Published: 13 August 2020
Last updated: 4 March 2024
FROM THE SHRILL DENUNCIATIONS on the Right and media buzz this week, one might have thought that Israel's High Court of Justice had just struck down the policy of punitive demolitions of Palestinian homes in the West Bank.
But on closer scrutiny, the policy, whose advocates say deters terrorism, is still very much intact and can be expected to be deployed for the foreseeable future, largely for the political exigencies of Prime Minister Benjamin Netanyahu and right-wing politicians' desire to please their base.
On Monday, August 10, the court ruled two to one to cancel the planned demolition of the home of a Palestinian, Nazmi Abu Bakr, who faces charges for the May killing of a soldier, Sgt First Classs Amit Ben-Ygal by dropping a block on his head from his building's roof during an operation in Yabed village.
Justices Menachem Mazuz and George Karra forebade the army from demolishing the home, approving only the sealing of one room. Mazuz explained in his opinion that Abu Bakr's wife and eight children were not suspected of any involvement in the killing and that Abu Bakr faces a likely protracted prison term.
"Harming the house is foremost an injury to the wife and children. Its destruction will leave them without a roof over their heads."
"One can't ignore the great blow to the innocent family members," he added. "I am convinced the principle of proportionality requires moderating the harm by substituting sealing part of the house for demolition."
Dissenting Justice Yael Willner wrote that demolition is an important means of deterring attacks against Israelis despite the harm to the family. "Waves of terror faced by the state of Israel in recent years require effective deterrence against the carrying out of additional attacks in the future," she wrote.
The decision was portrayed by the Right as a disastrous capitulation to terror. It prompted demands for a new deliberation of the case by a broader panel of justices. Not only did Netanyahu demand this, so did defence minister Benny Gantzwho said demolitions are necessary for deterrence, in an effort to avoid appearing softer than the PM.
Meanwhile, key media outlets such as Yediot Ahronoth gave front-page coverage to the anguish of Baruch Ben-Ygal, the soldier's father, over the decision. "How come our misery isn't taken into account in your decision while the misery of the family of the terrorist is?" Yediot quoted Ben-Ygal.
But despite the charges against the judges and the strong emotions, analysts interviewed by The Jewish Independent said the ruling is not a game changer and will not tangibly impact on use of the policy, inherited from 1945 British mandate regulations specifying that if the inhabitant of a home is involved in terrorism the military commander can confiscate and demolish it.
There are many previous cases of the court substituting the sealing of part of the home for demolition. "Even the judges in the majority did not say the whole policy is illegal," said Liron Libman of the Israel Democracy Institute, former head of the international law department of the Israeli army. "They were implementing existing criteria."
Libman, who opposes demolitions on the grounds that they are a collective punishment, explained that the court evaluates the "proportionality" of a demolition by assessing factors such as the gravity of the offence, which part of the house should be demolished and how involved in the violence were the family members. "If you look at the legal reasoning in this case, it's not really new," he said.
Sam Lehman-Wilzig, a political scientist at Bar Ilan University, added: "This fits within the confines of the court's general policy. Sometimes they allow it and sometimes they don’t, based on the circumstances of what the terrorist did, the circumstances of the family and the circumstances of the building. This is not that much of a change."
Jessica Montel, director of the Hamoked human rights group that petitioned the court, told The Jewish Independent, "the judgment is a very clear ruling within the existing precedent. The judges say clearly they are not ruling on legality as a whole". Still, she said the decision was "super important for the family involved."
The policy is poised to persist despite criticism that it violates international law and doubts voiced by critics about whether it really has the deterrent effect its backers claim.
Netanyahu has a political interest in the policy to show he is tough on terrorism and to impress his base, which views the other side as an implacable enemy at war with Israel and believes that the way to deter is to be forceful.
He accused the court of giving a "tail wind to terrorism. "My policy as prime minister is to destroy homes of terrorists and I intend to continue it," he said after the court ruling.
This, despite ongoing controversy over whether demolitions are actually effective as a deterrent. In recent years, Shin Bet officials have told the Knesset foreign affairs and defence committee that demolitions deter attacks.
At times the agency has publicised what it says are instances of relatives turning in a would-be attack perpetrator so as to avoid the demolition of their homes. Former Shin Bet chief and current Likud lawmaker Avi Dichter is a major advocate of using demolitions on the grounds that they are deterrents.
Sceptics, however, point to the fact that the army virtually refrained from demolitions from 2005-14 after a military investigatory commission concluded that they do not deter and fuel bitterness. "The army did solid research as to whether demolitions deter and came to the conclusion they incited more than they deter," said Yossi Alpher, former director of the Jaffe Centre for Strategic Studies (now the Institute for National Security Studies).
"The findings of the study were not negated or reversed anywhere. The policy was reintroduced because of right-wing pressure. In my view it's for political reasons. [It] was pandering to a right-wing public that felt good about punishing terrorists in this way."
Alpher says that if the judges in the Abu Bakr case permitted the demolition, it would have merely created fury. "If a mother with eight children loses her house, those children will grow up to be very angry," he said.
READ MORE
Israeli leaders bash court for blocking home demolition of Palestinian charged in soldier's murder (Haaretz)
The High Court of Justice revoked a demolition order for the family home of a Palestinian charged with murdering Israeli soldier Amit Ben Ygal in the West Bank in May, drawing harsh criticism from several right-wing politicians.
Five homeless as Israel demolishes Palestinian home, seizes water pumps (Middle-East Monitor)
Israeli forces seized three water pumps yesterday from the town of Beit Ummar, a village north of Hebron in the southern occupied West Bank, reported Wafa news agency
Photo: An IDF soldier during the arrest of Nizmi Abu Bakr in the West Bank village of Yabad, in June (IDF Spokesperson's Unit)
