Thursday, August 12, 2021
Elder of Ziyon
The controversial demolition of the homes of Palestinian Arab terrorists is in the news again, following a terrorist attack in May:
The Judea Military Court on Tuesday [August 3] convicted Muntasir Shalabi for the terror murder of 19-year-old Yehuda Guetta in a drive-by-shooting on May 2 at Tapuah junction.The demolition itself was done last month, in July.
...Shalabi, 44, was also convicted of multiple attempted-murder counts after he wounded two other 19-year-olds during the attack.
I already mentioned the obvious, that the house demolitions are controversial -- one problem is that the demolition was already done in July, while the actual conviction was not until later, this month.
In an article for the Yale Journal of International Law in 1994, Dan Simon notes in The Demolition of Homes in the Israeli Occupied Territories
The provision's breadth affords tremendous discretion to the Military Government on a number of levels. First, Article 119 allows the Military Government to issue demolition orders as an exercise of administrative authority, without recourse to judicial proceedings. [p. 15; emphasis added]And Article 119 requires a history lesson, since it is not an Israeli law.
Article 119 is one of the 1945 Defense (Emergency) Regulations [DERs] issued by the British during their rule in then-Mandate Palestine. Article 119 is the regulation the British used to authorize the confiscation and destruction of houses in which security-related laws were violated or where someone who committed such a violation lived.
That regulation goes even further back, to the South African Boer War:
The roots of Israel's home demolition policy date back to British orders promulgated during the South African Boer War. In June 1900, Lord Roberts, the general in command of British forces in South Africa, issued two proclamations in response to repetitive Afrikaner commando attacks on railroad and telegraph lines. His orders permitted the destruction of homes closest to the sites of such attacks. [p. 8]
The British applied this law as a response to Arab sabotage, especially from 1936-1939.
On a side note, Simon claims the regulation was never used by the British against Jews. But there are two Wikipedia articles that contradict him, referring to The Sergeants Affair, where, in retaliation for the execution of 3 members of the Irgun, the Irgun killed two British sergeants.
According to the article on Jewish insurgency in Mandatory Palestine, referring to the book Terror Out of Zion by Bowyer J. Bell:
The British reacted by arresting 35 Jewish political leaders including the mayors of Tel Aviv, Netanya, and Ramat Gan and held them without trial, the Revisionist Zionist youth movement Betar was banned and its headquarters was raided, and the army was authorised to punitively demolish Jewish homes, with a Jewish home in Jerusalem demolished on August 5 after an arms cache was discovered there during a routine search.
The article The Sergeants affair uses a different source, Anonymous Soldiers: The Struggle for Israel, 1917-1947, by Bruce Hoffman:
Cunningham authorized the British Army to begin demolishing Jewish homes, a tactic it had previously failed to use during the Jewish insurgency. A Jewish home where an arms cache had been discovered in a routine search was demolished in Jerusalem on 5 August.
As to the unequal application of the regulation between Arabs and Jews by the British, issues of politics and publicity were likely the reason.
That leads to an issue raised by Gideon Levy in the current application of the law to the Shalabi home, in his article for Ha'aretz, Israel razed a Palestinian mansion as collective punishment, U.S. intervention be damned:
And hardly anyone protests. Not even when there’s a punishment implemented in the manner of an apartheid state: The Jewish terrorist whose family’s home is demolished has yet to be born. The homes of the murderers of the Dawabsheh family and of the teenager Mohammed Abu Khdeir – like the homes of Ami Popper, Haggai Segal and others of their ilk – stand proudly intact. But the home of the Shalabi family in the affluent West Bank town of Turmus Ayya, north of Ramallah, was demolished last week.
Let the Israeli government address the issue of their application of this regulation. But it should be pointed out that over the years the Israeli Supreme Court has gone to great lengths to limit this law. Also, there is a distinction to be made between attacks by Arabs done to undermine the state and attacks by Jews that are hate crimes and are no less deserving of punishment. Also, as pointed out below, by its very nature this law is British penal law -- and so can only be applied in the "West Bank" as local law and has no basis for application within Israel itself.
Levy also deliberately labels the demolition of homes as collective punishment, which the Israeli government has made a point of saying is not the purpose of the law.
Levy is not alone in this.
Similarly, in its criticism of house demolitions, the US also mischaracterizes the measure as collective punishment:
“We attach a good deal of priority to this, knowing that the home of an entire family shouldn’t be demolished for the action of one individual,” [State Department Spokesman] Price said when asked about the matter at a daily press briefing, adding that the US would continue to raise its concerns “as long as this practice continues.” [emphasis added]
Similarly, a spokesperson for the US Embassy in Israel said that
the home of an entire family should not be demolished for the actions of one individual.
According to the Israeli government, the point of the house demolitions is deterrence, and it defends the legal application of the law -- relying in part on the fact it was British law in Mandate Palestine.
According to Simon, in 1971, the then-Attorney General Meir Shamgar gave two supports for the use of Article 119 in accordance with International Law. First:The Demolitions are based on Regulation 119 of the Defense (Emergency) Regulations, 1945, which are part and parcel of the penal law in the West Bank and Gaza.... Article 64 of the [Geneva] Convention leaves the penal provisions of the local law intact insofar as the local law includes rules permitting demolition.In addition,
[Shamgar] asserted that the practice falls within the legal boundaries of Article 53 of the Geneva Convention, which makes an exception to the prohibition on destruction of private property under circumstances of absolute military necessity:Obviously, this has not -- and will not -- put to rest the legal challenges to the policy, but it is important to keep in mind Israel's legal justifications.It is necessary to create effective military reaction. The measure under discussion is of utmost deterrent importance, especially in a country where capital punishment is not used against terrorists killing women and children.... In conclusion, it appears that even if Regulation 119 . . .is regarded as suspended, demolition can be based, in appropriate circumstances, on Article 53 of the Convention." [p. 18]
But what good is a policy if it is not effective?
Again, this is mired in controversy.
In 2005, The New York Times reported in Israel Halts Decades-Old Practice of Demolishing Militants' Homes that Israeli Defence Minister Shaul Mofaz had ended the policy of home demolition, hinting that they were not an effective deterrent:
A military statement did not say why the policy was being changed, but the newspaper Haaretz reported on its Web site that Maj. Gen. Udi Shani, who headed a committee reviewing the matter, had challenged the existing military position that demolitions were an effective deterrent. It said he had concluded that the policy had caused Israel more harm than good by generating hatred among the Palestinians. [emphasis added].
The Wall Street Journal was more explicit, reporting that a military study had advised against continuing the practice “after finding demolitions didn’t deter potential attackers.”
Yishai Schwartz wrote in 2014 in The New Republic, an article entitled Israel Destroys Homes to Deter Terrorists. A New Study Says It Works—But Is It Moral? In it, he notes that the accepted 'rumor' that Israel ended demolitions because they were not effective -- is not based on fact.
Schwartz spoke to Amos Harel, who wrote the Ha'aretz article referenced by The New York Times article:
Amos Harel, told me that the committee wasn't primarily intended as an objective evaluator, but as professional cover for the political echelon’s decision. Its recommendation—to end the demolitions—was largely a foregone conclusion.
More importantly, a report in 2014 indicates that house demolitions in fact do have a deterrence effect on terrorism.
In 2008, Efraim Benmelech, a professor at Northwestern’s Kellogg School of Management, and Hebrew University economists Claude Berrebi and Esteban Klor began to collect data on all house demolitions and suicide attacks between 2000 and 2005, relying on Palestinian sources, human rights group B’tzelem, and publicly available Israeli security information (Benmelech says they received “zero help from any government agency”)...
The authors distinguished between “punitive demolitions” (those that target the homes of terror operatives) and “precautionary demolitions” (those justified by a home’s location, for instance posing particular danger of housing sniper fire)...
Precautionary demolitions resulted in a significant increase in suicide attacks, a “48.7 percent increase in the number of suicide terrorists from an average district,” according to the study. By contrast, punitive demolitions led to a significant decrease in terror attacks, between 11.7 and 14.9 percent, in the months immediately following the demolition. [emphasis added]
According to the abstract in the introduction to the actual report, Counter-Suicide-Terrorism: Evidence from House Demolitions:
...punitive house demolitions (those targeting Palestinian suicide terrorists and terror operatives) cause an immediate, significant decrease in the number of suicide attacks. In contrast, Palestinian fatalities do not have a consistent effect on suicide terror attacks, while curfews and precautionary house demolitions (demolitions justified by the location of the house but unrelated to the identity of the house's owner) cause a significant increase in the number of suicide attacks. The results support the view that selective violence is an effective tool to combat terrorist groups and that indiscriminate violence backfires.
This goes beyond dissuading potential terrorists themselves who would not want to be responsible for causing problems for their families. In addition, those who become aware of would-be terrorists in their family are also motivated to act, as Schwartz writes:
But even if the demolitions didn’t deter the terrorist himself, Israeli officials also believe the threat will motivate friends and family members to dissuade or turn in the would-be terrorist. Shaul Shay, head of terrorism studies at the Interdisciplinary Center in Herzliya and a former deputy head of the Israeli Security Council, told me that he had seen “several examples where [families of a terrorist] tried to convince their relatives, or came to the Israeli authorities saying, ‘better that my son is in jail than in the grave.’” [emphasis added]
But that leads to still more controversy: is an 11.7 - 14.9% decrease enough to justify house demolitions?
Of the 3 analysts who wrote this report, one refused to address that question, another said it does -- but only in combination with a carrot as well as the stick -- and the third said the decrease was not enough to justify the practice.
One possible counter-argument to that last opinion is to note that the 11.7 - 14.9% decrease would include the potential for more than just one individual victim in each case, thus amounting to many more lives being saved.
One last point.
The regulation itself can also be seen as a counter-cultural deterrent to the pay-to-slay policy of the Palestinian Authority and the culture it creates.
In 2014, Netanyahu spokesperson Mark Regev said:
...demolitions were a necessary deterrent to offset “a culture of support within Palestinian society,” citing a report showing that the Palestinian Authority paid families of what it calls martyrs nearly $7 million in 2011.
Moreover, the logic of the policy goes, family members of terrorists would be more keen to “keep an eye” on potential terrorists in order to avoid the demolition of the family house (a consideration which may offset the social prestige enjoyed by families of so-called “martyrs” in Palestinian society). [emphasis added]That in itself does not justify using house demolitions, but it may be a benefit.
One more controversial point among many when discussing these house demolitions.
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