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

Published online by Cambridge University Press:  27 January 2015

GUY HARPAZ
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Abstract

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

Keywords

house demolitionsIsrael Supreme Courtjudicial coherencelaws of belligerent occupation

Information

Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 28 , Issue 1 , March 2015 , pp. 31 - 47
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

1. Introduction

Supreme Courts are entrusted with the development and maintenance of the normative coherence of their legal orders, consistently reflecting in each area of adjudication the fundamental values of their legal systems and their approach towards domestic law and international law.Footnote 1 But do they always fulfil that task? Drawing on the Israeli case study of house demolition (‘HD’) orders imposed in the Occupied Palestinian Territories (‘Territories’), this article argues that there might be circumstances in which courts might approve the imposition of security measures notwithstanding that such approval amounts to a systematic deviation from the spirit, benchmarks, and fundamental principles that have guided their decisions in comparable areas of law pertaining to the balance between national security and human rights.Footnote 2 The judicial regulation of the practice of HD imposed for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) in the Territories has attracted voluminous literature, most of which is critical.Footnote 3 In particular, the seminal works of KretzmerFootnote 4 and SimonFootnote 5 found that the Court's jurisprudence is contrary to public international law and the study of Zemach established that the Court approves a practice that might amount to an international crime.Footnote 6

More recent scholarship establishes that in adjudicating HD measures, the Court is unfaithful to its own jurisprudence in comparable areas in which it is called upon to resolve tension between security and human rights in the Territories, both under domestic and international law.Footnote 7 The three principal manifestations of that distinct judicial stance were found to be (i) willingness to jettison the requirement of individual responsibility and of dangerousness, (ii) almost no substantive intervention to curtail or constrain the exercise by the military authorities of their authority; and (iii) judicial review which is devoid of any meaningful scrutiny of the measures according to international law.Footnote 8 Building upon this corpus of scholarship, this article distils the reasons that may have caused the Court to deviate from its own jurisprudence. Although the analysis is focused on a specific country and on a specific policy, its findings may be relevant to other courts, in other countries, and with respect to other policies, because it establishes the factors that may lead a supreme court to deviate from its own fundamental principles and from its overall approach towards public international law when faced with harsh security measures.

2. Legal apparatus

In its capacity as a Mandatory Power in Palestine, the United Kingdom promulgated the Emergency Defence (Temporary Provisions) Regulations of 1945, pursuant to the Emergency Powers (Defence) Act, 1945 (British Imperial Statute).Footnote 9 Regulation 119 of this enactment (the ‘Regulation’) granted the British Commander in Palestine broad discretionary authority to demolish and seal off houses and that authority was exercised, inter alia, for deterrence purposes.Footnote 10 With respect to the West Bank and East Jerusalem, Jordan inherited the Regulation following the end of the Mandate and adopted it through its internal laws. In the aftermath of the Six Days War (June 1967) and in the wake of the occupation of the West Bank, East Jerusalem, and the Gaza Strip, Israel applied the Regulation with respect to the Territories in its capacity as a belligerent occupant.Footnote 11

In times of relative tranquillity, the practice of HD is rarely used, whereas in times of escalation of terrorist activities, such as during the first Intifada (1987–1991), the second Intifada (2000–5), and the second half of 2014, the security forces more readily resorted to that practice.Footnote 12 Over the years, the more reversible and hence less severe measure of sealing off houses has to a large extent replaced demolitions; this article will use the generic term of ‘house demolitions’ to cover both practices, unless otherwise stated.

A HD order, carried out in an administrative proceeding by an executive order of the Military Commander of the relevant geographical area, is considered an administrative sanction.Footnote 13 This sanction may be imposed in addition to the criminal-judicial sanction, but it is usually performed in lieu of criminal proceedings.Footnote 14 Regulation 119 does not explicitly grant the owners of the house a right of hearing prior to demolition. Yet the practice of the Israeli Defence Forces (IDF), developed in light of the Court's jurisprudence, is that, as a general rule,Footnote 15 demolition is carried out after the inhabitants of the house are given an opportunity to appeal to the Military Commander to reconsider his decision and if he refuses to annul it, to petition the Court against the demolition orders.Footnote 16

Prominent scholars argue that the HD policy is in direct contradiction to the spirit and letter of international humanitarian law and the laws of belligerent occupation.Footnote 17 More specifically, extensive scholarship argues that it breaches the following provisions of the 1907 Hague Regulations: Article 23 (which provides a prohibition on the destruction of enemy property ‘unless such destruction or seizure be imperatively demanded by the necessities of war’),Footnote 18 Article 46 (which requires the respect of family honour and rights),Footnote 19 and Article 50 (which prohibits collective punishment)Footnote 20. Likewise, an extensive corpus of scholarship blames Israel for violating Article 27 of the Fourth Geneva Convention (which stipulates that the civilian population ‘shall at all times be humanely treated’),Footnote 21 and Article 33 of the same Convention (which prohibits collective punishment)Footnote 22. Similarly, numerous scholarsFootnote 23 postulate that the HD policy contradicts Article 53 of the Fourth Geneva Convention, which states that ‘[a]ny destruction by the Occupying power of real or personal property belonging individually or collectively to private persons … is prohibited, except where such destruction is rendered absolutely necessary by military operations’. Similar arguments are raised with respect to Article 64 of the Fourth Geneva Convention, which requires an Occupying Power not to apply existing laws which represent ‘an obstacle to the application of the present Convention’. In the same vein, a significant number of scholarly works and reports issued by human rights NGOs establish that HD measures are in breach of substantive international human rights, including the right to protection of property,Footnote 24 the right to shelter,Footnote 25 the prohibition against cruel, inhuman, or degrading punishment,Footnote 26 and the prohibition against collective punishmentFootnote 27. The same is true of the procedural international human rights to due process.Footnote 28

As to the Court's supervisory role, contrary to its overall approach with respect to security measures in the Territories, in demolition cases the Court adopts a deferential attitude towards the security authorities, manifested in and facilitated by a very low burden of proof.Footnote 29 The HD judgments are in most instances unanimous, jurisprudentially brief, abstract, formalistic and unrefined,Footnote 30 displaying ‘almost uniform support of the practice’.Footnote 31 Moreover, little effort is made to provide in-depth analysis, or to substantiate the verdicts with a comparative dimension. No genuine attempt has been made to effectively regulate the practice, or to outline the considerations that should influence the exercise of the discretion embodied in Regulation 119. That deferential approach in HD cases has been caused by and manifested in the Court's refusal to pursue a more restrictive interpretation of Regulation 119, in its neglect to require proof of the individual responsibility or dangerousness of the person inhabiting the house, in its failure to scrutinize the policy in accordance with public international law (including the laws of belligerent occupation, international human rights, and international criminal law), and in its failure to engage the jurisprudence of international and national courts. These characteristics are to be contrasted with the Court's overall approach in comparable areas of law.Footnote 32 The remainder of the article is devoted to a search for the reasons that led the Court to deviate from its own overall approach.

3. The factors that led the Court to deviate from its own jurisprudence

3.1. The nature of HD orders

In the case of security measures which are proposed not in the immediate aftermath of a terrorist attack and which are hence not coloured by public emotion and the military's sense of urgency, the Court may afford itself a greater scope for intervention. The nature of HD orders is different, as acknowledged by General Gazit, former Military Administrator of Territories:

The effectiveness … lies in the fact that it is an immediate punishment and if we want to deter somebody, we cannot stop and wait for the normal legal machinery. … If we want to deter terrorists the effects must be seen immediately by the population.Footnote 33

When faced with heavy military pressure, backed by a popular uproar demanding swift security measures, the Court finds it very difficult to question the exercise of security authority. This explanation, which is supported by the empirical work of Hofnung and Weinshall-Margel,Footnote 34 may explain why in the HD cases (like in the two latest deportations of those involved in terrorist attacks, cases which also involved the instant adoption of measures to assuage the fierce public outcry), the Court adopted a deferential approach with partial or total disregard for international law. Yet this explanation cannot fully account for the Court's willingness to approve HD measures proposed a long time after the terrorist activity has taken place.Footnote 35

3.2. Institutional constraints: The socio-political dimension

Drawing on the US experience, it may be argued that the Court attempts to advance two strategic interests, namely its influence on society and its institutional autonomy.Footnote 36 But in a situation of serious security breaches, can the two interests be reconciled and can such institutional autonomy be achieved by playing a counter-majoritarian role and withstanding political pressures?Footnote 37 The Court states that its treatment of security measures is based on ordinary administrative benchmarks:

[T]here is nothing unique in security considerations. … Judges can and should review the reasonableness of discretion in security matters as much as they can and should review administrative discretion in any other field. Hence, there are no special limits on the scope of judicial review in security matters.Footnote 38

Yet this approach does not necessarily represent the reality of decisions handed down in Israel and elsewhere. Judiciaries worldwide find it difficult to employ the law as a means of curtailing security authorities’ discretion in times of conflicts which involve a heavy civilian toll. This difficulty, which applies with added force to international law, is by no means unique to Israel,Footnote 39 yet, it is particularly applicable to it.Footnote 40

According to Merari's analysis, the executive perceives the battle against terrorism in terms of public morale, and it assesses success in the struggle by gauging the public's trust in the government rather than by counting casualties.Footnote 41 This is why the Israeli military authorities and the government rely on HD at such times of security threats and public unrest. They are conscious of the overwhelming public support that these measures generate and their effectiveness in achieving an immediate rise in public morale, due to their dramatic visibility. Indeed, the majority of the Israeli public has consistently expressed widespread personal fear of terrorism and a commensurate support for HD measuresFootnote 42 and much less concern for the resultant adverse effects in terms of Palestinians’ human rights and for compliance with international law.Footnote 43 The government and the security forces are under pressure to adopt security measures that accommodate such popular sentiments.Footnote 44

As Dotan established, in such a socio-political environment, the Court finds it difficult to reconcile its values with its ability to defend its institutional autonomy;Footnote 45 facing severe institutional constraints on its ability to withstand these executive and popular pressures, or to impose significant restrictions on the military authorities in the name of civil liberties,Footnote 46 particularly when such liberties are those of the enemy.Footnote 47 The lack of critical media attention and of parliamentary supervision only adds to the Court's difficulties.Footnote 48 Faced with such realities, the Court is fearful of losing its legitimacy in the eyes of the Israeli public and the executive.Footnote 49 It is particularly difficult for it to use international law as a means to curtail the army's discretion, given the traditional, public antagonism towards international law, especially when Palestinian combatants violate that body of law and when the public associates these combatants with the Palestinian community at large:Footnote 50

Once a conflict is portrayed as a ‘war’, it becomes unpatriotic to support the imposition of limitations on the army in the name of international law … international law is thus deprived of public legitimacy, especially when Palestinian terrorists are so blatantly flaunting it.Footnote 51

This institutional constraint is by no means unique to Israel. As Mishler and Sheehan argue in the US context, constitutional courts serve more to legitimize socio-political policies and broader cultural propensities previously endorsed by the political establishment and public opinion than to confront the majoritarian will.Footnote 52

This line of argument may explain to a certain extent the deferential approach in HD cases. Yet it is certainly not a definitive explanation. After all, although it is the same public, the same military, and the same government that are supportive of other severe measures, such as targeted killing, assigned residence, administrative detentions, detentions for bargaining purposes, physical means of interrogations, etc., this has not prevented the Court from concluding that some of these measures are illegal, per se, and that others must be subjected to constraints that are more than insignificant.

Another institutional explanation is premised on the Court's cognitive inability to accept that deterrence cannot always be achieved, given the limitations of military strength in the context of occupation. This explanation is particularly relevant in light of the fact that in the latest cases of HD measures, the measures were used in the context of suicide bombers, distinguishing such measures from other security measures. When a terrorist is captured, a wide set of measures may be employed against him, which may exact from him a heavy price and deter others from following his terrorist path. When, on the other hand, the terrorist is a suicide bomber, his death places the military authorities in a ‘deterrence vacuum’ because the comparable measures referred to in this article can no longer be employed against him. The military authorities (and the Court), finding it very difficult to grasp the very idea of a deterrence vacuum, revert to HD, hoping that that vacuum will be filled:Footnote 53

There is no assurance that this measure is indeed effective. But, considering the very few measures at the disposal of the state in order to defend against ‘living bombs’, they believe that this measure should not be disparaged.Footnote 54

Yet this logic is flawed. The fact that the phenomenon of suicide bombers leaves an individually-based vacuum in the arena of deterrence does not mean that HD may ipso facto fill that vacuum. The Court's inability to acknowledge the realities of a deterrence vacuum may account for its Justices’ political dependence on and immersion in hegemonic ideology.Footnote 55

3.3. Institutional constraints: The complexities of deterrence and the omission bias

Anti-terrorist measures may be pursued for the purposes of pre-emption, retribution, deterrence, and pressure.Footnote 56 As argued above, measures adopted for general deterrence purposes are problematic because they treat the subject matter of the measures as a means rather than as an end. Thus even if deterrence can serve as a justification for severe security measures, the required evidentiary-data threshold of the net benefit stemming from security measures should arguably be higher than the one applicable to a measure aimed at pre-emption.Footnote 57 Yet in dealing with HD measures aimed at general deterrence, the Court faces a greater challenge than when it deals with pre-emptive measures aimed at particular individuals. The question of whether or not a proposed sanction effectively promotes general deterrence does not lend itself easily to strict evidentiary requirements. As Zamir and Medina argue, it is usually impossible to scrutinize the assertion that a proposed action is effective in achieving general deterrence, as such scrutiny requires evaluating counterfactual scenarios and controlling for other potentially relevant factors; it is also impractical to evaluate the marginal contribution of each security measure to achieving a certain level of deterrence and thus to determine the necessity of each measure.Footnote 58 Similarly, to base the decision regarding a deterrent measure on the average impact of the measures, one must also have reliable information regarding the linearity of the deterrence function, information which would virtually always be lacking.Footnote 59 Thus in dealing with HD measures aimed at deterrence, the Court faces a greater challenge than when it deals with pre-emptive measures. The Court reacts by adopting an approach that is deferential to the security forces, and such approach entails a deviation from its own principles with respect to similar (non-deterrent) security measures.

The distinct approach of the Court should also be examined in the context of the intertwined concepts of status quo bias, omission bias, and loss aversion. Experimental studies indicate that the position prior to litigation is perceived as the relevant (status quo) point of reference and that judges may perceive accepting a claim as a commission and dismissing it as an omission.Footnote 60 Drawing on these studies, it is argued that omission bias may explain why judges are reluctant to accept claims even when the plaintiff's factual version is persuasive and why they require a higher standard of persuasion than required under evidence law.Footnote 61 According to Zamir and Ritov, the reluctance to avoid active deviation from the status quo can be attributed to the concept of ‘cost of regret’.Footnote 62 People expect that if deviation from the status quo were to result in a worse outcome than adherence to it, they would experience greater regret than they would have if they had decided to abide by the status quo and later learned that the alternate outcome would have been better;Footnote 63 having a greater moral responsibility for harmful outcomes they brought about actively than for those they brought about passively.Footnote 64 Consequently, decision-makers who assume that changing the status quo requires an act, while maintaining it involves mere omission,Footnote 65 will prefer harmful omissions to less harmful commissionsFootnote 66 and will hence display an omission bias.Footnote 67 Such bias is all the more likely to be present in the HD context, in which the Justices are unlikely to learn of the outcomes of the decision.Footnote 68 Furthermore, such bias should be examined in light of the fact that the price of an erroneous intervention against the military authorities in terms of security, judicial legitimacy, and autonomy might be particularly high.Footnote 69 Faced with uncertainty, decision-makers might have an even stronger bias toward omissions, especially when they are loss-averse.Footnote 70 These explanations pertaining to status quo bias, omission bias, and loss aversion may explain to a certain extent why the Court refuses to intervene in the exercise of the discretion embodied in the HD Regulation, notwithstanding the fact that such refusal comes at the price of deviating from its own jurisprudence in analogous areas.

3.4. An institutional explanation: A historical perspective

According to the behaviouristic status quo bias, people tend to prefer the state of affairs perceived by them as the status quo rather than opting for an alternative one. This bias, which is considered a possible explanation for courts’ adherence to the doctrine of stare decisis,Footnote 71 and for their reluctance to issue preliminary injunctions that disrupt the status quo,Footnote 72 may be relevant to the Court's record in the HD sphere. The IDF has employed HD measures in the Territories since 1967. By the time the practice reached the Court for the first time (1979), the practice was widespread and well entrenched. Moreover, when the first petitions reached the Court, it was not yet accustomed to conducting an interventionist judicial review of security measures, nor was it used to relying heavily on international law for such purposes. It thus adopted a deferential approach, based on Israeli law. By the time that a more interventionist approach prevailed in the Court and international law became a more frequently-used means of review of comparable security measures (1990s onwards), a very large corpus of verdicts approving the HD practice had already appeared in the Court's reports. Faced with such consistent verdicts, the Court found it difficult to intervene in favour of the petitioners and the HD practice won further judicial approval. The well-entrenched military policy became a well-entrenched judicial stance and the Court could not escape the cul de sac in which it had trapped itself.Footnote 73

Yet in a surprising turn of events, in 2005, Chief of Staff Ya'alon established a Committee of high-ranking IDF officers to examine the legality, morality, and effectiveness of the policy (Shani Committee). The Committee found strong evidence for the proposition that the policy failed to achieve deterrence and it recommended freezing it.Footnote 74 Thus when appearing before a parliamentary committee, the Military Advocate General Mandelblit acknowledged, albeit hesitantly, the questionable basis of the policy in terms of effectiveness and international law.Footnote 75 The Committee's recommendation was adopted by Prime Minister Sharon.Footnote 76 Yet the policy was sporadically reactivated to meet a wave of terror emanating from East Jerusalem (2008 and 2014)Footnote 77. When the proposed measures reached the Court in 2008, there was a reasonable expectation that the Committee's findings would lead the Court to re-question the rationale and validity of the policy. In that context, Mazuz, the Attorney General of that time, wrote a detailed legal opinion. As he subsequently attested, in light of the consistent line of judgments approving the legality of the HD policy, he refrained from expressing the view that demolitions were per se illegal; he limited himself instead to an outline of the costs that Israel would bear under Israeli law and international law should the policy be continued and to a prediction that there was a not insignificant probability that the Court would reverse its position.Footnote 78 The Court, however, failed to seize the moment, being ensnared in its own long-standing and voluminous jurisprudence supporting the legality of the policy. The Court did refer to the Committee's report in passing, only to adopt, once again, a low burden of proof.Footnote 79 In doing so, it took us back to square one, where the authorities are virtually granted a carte blanche.Footnote 80

Although the Court was also faced with well-entrenched realities in the cases of the security barrier, targeted killing, and the holding of enemy citizens for bargaining purposes, and these realities did not prevent it from quashing some of these practices and from placing not insignificant restraints on some others. Yet it is easier for it to exercise such an interventionist stance when faced with a jurisprudential vacuum (e.g., the security barrier) or with a single, approving verdict (e.g., detention for bargaining purposes or targeted killings), while it is more difficult to summon up the courage needed to do the same when faced with more than a hundred of its cases approving the legality of the HD orders. Closely connected to the historical, path-dependence explanations are explanations based on the identity of the Justices and the petitioners, as analysed, respectively in the following two sub-sections.

3.5. An institutional explanation: The personal perspective

Chief Justice Shamgar, who sat on the Court for twenty years and who, prior to his appointment to the bench, served as the Military Advocate-General and subsequently as Israel's Attorney General, was personally involved, in these two posts, in granting a green light to HD measures. He adopted the same approach when serving as the Chief Justice of the Court. The replacement of Chief Justice Shamgar by Chief Justice Barak could have raised the expectation of a change of heart with respect to HD. Indeed, Chief Justice Barak led the Court in many of the cases where it intervened in the use of various security measures,Footnote 81 an assertion that is supported by empirical research that indicates that his inclusion in a judicial panel raises the probability of an intervening decision.Footnote 82 Yet Barak was also the person who replaced Shamgar as Attorney General prior to the appointment of both of them to the bench. His judicial interventionist record relates primarily to measures with which he was not involved in his capacity as an Attorney General (e.g., assigned residence orders). In contrast, he did handle HD measures in his capacity as Attorney General. It may have been difficult for him to turn his back on his previous record and to establish that the same measures which he legitimized when he was wearing an advisory hat should be considered illegal, when wearing a judicial hat. This may explain why he found himself approving, this time in the latter capacity, the HD measures.Footnote 83 Thus Chief Justice Barak who was the champion of heavy reliance on public international law in reviewing security measures in the Territories, chose to refrain from relying on that body of law in the area of HD. The professional prestige and iconic status of the two successive Chief Justices left their imprint on the Court after their retirement. Thus it may be surmised that when the issue was brought before the Court in the aftermath of the Shani Committee's recommendation to freeze the policy, the Justices were paralysed by the judicial inheritance left by those two iconic Chief Justices.

3.6. An institutional explanation: The nature of the petitioners

Hofnung and Weinshall-MargelFootnote 84 and DotanFootnote 85 established that the Court is more likely to accept petitions submitted by human rights NGOs in terror-related matters or to intervene covertly in favour of the petitioner. The petitions pertaining to HD had initially been submitted by the residents of the house to be demolished, usually represented by ordinary (non-NGO) lawyers. The Court refused to issue judgments in their favour and they were thus pressurized to settle. It was only later that the human rights NGOs entered this area. The Israeli Committee against House Demolitions was unsuccessfully involved in some of the petitions submitted in the 1990s when judicial approval of HD was already entrenched and The Association for Civil Rights in Israel contented itself with a (successful) petition related to the procedural aspects of the demolition orders (i.e., right of prior hearing).Footnote 86 Later petitions submitted in the aftermath of the adoption of the aforesaid Shani Committee's recommendations were supported by the NGO HaMoked but were dismissed in the face of the well-entrenched judicial stance.

Another relevant distinction is that made between the ordinary, non-cause lawyer and the cause lawyer, the former chosen by her clients on a professional, apolitical basis, whereas the latter chooses cases and clients according to the principles she holds, utilizing litigation as a means of conducting transformative politics.Footnote 87 Dotan examined 157 dispositions of petitions against HD orders during 1990–95 and compared the success rate of cause lawyers and non-cause lawyers.Footnote 88 According to his analysis, the chance of a non-cause lawyer achieving a favourable outcome through final judicial decisions in the HD area is virtually nil. In fact in none of the three cases during that period in which Court decided wholly or partially for the petitioner, was he represented by a non-cause lawyer. Consequently, a non-cause lawyer might prefer to settle in a manner that would serve the interests of her client, notwithstanding that the settlement would entail avoiding the judicial scrutiny of the very legality of the HD policy.Footnote 89Per contra, for normative, political and public relations reasons, a cause lawyer may prefer to channel her efforts to bring about a more radical solution (in the case of HD, by attacking the very illegality of the policy), rather than settling. For her, an incidental success in a particular HD case may not be appealing, because it will not bring about a change in the government's overall HD policies.Footnote 90 Yet the cause lawyers realized too that their chances of winning the case through a Court's verdicts were very slim, and they too were thus incentivized to settle, realizing that their ability to reach successful out-of-court settlements was significant (and higher than that of non-political lawyers).Footnote 91 Their better performance in concluding settlements may be explained by the fact that they act as ‘repeat players’ in the HD field, enjoying a good, co-operative working relationship with government officials.Footnote 92 In fact Dotan and Hofnung found that repeat player groups enjoy close to 66% full or partial success, more than two times higher than other petitioners.Footnote 93 Thus cause lawyers, who might have been originally opposed to settlements, were incentivized by the Court to do exactly what non-cause lawyers did, namely to search for ad hoc settlements (e.g. transforming demolition orders into sealing off orders) that would not entail a scrutiny of the legality of the policy under either domestic or international law. Thus the Court succeeded in diverting most proceedings represented by NGOs and ordinary lawyers, cause lawyers and non-cause lawyers to the out-of-court settlements, thereby avoiding the need to face its deviation from its own jurisprudence in analogous areas and perpetuating that deviation. This conclusion is supported by the analysis in the following sub-section.

3.7. An institutional explanation: Judicial absolutism versus judicial relativism

Had the Court adopted its traditional approach on issues of international law, collective punishment, and security necessity, it would have been forced to conclude that HD measures are illegal per se, especially in cases of suicide terrorists whose family members are not at fault. Yet such a result is incompatible with the Court's own record in security petitions submitted by Palestinians at times of security instability, when the Court has been strongly disinclined to allow petitioners to win through a final Court disposition.Footnote 94 Instead the Court has been inclined to exert pressure on the parties to settle, granting the petitioners partial relief and avoiding the need to issue a coercive order which would bring the petitioners into direct, overt conflict with the state.Footnote 95

According to the analysis of Dotan, the Justices tend to have a very high level of trust in the lawyers representing the state in such cases, expecting them to settle as part of their role in the realization of the Court's policies in the field of Palestinian rights.Footnote 96 The state's attorneys for their part view themselves as officers of the Court and to a certain extent as its extension.Footnote 97 These attorneys are therefore attuned to the Court's overt and covert pressure to compromise, especially when they perceive the proposed settlements as strategically preferable to a (potential) defeat in a much-publicized verdict.Footnote 98 This practice is reinforced when the Palestinians are represented by human rights NGOs (as in some HD cases) and when the state's attorneys are aware that such petitioners have a higher chance of winning the case.Footnote 99 Consequently, litigation before the Court is usually transformed into a process of negotiation in which the state's attorneys have the role of mediating between the requirements of the Justices and the position of the military authorities.Footnote 100 Such a process is caused by and manifested in a shift of judicial orientation from intervening in matters of (lack of) legal authority (competence and ulta vires) to intervening with respect to the exercise of such an authority,Footnote 101 thereby enabling the Court to avoid the need to face its own deviation from its own jurisprudence.

This judicial policy, focused on the exercise of authority and seeking to advance compromise, is particularly suitable to HD cases. In almost all of the above-analysed comparable cases, a legislative legal basis for the adoption of security measures was either lacking (e.g., targeted killing, human shields) or was formulated in a vague manner (e.g., detention for bargaining purposes). The case of HD is different because the practice of HD is premised on a clear, detailed legal apparatus, based on British Mandatory legislation which grants wide discretion to the executive. This state of affairs facilitated a more interventionist approach in the analogues areas, while rendering the Court's task of finding the HD measures to be illegal (on account of lack of individual responsibility or incompatibility with international law) much more difficult.

This judicial policy is also particularly suitable to HD cases because of the nature of HD measures. As established by Hofnung and Weinshall-Margel, in many of the cases in which the Court felt that the security action could not be justified, it tended to support the petition tacitly, asking the state to reconsider alternatives; only if the state refused, would the Court examine whether to reject the petition or overtly intervene.Footnote 102 HD orders are especially suitable for such a judicial course of action, as the Court can encourage the military authorities to change demolition orders into sealing-off orders or to pressure the authorities to restrict the physical scope of the orders, thereby saving itself the need to declare the proposed orders to be illegal.

Thus the Court's refusal to adhere to its own legal principles leads it to focus on the exercise of the wide discretion embodied in Regulation 119, performing a balancing act through reliance on the proportionality doctrine, a reliance that leads to out-of-court settlements. In that respect, and contrary to the article's main assumption, the Court's approach in HD cases is similar to its own approach in similar areas. As Medina and Saban argue, the tendency of the Court is to constitutionally examine security measures under the test of proportionality without verifying a priori whether the relevant authorizing law advances an ‘appropriate cause’.Footnote 103 In their opinion, in order to conduct such verification, the Court should ensure that the objective that the law attempts to advance is appropriate and not only that the objective advanced through the infringement of human rights (i.e. security) is appropriate. Thus in their view, before embarking on the more technical scrutiny based on proportionality, the Court should examine, from a normative-moral point of view, whether the legislative instrument authorizing the imposition of security measure (i) belongs to the family of measures that are to be considered as legitimate in a democratic society; is (ii) aimed at the frustration of a concrete, personal risk on the part of those who have to suffer from its detrimental impact; and (iii) the risk embodied in its subject matters is meaningful and exceeds the minimum threshold that justifies an infringement of a basic human right. Under their analysis, a measure that does not meet these prerequisites should be considered to be based on a legislative instrument that advances an inappropriate and hence unconstitutional cause. In accordance with the criticism of Medina and Saban, the Court's willingness to skip such an a priori examination and to focus instead on the proportionality test may make its determinations technical rather than normative. This is precisely the case in HD verdicts, enabling the Court to avoid scrutinizing the very legality of the HD policy, an exercise that would have forced it to confront its deviation from its own jurisprudence.

4. Summary and conclusions

The judiciary's counter-majoritarian role in the realm of national security is of paramount importance:

[C]ourts are assigned the crucial task of prevention of populist lynching in the broad sense; i.e. the victimisation of individuals who are perceived by the majority to be enemies and a threat … simply because the vox populi requires such violation.Footnote 104

By and large and notwithstanding severe socio-political pressures, the Israel Supreme Court has taken cognizance of this truism and has imposed some significant procedural and substantive restrictions on the Israeli military authorities since the early 1990s, increasingly relying on public international law. Yet when faced with proposed house demolition measures, it has adopted a different stance, characterized, inter alia, by a willingness to jettison the requirement of individual responsibility and dangerousness. The Court has also preferred to intervene minimally in the exercise by the military authorities of their authority and to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law.

An attempt was made in this article to ascertain the reasons for the Court's different judicial position by advancing, inter alia, legal, historical, socio-political, and personal reasons; additional explanations relate to the nature of the HD orders and of the petitioners and to the intertwined concepts of status quo bias, omission bias, and loss aversion. The analysis was focused on a specific policy, implemented in a specific country and scrutinized by a specific court. Yet its findings may be relevant to other courts, in other countries, and with respect to other policies. When courts are faced with deterrent measures employed in periods of severe security threats and strongly supported by the political establishment and by the public, they may find it difficult to play a counter-majoritarian role and to abide by their own judicial doctrines and principles, particularly when there has been a consistent series of their own verdicts upholding the legality of the proposed measures. Given such a state of affairs, courts may well deviate from their own jurisprudence regarding comparable security measures, notwithstanding the high price of such deviation in normative terms, as well as in terms of internal coherence and external legitimacy.

References

1 Barak, A., ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’, (2003) 116 Harv. L. Rev. 19Google Scholar, at 25.

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

3 See Backer, L., ‘The Führer Principle of International Law: Individual Responsibility and Collective Punishment’, (2002) 21 Penn St. Int’l L. Rev. 509Google Scholar; Carroll, M. B., ‘The Israeli Demolition of Palestinian Houses in the Occupied Territories: An Analysis of its Legality in International Law’, (1990) 11 Mich. J. Int’l L. 1195Google Scholar; Darcy, S., ‘Punitive House Demolitions, The Prohibition of Collective Punishment, and the Supreme Court of Israel’, (2002) 21 Penn St. Int’l L. Rev. 477Google Scholar; Dinstein, Y., ‘The Israeli Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing off of Houses’, (2000) 29 Israel Yearbook On Human Rights 285Google Scholar; Farrell, B., ‘Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119’, (2003) 28 Brook J. Int’l L. 871Google Scholar; Guiora, A. N., ‘Transnational Comparative Analysis of Balancing Competing Interests in Counter-Terrorism’, (2006) 20 Temp. Int’l & Comp. L. J. 363Google Scholar; Gross, E., ‘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 Ga. J. Int’l & Comp. L. 165Google Scholar; Gross, E., ‘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 Ariz. J. Int’l & Comp. L. 721Google Scholar; Halabi, U., ‘Demolition and Sealing of Houses in the Israeli Occupied Territories: A Critical Legal Analysis’, (1991) 5 Temp. Int’l & Comp. L. J. 251Google Scholar; Hofnung, M. and Weinshall-Margel, K., ‘Judicial Rejection as Substantial Relief: The Israeli Supreme Court and the “War on Terror”’, in Volcansek, M. L. and Stack Jrr, J. F.. (eds.), Courts and Terrorism: Nine National Balance Rights and Security (2011), 150Google Scholar; Hofnung, M. and Weinshall-Margel, K., ‘Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice’, (2010) 7 Journal of Empirical Legal Studies 664CrossRefGoogle Scholar; D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), 145; Kretzmer, D., ‘The High Court of Justice's Monitoring of Demolishing and Sealing Houses in the Territories’, in Zamir, Y. (ed.), Klinghoffer's Book on Public Law (1993), 305Google Scholar [in Hebrew]; Quigley, J., ‘Punitive Demolition of Houses: A Study in International Rights Protection, (1992–93) 5 St. Thomas L. Rev. 359Google Scholar; Reicin, C. V., ‘Preventive Detention, Curfews, Demolition of Houses, and Deportations: An Analysis of Measures Employed by Israel in the Administered Territories’, (1987) 8 Cardozo L. Rev. 515Google Scholar; Shamgar, M., ‘The Observance of International Law in the Administered Territories’, (1971) 1 Israel Y.B. on Human Rights 262Google Scholar; Simon, D., ‘The Demolition of Homes in the Israeli Occupied Territories’, (1994) 19 Yale J. Int’l L. 1Google Scholar; E. 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); E. Gil, Y. Tuval, and I. Levy, Exceptional Measures in the Struggle Against Terrorism (2010); Dershowits, A., ‘Symposium on Human Rights’, (1971) 1 Israel Y. B. on Human Rights 361Google Scholar, 376–7; Ruebner, R., ‘Democracy, Judicial Review and the Rule of Law in the Age of Terrorism: The Experience of Israel: A Comparative Perspective’, (2003) 31 Ga J. Int’l and Comp. L. 493Google Scholar; Zemach, A., ‘The Limits of International Criminal Law: House Demolitions in an Occupied Territory’, (2004) 20 Conn. J. Int’l L. 65Google Scholar; Cohen, A., ‘Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories’, (2005) 38 Isr. L. Rev. 24CrossRefGoogle Scholar.

4 Supra note 3.

5 Supra note 3. See also Gross, supra note 3; Hofnung and Weinshall-Margel, supra note 3; Gil, Tuval, and Levy, supra note 3; Dotan, Y., ‘Public Lawyers and Private Clients: An Empirical Observation on the Relative Success Rates of Cause Lawyers’, (1999) 21 (4)Law and Policy 401CrossRefGoogle Scholar.

6 Zemach, supra note 3.

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

8 Harpaz, supra note 7.

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

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

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

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

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

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

15 Ibid.

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

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

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

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

20 For analysis, see ibid., at 53–7.

21 For analysis, see ibid., at 63.

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

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

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

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

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

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

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

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

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

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

32 Harpaz, supra note 7.

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

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

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

36 Epstein, L. and Knight, J., ‘The New Institutionalism, Part II’, (1997) 7 (2)Law & Courts 4.Google Scholar

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

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

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

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

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

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

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

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

45 Dotan, supra note 37, at 346.

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

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

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

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

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

51 Cohen, supra note 3, at 67.

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

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

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

55 Dotan, supra note 37, at 321; Shamir, R., ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice’, (1990) 24 Law & Soc’y Rev. 781CrossRefGoogle Scholar.

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

57 Ibid., at 142.

58 Ibid., at 141–2.

59 Ibid., at 141–2.

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

61 Ibid.

62 Ibid., at 170.

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

64 Ibid.

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

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

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

68 Ritov and Baron, supra note 66.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

85 Dotan, supra note 5.

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

87 Dotan, supra note 37.

88 Ibid.

89 Ibid., at 407–8.

90 Ibid.

91 Ibid., at 408.

92 Ibid., at 416.

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

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

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

96 Dotan, supra note 37, at 338–42.

97 Ibid., at 339–42.

98 Ibid., at 342.

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

100 Dotan, supra note 37, at 342.

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

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

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

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