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Punitive House Demolitions

Saturday, 31 October 2015 10:04
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1. Introduction

hosue_demolition_jerusalem_oct_2015Israel has recently stepped up its practice of punitive house demolitions. These punitive house demolitions areadministrativelyapproved outside of court proceedings and force the eviction of innocent persons from their homes and the destruction of their private property as collective punishment for the alleged ‘crimes’ of others.[1] Since 1 October 2015, Al-Haq has documented 5 incidents of punitive house demolitions–already more than the number recorded for the entire 2014 period.[2]In total, Israel has issued 7 punitive house demolition orders this year.[3] Approximately 2000Palestinian houses have been demolished since the start of the occupation in 1967.[4]

Israel has punitively demolished Palestinian protected private property on the basis of a dubious application of Regulation 119 of the Defense Regulations (1945). The provisions, which were ‘inherited’ from the British administration of Mandatory Palestine, contain a sweeping permission to forfeit, seal off and destroy property of inhabitants whom the military commander suspects of committing violence, regardless of whether they are the property owners or not.[5]The demolitions affect not only the innocent family members of the suspect but also the adjacent and supporting neighbouring properties of Palestinian families residing in high-rise apartment buildings.[6]In 2005, the Israeli High Court of Justice (HCJ) ruled that demolitions are no longer subject to hearing and judicial review, effectively rubber-stamping the unlawful extrajudicial decisions of the military commander.[7]

 

2. Legal Framework

International humanitarian and human rights law both govern a situation of belligerent occupation, with the former applying as lex specialis. According to Article 43 of the Hague Regulations, the belligerent occupant is obliged to maintain the status quo ante bellum of the territory. However, the Occupying Powermay legislate to maintain public order and civil life while respecting the law in force in the country.[8]

Article 64 of the Fourth Geneva Convention requires the Occupying Power to alter laws in the occupied territory that do not meet the minimum humanitarian guarantees advanced in the Geneva Conventions.[9] On this basis, Israel is obliged to repeal Regulation 119 of the Defense Regulations, 1945becauseits provisions are inconsistent with fundamental guarantees of justice, the prohibition on collective penalties, and the protection of civilian property afforded by the Geneva Conventions. Britainhas argued that Regulation 119 was already repealed under the Palestine (Revocations) Order-in-Council of 1948 and as such no longer applies. [10]

 

3. International Humanitarian Law

3.1 Private Property 

The private property of the occupied population is strictly protected during belligerent occupation. Article 46 of the Hague Regulations provides that private property cannot be confiscated.[11]The protection is echoed in Article 53 of the Fourth Geneva Convention, which prohibits the destruction of property of the occupied population “except where such destruction is rendered absolutely necessary by military operations”.[12]

Military operations are understood as “all movements and acts related to hostilities that are undertaken by armed forces”.[13]A proportionality analysis is applied to the destruction of property,which must offer a definite military advantage where operations are conducted against military objectives including armed forces, their transport and installations based on imperative military necessity.[14] Notably, punitive house demolitions take place outside the theatre of war against the private property of civilians.[15] They do not meet the threshold of destruction necessary for military operations, which in any event is tempered by a necessity requirement and proportionality appraisal. In the absence of military operations, such destruction of property is manifestly unlawful. Accordingly in 2014, the United Nations Human Rights Committee warned Israel that the ICCPR “was not a matter of auto-interpretation by every State” and that there was “no interpretation of international humanitarian law which allowed for punitive house demolitions”.[16]

 

3.2 Collective punishment 

Israel orders house demolitions in response to the alleged ‘crimes’ of one of its inhabitants. However there is no suspicion of criminality against the house owner or the other inhabitants. The accused may be subjected to court proceedings,[17] but often the demolitions take place in the absence of a court ruling[18] and in many cases after the inhabitant has been killed.[19]It must be stressed, that regardless of court proceedings, the practice of house demolitions is manifestly unlawful.[20] In all cases, Israel has resorted punitive demolitions as an additional administrative sanction.

Demolishing houses of innocent persons based on the suspicions of the military commanderor in the aftermath of a court ruling against one its inhabitant’s amounts to collective punishment of the occupied population. Collective penalties are prohibited by Article 50 of the Hague Regulations (1907), Article 33 of the Fourth Geneva Convention (1949), Article 75 of Additional Protocol 1 (1977), and area crime under customary international law.[21] The ICRC Commentaries to the Fourth Geneva Convention broadly consider collective punishment as not only penal but “penalties of any kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed”.[22]At its core, responsibility is personal or individual and not collective. The Special Court for Sierra Leone notes that collective penalties are responses to “perceived transgressions”.[23]For the purposes of establishing intent the action, whichresults in collective punishment rather than the objective to collectively punish will cause collective punishment. Therefore administrative penalties based on perceived transgressions by the military commander amount to action resulting in the collective punishment of the protected population, in violation of international law.

 

4. International Human Rights

4.1 The Rights to Private Property and Residence 

The right to private property and residence receives substantial protection in international law. Article 17(2) of the Universal Declaration of Human Rights (UDHR) provides that “no one shall be arbitrarily deprived of his property”.[24] In this vein, the European Court of Human Rights has similarly considered house demolitions orchestrated by the Turkish Security forces a violation of Article 8 of the European Convention on Human Rights guaranteeing the “right to respect for his private and family life, his home and his correspondence”.[25] Notably, the right to residence is a fundamental human right. In this regard, Article 13(1) of UDHR provides that everyone has the right to “residence within the borders of each State”.[26] Similarly, Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR) guarantees all persons the “freedom to choose his residence”.[27]

 

4.2 Cruel, Inhuman, Degrading ,Treatment and Punishment 

The practice of punitive house demolitions further constitutes cruel, inhuman, degrading treatment and punishment. The 2009 Concluding Observations of the Committee against Torture to Israel found that a policy of purely punitive demolitions amounted to a violation of Article 16 of the Convention Against Torture.[28] Accordingly, Israel has a conventional obligation to ensure a prompt and impartial investigation of punitive house demolitions and ensure the right of individual complaint by those affected to a competent authority.[29]

 

4.3 Due Process Guarantees 

The practice of punitive house demolitions ofinnocent persons furtherviolates fundamental due process guarantees. Israel has not established the guilt or innocence of the house owners or other uninvolved inhabitants by a court of law, the penalty being administrative in character. Article 14(2) of the International Covenant of Civil and Political Rights (ICCPR) guarantees the right to presumption of innocence until proven guilty, a right universally binding as customary international law.[30] Proper administration of justice includes the right of equality before courts and tribunals and the right to a fair hearing in an independent, competent and impartial tribunal established by law.[31] The accused enjoys the benefit of doubt and “no guilt can be presumed until the charge has been proved beyond reasonable doubt”.[32] Administrative sanctions against individuals for the suspected acts of violence committed by others therefore violate basic principles of justice where no one may be punished for the crime of another.[33] In addition, the ruling of the Israel High Court of Justice that decisions to demolish houses need no longer be subject to judicial review, violates the right o access to court guaranteed in Article 14(1) of the ICCPR.

Similarly, military courts hearing violations of penal offenses enacted by the Occupying Power must conform to the “general principles of law”.[34] In this vein, no sentence may be pronounced until after a regular trial where the accused is informed of the proceedings against them.[35] Additionally, the accused has the right to council and a right to present their defense.[36] The penalty should at a minimum be sanctioned by a military tribunal with courts of appeal operating in the occupied territory.[37] The penalties administered by Israeli military commanders outside of courts of law represent a serious infringement on fundamental due process guarantees.[38]

 

5. Responsibility

The “extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly” amounts to a grave breach of the Geneva Conventions and is a war crime under the Rome Statute of the International Criminal Court. This means that individual criminal responsibility incurs for acts of unlawful and extensive destruction of property, which may be prosecuted at the International Criminal Court, but also places an ‘active duty’ on State parties to the Geneva Conventions to search, arrest and prosecute those accused to have committed grave breaches.[39] In addition, collective punishment is an international crime,which may be prosecutable by States under customary international law.[40]

Palestinians whose homes are unlawfully seized and destroyed are entitled to reparations and Israel must immediately cease its unlawful measures and provide compensation and just satisfaction to those affected.[41]

 

 

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[1] Al-Haq, ‘Palestinian Human Rights Organisations Council (PHROC) Holds an Urgent Meeting with Foreign Mission Representatives to the Palestinian Authority’ (21 October 2015) <http://www.alhaq.org/advocacy/targets/palestinian-human-rights-organizations/974-palestinian-human-rights-organisations-council-phroc-holds-an-urgent-meeting-with-foreign-mission-representatives-to-the-palestinian-authority> accessed 23 October 2015; Al-Haq, ‘Escalation of Violence in Occupied Palestinian Territory: An Inevitable Cycle of Cause and Effect’ (10 October 2015) <http://www.alhaq.org/advocacy/targets/third-party-states/964-escalation-of-violence-in-occupied-palestinian-territory-an-inevitable-cycle-of-cause-and-effect> accessed 23 October 2015.

[2] Figures on File with Al-Haq; B’Tselem, ‘House Demolitions as Punishment’ (16 September 2015) <http://www.btselem.org/punitive_demolitions/statistics> accessed 24 October 2015.

[3] OCHA, Occupied Palestinian Territory, Protection of Civilians (13-19 October 2015) <http://www.ochaopt.org/poc13october-19october-2015.aspx> accessed 29 October 2015.

[4] See also B’Tselem, ‘House Demolitions as Punishment’ (16 September 2015) <http://www.btselem.org/punitive_demolitions/statistics> accessed 24 October 2015; D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Suny, 2002) 145; Figures from Al-Haq Database in S. Darcy, ‘Punitive House Demolitions, the Prohibition of Collective Punishment, and the Supreme Court of Israel’ 21 Penn State International Law Review (2002-2003) 477, 480.

[5] D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Suny, 2002) 145-146. And was subsequently limited in practice. However recent events have witnessed a renewed surge in punitive house demolitions.

[6] Y.Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009) 156; HCJ 361/82, Hamri v. Commander of Judea and Samaria, 36(3) PD 439, 443.

[7] HCJ No. 6696/02, Amar et al v. IDF Commander of the West Bank (2002).

[8] Article 43, Hague Regulations (1907).

[9] Article 64, Fourth Geneva Convention (1949); Pictet, Commentary IV Geneva Convention (1CRC, 1958) 337.

[10] S. Darcy, ‘Punitive House Demolitions, the Prohibition of Collective Punishment, and the Supreme Court of Israel’ 21 Penn State International Law Review (2002-2003) 477, 481.

[11] Article 46, Hague Regulations (1907). See also Article 23 of the Hague Regulations (1907).

[12] Article 53, Fourth Geneva Convention (1949).

[13]Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Commentary to Article 48.

[14] Article 48, Additional Protocol 1 (1977).

[15] Expert Opinion, Professor Orna Ben-Naftali, Professor Guy Harpaz, ‘The Lawfulness of Israel’s House Demolitions Policy under International Law and Israeli Law’ HaMoked (2014) 10; Article 23 of the Hague Regulations also refers to destruction “demanded by the necessities of war”.

[16] CCPR/C/ISR/4 (21 November 2014), United Nations Human Rights Committee Reviewing Fourth Periodic Report of Israel <http://unispal.un.org/UNISPAL.NSF/0/DFF7982492B1F62B85257D77006A304C> accessed 24 October 2015.

[17] See Sakhwill v IDF Commander in Judea and Samaria.(1987) 41(2) PD 522.

[18] See Khamed v IDF Commander in Judea and Samaria (1981) 35(3) PD 223.

[19] A. Degar, ‘For the First Time Israel’s High Court Wrestles with Legality of Punitive Home Demolitions’ Mondoweiss (4 December 2014).

[20] CCPR/C/ISR/4 (21 November 2014),

[21] Article 50, Hague Regulations (1907); Article 33, Fourth Geneva Convention (1949); Report of the Secretary General on the Establishment of the Special Court for Sierre Leone, UN Doc 8/2000/915, 14 October 2000, para 178.

[22] Pictet, Commentary IV Geneva Convention (1CRC, 1958) 225.

[23] CDF Appeals Judgment, Prosecutor v Fofana and Kondewa, SCLS-04-14, Special Court for Sierre Leone (SCSL), Judgment, Appeals Chamber, 28 May 2008, para. 223.

[24] Article 17(2), Universal Declaration of Human Rights (1948).

[25]Akvidar v. Turkey (1997) 23 EHRR 143.

[26] Article 13(1), Universal Declaration of Human Rights (1948).

[27] Article 12(1), International Covenant of Civil and Political Rights (1966).

[28] CAT/C/ISR/CO/4, Concluding Observations of the Committee Against Torture, Israel (May 2009) para. 33.

[29] Article 12-13, Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (1984).

[30] Article 14(2), International Covenant of Civil and Political Rights (1966); Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994)

[31]Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para 1.

[32]Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para 7.

[33] D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Suny, 2002) 150.

[34] Article 65 - 67, Fourth Geneva Convention (1949)

[35] Article 71, Fourth Geneva Convention (1949).

[36] Article 72, Fourth Geneva Convention (1949).

[37] Article 66, Fourth Geneva Convention (1949).

[38] D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Suny, 2002) 153.

[39] Article 147, Fourth Geneva Convention (1949); Article 8(2)(a)(iv) of the Rome Statute of the International Criminal Court.

[40] Report of the Secretary General on the Establishment of the Special Court for Sierre Leone, UN Doc 8/2000/915, 14 October 2000, para 178.

[41] See for example, Court of Human Rights, Information Note No. 28, March 2001, p. 33. In total 201 cases were withdrawn from the Court seeking compensation for property destroyed in the Lice area following clashes between security forces and PKK sympathizers. The applications were withdrawn after the parties had reached settlements.

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