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When Does a Court Systematically Deviate from its Own Principles? The Adjudication by the Israel Supreme Court of House Demolitions in the Occupied Palestinian Territories

Published online by Cambridge University Press:  27 January 2015

GUY HARPAZ
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Abstract

The judiciary’s counter-majoritarian role in the realm of national security is of paramount importance. By and large the Israel Supreme Court has taken cognizance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities, relying more and more on public international law. Yet when faced with house demolition measures, it has adopted a different stance, preferring to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law. The article attempts to ascertain the reasons for the Court's different judicial position, by advancing, inter alia, legal, historical, socio-political, and personal reasons, reasons relating to the nature of the petitioners, as well as those pertaining to the intertwined concepts of status quo bias, omission bias, and loss aversion. The findings of the case study may be relevant to other courts, in other countries. When faced with deterrent measures that are employed at times of severe security threats and that are strongly supported by the political establishment and by the public, courts may find it difficult to perform a counter-majoritarian role and to abide by their own judicial doctrines and principles.

Keywords

house demolitionsIsrael Supreme Courtjudicial coherencelaws of belligerent occupation
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 28 , Issue 1 , March 2015 , pp. 31 - 47
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

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2 The HD cases are compared with the leading, seminal cases pertaining to the prominent, comparable security measures, including those related to administrative detention, detention for bargaining purposes, deportation orders, physical means of interrogation, orders of assigned residence, orders limiting the right of free movement, military techniques involving human shields, targeted killings, and orders pertaining to the Wall/security fence.

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4 Supra note 3.

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6 Zemach, supra note 3.

7 For a short, first reference to the Court's deviation from its own administrative-constitutional principles, see Kretzmer, ‘The High Court of Justice's Monitoring of Demolishing and Sealing Houses in the Territories’, supra note 3, at 348. For recent analysis, see G. Harpaz, ‘Being Unfaithful to One's Own Principles: The Israel Supreme Court and House Demolitions in the Occupied Palestinian Territories’, (2014) 47(3) Isr. L. Rev. 379.

8 Harpaz, supra note 7.

9 Defense (Emergency) Regulations 1945, Palestine Gazette (No. 1442), Reg. 119, para. 2, at 1089 (Supp. II Sept. 27, 1945) [hereinafter ‘Defense Emergency Regulations’]. For analysis, see Gross, supra note 3, at 180–2; Carroll, supra note 3, at 1202–5.

10 ‘(I) A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure of anything growing on the land’. For analysis, see Dinstein, supra note 3, at 287; Simon, supra note 3, at 16.

11 For historical account, see Zemach, supra note 3, at 67.

12 It is estimated that since then, over 2,000 houses have been either demolished or sealed. For facts and figures of that practice in the territories, see Halabi, supra note 3; Darcy, supra note 3, at 478–80; Farrell, supra note 3, at 898–9; Zemach, supra note 3, at 67–70; Hofnung and Weinshall-Margel, supra note 3, at 674. During the years 2000–2005, 675 dwellings were demolished. See also figures as supplied by B’tselem, the Israeli Information Center for Human Rights in the Occupied Territories, <http://www.btselem.org/punitive_demolitions/statistics>.

13 Hofnung and Weinshall-Margel, supra note 3, at 159.

14 Halabi, supra note 3, at 254 and 266–7.

15 Ibid.

16 But see HCJ 6696/02 Amer v. Commander of IDF Forces in the West Bank 2002 PD 56(6) 110, for the Court's approval of the refusal to offer prior hearing in circumstances in which such notice would endanger the soldiers executing the order.

17 Dinstein, supra note 3, at 295–6, questioning ‘How could the Supreme Court deny the existence of a contradiction which is so glaring and multifaceted?’. See also Carroll, supra note 3, at 1206.

18 Regulations annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land.

19 For analysis, see Simon, supra note 3, at 55.

20 For analysis, see ibid., at 53–7.

21 For analysis, see ibid., at 63.

22 For analysis, see Carroll, supra note 3, at 1213–15; Cohen, supra note 3, at 49.

23 Backer, supra note 3, at 543–4; Gross, supra note 3, at 198–201; Cohen, supra note 3, at 69; Simon, supra note 3, at 68; Dinstein, supra note 3, at 128; Carroll, supra note 3, at 1209–12: Demolition cannot be rendered ‘absolutely necessary by military operations’. Allowing such justification on the basis that such action is needed to control the population would greatly expand the scope of the exception beyond what is acceptable if Art. 53 is to retain its vitality. Since demolitions are justified for deterrence reasons, it cannot be claimed that they have taken place in the midst of conflict or are of immediate military necessity.

24 For analysis, see Quigley, supra note 3, at 371–2.

25 For analysis, see Halabi, supra note 3; Quigley, supra note 3, at 371–2.

26 For analysis, see Quigley, supra note 3, at 373–4; Farrell, supra note 3, at 903–4.

27 For analysis, see Halabi, supra note 3, at 267; Quigley, supra note 3, at 372–3.

28 For analysis, see Halabi, supra note 3, at 267; Gross, supra note 3, at 207.

29 For support see Kretzmer, ‘The High Court of Justice's Monitoring of Demolishing and Sealing Houses in the Territories’, supra note 3, especially at 347–9: This approach is inconsistent with the Court's traditional jurisprudence because it defies the restrictive interpretation normally applied to governmental actions that infringe on fundamental rights and moreover it lacks any attempt to present, weight, and balance the Palestinians’ competing interests.

30 For support, see Dinstein, supra note 3, at 304.

31 For further critical analysis of the Court's record, examining specific verdicts, see Kretzmer, supra note 3; Sultany, N., ‘The Legacy of Justice Aharon Barak: A Critical Review’, (2007) 48 Harv. Int’l L. J. Online 83Google Scholar; Simon, supra note 3.

32 Harpaz, supra note 7.

33 Report of the National Lawyers Guild 1977 Middle East Delegation, Treatment of Palestinians in Israeli-Occupied West Bank and Gaza (1978), at 64, n. 8.

34 Hofnung and Weinshall-Margel, supra note 3, at 685, who found that if a decision is handed down after a terrorist attack the probability of overtly supporting human rights significantly decreases.

35 HCJ 6288/03 Sa’ade v. Commander of the Home Front Command 2003 PD 58(2) 289, per Justice Türkel, para. 2.

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37 See G. Barzilai, ‘Between the Rule of Law and the Laws of the Ruler: The Supreme Court in Israeli Legal Culture’, (1997) 49 International Social Science 193, as analysed by Dotan, Y., ‘Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice during the Intifada’, (1999) 33 Law & Soc’y Rev. 319CrossRefGoogle Scholar, at 320–1.

38 Schnitzer v. Chief Military Censor, 42(4) P.D. 617, at 639–40 (per Justice Barak).

39 Cohen, supra note 3, at 29–30 and 56; Benvenisti, E., ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’, (1993) 4 EJIL 159CrossRefGoogle Scholar: Politically, there exists no domestic legitimacy and support for the court to take such action. Institutionally, courts are hesitant to interfere with ongoing operations, where the interests of the state are at risk. See also Gartner, S. S. and Segura, G. M., ‘War, Casualties, and Public Opinion’, (1998) 42 Journal of Conflict Resolution 278CrossRefGoogle Scholar. Hofnung and Weinshall-Margel, supra note 3, at 668: Public support rarely exists for court decisions that overturn executive actions taken in order to reinforce the fight against terror.

40 T. Tal, Until Sundown (Autobiography, 2010) [Hebrew], at 254, in which Justice Tal admitted his inability to withstand emotional pressure and that the holding of terrorists as ‘bargaining chips’ is simply illegal.

41 Merari, A., ‘Israel Facing Terrorism’, (2005) 11 Israel Affairs 223CrossRefGoogle Scholar, at 235.

42 Ibid., at 228–9, referring to a public opinion poll conducted in 1993, in which 79% of a representative sample of Israeli Jews were in favour of demolishing houses of persons who provided asylum to known terrorists.

43 Ibid., at 229, referring to a public opinion poll in which only 29% of the respondents held the opinion that in planning a military operation in the Territories, the IDF should take into consideration the possibility of hurting Palestinian civilians as a supreme factor.

44 Ibid., at 235: In Israel, government anti-terrorism policy has been practically bound by public opinion.

45 Dotan, supra note 37, at 346.

46 For support, see Hofnung and Weinshall-Margel, supra note 3, at 150–3: Limitations on the Court's ability in the war against terror in the absence of popular support; Y. Dotan, ‘ Judicial Activism in the High Court of Justice’, in R. Gavison, M. Kremnitzer, and Y. Dotan, Judicial Activism: For and Against – The Role of the High Court of Justice in the Israeli Society (2000) [Hebrew] 5, at 53–6.

47 For support, see Hofnung and Weinshall-Margel, supra note 3, at 150–3.

48 Cohen, supra note 3, at 30 and 52–8.

49 For support, see Gross, supra note 3, at 758; Hofnung and Weinshall-Margel, supra note 3, at 153.

50 Cohen, supra note 3, at 67 and 69. For a supporting academic opinion of this grass-roots approach, See Backer, supra note 3, at 541–3, 553, 554–7 and 567.

51 Cohen, supra note 3, at 67.

52 Mishler, W. and Sheehan, R. S., ‘The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on the Supreme Court Decisions’, (1993) 87 Am. Poli. Sci. Rev. 87CrossRefGoogle Scholar.

53 HCJ 6026/94 Nazaal v. IDF Commander in Judea and Samaria (1994) PD 48(5)338, Justice Matza, at para.10: ‘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 … The reason that justified the policy in the past was the assumption that with the death of the terrorist during the act, the deterrent element was exhausted with respect to potential terrorists. On the other hand, adoption of such a policy in cases of suicide terrorists will at the very least leave a vacuum in respect of the deterrent measures open to the military commander.’ See also Chief Justice Barak, in HCJ 2006/97 Ghanimat v. Officer Commanding Central Command, 1997 PD 51(2) 651: ‘Amongst the limited means left to the State to defend her from “living bombs”, this option should not be dismissed.’ In another case, the Court established that ‘there is no assurance that this measure is indeed effective. But, considering the very few measures at the disposal of the State in order to defend against “living bombs” this measure should not be disparaged.’ See also HCJ 9353/08 Abu Dahim v. Commander of the Home Front Command 2009 (unpublished), Justice Naor, para. 6.

54 Ghanimat v. Officer Commanding Central Command, supra note 53.

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56 E. Zamir and B. Medina, Law, Economics and Morality (2010), 140.

57 Ibid., at 142.

58 Ibid., at 141–2.

59 Ibid., at 141–2.

60 Zamir, E. and Ritov, I., ‘Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation’, (2012) 41 (1)J. Legal Stud. 165CrossRefGoogle Scholar, at 193.

61 Ibid.

62 Ibid., at 170.

63 Ibid., relying on Kahneman, D. and Tversky, A., ‘The Psychology of Preferences’, (1982) 246 Scientific American 16CrossRefGoogle Scholar.

64 Ibid.

65 Teichman, D. and Zamir, E. (eds.), ‘Judicial Decision-making: A Behavioral Perspective’, in Oxford Handbook of Behavioral Economics and the Law (forthcoming)Google Scholar.

66 Ritov, I. and Baron, J., ‘Reluctance to Vaccinate: Omission Bias and Ambiguity’, (1990) 3 Journal of Behavioral Decision Making 263CrossRefGoogle Scholar.

67 Zamir and Ritov, supra note 60, at 170.

68 Ritov and Baron, supra note 66.

69 Davidov, G. and Reichman, A., ‘Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel’, (2010) 35(4) Law and Society Inquiry 919CrossRefGoogle Scholar, at 925.

70 Zamir and Ritov, supra note 60, at 166.

71 Jois, G. U., ‘Stare Decisis Is Cognitive Error’, (2009) 75 Brook. L. Rev. 63Google Scholar; Wistrich, A. J., ‘The Evolving Temporality of Lawmaking’, (2012) 44 Conn. L. Rev. 737Google Scholar; Gely, R., ‘Of Sinking and Escalating: A (Somewhat) New Look at Stare Decisis’, (1998) 60 U. Pitt. L. Rev. 89Google Scholar.

72 Zamir, E., ‘Loss Aversion and the Law’, (2012) 65 Vand. L. Rev. 829Google Scholar.

73 See, for example, Sa’ade v. Commander of the Home Front Command, supra note 35, para. 2 (Per Justice Türkel): ‘The question of the effectiveness of demolishing … has been judicially discussed more than once in the past and it has been decided that this is a matter for the security authorities to evaluate, and that the Court has no basis for doubting.’ For support of this explanation, see Simon, supra note 3, at 44.

74 See Guiora, supra note 3, at 375–6; G. Myre, ‘Israel Halts Decades-Old Practice of Demolishing Militants’ Homes’, N.Y. Times, 18 February 2005; Hofnung and Weinshall-Margel, supra note 3, at 159.

75 ‘The Committee headed by General Udi Shani … determined that it was very doubtful whether demolitions are effective, but when the Committee examined the subject in depth, and its findings were presented to the Chief of Staff, it transpired that in fact assessing the effectiveness was very difficult. Together with concrete examples, and there are such examples in which the effectiveness of such a step has been proven, concrete examples of families who prevented their sons from going out to conduct acts of suicide … There are a few dozen cases like that, but on the other hand prima facie evidence was brought to the effect that the subject of demolition of houses for the purposes of deterrence also created much more hatred, created increased motivation, created refugee collectivity. There are contrary indications and consequently on this subject it was difficult to reach an unambiguous conclusion. Moreover, when we tried to quantify it, quantifying the hidden aspects of effectiveness was not simple, was complicated … It was impossible to reach an unambiguous result in this matter. This is something very, very complicated. The importance of additional reasons entered the picture … subjects connected with international law and I say again … it is possible to make the argument justifying it … and as there is real doubt on the subject of the effectiveness of the demolition of houses, when we attempt to strike a balance there are arguments on both sides of the subject and that led to a decision, a significant and dramatic decision.’ (The Knesset's Committee on Legislation, Constitutional and the Law, 22 February 2005, own translation from Hebrew)

76 Although he reserved the right to re-examine the need to reactivate the policy, should an extreme change in the security circumstances occur, see Guiora, supra note 3; Myre, supra note 74.

77 Guiora, supra note 3; Myre, supra note 74.

78 ‘The Activist’, Haaretz, 7 June 2013, 30, at 38.

79 Abu Dahim v. Commander of the Home Front Command, supra note 53, Justice M. Naor, paras. 9 and 11: ‘Our position is that there is no room to intervene in the respondent's change of policy. The new-old policy relies upon the aforesaid opinion of the General Security Service, and it is shared by the IDF Chief of Staff and the Minister of Defense. Indeed an authority can change a policy and surely it may change it with a change in circumstances. With respect to terrorists residents of East Jerusalem the respondent demonstrated with concrete data … that there indeed exists a change of circumstances. As was ruled in the past in this court case law, this court is not inclined to intervene in the security forces’ evaluation concerning the effectiveness of using the measure of demolishing houses or sealing them as a factor that deter others. This was also the case when a few years ago there was a change of policy following the recommendations of the think tank headed by Major General Shani.’

80 Ibid.: ‘As we mentioned above, the case law ruled more than once, that a scientific study that can prove how many terror attacks have been prevented and how many lives have been saved as a result of taking the aforesaid measure could never be conducted. For this matter nothing has changed. Indeed, the reality has changed and also the severity of the events has changed. The conclusions to be drawn from that are a clear matter for the security forces to evaluate.’

81 These included, in particular, the prohibition against the use of human shields for military operations, the detention for bargaining purposes, and the imposition of restraints on the construction of the security barrier and on practices such as targeted killing and assigned residence.

82 Hofnung and Weinshall-Margel, supra note 3, at 686.

83 But compare with Y. Zamir, ‘Introduction’, in H. Cohn, A Personal Introduction: Autobiography (2005), 38 [Hebrew], especially at 53–4, dealing with this theme in general and in its application in relation to Justice Cohn of the Israeli Supreme Court, in particular. See also Justice Jackson of the US Supreme Court who referred to his previous approach as Attorney General: ‘I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy’, Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952).

84 Hofnung and Weinshall-Margel, supra note 3, at 681–2 and 684–5. See also R. Gavison, ‘Public Involvement of the High Court of Justice: A Critical Perspective’, in Gavison et al., supra note 46, 69, at 118.

85 Dotan, supra note 5.

86 HCJ 358/88 The Association for Civil Rights in Israel and others v. The Central District Commander, [1989] IsrSC 43(2) 529.

87 Dotan, supra note 37.

88 Ibid.

89 Ibid., at 407–8.

90 Ibid.

91 Ibid., at 408.

92 Ibid., at 416.

93 Dotan, Y. and Hofnung, M., ‘Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements’, (2001) 23 (1)Law & Pol. 1CrossRefGoogle Scholar, at 14.

94 Dotan, supra note 37, at 339 and 341–2.

95 Ibid., at 349; Davidov and Reichman, supra note 69, at 952. See, e.g., Hofnung and Weinshall-Margel, supra note 3, who examined the Court's jurisprudence and reached the conclusion that the Court's record is mixed, the implicit, latent dimension of its restraining impact is important, allowing the Court to prohibit blatant infringements of human rights and having an indirect chilling effect on them, while abstaining from issuing formal decisions in favour of the Petitioner.

96 Dotan, supra note 37, at 338–42.

97 Ibid., at 339–42.

98 Ibid., at 342.

99 See Dotan and Hofnung, supra note 93, for the application of this principle in the Israeli case. For a similar proposition in the US context, see Galanter, M., ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’, (1974) 9 Law and Soc’y Rev. 95CrossRefGoogle Scholar, at 144.

100 Dotan, supra note 37, at 342.

101 See Davidov and Reichman, supra note 69, at 924, who detected a steady decline in petitions questioning the legal authority (competence, or vires) of the Commander and an increase in claims that the Commander has erred in applying his discretion (mainly proportionality).

102 Hofnung and Weinshall-Margel, ‘Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice’, and Hofnung and Weinshall-Margel, ‘Judicial Rejection as Substantial Relief: The Israeli Supreme Court and the “War on Terror”’, supra note 3.

103 Medina, B. and Saban, I., ‘On Human Rights and Risk-Taking: Democracy, Ethnic Profiling and the Requirement of the Limitation Clause’, (2009) 39 (1)Mishpatim 47Google Scholar [Hebrew].

104 Gavison, R., ‘The Role of Courts in Rifted Democracies’, (1999) 33 Isr. L. Rev. 216CrossRefGoogle Scholar, at 241.