Palestinians: Through No Fault of Their Own (Israel's Punitive House Demolitions in the al-Aqsa Intifada)

November 2004, Summary

Principle findings: Since the beginning of the al-Aqsa intifada, the IDF has demolished 628 housing units, which were home to 3,983 persons. These homes were demolished because of the acts of 333 Palestinians. On average, 12 innocent people lost their home for every person suspected of participation in attacks against Israelis.

• Almost half of the homes demolished (295 - 47%) were never home to anyone suspected of involvement in attacks against Israelis. As a result of these demolitions, 1,286 persons lost their homes even though according to Israeli officials they should not have been punished.
• Contrary to its argument before the High Court of Justice that prior warning is given except in extraordinary cases, B'Tselem's figures indicate that in only 3% of the cases were occupants given prior notification of the IDF's intention to demolish their home.
• Extensive destruction of property in occupied territories, without military necessity, constitutes a war crime.

Three Different Kinds of House Demolitions

Over the last four years, Israel has demolished some 4,100 Palestinian homes in the Occupied Territories. About sixty percent of the demolitions were carried out in the framework of what Israel calls "clearing operations." Some twenty-five percent were destroyed because Israel claims they were built without permit. The remaining fifteen percent were demolished as a means to punish the families and neighbors of Palestinians suspected of involvement in carrying out attacks against Israelis. These punitive demolitions are the focus of this report.

-Punitive Demolitions Over the Years-

• Israel has demolished Palestinian houses as a punitive measure since the beginning of the occupation in 1967. The extent of such demolitions has varied over the years:
• From 1967 to the outbreak of the first intifada, in December 1987, Israel demolished or sealed at least 1,387 housing units, most in the first few years following occupation of the West Bank and Gaza Strip.
• Following the outbreak of the first intifada, Israel dramatically increased its use of house demolitions as a punishment. From 1988-1992, Israel completely demolished 431 housing units and partially demolished fifty-nine.
• From 1993 to 1997, Israel completely demolished eighteen housing units and partially demolished three units.
• From 1998 to October 2001, Israel did not demolish or seal any houses as punishment.
• In the course of the al-Aqsa intifada, Israel renewed with increased vigor its use of punitive house demolitions. As part of this policy, Israel demolished 628 homes from October 2001 to 20 September 2004. The official decision to renew the policy of punitive demolitions was made at a meeting of the Political-Security Cabinet on 31 July 2002, about nine months after the policy began in practice. This report analyzes Israel's policy during this period.

-Punishing the Innocent as Official Policy-

The declared purpose of the punitive house demolitions is to deter potential attackers, by harming the relatives of Palestinians suspected of attacks against Israelis. Testimonies given to B'Tselem indicate that security forces occasionally use the threat of demolition to convince relatives of wanted persons to cooperate and turn over their relatives. Israel's policy has left 3,983 Palestinians homeless since the beginning of the current intifada. This measure does not directly harm the suspects themselves, who at the time of the demolition are not living in the house. According to B'Tselem's statistics, thirty-two percent of the suspected offenders were in detention at the time of demolition, twenty-one percent were "wanted," and forty-seven percent were dead.

In addition, in many instances the IDF also destroyed houses adjacent to the house that was the target for demolition. These cases involved both apartments in the same building as the suspect's apartment, and adjacent buildings. B'Tselem's research indicates that in some cases the IDF explicitly intended to destroy the nearby houses. Yet, even if the IDF did not intend to damage nearby houses, the fact that there have been many such cases makes the lack of intention irrelevant. Since the beginning of the al-Aqsa intifada, the IDF demolished 295 such adjacent homes (about one-half of all homes demolished), in which 1,286 persons lived. However, statements made by the IDF Spokesperson's Office following demolitions always mention one house, that in which the relevant individual lived, as the residence that was demolished.

Reason for Demolition: Not Just Suicide Bombings

The text of the decision made by the Political-Security Cabinet and reports in the media give the impression that Israel's policy is directed only against Palestinians who were directly involved in attacks that caused many Israeli casualties. Yet in practice, Israel demolishes houses in response to involvement in any attempted violent act against Israelis, regardless of the results: from suicide bombings that leave many casualties to "failed" attacks against soldiers.

Furthermore, the demolitions are aimed not only at the perpetrators, but also against the homes of individuals with any level of involvement in such attacks, either in the planning, the dispatching of the persons who carried out the attacks, or by providing assistance of some kind. According to B'Tselem's figures, sixty-six percent of the demolitions were directed at the families of suspects who carried out attacks, while the remaining thirty-four percent were directed at those involved in other ways. In forty percent of the Palestinian attacks because of which the suspects' homes were destroyed, no Israeli was killed.

No Prior Warning

Contrary to prior practice, since the policy was renewed in 2001, the IDF has generally not issued a demolition order, and has not given prior warning to the occupants before demolishing their home. The IDF gave prior warning in only seventeen cases, representing three percent of the total. Most of the demolitions take place at night, and the occupants are given only a few minutes to remove their possessions from the house.

Causing Severe Physical and Mental Harm

Testimonies given to B'Tselem indicate that the harm suffered by families affects almost all aspects of life: disruption of the family unit, as some families are forced to split up and live separately; sharp decline in the standard of living, as a result of the loss of property, even after the family finds substitute housing; and feelings of dependence and instability as a result of the loss of their home, which is more than just a place to provide shelter. Research on the psychological effects indicates that house demolitions have a substantial post-traumatic effect, primarily on children.

Violation of the Right to Housing

The right to adequate housing is well enshrined in international law. The right to housing is important because it is a prerequisite for the exercise of other rights, among them the right to an adequate standard of living, the right to the highest attainable standard of physical and mental health, and the right to family life. The right to housing is a vital component of the protection of the rights of children, who are entitled to special protection in international law. 

As the force in control in the Occupied Territories, Israel is required to respect the Palestinians' right to housing.

War Crime

The Fourth Geneva Convention prohibits the occupying state from destroying the property of civilians in occupied territory, "except where such destruction is rendered absolutely necessary by military operations." Israeli officials have argued that its policy falls within this exception. However, this contention is baseless. Israel's interpretation of "military operations" contradicts the official commentary of the International Committee of the Red Cross, which defines "military operation" as "the movement, maneuvers, and actions of any sort, carried out by the armed forces with a view to combat." Punitive demolitions are not conducted in the framework of "movements" or "maneuvers" of IDF forces, and are not carried out in the context of hostilities. The action cannot, therefore, be deemed a "military operation" within the meaning of the term in the Geneva Convention.

In some cases at least, Israel argues that the demolitions are lawful in that they are carried out pursuant to Section 119 of the Emergency Defense Regulations, which were enacted during the British Mandate. Section 119 is a draconian provision that allows a house to be demolished based on suspicion that certain offenses have been committed. The house does not have to belong to the suspects themselves, but can be the home of their family, neighbors, and other residents in the community. The applicability of Section 119 is questionable: it was revoked by the British before the Mandate ended. However, even if the British did not revoke it, Section 119 should be nullified because it violates international humanitarian law. Relying on Section 119, the High Court of Justice rejected these arguments and adopted, time after time, the state's contention that the punitive house demolitions are lawful.

Collective Punishment

Israel's policy not only infringes the right to housing, it also breaches one of the most fundamental principles of justice: the prohibition on punishing a person for acts committed by another. The prohibition of collective punishment is especially stringent when the victims are children. The Fourth Geneva absolutely prohibits collective punishment without exception.

The Hague Regulations, on the other hand, recognize a narrow exception to this prohibition. The exception applies when occupants of the house intended for demolition knew or could foresee the act for which the army intends to demolish the house, and had the opportunity to prevent it. Despite this, state officials have often declared that prior knowledge or responsibility is not a precondition for the legality of the demolition. In the few cases in which the High Court addressed the question of indirect responsibility of family members for failing to prevent an attack, the justices relied on baseless assumptions to determine that the relatives knew about the attack during the planning stage. This approach is completely inconsistent with the High Court's handling of the identical offense known in Israeli law as "failure to prevent a felony," which calls for an extremely heavy burden of proof, in which the prosecution must prove that the defendant had positive, concrete, immediate, and significant information that a felony was about to occur.

Israel further argues that house demolitions are not punishment, but rather a means of deterrence. Therefore, the state contends, the act does not comprise collective punishment and thus does not violate international humanitarian law. The High Court accepted the state's argument by making an analogy between house demolition and incarceration of the head of a family, which also harms the family. However, the comparison is flawed. The purpose of imprisonment is to deny certain rights to the offender. The suffering of his family is only a by-product which is not necessary to achieve the objective of the imprisonment.

Denying the Right to Due Process

Finally, demolition of houses is an administrative procedure based solely on suspicion, in which the occupants are denied the right to due process of law. Since the policy was renewed in 2001, Israeli has further denied due process by denying victims of the policy the fundamental right to plead their case to the authorities before the demolition is carried out. Israel justifies its failure to give prior warning on the grounds that the warning is "liable to endanger our forces, and cause the action to fail, because warning will enable the enemy to booby-trap the houses scheduled to be demolished, ambush our troops taking part in the action, and the like." This justification is baseless. At least as far as the West Bank is concerned, the IDF has effective control throughout the area, and is constantly present in almost all the cities, villages, and refugee camps. Also, making demolitions an openly declared policy enables some families to anticipate the demolition of their home. Following recent suicide attacks, the Israeli media reported that the IDF intended to demolish the houses of the persons who carried out the attacks. Thus, the state can no longer justify denial of the right to be heard on the need to preserve the element of surprise.

B'Tselem demands that the government of Israel immediately cease the policy of demolishing houses as a means of punishment, and compensate Palestinians whose homes have been demolished as a result of this policy.

Palestinians' Attica- like life but on their own land