The Demolition of Homes in the Israeli Occupied Territories Dan Simont I. INTRODUCTION .............................................. 2 II. T1m DEMoLIIoN PRACTICE ...................................... 7 A. Definition .............................................. 7 B. Historic Roots 8...........................................8 C. The Demolition Policy.......................................... 9 D. Legal Justifications ........................................ 15 I. T1m LEGAL SYSTEM IN THE OCCUPmD TERRiTORmS ....................... 18 A. InternationalLaw ......................................... 18 B. Principles of Israeli Law ...................................... 21 C. The Israeli Supreme Court..................................... 22 IV. THE ISRAELI SUPREME COURT ON HOME DEMoUImONs ..................... 27 A. Demolitions in the Absence of JudicialReview ....................... 27 B. Establishment and Expansion of the Demolition Doctrine .................. 28 C. Mixed Jurisprudenceand the Chilling Effect ................ : ........ 32 D. Demolition JurisprudenceAnalyzed ............................... 37 1. Expansive Interpretationof Article 119 ........................ 37 2. Cursory Discussions...................................... 39 3. Palliatingthe Harshness of the Measure ......................... 41 E. Questions of Legitimacy ..................................... 44 V. INTERNATIONAL LAw ........................................... 46 A. The Local Law Doctrine ....................................... 46 B. Collective and Non-Individual Punishment........................... 53 1. Article 50 of the Hague Regulations and Article 33 of the Geneva Convention 53 2. Juggling with Justifications................................. 57 3. Home Demolitions as Non-Individual Punishments ................. 60 C. Three Shadow Doctrines ....................................... 65 1. Destruction of Private Property .............................. 66 2. Confiscation of Private Property ............................. 70 3. Absence of Due Process .................................. 72 VI. CoNcLusIoN ............................................... 75 t LL.B. 1986, Tel Aviv University; MBA 1988, INSEAD, France; S.J.D. candidate, Harvard Law School; former attorney for the Association for Civil Rights in Israel; Major (Res.) Israeli Defense Forces. I am deeply grateful to Professor Henry Steiner, who advised, guided, and encouraged me during the writing of an LL.M. thesis, on which this article is based. Many thanks to Professor Pnina Lahav for her generous support and assistance. I thank also Joshua Schoffrnan, David Kretzmer, Dov Seidman, Yochai Benkler, Celia Fassberg, Eyal Zamir, Kim Treiger, and Omri Ben Shahar for reading parts of the paper and for their helpful comments. I would also like to extend my appreciation to the Human Rights Program at Harvard Law School, where I began researching these issues. YALE JOURNAL OF INTERNATIONAL LAW [Vol. 19: 1 I. INTRODUCTION On December 6, 1983, a bomb exploded in an Israeli bus traveling through Jerusalem, killing six passengers and injuring some fifty others. Three years later, an Israeli military court found two Palestinian residents of the West Bank' guilty and sentenced them to life imprisonment. Their homes were then demolished pursuant to an order issued by the Military Com- mander.2 The confessions upon which the convictions were based implicated a third person, Nader Jaber, who had fled to Jordan. At the time of the bomb explosion, he had been living with his wife in a room on the roof of his parents' house in the West Bank town of Ramallah. Fearing that his home would be demolished, Nader's father, Ramzi Jaber, petitioned the Israeli Supreme Court for an injunction against a potential demolition order.' His fears were confirmed when the Military Commander requested approval for the exercise of his authority under Article 119 of the 1945 Defense (Emer- gency) Regulations (1945 DERs).4 Article 119 authorizes the confiscation and destruction of houses in which either an action violating a security-related law was committed or a person who committed such an action resides.5 The Military Commander sought to destroy the room on the roof of the Jaber family's house and to seal up the second floor.6 Jaber pursued three arguments. First, he argued that the order should not be issued before a criminal court established his son's guilt. The Court, 1. This Article generally refers to the Israeli-occupied regions by the names that are most commonly used in the international debate: "West Bank," "Gaza Strip," or "the Occupied Territories." The biblical terms "Judea" and "Samaria" - as the West Bank is officially called in Israel - are used as they appear in quoted texts or in formal titles. This Article also uses the terms "occupied territories," "military government," "occupying power," and "occupant" as they are normally used in international law. 2. The Military Commander of the Israeli Defense Forces in the Judea and Samaria Region issued the Order. According to international custom, occupied territories are governed by army officers appointed by the occupying army. These military commanders normally establish military governments and execute their policies through them. The Military Commanders of the two regions are hereinafter referred to as Military Commanders. Israel has also established a Civil Administration, which is responsible for the civil and economic facets of its rule. 3. Before August 1989, homes were demolished without giving their residents prior notice. See infra text accompanying notes 157 to 160. 4. 1442 Palestine Gazette, Supp. No. 2, at 1055, 1089 (Sept. 27, 1945) [hereinafter 1442 Palestine Gazette], as amended by 1600 Palestine Gazette Extraordinary, Supp. No. 2, at 1159 (July 31, 1947) [hereinafter 1600 Palestine Gazette]. 5. For a discussion of Article 119, see infra part II.D. 6. The Military Commander explained that he had originally intended to demolish the entire three story structure, but because "Nader had not been living there since 1984 ... and ... due to technical reasons it would have been impossible to destroy the second floor without ruining the other floors.., and since two other families lived in the building ... [he decided] ex gratia ... to settle for the demolition of the room on the roof and the sealing of the secondfloor." Brief for the Military Commander at 4, Jaber v. Commander of Central Command, 41(2) P.D. 522 (1987) (HCJ 897/86) (This and all other quotations in this Article have been translated by the author.). According to the Military Commander's brief, the ground floor was used for storage, Nader's parents and siblings lived on the first floor, one of his brothers lived on the second floor with his wife and son, and Nader and his wife resided in the room on the roof. Id. 1994] Home Demolitions referring to the language of Article 119, responded that "the Military Commander does not need a judicial conviction, neither does he constitute a court himself. He need only determine whether a reasonable person would have found the information before him to be sufficient evidence. No doubt, this standard was met in the case before us."7 Second, Jaber claimed that his son should not be considered an "inhabitant" of the family's house, since he had been living outside the country for almost two years when the demolition order was issued. The Court dismissed this claim by ruling that Article 119 does not require continuous residency!s Finally, Jaber argued that the demolition practice is fundamentally inconsistent with the international law of belligerent occupation. In so doing, he set out to overturn a dozen of the Court's previous decisions. Jaber argued that demolitions violate the Regulations Annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (Hague Regulations),' and two articles of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention). 10 An opinion of the International Committee of the Red Cross (ICRC) supported Jaber's petition, asserting that Article 53 of the Geneva Convention prohibited the demolition of private property, as performed by the Military Govern- ment." Most of the Court's three-page decision focused not on these legal challenges, but rather on the importance of demolitions as a means of deterring future offenses. The Court addressed the international law claims only cursorily: "With all due respect to the [ICRC] legal opinion, the question before us does not concern the interpretation of Article 53 of the Fourth Geneva Convention." It stated that international law instructs occupying powers to preserve local law that precedes an occupation and concluded simply, "Article 119 constitutes part of the law that was in force in the Judea and Samaria Region ... and we have not been presented with any legal reasons why it should now be deemed invalid."' 2 The Court thus rejected the international law claims without explaining why local law should take precedence over substantive international law, without discussing Article 53 7. The Court stated that it relied on the "very detailed account of his convicted accomplices depicting Nader's involvement" in the act. Jaber v. Commander of Central Command, 41(2) P.D. 522, 524 (1987) (English excerpt in 18 ISR. Y.B. HUM. RTs. 252 (1988)). 8. Id. at 525. 9. Regulations Annexed to the Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2295, T.I.A.S. No. 539 [hereinafter Hague Regulations].