The question of whether house demolitions are legal in Israeli domestic law is not a complicated one – they are because the Knesset has said they are and the High Court of Justice has sustained that view since 1979.
The question of whether they are legal under international law is much more hotly contested.
The current house-demolition policy is really the reinstatement of a policy that was ceased in 2005, when a state-sponsored committee convinced the security establishment to halt the policy, finding it ineffective at achieving deterrence and borderline legal under international law.
Is the reinstatement mere camouflage and an attempt to redirect public attention? If so, the idea would be that it is better that the public focus on demolitions rather than looking at government responsibility for releasing Palestinian terrorists in the Gilad Schalit deal who have gone back to committing acts of terrorism.
As of Tuesday, the High Court of Justice approved a return to the house-demolition policy, starting with the house of the family of Ziad Awad, who has been indicted for murdering Baruch Mizrahi.
This reinstated policy comes after the state-sponsored 2005 Shani Commission, named for Maj.- Gen. (res.) Udi Shani, which also included current Hebrew University Law School Dean Yuval Shany, convinced the security establishment to halt the destruction of homes as a form of punishment.
There is an international law debate about whether house demolitions can be considered a military necessity under Article 53 of the Fourth Geneva Convention (1949), or whether they are an illegal form of collective punishment under the convention’s Article 33.
A corollary to this debate is that if it can be proved family members of the attacker knew of the attack, then they are not being collectively punished.
In approving the Awad demolition, the High Court said that Awad’s wife and son were “up to their neck” in his terrorism activities.
But most countries do not view deterrent demolitions as valid, accepting only demolitions relating to a real-time battlefield situation.
With this debate ongoing, it was striking that neither the Justice Ministry nor the High Court mentioned international law at almost any time while the case was being argued.
Guy Harpaz, a law professor at the Hebrew University, said this was because the court knows that all or many of the demolitions would fail under international law, but that it does not wish to turn down the state on this issue.
If Harpaz is right, then why would the court be comfortable challenging the state on a variety of issues balancing security and human rights, such as the migrant policy or the location of the West Bank barrier, but not on house demolitions? For those who criticize the court as left-wing, Harpaz’s critique here is instructive.
He said the socio-political pressure on this issue is too strong, since house demolitions tend to only come up when the state wants to exact vengeance on the worst terrorists.
Harpaz said the court started allowing demolitions in 1979, possibly without fully appreciating the international law implications, and that having allowed so many since then, it might be too much for the court to reverse such a set precedent.
Besides the legal issues, the question of whether this is all camouflage for changing perspectives about the Schalit deal delves into why the state has decided to restart house demolitions now, as opposed to after other terrorist attacks since.
The earth has shifted under the government on the 2011 Schalit deal.
At the time, it was possibly the most popular action the government had taken in recent years, but the downsides of the deal are now being felt intensely and nationally.
There is a strong likelihood the president’s power to pardon terrorists may be limited because of the rising anger over terrorism acts carried out by Schalit deal releases like Awad.
The murder of Mizrahi in some ways was not an unusual event, as many attacks had taken place since 2005, with no follow-up demolitions.
But in this completely changed environment, Harpaz said a return to house demolitions, whether they truly deter future terrorism attacks or not, at least focuses the public’s passion on vengeance and not on the government’s responsibility for letting the Schalit deal killers go.