which deals with procedural aspects of HD.Footnote 221
4. Normative Critique and Conclusions
The judiciary's counter-majoritarian role in the realm of national security is of paramount importance: ‘[C]ourts are assigned the crucial task of prevention of populist lynching in the broad sense; i.e. the victimisation of individuals who are perceived by the majority to be enemies and a threat … the prevention of the violation of rights … of individuals and groups simply because the vox populi requires such violation.’Footnote 222 By and large, and notwithstanding severe socio-political pressures, the Israeli Supreme Court, since the early 1990s, has taken cognisance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities. Yet, when faced with proposed HD measures, it has adopted a different stance. This article contrasts the Court's case law on HD with its own jurisprudence in comparable areas in which there is tension between security and human rights in the Territories, and establishes that in its HD jurisprudence the Court is unfaithful to its own jurisprudence. Building upon these findings, this article has distilled five sub-manifestations of that distinct stance, the three principal ones being (i) willingness to jettison the requirements of individual responsibility and of dangerousness, (ii) almost no substantive intervention to curtail or constrain the exercise by the military authorities of their authority; and (iii) judicial review which is devoid of any meaningful scrutiny of the measures according to international law. These findings form the basis of further research to focus on the alternative explanations for the Court's deviation from its own principles.Footnote 223
It is submitted that this distinct judicial approach carries negative normative repercussions. When responsibility is imposed upon a resident of a house for the deeds of others, in the absence of any culpability or dangerousness on his part, such individual is being instrumentally used by the state not as a subject but as an object, as a means of achieving a purpose external to him, thereby infringing his right to human dignity and ignoring the moral barrier inherent in the principle of personal responsibility.Footnote 224 When the Court is willing to accept such practice it becomes an accomplice to it, as it has become in the HD context.
Moreover, the willingness of the Court to deviate from its own principles adversely affects the coherence of its jurisprudence. We refer in this context to coherence as a multi-layered concept which relates to both cohesiveness and connectedness as well as to logical, orderly, consistent and comprehensive relations between the various judicial positions.Footnote 225 The concept encompasses the notions of harmony, non-contradiction, synergy and complementarity.Footnote 226 Coherence may furthermore be connected with consistency and the synergy between norms, objectives, values, actors and instruments (promoted through principles of cooperation and complementarity designed to achieve well-oiled and well-articulated links between the different parts of the legal system).Footnote 227 The promotion of coherence carries with it an inherent value.Footnote 228 As Bertea demonstrates, internal coherence may assist in presenting the law as a meaningful whole, the components of which are mutually supportive and independent rather than merely the result of the claims of an authority:Footnote 229 ‘Those responsible for creating and administering a body of legal rules will always be confronted by a problem of system. The rules applied to the decision of individual controversies cannot simply be isolated exercises of judicial wisdom. They must be brought into, and maintained in, some systematic interrelationship; they must display some coherent internal structure’.Footnote 230 The importance of legal coherence as a guiding interpretive principle is also relevant in the Israeli context. As President Barak acknowledged, ‘I regard the judge as a partner in creating law. As a partner, the judge must maintain the coherence of the legal system as a whole’;Footnote 231 ‘[t]he development of law … must maintain normative coherence within the legal system. It must reflect the fundamental values of the legal system. Every ruling must be integrated into the framework of that system. Indeed, a judge who develops the law does not perform an individual act, isolated from an existing normative system. The judge acts within the context of the system, and his ruling must integrate into it’.Footnote 232 This coherence is prejudiced when the Court applies the principle of individual culpability and engages with international law in a manner different from that adopted in analogous areas.
The Court's willingness to renege on its own judicial doctrines also compromises its external legitimacy. Judicial reliance on international law as an independent system of law may grant the relevant domestic judicial body external legitimacy vis-à-vis foreign states, international organisations and the entire international community.Footnote 233 Such legitimacy may in turn assist the Court, as Benvenisti demonstrates, in utilising international law in a strategic manner, empowering itself in relation to the executive and protecting the executive from external pressures and intervention.Footnote 234 Such strategic reliance is of particular importance given the increasing willingness of international law to intervene in matters that were once considered to be internal matters under the sole jurisdiction of the state. In order to prevent external judicial intervention, domestic courts need external legitimacy and such legitimacy may be obtained by proving themselves willing to and capable of genuinely relying on international law.Footnote 235 This analysis is particularly relevant to the Israeli Supreme Court and its judicial review in the Territories. The Court's traditional role required it to obtain internal legitimacy, whereas the significant attention paid by the international community to Israel's use of force,Footnote 236 the evolving concept of national, universal criminal jurisdiction as well as the strengthening of the International Criminal Court, all require the Court to attain external legitimacy.Footnote 237 The Court has not remained distant from these developments and in recent years it has invested much effort in portraying Israeli's security practices as compatible with international law. Indeed, according to Cohen's analysis, the Court perceives the potentially intrusive nature of the ICC as a strategic threat to the State of IsraelFootnote 238 and the critical review of the military authorities' conduct as an appropriate means of addressing that threat.Footnote 239 Yet such review is lacking with respect to HD, thus prejudicing the Court's ability to gain external legitimacy and to fulfil its self-perceived roles of providing the State of Israel with a bullet-proof vestFootnote 240 (and at times a fig leaf).Footnote 241 Thus the Court's deviation from its own principles may erode its external legitimacy and such erosion may prejudice its ability to effectively advance strategic interests in the domain of HD and beyond. It must be emphasised that the argument that the failure to address public international law prejudices the Court's external legitimacy does not mean that the Court could have achieved improved legitimacy had it relied on international law in the field of HD in a manner that is contrary to a near consensus within the international community. Thus it is not clear, for example, what is a more prejudicial judicial practice in terms of external legitimacy: ignoring the issue of the prohibition against collective punishment under international law, or referring to this issue but arriving at the conclusion that the HD sanction, which is imposed in circumstances of no individual culpability, does not amount to collective punishment.
The negative repercussions in terms of morality, coherence, external legitimacy and effectiveness, stemming from the Court's deviation from its own principles, lead to the conclusion that if and when the issue of HD is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law, drawing on the words of President Barak's aphorism: ‘I am not of those who hold that the finality of a decision attests to its correctness. Any one of us may err. Our professional integrity requires that we admit our errors if we are convinced that we in fact erred.’Footnote 242
