The Power of Dissent

By Elena Chachko
Friday, April 8, 2016, 7:31 AM

The Supreme Court of Israel continues to restrain the Israeli government’s use of home demolitions for counterterrorism purposes. In two new decisions the Court annulled orders to demolish or seal the homes of perpetrators of recent terrorist attacks.

Last Thursday, the Court annulled an order to demolish the West Bank home of Abed al-Aziz Meri, a student involved in a stabbing in Jerusalem that killed two Israelis and wounded one of the victims’ wife and child (HCJ 1125/16 (Hebrew) and here). The Court established that the student spent most of his time at his university dorm room, and that he only visited his family home on vacations.

Justice Meni Mazuz, who has been a vocal critic of the Court’s precedents holding that home demolitions are lawful in principle, determined that the student therefore did not have sufficient ties to the home to justify its demolition. He further maintained that significant weight should be accorded to the fact that the perpetrator’s family had no knowledge of the attack. Justice Anat Baron’s concurring opinion reiterated that the question whether the perpetrator’s family was aware of any terrorist activity should carry substantial weight in the Court’s proportionality analysis. Chief Justice Miriam Naor dissented, determining that the student’s ties to his family home were sufficient to justify the demolition order under existing precedents. She emphasized that the Court must abide by its precedents, lest the result of each case turns on who sits on the bench.

In yet another decision delivered on Sunday, the Court annulled three out of four orders to seize and seal the homes of residents of Sur Baher neighborhood in East Jerusalem, who participated in a stone-throwing attack on a Jerusalem road in September 2015 (see HCJ 1336/16 (Hebrew) and here). The attack killed an Israeli man and severely injured another person who was with him in the car.

Writing for the Court, Justice Esther Hayut determined, based on careful analysis of available evidence (including classified material), that only the sealing order issued for the home of Abed Muhammad Abed Rabo Dawiat, who threw the lethal stone at the victims’ car from close range, satisfied the proportionality requirement. She pointed out that sealing a residence in a reversible manner is not as harmful a means as demolishing it, and that this reversibility, too, factors into the proportionality analysis. The Court maintained, however, that using this measure against the others, whose participation in the lethal attack was not as direct, would not be proportional considering the harm to their families.

Justice Uzi Vogelman, who, together with Justice Mazuz, has consistently called for a reevaluation of precedents authorizing home demolitions in principle, argued that the order pertaining to Dawiat should be annulled as well. He maintained that since it has not been established that Dawiat acted with intention to kill (he is facing criminal charges for manslaughter, not murder), nor that his family had any involvement in his actions, sealing his entire home would not be proportional either.

These new decisions do not amount to a sea change in the law governing home demolitions in Israel, as they turn on the implementation of existing precedents in particular factual circumstances. The Court continues to shy away from formally reassessing its precedents, holding that home demolitions of terrorist homes under regulation 119 of the Defence (Emergency) Regulations, 1945 are lawful in principle, as long as they are used for deterrence purposes and comply with the requirements of the proportionality doctrine under Israeli law. The Court recently turned down yet another application for further consideration of the issue before an extended panel (HCJFH 2624/16 (Hebrew)).

That said, the recent decisions continue the trend of rigorous judicial review of counterterrorism home demolition and sealing orders issued by the Israeli government. They also highlight the profound influence of the dissenting voices on the Court, led by Justices Mazuz and Vogelman and increasingly supported by other justices, on the outcomes of the recent string of home demolition cases.

The dissenters’ persistent calls for further consideration of the legality of home demolitions as such before an extended panel keep the debate over the legality of home demolitions alive within the Court. Down the road, this pressure from within, coupled with a continuous flow of cases as terror attacks in Israel continue, might lead to a reconsideration of the issue.

Even if it does not, the dissenters have arguably already succeeded in holding the government to much higher standards within the existing legal framework. Whatever the future holds, the recent demolitions jurisprudence of the Israeli Supreme Court is a testament to the power of dissent.