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Being Unfaithful to One's Own Principles: The Israeli Supreme Court and House Demolitions in the Occupied Palestinian Territories

Published online by Cambridge University Press:  29 August 2014

Guy Harpaz
Guy Harpaz*
Affiliation:
Arnold Brecht Chair in European Law, Hebrew University of Jerusalem; guy.harpaz@mail.huji.ac.il.
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Abstract

The practice of house demolition in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) has attracted voluminous literature, most of which is critical. Scholarship postulates that the practice is immoral and ineffective, that it is contrary to Jewish morals and international law, and that it may amount to an international crime. Some of the critical writings focus on the practice of the Israel Defence Forces; others concentrate on the failure of the Israeli Parliament to curb the practice, while others examine the practice in its wider context, namely the Israeli–Palestinian conflict. This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, Kretzmer and Simon, who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive. This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's house demolition jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories, postulating that in handling house demolition measures the Court is unfaithful to its own jurisprudence. Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions in normative, coherence and legitimacy terms. It concludes with the call that when the issue of house demolition is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law.

Keywords

laws of belligerent occupationSupreme Court of Israelhouse demolitionjudicial review
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 3 , November 2014 , pp. 401 - 431
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 See Backer, Larry, ‘The Führer Principle of International Law: Individual Responsibility and Collective Punishment’ (2002) 21 Penn State International Law Review 509Google Scholar; Carroll, Martin B, ‘The Israeli Demolition of Palestinian Houses in the Occupied Territories: An Analysis of its Legality in International Law’ (1990) 11 Michigan Journal of International Law 1195Google Scholar; Darcy, Shane, ‘Punitive House Demolitions, The Prohibition of Collective Punishment, and the Supreme Court of Israel’ (2002) 21 Penn State International Law Review 477Google Scholar; Dershowits, Alan, ‘Symposium on Human Rights’ (1971) 1 Israel Yearbook on Human Rights 361Google Scholar, 376–77; Dinstein, Yoram, ‘The Israeli Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses’ (1999) 29 Israel Yearbook on Human Rights 285Google Scholar; Farrell, Brian, ‘Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119’ (2003) 28 Brookline Journal of International Law 871Google Scholar; Gil, Elad, Tuval, Yogev and Levy, Inbar, Exceptional Measures in the Struggle against Terrorism (Israel Democracy Institute 2010)Google Scholar; Gross, Emanuel, ‘Democracy's Struggle against Terrorism: The Powers of Military Commanders to Decide Upon the Demolition of Houses, the Imposition of Curfews, Blockades, Encirclements and the Declaration of an Area as a Closed Military Area’ (2002) 30 Georgia Journal of International and Comparative Law 165Google Scholar; Gross, Emanuel, ‘Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy Have the Right to Hold Terrorists as Bargaining Chips?’ (2001) 18 Arizona Journal of International and Comparative Law 721Google Scholar; Guiora, Amos, ‘Transnational Comparative Analysis of Balancing Competing Interests in Counter-Terrorism’ (2006) 20 Temple International and Comparative Law Journal 363Google Scholar; Halabi, Usamar, ‘Demolition and Sealing of Houses in the Israeli Occupied Territories: A Critical Legal Analysis’ (1991) 5 Temple International and Comparative Law Journal 251Google Scholar; Hofnung, Menachem and Weinshall-Margel, Keren, ‘Judicial Rejection as Substantial Relief: The Israeli Supreme Court and the “War on Terror”’ in Volcansek, Mary L and Stack, John F Jr (eds), Courts and Terrorism: Nine National Balance Rights and Security (Cambridge University Press 2011) 150Google Scholar; Hofnung, Menachem and Weinshall-Margel, Keren, ‘Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice’ (2010) 7 Journal of Empirical Legal Studies 664Google Scholar; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (SUNY Press 2002) 145Google Scholar; Kretzmer, David, ‘The High Court of Justice's Monitoring of Demolishing and Sealing Houses in the Territories’ in Zamir, Yitzhak (ed), Klinghoffer Book on Public Law (Harry Sacher Institute 1993) 305 (in Hebrew)Google Scholar; Quigley, John, ‘Punitive Demolition of Houses: A Study in International Rights Protection’ (1992–93) 5 St Thomas Law Review 359Google Scholar; Reicin, Cheryl, ‘Preventive Detention, Curfews, Demolition of Houses, and Deportations: An Analysis of Measures Employed by Israel in the Administered Territories’ (1987) 8 Cardozo Law Review 515Google Scholar; Shamgar, Meir, ‘The Observance of International Law in the Administered Territories’ (1971) 1 Israel Yearbook on Human Rights 262Google Scholar; Simon, Dan, ‘The Demolition of Homes in the Israeli Occupied Territories’ (1994) 19 Yale Journal of International Law 1Google Scholar; Efrat Zilber, ‘The Demolition and Sealing of Houses as a Means of Punishment in the Areas of Judea and Samaria during the Intifada up to the Oslo Agreement’, MA thesis, Bar Ilan University, Israel, 1997.

2 Fletcher, George P, ‘Collective Guilt and Collective Punishment’ (2004) 5 Theoretical Inquiries in Law 163, 166.Google Scholar

3 See, for example, Zilber (n 1).

4 Ruebner, Ralph, ‘Democracy, Judicial Review and the Rule of Law in the Age of Terrorism: The Experience of Israel: A Comparative Perspective’ (2003) 31 Georgia Journal of International and Comparative Law 493, 510–12.Google Scholar

5 Section 3.3 below.

6 Quigley (n 1) 379–83; Zemach, Ariel, ‘The Limits of International Criminal Law: House Demolitions in an Occupied Territory’ (2004) 20 Connecticut Journal of International Law 65.Google Scholar

7 Cohen, Amichai, ‘Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories’ (2005) 38 Israel Law Review 24, 27–8.Google Scholar

8 For analysis, see Quigley (n 1) 374. See also Kretzmer (2002) (n 1); Backer (n 1); Bracha, Baruch, ‘Judicial Review of Security Powers in Israel: A New Policy of the Courts’ (1991) 28 Stanford Journal of International Law 39Google Scholar; Cohen, ibid; Dinstein, Yoram, ‘The International Law of Belligerent Occupation and Human Rights’ (1978) 8 Israel Year Book of Human Rights 104, 128Google Scholar; Grebinar, Jonathan, ‘Responding to Terrorism: How Must a Democracy Do It? A Comparison of Israeli and American Law’ (2003) 31 Fordham Urban Law Journal 261Google Scholar; Simon (n 1) 11.

9 Kretzmer (1993) (n 1), Kretzmer (2002) (n 1).

10 See n 1. See also Hofnung and Weinshall-Margel (n 1); Gil, Tuval and Levy (n 1); Dotan, Yoav, ‘Public Lawyers and Private Clients: An Empirical Observation on the Relative Success Rates of Cause Lawyers’ (1999) 21 Law and Policy 401.Google Scholar

11 The methodology used throughout the article is an analysis and comparison of two sets of verdicts: the first consists of HD verdicts; the second consists of verdicts pertaining to other major security measures employed by the security forces. With respect to the first set, an analysis was conducted of over 100 HD cases, 70 of which were reported and were read and analysed by the author; the remaining HD verdicts were analysed based on analysis appearing in secondary sources, which include, in particular, those referred to in n 1. The HD verdicts are thus analysed by using no sampling techniques. The HD cases are then compared with the leading, seminal cases pertaining to 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. Sampling was conducted in relation to the second set. Thus, for example, in relation to targeted killing the article relies on the doctrinal, seminal verdict that adjudicated the very legality of the policy (see n 26). The same is true, for example, with respect to the Court's scrutiny of the legality of orders of assigned residence (see n 31).

12 Yet we still subscribe to Kretzmer's broad description, according to which HD verdicts ‘typify its jurisprudence on the Occupied territories’, in the sense that ‘[t]he Court has not seen itself as a body that should question the legality under international law of policies or actions of the authorities, or should interpret the law in right-minded fashion. On the contrary, it has accepted and legitimized policies and actions the legality of which is highly dubious and has interpreted the law in favor of the authorities. The Court's main role has been bolstering procedural requirements and interfering on the margins so as to prevent “excesses”’: Kretzmer (2002) (n 1) 163. For a short, first reference to the Court's deviation from its own administrative-constitutional principles, see Kretzmer (1993) (n 1) 348.

13 See Harpaz, Guy, ‘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’ Leiden Journal of International LawGoogle Scholar (forthcoming).

14 Defence (Emergency) Regulations 1945, Palestine Gazette No 1442 Supp II (27 September 1945) reg 119(2). For analysis, see Gross (2002) (n 1) 180–82; Carroll (n 1) 1202–05.

15 ‘(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 (n 1) 287; Simon (n 1) 30.

16 For a historical account, see Zemach (n 6) 67.

17 It is estimated that since then, over 2,000 houses have been either demolished or sealed. For facts and figures of the practice in the Territories, see Halabi (n 1); Darcy (n 1) 478–80; Farrell (n 1) 898–99; Zemach (n 6) 67–70; Hofnung and Weinshall-Margel (2010) (n 1) 674. From 2000 to 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.

18 Hofnung and Weinshall-Margel (2011) (n 1) 159.

19 See Halabi (n 1) 254 and 266–67.

20 ibid, but see HCJ 6696/02 Amer v Commander of IDF Forces in the West Bank 2002 PD 56(6) 110 (for an exception to the general rule, with the Court's approval rather than refusal to offer a prior hearing in circumstances in which such notice would endanger the soldiers executing the order).

21 Dotan, Yoav, ‘Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice during the Intifada’ (1999) 33 Law and Society Review 319.Google Scholar

22 Cohen (n 7) 61.

23 See, for example, HCJ 4764/04 Doctors for Human Rights v IDF Commander in the Gaza Strip 2004 PD 58(5) 385, as analysed by Cohen (n 7) 74.

24 For analysis, see ibid.

25 For analysis, see ibid 63.

26 See, for example, HCJ7957/04 Mara'abe v The Prime Minister 2005 PD 60(2) 477, para 14, official translation at http://elyon1.court.gov.il/files_eng/04/570/079/A14/04079570.a14.pdf; HCJ 769/02 Public Committee against Torture v Government of Israel 2006 (unpublished, 14 December 2006), para 18, official translation at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.

27 For analysis, see Bracha (n 8) 81–83.

28 ibid 63–64.

29 EA 2, 3/84 Naiman v Chairman of the Central Elections Committee for the Eleventh Knesset 1985 PD 39(2) 225.

30 HCJ 769/88 Abu Obeid v IDF Commander in Judea and Samaria 1988 PD 42(4) 569, Justice Goldberg, para 5.

31 In the assigned residence case the Court found that the measures may not be imposed if the elimination of the danger can be achieved by criminal prosecution: see HCJ 7015, 7019/02 Ajuri v IDF Commander 2002 PD 56(6) 352, para 26.

32 For analysis, see Cohen-Eliya, Moshe, ‘The Formal and the Substantive Meanings of Proportionality in the Supreme Court's Decision Regarding the Security Fence’ (2005) 38 Israel Law Review 262.Google Scholar

33 For analysis, see Hofnung and Weinshall-Margel (2011) (n 1) 161, who established that in 79% of a large sample of the Court's cases examined in which the Court reversed the executive's decision, proportionality was the legal basis for such intervention.

34 Davidov, Guy and Reichman, Amnon, ‘Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel’ (2010) 35 Law and Society Inquiry 919Google Scholar (explaining that trend on account of the prolonged occupation, the gradual increase in the emphasis given by the legal system to the protection of human rights and to international norms pertaining to the use of force and belligerent occupation).

35 AAD 1/88 Agbariyya v State of Israel 1988 PD 42(1) 840, 844–45: ‘The danger to public or State safety must be so grave as to leave no choice but to hold the suspect in administrative detention’, as analysed by Gross (2001) (n 1) 762–63.

36 CrimA 6659/06 A and Others v State of Israel PD 62(4) 329, para 22.

37 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287.

38 Ajuri (n 31) President Barak, para 25.

39 ibid para 24.

40 ibid para 25 (author's emphasis).

41 HCJ 802/89 Nasman and Others v Commander of IDF Forces in the Gaza Strip 1989 PD 43(4) 461, 464–67; HCJ 2722/92 Alamarin v IDF Commander in the Gaza Strip 1992 PD 36(3) 693; HCJ 572/82 Muslah v Minister of Defence 1982 PD 36(4) 610, 612–13; HCJ 228/89 Eljamal v Minister of Defence 1989 PD 43(2) 66; HCJ 5667/91 Jabarin v Commander of IDF Forces in the Judea and Samaria Region 1992 PD 461(1) 858, 859–60; HCJ 948/91 Hodli and Others v Commander of IDF Forces in the Judea and Samaria Region 1993 PD 47(1) 612, 616.

42 According to Shamgar, who served as the Attorney General of the Army (and subsequently as the State Attorney and as the President of the Supreme Court), ‘the necessity to destroy the physical base for military action when persons in the commission of a hostile military act are discovered. The house from which hand grenades are thrown is a military base, not different from a bunker in other parts of the world’: Shamgar (n 1) 275–76, as analysed by Quigley (n 1) 366.

43 See Ariel Merari, ‘Israel Facing Terrorism’ (2005) 11 Israel Affairs 223, 230. See also Carroll (n 1) 1207.

44 Kretzmer (n 1); Dinstein (n 1); Halabi (n 1); Simon (n 1). But contrast these views with Reicin (n 1) 547.

45 Dinstein (n 1) 303–04, referring to von Glahn, Gerhard, Law among Nations (7th edn, Longman 1996) 677.Google Scholar

46 Merari (n 43) 231 and 235: ‘The little evidence in existence suggests that collective punishment of this kind does not influence the affected population in the desired direction. … In general, collective anti-terrorism measures are likely to have two opposing effects on the population from which the insurgents emerge: on the one hand, they breed fear and, on the other hand, hatred to the government. The actual behaviour of the affected public … depends on whether fear is stronger than anger, or vice-versa ... demolition of houses has, probably, in the long run generated hatred more than fear, thus augmenting terrorism, instead of reducing it.’

47 A study conducted by Zilber (n 1) showed that the number of terror incidents generated by Palestinian communities in which houses were demolished did not decline after the demolitions.

48 See, for example, Ronen Shnayderman (Zvi Shulmman, tr), ‘Through No Fault of Their Own: Israel's Punitive House Demolitions in the al-Aqsa Intifada’, B'Tselem, November 2004, http://www.btselem.org/publications/summaries/200411_punitive_house_demolitions.

49 Former Israeli Foreign Minister, Abba Eban, described the policy as a ‘desecration of Israel's heritage and a blatant violation of the legal and societal rules of the civilized world’: Abba Eban, ‘Blowing Up Homes – A Desecration of Israel's Heritage’, Ma'ariv, 22 November 1981, 6 (in Hebrew), cited and analysed by Simon (n 1) 13.

50 See, for example, Former Brigadier General Binyamin Ben-Eliezer, who served as both the Military Commander in the West Bank and as the Coordinator of Government Activities in the Territories, and personally signed demolition orders. Subsequently he served as the Defence Minister. Following his retirement from the IDF he criticised the policy with respect to both its moral and effective dimensions: Interview with Binyamin Ben-Eliezer, Former Brigadier General, Israel Radio Broadcast, 30 July 1985, cited in Simon (n 1) 13.

51 Amnon Straschnov, Justice under Fire: The Judicial System during the Intifada (Yediot Aharanot 1994) 92 (in Hebrew).

52 Merari (n 43) 231.

53 Guiora (n 1) 375–76. But see the recent economic analysis which established that HD measures are an effective deterrence tool only in the aftermath of the demolition and in its close vicinity; yet it may not be an efficient policy because it may cause some undesirable consequences such as an increase in non-suicidal terror attacks: Efraim Benmelech, Esteban F Klor and Claude Berrebi, ‘Counter-Suicide Terrorism: Evidence from House Demolitions’, 16493 NBER Working Paper (2010).

54 Siqueira, Kevin and Sandler, Todd, ‘Terrorists versus the Government: Strategic Interaction, Support, and Sponsorship’ (2006) 50/6Journal of Conflict Resolution 878–98Google Scholar, as analysed by Benmelech, Klor and Berrebi, ibid.

55 Benmelech, Klor and Berrebi (n 53) (referring to Rosendorff, Peter and Sandler, Todd, ‘Too Much of a Good Thing? The Proactive Response Dilemma’ (2004) 48/4Journal of Conflict Resolution 657.Google Scholar

56 For further analysis, see Bracha (n 8) 91 and 101. See also Zamir, Eyal and Medina, Barak, ‘Law, Morality, and Economics: Integrating Moral Constraints with Economic Analysis of Law’ (2008) 96 California Law Review 323Google Scholar: ‘Even moderate deontologists who would consider intentional infliction of harm on innocent people as not absolutely prohibited but as justified, in extreme circumstances, would still require a high threshold to justify such an action.’

57 See, for example, HCJ 2/97 and 11/97 Abu Halawe v Commander of the Home Front Command (unpublished, 11 November 1997), http://elyon1.court.gov.il/files/97/020/000/A03/97000020.a03.pdf (ignoring the opinion of Professor Martin van Creveld of the History Department of the Hebrew University, who submitted to the Court an expert opinion which indicated that despite the broad use of HD measures throughout the world, this measure has been proven to be ineffective and in most cases it does not reduce violent acts but, on the contrary, even increases them).

58 See, for example, HCJ 986/89 Calbani v Commander of Central Command (unpublished, 1990), slip op at 3; HCJ 361/82 Khamri v Military Commander of Judea and Samaria Region 1982 PD 36(3) 439; HCJ 179/89 Batash v Military Governor of Gaza (unpublished, 18 March 2009). For more recent examples, see HCJ 5696/09 Mugrabi v Commander of Home Front Command (unpublished, 15 February 2012), Justice Melcer, para 13, http://elyon2.court.gov.il/files/09/960/056/K04/09056960.K04.htm; HCJ 124/09 Dawiat v Minister of Defence (unpublished, 18 March 2009), Justice Levy, para 4, http://elyon1.court.gov.il/files/09/240/001/o03/09001240.o03.pdf.:

It is difficult to dispute the appropriateness of the goal. The need to deter violent attacks that are often carried on a wave of terror that began with the act of one individual and threatens to sweep others along with it, causes the security authorities to conclude that it is a compelling need because deterrence is a central layer in that cruel evil. I do not see room to interfere and it is difficult to assume that anyone would dispute that position.

For the latest example, see HCJ 4597/14 Awawedh and Others v Military Commander of the West Bank Area, para 20, Deputy President Naor, Justice Danziger and Justice Shoham concurring (unpublished, 1 July 2014), http://www.hamoked.org/files/2014/1158434_eng.pdf. For analysis of this judicial approach, see Kretzmer (1993) (n 1); Simon (n 1) 27–45. But compare with Dotan (n 21) 349: ‘The Court tempered, to some extent, the harshness of HD measures by creating procedural protections and by imposing substantive limitations.’

59 HCJ 1730/96 Sabih v Commander of IDF Forces in the Judea and Samaria Region 1996 PD 50(1) 353, Justice Cheshin, para 9: ‘I am unable to understand how the Court can tell a military commander not to destroy the house of a terrorist-murderer, for deterring purposes because the Court may take a different view.’

60 HCJ 1005/89 Aga and Others v Commander of IDF Forces in the Gaza Strip 1990 PD 44(1) 536, 538, as analysed by Dinstein (n 1) 292.

61 See n 58. See also HCJ 2209/90 Shwahin v Commander of IDF Forces in the West Bank Region 1990 PD 44(3) 875, 878, as analysed by Dinstein (n 1) 292.

62 HCJ 2006/97 Ghanimat v Officer Commanding Central Command 1997 PD 51(2) 651, Justice Goldberg (author's translation and emphasis).

63 HCJ 2418/97 Abu Fara v Commander of IDF Forces in the Judea and Samaria Region 1997 PD 51(1) 226, 228, analysed by Dinstein (n 1) 297.

64 Ghanimat (n 62) 653–54 (author's emphasis).

65 Ajuri (n 31) President Barak, para 25.

66 Bracha (n 8) 101–02.

67 For analysis of the Court's jurisprudence, see ibid 91.

68 Khamri (n 58) 442.

69 But see the following verdicts in which the Court did elaborate on these issues: HCJ 798/89 Shukri v Minister of Defence (unpublished, 10 January 1990); Alamarin (n 41) 698.

70 For analysis of that reliance, see Bracha (n 8) 86; Gross (2002) (n 1) 185.

71 HCJ 9353/08 Abu Dahim v Commander of the Home Front Command (unpublished, 1 May 2009), Justice Naor, para 5, http://elyon1.court.gov.il/files/08/530/093/c05/08093530.c05.pdf.

72 See, for example, Khamri (n 58) 443; Awawedh (n 58) For a critical judicial approach towards such a use, see HCJ 4772/91 Khizran v Commander of IDF Forces in the Judea and Samaria Region 1992 PD 46(2) 160, para 15, dissenting opinion of Justice Cheshin. For an extensive analysis of the micro-management use of proportionality in demolition cases, see Simon (n 1) 35.

73 Ajuri (n 31) paras 31–39.

74 See Mara'abe (n 26) paras 110–16.

75 HCJ 2150/07 Abu Safiya v Minister of Defence (unpublished, 29 December 2009), paras 27–36, http://elyon1.court.gov.il/files/07/500/021/m19/07021500.m19.pdf.

76 HCJ 9593/04 Morar v Military Commander (unpublished, 26 June 2006), paras 17–28, http://elyon1.court.gov.il/files/04/930/095/N21/04095930.n21.pdf.

77 See, for example, Abu Halawe (n 57); HCJ 6288/03 Sa'ade v Commander of the Home Front Command 2003 PD 58(2) 289, Justice Türkel, para 2.

78 HCJ 940/04 Abu Tiret and Others v Commander of IDF Forces in the Judea and Samaria Region 2004 PD 59(2) 320, para 12.

79 HCJ 2630/90 Machmod v Commander of IDF Forces in the West Bank (unpublished, 12 February 1991), para 3. Justice Levine stated: ‘I am inclined to believe that in light of the severe effect of applying Article 119 … the Court ought to limit its use and interpret it narrowly.’

80 Harpaz (n 13).

81 See, for example, Shukri (n 69), as analysed by Gross (2002) (n 1) 187–88: ‘… Respondent … claims that this is an efficient deterrent method and we were not presented with any data that negated the reasonability of that assumption.’

82 Dawiat (n 58) para 6: ‘I am of the opinion that in the matter before us the Petitioner's arguments do not raise the burden of proof. The Petitioner did not raise any claim that could negate the deterrent power of the act of demolition. He was unable to undermine the State's claim that this measure could not be avoided so as to achieve the desired purpose – reduction of the harmful effects of terror.’

83 This conflict led Bracha to conclude that ‘the Courts should shift the burden of proving the legality of an action onto the security authorities whenever those actions are based on privileged evidence withheld from the individual but available to the Court’ (Bracha (n 8) 101).

84 Shukri (n 69), as analysed by Gross (2002) (n 1) 187–88.

85 HCJ 242/90 Alkatsaf v Commander of IDF Forces in the Judea and Samaria Region 1990 PD 44(1) 614, 616.

86 HCJ 6026/94 Nazaal v IDF Commander in Judea and Samaria (1994) PD 48(5) 338, as analysed by Gross (2002) (n 1) 190–91.

87 ibid, as analysed by Gross (2002) (n 1) 190–91.

88 Abu Dahim (n 71).

89 See Nazaal (n 86) para 9, as analysed by Gross (2002) (n 1) 204.

90 For a very recent example, see Awawedh (n 58). For support see Simon (n 1) 11: ‘The army unit exits, leaving the family devastated, angered, humiliated, and homeless. The penalty for challenging the government is unmistakable. But the spectacle of power is not over. The remaining heap of gravel, now a piece of government property, is deliberately left in place as a monument to the military government's dominance. The debris, however, is no less symbolic in Palestinian eyes. From their perspective, it epitomizes the injustice of Israeli rule and reinforces their self-image as virtuous victims.’

91 Abu Dahim (n 71) Justice Naor, para 8.

92 ibid, Justice E Rubinstein, paras A, G.

93 For support see Kretzmer (1993) (n 1) especially 347–49: ‘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.'

94 For support see Simon (n 1) 37–38 and Dinstein (n 1) 304.

95 See Simon (n 1) 4. For further critical analysis of the Court's record, examining specific verdicts, see Kretzmer (n 1); Sultany, Nimer, ‘The Legacy of Justice Aharon Barak: A Critical Review’ (2007) 48 Harvard International Law Journal Online 83Google Scholar; Simon (n 1).

96 Sabih (n 59) 368, para 10: ‘Even when the trumpets of war blow, the rule of the law sounds its voice. But we must confront the truth. At those times its voice is like the sound of the piccolo, refined and pure, but swallowed up in the tumult.’ In the same judgment (368–69) Justice Cheshin offered the following self-aware, self-critical explanation: ‘In reviewing demolition orders, we have a sense of being in a foreign environment and this is not due to our lack of power or authority to interfere with the decision of the military commander … The feeling of not belonging derives essentially from the fact that the demolition of houses is an act performed in accordance with the Defense Regulations, which by their very nature and substance are acts of war. Acts of war are not the kind of acts that the courts are required to deal with in regular day to day life.’

97 Kretzmer (2002) (n 1) 150.

98 Hofnung and Weinshall-Margel (2011) (n 1) 161–65 (close to 70%). The first category was detentions.

99 ibid 164–65.

100 See President Barak in CA 6821/93 Bank Mizrahi v Migdal Cooperative Village 1995 PD 49(4) 221, official translation at http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf. In the opening paragraph of his judgment: ‘Israel is a constitutional democracy. We have now joined the community of democratic countries … with constitutional bills of rights. We have become part of the human rights revolution that characterizes the second half of the twentieth century. The lessons of the Second World War, and at their center the Holocaust … as well as the suppression of human rights in totalitarian states, have raised the issue of human rights to the top of the world agenda. International accords on human rights have been reached. Israel has acceded to them. International tribunals have been established to address issues of human rights. The new constitutions include extensive sections treating human rights … Judicial review of the constitutionality of laws infringing human rights has become the norm in most countries. This revolution has not passed us by. We joined it in March 1992.’

101 See, for example, Ajuri (n 31) paras 20–21.

102 Barak, Aharon, A Judge in a Democratic Society (Haifa University Press 2004) 16Google Scholar (in Hebrew).

103 See, for example, Sa'ade (n 77) para 2; Awawedh (n 58) para 17. But see Ghanimat (n 62), in which Justice Cheshin relied on the Basic Laws as means to advance a dynamic and hence a narrow construction of Regulation 119.

104 See, for example, HCJ 3740/90 Mantzur v Military Commander of Judea and Samaria Region (unpublished, 1 January 1991).

105 Simon (n 1) 30–31.

106 ibid, analysing Khamri (n 58), in which the Court approved the demolition despite the absence of permanent or continuous residents: the mere fact that the sons are away from their parents' homes during the school year ‘does not prevent them from staying in, or being considered “inhabitants” of, the homes of their parents during vacation periods’; Alamarin (n 41) para 6.

107 Dinstein (n 1) 287.

108 Statement of Moshe Dayan in The Jerusalem Post, 30 October 1968, as appearing in Julius Stone, No Peace – No War in the Middle East: Legal Problems of the First Year (Maitland Publications for the International Law Association (Australia Branch) 1969) 15, quoted and analysed by Carroll (n 1) 1196; HCJ 4697/91 Salam v Commander of IDF Forces in the West Bank 1992 PD 46(5) 467, 473: ‘We have repeatedly emphasized that the issue is one of a deterrent sanction only, directed against those who could have, had they so chosen, prevented the asset from being used for illegitimate purposes, and that this sanction also serves as a deterrent for the public at large.’ For analysis, see Gross (2002) (n 1) 186; Carroll (n 1) 1214. Shefi, former Brigadier-General, Military Advocate General of the IDF, argued that ‘[n]o such action is taken unless … there [is] a direct connection between the building and terrorist and other violent activities’: Shefi, Dov, ‘The Reports of the UN Special Committees on Israeli Practices in the Territories: A Survey and Evaluation’ in Shamgar, Meir (ed), Military Government in the Territories Administered by Israel, 1967–1980: The Legal Aspects (Harry Sacher Institute for Legislative Research and Comparative Law 1982) 285, 301.Google Scholar

109 Alamarin (n 41) Justice Bach writing for the majority, para 9. For analysis, see Simon (n 1) 65.

110 For analysis, see Cohen (n 7) 70.

111 Simon (n 1) 53–65.

112 Deuteronomy 24:16.

113 For analysis, see Gross (2002) (n 1) 196; Halabi (n 1) 270; Simon (n 1) 53–56. See also Quigley (n 1) 369 for an analysis of art 50 of the International Covenant on Civil and Political Rights.

114 Quigley (n 1) 369.

115 Gross (2001) (n 1) 750.

116 CrimA 6147/92 State of Israel v Cohen 1993 PD 48(1), 62, 67–76: ‘A person will be liable for his own offenses and die for his own sins’; Ghanimat (n 62) 654.

117 For analysis, see Simon (n 1) 56–57.

118 See, for example, HCJ 591/88 Taha v Minister of Defense 1991 PD 45(2) 45, 54, as analysed by Simon (n 1) 55.

119 Ghanimat (n 62) 654.

120 HCJ 4400/98 Baraham v Legal Judge 1998 PD 52(5) 337, 342–43.

121 Agbariyya (n 35).

122 A v State of Israel (n 36) President Dorit Beinisch, para 18. See also President Aharon Barak in HCJ 3239/02 Marab v Commander in Judaea and Samaria 2003 PD 57(2) 349, 367, official translation at http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.pdf: ‘[For a cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] – to him personally and not to someone else – concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism.’

123 CrimFH 7048/97 A v Minister of Defence 2000 PD 54(1) 721, 727 and 743–44, official translation at http://elyon1.court.gov.il/files_eng/97/480/070/a09/97070480.a09.pdf, as analysed by Gross (2001) (n 1) 727–28 and Grebinar (n 8) 268 (author's emphasis).

124 See Gross (2001) (n 1) 743–44 (President Barak quoting himself in the initial decision).

125 A v State of Israel (n 36) para 19: ‘The damage to liberty and dignity, in the administrative detention of a person who himself does not pose a threat to national security, is extremely severe, to the point where the interpreter is not entitled to presume that the statute intended to achieve such severe harm … the transition from the administrative detention of a person from whom a danger is posed to national security to the administrative detention of a person from whom no danger is posed to national security is not a “quantitative” transition but a “qualitative” transition. The state detains, via the executive branch, a person who committed no crime, and from whom no danger is posed, and whose entire “wrongdoing” is in being a “bargaining chip”. The harm to liberty and dignity is so substantive and deep, that it is not to be tolerated in a liberty and dignity seeking state, even if the rationales of national security lead to undertaking such a step … Each person will be detained based on their wrongdoing and each will be held in administrative detention based on their offense. One is not to detain in administrative detention any other than one that himself poses a risk, with his own actions, to national security.’

126 A v State of Israel (n 36) para 21: ‘The statutory definition of “unlawful combatant” contains two alternatives: the first, “a person who has participated either directly or indirectly in hostile acts against the State of Israel”, and the second, a person who is “a member of a force perpetrating hostile acts against the State of Israel” … These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law … which require proof of an individual threat as grounds for administrative detention … Even when the law created a presumption that the release of the detainee would pose a security threat, the Court insisted that the law does not “negate the obligation of the state to prove the threat represented by the prisoner”, as ... the state must furnish administrative proof that “… the prisoner took a direct or indirect part that involved a contribution to the fighting … or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization … proving the conditions of the definition of an “unlawful combatant” in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization.’

127 See (n 26) para 40.

128 Ajuri (n 31).

129 ibid para 19.

130 ibid (author's emphasis).

131 ibid para 24.

132 ibid para 25 (author's emphasis).

133 ibid para 27.

134 ibid para 23.

135 ibid para 24.

136 ibid para 24; CrimA 4920/02 Federman v State of Israel (unpublished, 20 June 2002), Justice Türkel, http://elyon1.court.gov.il/files/02/200/049/M04/02049200.m04.pdf.

137 ibid paras 20–21.

138 HCJ 785/87 El Affu v Military Commander of the West Bank 1988 PD 42(2) 4, 31. See also HCJ 814/88 Nasralla v IDF Commander in West Bank 1989 PD 43(2) 265, 271: ‘The respondent may not use this sanction of making deportation orders merely for the purpose of deterring others. Such an order is legitimate only if the person making the order is convinced that the person designated for deportation constitutes a danger to the security of the area, and that this measure seems to him essential for the purpose of neutralizing this danger.’

139 HCJ 698/85 Dejalas v Military Commander of Judea and Samaria Region 1986 PD 40(2) 42.

140 Alamarin (n 41) 700; Sabih (n 59) 360; Ghanimat (n 62) 653–54; HCJ 893/04 Faraj v Commander of IDF Forces in the West Bank (unpublished, 4 March 2004), http://elyon1.court.gov.il/files/04/930/008/N04/04008930.n04.pdf. Compare with the dissenting opinion of Justice Cheshin who took the view that the Military Commander may not demolish the home of a suicide-bomber where the other residents of the house did not know of the terrorist's intentions: Ghanimat (n 62) 654–55. See also his dissenting opinions in Khizran (n 72).

141 Alamarin (n 41) Justice Bach for the majority, para 9. See also Abu Dahim (n 71) Justice Naor, para 6: ‘From a moral standpoint the thought that the brunt of the terrorist's misdeed should be borne by members of his family, who did not, as far as is known, assist him and did not know of his actions, is a distressing one. ... However, the possibility that demolition of the house, or sealing it up, will prevent bloodshed in the future obliges us to harden our hearts and to protect the living who may fall victim to dreadful targeted deeds, rather than to protect the inhabitants of the house. This is unavoidable … deterrence considerations sometimes oblige the deterrence of potential performers who must understand that their actions might harm also the well-being of those related to them, and this is also when there is no evidence that the family members were aware of the terrorist's doings.’

142 Dinstein (n 1) 299; Halabi (n 1) 270; Kretzmer (2002) (n 1) 149–53; Kremnitzer, Mordechai and Hörnle, Tatjana, ‘Human Dignity and the Principle of Culpability’ (2011) 44 Israel Law Review 115, 129–30Google Scholar; Merari (n 43); Quigley (n 1) 370; Simon (n 1) 53–64.

143 Zemach (n 6) 70–74.

144 Dejalas (n 139) 44, para 3.

145 In support of my view, see Dinstein (n 1) 298–99: ‘The comparison is spurious: the children of a felon behind bars do not undergo imprisonment, although they suffer from the repercussions of his enforced absence. The children of a terrorist who are left roofless suffer exactly the same penalty as the offender himself (and when the offender is in jail, or dead, they are the only ones who suffer). Any adequate definition of collective penalties must encompass their predicament.’ See also Halabi (n 1) 270, who treated that analogy as ‘false’; Kremnitzer and Hörnle (n 142) 129–30: ‘A necessary part of the sanction's goal is to cause suffering to the residents of a demolished house (without this element of suffering, the sanction cannot fulfill its preventive aim) and hence the suffering is not only an unavoidable side effect but an essential part of it.’

146 Shukri (n 69).

147 Kremnitzer and Hörnle (n 142) 129–30, referring to specific Court verdicts.

148 Shukri (n 69), as analysed by Gross (2002) (n 1) 187–88.

149 For support see Simon (n 1) 60: ‘Justifications based on the government's alleged intentions can lead to disingenuous portrayals of government policies and render judicial review meaningless. Such justifications can legitimize and institutionalize indefensible punitive practices, as the case of the demolition policy suggests.’

150 HCJ 10467/03 Sharbati v Commander of the Home Front Command PD 58(1) 810, para 3e: ‘The phenomenon of Jewish attacks … belongs to a few individuals only, while the greater part of the Jewish public in Israel condemns them and is disgusted by them … on the other hand, lamentably, the situation is different within the Palestinian public … large number of attacks carried out and to many others that were avoided, and it is even more correct to point to the cries of joy that have followed acts of killing of Jews, and the “days of feasting” declared by the family members of those defined as “martyrs” when the families learn of the death of their sons. In my view, all the aforesaid goes to show to what extent the population of the territories held by Israel encourages acts of suicide attacks. This also explains the increasing number of those who are prepared to serve as “live bombs”. In that situation, the need to search for deterrence factors so as to reduce the circle of killing is an existential need and there is no greater need. Consequently, there is no discrimination here, but rather the measured and balanced application of Regulation 119.’

151 See Pictet, Jean S (ed), Commentary: IV Geneva Convention: Relative to the Protection of Civilian Persons in Time of War (International Committee of the Red Cross 1958)Google Scholar 225. But compare with Backer (n 1) 541–43, 553, 554–57 and 567 for a contrasting scholarly position, arguing that communities collectively provide the normative foundation within which suicide bombers can be recruited, trained and deployed, but only the bomber is liable for his or her acts of violence. Yet where the bomber dies along with the targets, then responsibility is altogether avoided.

152 Thus, in Sa'ade (n 77), in which the Court was faced with a petition of the mother of a terrorist who acted as a suicide bomber and who was unaware of her son's activities, the Court came to the following conclusion (para 4):

Counsel for the Petitioners requested that … a period of time be determined after which the Petitioner would be entitled to request an annulment of the injunction for confiscation and sealing. That request is difficult for us to entertain. No more than a year has elapsed since the shocking attack took place … The sound of explosives still echoes in our ears, the cries of the injured screech through our universe, the suffering of the victims cries out to us from the earth and the stricken families weep for their dear ones. This is not a time for pardon.

It is submitted that the reliance on the word ‘pardon’ clearly indicates that the Court is operating under the assumption that the mother is at fault and hence to be punished for her wrongdoings notwithstanding her non-awareness and non-involvement.

Similarly, in a recent judicial pronouncement on this issue, Abu Dahim (n 71), Justice Rubinstein drew upon several sources of Jewish law in order to justify, in a paragraph riddled with self-contradictions, that the collectiveness of the measures may be approved even when they cause the father to suffer the sins of his son (para E):

It was said that the petitioner claims that he was unaware of his son's intentions, and [had] he [known] he would have taken moves to stop him; and there is no information according to which the terrorists' family members were aware of the planning of the terror attack. ... I shall add that with respect to the verse ‘Take off the soiled garments from him’ (Zecharia 3:4) referring to Joshua, the Great Priest, that wore soiled garments, unclean, the Babylonian Talmud says that the intention is not to such real garments, but that ‘his sons married women who were unbecoming to the Kehunah, and he did not protest’ (Sanhedrin 93:1 …). I will add that versus the mentioned verses, and the moral principle derived therefrom, it was also said ‘I the Lord your God am a jealous God, visiting the sin of the fathers on the children to the third and the fourth generation’ (Exodus 20:4) – and our Sages of Blessed Memory have already noticed the rebutment and explained it: ‘This is (the verse from Exodus) – when they hold fast to their fathers’ ways, this is (the verse from Deuteronomy) – when they do not hold fast their fathers' ways' (Babylonian, Berakhot 7:1). Namely, when children support their fathers, and fathers support their children – their sin is sometimes visited upon the other, and should we like, it becomes a joint sin, factually and judicially. It is possible that in this case indeed the terrorist's father would have protested against his son if he knew of the planning of the terror attack, although question marks remain, due to the information brought about the atmosphere whereby the terrorist lived. However, in a forward-looking perspective, it is appropriate that families shall pay attention to the atmosphere in which their children grow up, in order to prevent them from reaching terror and death and all kinds of afflictions.

153 See Ghanimat (n 62).

154 A (n 123) 748, in which Justice Cheshin found:

There is no truth in the contention that no danger would arise if the detained Lebanese were to be released. The Petitioners, as Hizbullah fighters, have tied their fate to Israel's fight against the Hizbullah. In this, the matter of the petitioners is distinguishable from the matter of the demolition of the homes of the terrorists, something which once came frequently before this Court. Indeed, it is one of our supreme values that every person is responsible for his own wrong and is punished for his own sin. For this reason I was even of the opinion – in a dissenting judgment – that a military commander was not vested with the right to demolish a home in which the family members of a terrorist murderer resided, even if that terrorist lived in that house … but it is precisely because of this reasoning that each person is responsible for his own wrong, that the case of the petitioners differs from the case of the families of terrorists; the petitioners – as enemy fighters, and unlike the families of the terrorists – have knowingly and deliberately tied their fate to the fate of the war.

In that verdict Justice Kedmi provided an ambiguous acknowledgement of the collective nature of the demolition measures (ibid 732):

The law ‘accedes to’ the adoption of deterrent measures – the demolition of homes – against the families of terrorists, in order that they should not provide the latter with shelter in their homes, notwithstanding that they themselves are not accomplices to the acts of the terrorists and their ‘connection’ to the harm to security ensues only from their intention to provide the latter with shelter as aforesaid. It seems that without the existence of the said ‘connection’ it would not have been possible to implement the power of demolition against the families of the terrorists.

See also Justice Cheshin, Alamarin (n 41) para 4: ‘In a minority judgment that I wrote in Hizran … I said that … the Army commander does not have the authority to inflict collective punishment … Where someone is suspected of an act as a result of which a destruction order is made with regard to his home, I did not agree then, nor do I agree now, that someone else's home may be destroyed merely because he lives next to that person.’

155 Cohen (n 7) 56–57.

156 Ajuri (n 31).

157 See Davidov and Reichman (n 34) 926–27; Reichman, Amnon, ‘“When We Sit to Judge We Are Being Judged”: The Israeli GSS case, Ex Parte Pinochet and Domestic/Global Deliberation’ (2001) 9 Cardozo Journal of International and Comparative Law 43.Google Scholar

158 Dinstein (n 1) 295–96, querying ‘[h]ow could the Supreme Court deny the existence of a contradiction which is so glaring and multifaceted?’; see also Carroll (n 1) 1206.

159 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461.

160 For analysis, see Simon (n 1) 55.

161 For analysis, ibid 53–57.

162 For analysis, ibid 63.

163 For analysis, see Carroll (n 1) 1213–15; Cohen (n 7) 49.

164 Backer (n 1) 543–44; Gross (2002) (n 1) 198–201; Cohen (n 7) 69; Simon (n 1) 68; Dinstein (n 8) 128; Carroll (n 1) 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 Article 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.'

165 See, for example, Carroll (n 1) 1216: ‘The argument that Article 64 permits the implementation of Regulation 119 despite Articles 53 and 33 is without merit. Such an argument ignores the express provision contained in Article 64 which states that the local law should not be implemented if it represents an “obstacle to the application of the present Convention”.’

166 For analysis of the position of the General Assembly, see Quigley (n 1) 374.

167 For analysis of the position of the Department of State, see ibid.

168 ‘Israel and the Occupied Territories: Under the Rubble: House Demolition and Destruction of Land and Property’, Amnesty International, 17 May 2004, http://web.amnesty.org/library/index/ENGMDE150332004.

169 See, for example, Dejalas (n 139).

170 For analysis of its position, see Simon (n 1) 3.

171 See the most recent verdict of Awawedh (n 58) in which the Court virtually ignored public international law. In another case, the Court found that international law is irrelevant: see HCJ 897/86 Jaber v Commanding Officer of the Central District 1987 PD 41(2) 522, 525–26, President Shamgar:

The question before us is not the interpretation of Article 53 of the Fourth Geneva Convention. Regulation 119 forms an integral part of the law which was applicable in Judea and Samaria on the eve of the establishment of the governing power of the IDF … In conformity with rules of public international law … the local law was left in force subject to qualifications that do not affect the present case (see Regulation 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention). It follows that the authority under the above Regulation 119 constitutes domestic law, existing and applicable in the Judea and Samaria Region, not repealed during the former government or during the military government, and we were not presented with legal reasons why it should be viewed as void now.

172 For analysis, see Dinstein (n 1) 295–96.

173 Yuval Shany, ‘The Principle of Proportionality under International Law’, The Israel Democracy Institute, Policy Paper 75, 2009, 119–42, especially 131 and 139.

174 ibid 86.

175 ibid 87.

176 HCJ 2056/04 Beit Sourik Village Council v Government of Israel 2004 PD 58(5) 807, para 39, official translation at http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf.

177 See, for example, Abu Dahim (n 71) Justice Naor, para 5; Awawedh (n 58) para 27.

178 See, for example, Khizran (n 72) Justice Cheshin dissenting, 155–61.

179 For analysis, see Kretzmer (n 1); Cohen (n 7); Orna Ben-Naftali and Yuval Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003–04) 37 Israel Law Review 17; Harpaz, Guy and Shany, Yuval, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’ (2010) 43 Israel Law Review 514, 514.Google Scholar

180 For analysis, see Harpaz and Shany, ibid.

181 See, for example, ibid.

182 Beit Sourik Village Council (n 176).

183 See, for example, Morar (n 76).

184 See, for example, Nazaal (n 86). See the most recent verdict of Awawedh (n 58) in which the Court ignored the laws of belligerent occupation.

185 For analysis of this jurisprudence, see Dinstein (n 1) 295–96.

186 ibid.

187 HCJ 358/88 Association for Civil Rights in Israel and Others v Central District Commander [1989] IsrSC 43(2) 529, paras 5–8.

188 Israeli law considers East Jerusalem to be under Israeli sovereign territory, but the international community treats it as occupied territory. See the International Court of Justice case, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] 43 ICJ Rep 136 (the Wall case) for the Court's approach; HCJ 1661/05 Hof Aza Regional Council v Knesset of Israel PD 59(2) 481.

189 HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel and Others v Minister of Interior Affairs and Others (unpublished, 14 May 2006), President Barak, paras 36–37, http://elyon1.court.gov.il/files/03/520/070/A47/03070520.a47.pdf.

190 For analysis, see Quigley (n 1) 371–72.

191 For analysis, see Halabi (n 1) 267; Quigley, ibid.

192 For analysis, see Quigley (n 1) 373–74; Farrell (n 1) 903–04. The European Court of Human Rights held that Turkey's demolition of the houses amounted to ‘inhuman or degrading treatment or punishment’ prohibited under the ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222), see n 218 below.

193 For analysis, see Halabi (n 1) 267; Quigley (n 1) 372–73.

194 For analysis, see Halabi (n 1) 267; Gross (2002) (n 1) 207.

195 See, for example, Martinez, Jennifer, ‘Towards an International Judicial System’ (2003) 56 Stanford Law Review 429Google Scholar; Slaughter, Anne-Marie, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191Google Scholar; Harpaz, Guy, ‘The European Court of Justice and its Relations with the European Court of Human Rights: The Quest for Enhanced Reliance, Coherence and Legitimacy’ (2009) 46 Common Market Law Review 73.Google Scholar

196 See, for support, Helfer, Laurence R and Slaughter, Anne-Marie, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273.Google Scholar

197 See McCrudden, Christopher, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499, 511.Google Scholar

198 See Helfer and Slaughter (n 196) 373: ‘The verdicts that stem from dialogue and global cooperation create a set of principles informed by and building on one another, textually and culturally differentiated as necessary but acknowledging the promise of universality.’

199 See Slaughter (n 195) 192–93, and Martinez (n 195) 436.

200 Cohen, Amichai, ‘Strategies of Domestic Justice: Domestic Courts’ Response to International Criticism’ in Stern, Yedidia (ed), My Justice, Your Justice – Justice across Cultures (Zalman Shazar Center/Israel Democracy Institute 2010), 483, 484–85Google Scholar (in Hebrew).

201 Harpaz, Guy, ‘The Israeli Supreme Court in Search of Universal Legitimacy’ (2006) 65 Cambridge Law Journal 7.Google Scholar

202 ibid

203 Adalah (n 189) para 37.

204 ibid para 36.

205 For analysis of that reliance, see Barak-Erez, Daphna, ‘Comparative Law as a Practice: Institutional, Cultural and Applicative Aspects’ (2008) 4 Din Udvarim (Haifa Law Review) 81 (in Hebrew).Google Scholar

206 See Mara'abe (n 26).

207 HCJ 5100/94 Public Committee against Torture in Israel v State of Israel 1999 PD 53(4) 817, official translation at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf.

208 See n 123.

209 See, for example, Adalah (n 189).

210 PLA 7092/94 Her Majesty the Queen in Right of Canada v Edelson and Others (unpublished, 16 February 1995), http://elyon1.court.gov.il/files/94/920/070/A01/94070920.a01.pdf.

211 CA (Tel-Aviv) 4289/98 Shalom v Attorney General and Others (unpublished, 10 October 1999) 2.

212 HCJ 5973/92 Association for Civil Rights in Israel v Minister of Defence 1993 PD 60(3) 67.

213 Mara'abe (n 26).

214 Harpaz (n 201).

215 http://elyon1.court.gov.il/verdictssearch/englishverdictssearch.aspx.

216 The ICJ, in the Wall case (n 188) [135], opined that it is not convinced that the destruction of property for the purpose of constructing the security barrier ‘carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention was rendered absolutely necessary by military operations’.

217 See, for example, the salient verdict of Kadi, as analysed by Harpaz, Guy, ‘Judicial Review by the European Court of Justice of UN “Smart Sanctions” against Terror in the Kadi Dispute’ (2009) 14 European Foreign Affairs Review 65.Google Scholar

218 See Zemach (n 6) 105–09, who analyses the two cases in which the ECtHR held that the burning of the homes of Turkish citizens of Kurdish origin by Turkish soldiers constitutes illegal interference with the applicants' rights to respect for their homes and to peaceful enjoyment of their possessions under the ECHR: Akdivar v Turkey, App no 21893/93, ECtHR 16 June 1996; Selçuk and Asker v Turkey, App nos 23184/94 & 23185/94, ECtHR, 24 April 1998. In the latter case the Strasbourg Court held that under the circumstances of the case at hand the demolition amounted to ‘inhuman or degrading treatment or punishment’, prohibited under the ECHR.

219 See Shany (n 173) 40–41, relying on Sporrong and Lönnroth v Sweden, App nos 7151/75 & 7152/75, ECtHR, 23 September 1982, paras 69–74; James and Others v United Kingdom, App no 8793/79, ECtHR, 21 February 1986, para 50; AGOSI v United Kingdom, App no 9118/80, ECtHR, 24 October 1986, paras 52–54.

220 Association for Civil Rights (n 212) para 7.

221 Alamarin (n 41); Association for Civil Rights (n 212).

222 Gavison, Ruth, ‘The Role of Courts in Rifted Democracies’ (1999) 33 Israel Law Review 216, 241.Google Scholar

223 Harpaz (n 13).

224 Kremnitzer and Hörnle (n 142) 122, 129.

225 Cremona, Marise, ‘Coherence in European Union Foreign Relations Law’ in Koutrakos, Panos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar 2011) 55.Google Scholar

226 Hillion, Christophe, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in Cremona, Marise (ed), Developments in EU External Relations Law (Oxford University Press 2008)Google Scholar 15, 35.

227 ibid.

228 See Barak, Aharon, ‘The Role of the Supreme Court in a Democracy’ (1999) 33 Israel Law Review 1Google Scholar, 6: ‘The weighing process should be rational and harmonious with the rest of the legal system.’

229 Bertea, Stefano, ‘Looking for Coherence within the European Community’ (2005) 11 European Law Journal 154, 157.Google Scholar

230 Fuller, Lon L, Anatomy of the Law (Praeger 1968)Google Scholar 94.

231 Barak, Aharon, ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2003) 116 Harvard Law Review 19, 25.Google Scholar

232 Barak (n 102) 12.

233 Schwartz, Osnat Grady, ‘International Law in Domestic Judges' Decisions: The Relationship between Broad Role – Perception and a Strong Internationalist Inclination’ (2011) 34 Tel Aviv University Law Review 475Google Scholar, 522, relying on Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241.

234 Benvenisti, ibid.

235 Keohane, Robert O, Moravcsik, Andrew and Slaughter, Anne-Marie, ‘Legalized Dispute Resolution: Interstate and Transnational’ (2000) 54 International Organizations 457, 472Google Scholar; Grady Schwartz (n 233) 518–23.

236 Hofnung and Weinshall-Margel (2011) (n 1) 153: ‘The Court is tasked with the responsibility of ensuring trust and legitimacy in the policies of other political branches, while preserving a neutral political posture.’

237 Cohen (n 200) 501–02. See HCJ 7195/08 Abu Rahma v Chief Military Advocate General (unpublished, 24 June 2013), Justice Melcer, para 7, http://elyon1.court.gov.il/files/08/950/071/r09/08071950.r09.pdf.

238 Cohen (n 7) 75; Yuval Shany, ‘The Ramifications of the Entry into Force of the Rome Statute of the International Criminal Court from the Israeli Perspective’ (2003) 15 Hamispat 28 (in Hebrew).

239 See Nomi Levitsky, The Supremes: Inside the Supreme Court (New Library 2006) (in Hebrew) 176, 178–79, citing the importance ascribed by President Barak to the need to adjudicate in a manner that would avoid the adjudication of the ICC.

240 Grady Shwartz (n 233) 519–23, notes 111, 112 and 114, relying, inter alia, on Kahler, Miles, ‘Conclusions: The Causes and Consequences of Legalization’ (2000) 54 International Organizations 661, 681.Google Scholar

241 Shamir, Ronen, ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice’ (1990) 24 Law & Society Review 781.Google Scholar

242 A (n 123) para 22.