Gaza invasion or house demolitions, Israel still likely to come under fire

Gaza invasion or house demolitions, Israel still likely to come under fire

Jerusalem isn't likely to launch a wide campaign against the Strip; but even a restrained response to teens' killings could land it in legal hot water

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Benjamin Netanyahu speaking at the cabinet meeting Sunday, June 29, 2014. photo credit: Marc Israel Sellem/POOL/Flash90)
Benjamin Netanyahu speaking at the cabinet meeting Sunday, June 29, 2014. photo credit: Marc Israel Sellem/POOL/Flash90)

Prime Minister Benjamin Netanyahu pledged Tuesday night to “vigorously strike at Hamas members and infrastructure” in the West Bank and to continue to act against the terrorist organization in Gaza — and, if necessary even “expand the campaign” in the Palestinian enclave.

Yet all indications are that Israel will likely not embark on a extensive military operation to avenge the three murdered teenagers.

Politicians across the political spectrum, though, agree that Israel cannot leave the abduction and killing of Naftali Fraenkel, Gilad Shaar and Eyal Yifrach unanswered.

Some ministers have called for Israel to reenter Gaza and topple Hamas, but Defense Minister Moshe Ya’alon said Tuesday that the cabinet will make decisions “from the brain and not from the gut,” hinting at a much more reserved response.

Netanyahu, too, sounded as if he sought to avoid a major operation that could escalate into a full-scale war.

Speaking ahead of a meeting with his security cabinet, he outlined three goals for the coming days: “First, to reach the murderers and all those who participated in the kidnapping.”

The prime minister vowed to punish the people involved in the abduction — in other words, a small Hebron-based group that planned and executed the kidnapping, rather than the entire organization.

The IDF will also continue to strike Hamas terror targets in Gaza, Netanyahu vowed, to retaliate for and deter against rocket attacks on Israel’s South.

Furthermore, “we must vigorously strike at Hamas members and infrastructures in Judea and Samaria,” Netanyahu said. “We have already arrested hundreds of Hamas activists. We have closed dozens of institutions. We have demolished homes. We are still active.”

In other words, rather than invading the Gaza Strip or resuming targeted assassinations of senior Hamas leaders — steps that would almost certainly cause the organization to retaliate by raining incessant rocket fire on Israel’s south and center — Israel will likely suffice by taking less severe measures.

Israel could, for example, continue arresting Hamas operatives in the West Bank and return to its policies of expelling terrorists to Gaza or demolishing their homes, steps that while punishing, will be unlikely to draw a massive response.

Jerusalem should not hold out hope for international kudos for exercising restraint, though, as both home demolitions and expulsions are considered illegal under international law.

The Fourth Geneva Convention, article 53, prohibits “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons.”

Critics of home demolitions argue that it constitutes a punishment delivered without a trial, that it amounts to collective punishment — which in itself is illegal under international law — and that research has shown that  anyway it is not effective in deterring terrorists from carrying our their plans.

“Many years ago, Israel used home demolitions extensively, but over time we went over to filling the houses with brick and mortar instead of demolishing them,” said Joel Singer, who served as the head of the international law department in the IDF Judge General Advocate’s Court, and later as legal adviser to the Foreign Ministry.

Filling the home of the terrorist and thus rendering it useless was chosen as a punishment for two reasons, Singer explained: it is reversible and, since it is not a complete destruction, it doesn’t really violate the prohibition against home demolitions.

Either way, the Israeli High Court of Justice has in the past rejected the claim that house demolishing is illegal, arguing that it is not meant to punish the residents of the building but rather serves as a deterrent measure.

On Tuesday, the court rejected an appeal by an NGO and allowed the IDF to demolish the home of Ziad Awad, who was indicted for killing off-duty police officer Baruch Mizrahi on April 14. On Monday night, the army blew up a part of the home of Marwan Kawasme, one of two Hamas terrorists suspected to have kidnapped and shot the Israeli teens.

Expelling Hamas members from the West Bank to Gaza is prohibited by the Fourth Geneva Convention, article 49, which states that “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

Before the First Intifada, the High Court allowed the government to expel terrorists from the West Bank to Gaza, arguing that such a move was necessary for security reasons. Furthermore, the court considered the West Bank and Gaza part of the same territorial entity, and thus the expulsion was declared not a deportation but a case of “assigned residence.”

But Israel has since halted this controversial policy, not even resuming it during the bloody days of the Second Intifada. If Israel were to resume the policy now, it would have a hard time defending its legality, said Aeyal Gross, an expert on international law at Tel Aviv University.

“The Geneva Convention is categorical about the prohibition of deportations,” he said. 20 years ago, Israel abandoned the policy mainly because of the increasing importance paid to international law, as witnessed by the rise of universal jurisdiction, the creation of the International Criminal Court and the growing threat of legal prosecution for Israeli official traveling abroad, he said.

“It’s not coincidental that Israel has not used deportations during the Second Intifada.”

Hebrew University’s Menachem Hofnung, who has researched Israel’s search for the right balance between security needs and the rule of law, said that there’s a very low chance that Israel will actually expel the terrorists responsible for the murder of the teens to Gaza.

“First, we need to find them,” he said. “And I assume that once you found them you don’t want to expel them but to try them in court. Once they’re tried they will serve a sentence here in Israel.”

Some Israeli right-wing politicians, most notably Economy Minister Naftali Bennett, called for the reintroduction of the death penalty for terrorists. Such a step is exceedingly unlikely. But it wouldn’t violate international law — as long as a person is convicted in a fair trail.

“At end of the day, whatever you do, you have to balance the legality and effectiveness of the measure,” said Singer, the former legal adviser to the IDF and the Foreign Ministry. “If it’s both legal and effective — great. But sometimes there are measures that are effective but not legal. So you have to find ways to mitigate your actions in a way that lets you have your cake and eat it too.”

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