Opinion: Israel’s High Court hits a new low

That left-wing activists consider the demolition of terrorists’ homes a cruel form of “collective punishment” is par for the course. But judges are not supposed to base their rulings on political bias.

By Ruthie Blum, JNS

The ruling by Israel’s High Court of Justice against the home demolition of Palestinian terrorist Nizmi Abu Bakr is the latest example of judicial overreach based on political bias. Abu Bakr confessed to and was indicted on charges of murdering 21-year-old Israel Defense Forces’ Staff Sgt. Amit Ben-Yigal on May 12.

Ben-Yigal, a member of the Golani Reconnaissance Battalion, was one of the soldiers involved in a raid on the Palestinian Authority-controlled village of Yabad in Samaria to apprehend four suspected terrorists. After completing their mission at around 4:30 a.m. on May 12, the troops began to exit the village on foot.

At this point, approximately one dozen residents of the area began pummeling them with bricks and cinder blocks from surrounding rooftops. Abu Bakr targeted Ben-Yigal, making sure to hit him at an angle from which his protective helmet would be of no use.

The 49-year-old terrorist’s aim at the young Israeli’s head was impeccable. Though Ben-Yigal was administered first aid on the scene, he was pronounced dead on arrival at the Rambam Health Care Campus in Haifa.

He was the first IDF soldier to be killed in action in 2020, and was promoted, posthumously, to the rank of Sgt. First Class. He was killed a mere month before the end of his military service.

Hundreds of mourners attended his funeral some 14 hours later, weeping as his distraught divorced parents eulogized their son separately.

Calling him “mommy’s hero,” his mother, Nava Revivo, wept bitterly as she bid him farewell.

“My eldest child, beloved child,” she wailed. “Your sisters can’t comprehend what’s happening. We will keep your ember burning, your happiness, your love.”

His father, Baruch, who has no other children, bemoaned having given his son permission to serve in a combat unit—something that the IDF demands from parents of only children and from those who already lost sons or daughters to war or other tragedies.

“I signed [the permission slip] with this hand,” his father cried. “You told me, ‘Dad, don’t deny me this.’ I signed it and you celebrated as if you’d just won the lottery. You were supposed to bury me, not the other way around. God in heaven, give me a reason to wake up tomorrow morning.”

When the Shin Bet revealed that Abu Bakr had been arrested for and confessed to killing Ben-Yigal, Prime Minister Benjamin Netanyahu announced that was ordering the IDF to demolish the terrorist’s home.

Enter left-wing NGO HaMoked, which promptly filed a petition on behalf of Abu-Bakr’s family against the home demolition.

In a majority 2-1 decision, the panel of three judges overruled the government’s order to raze Abu Bakr’s house. The reason that Justice Menachem Mazuz gave for his ruling was that Abu Bakr’s wife and eight children “are not accused by respondents of any involvement in the criminal acts of the father of the family—neither in assistance, nor in knowing his intention to take action, nor as accessories after the crime. The perpetrator himself was captured and prosecuted, and is expected to serve long prison sentences if convicted, hence the damage to the home is first and foremost an injury to his wife and children who remain living there, and the demolition would leave them homeless.”

Justice George Karra, a Christian Arab from Jaffa, went even further in his explanation, questioning the home demolitions of terrorists in general. “Continuation of this policy while relying on the assessment of security officials that it is a deterrent, and avoiding a matter-of-fact and in-depth discussion of the issues of principle raised by this regulation, is difficult to comprehend in my view,” he wrote. “The continued use of this tool, which entails serious harm to innocent people, constitutes collective punishment.”

Justice Yael Wilner, the only one of the three judges who issued a dissenting opinion, wrote, “The waves of terrorism that have swept the State of Israel in recent years require effective deterrence against carrying out further attacks in the future. Against this background, the exercise of the authority given to the military commander … for such deterrence is an unfortunate necessity. This is in spite of the difficulty naturally inherent in the damage to the property of family members who were not involved in the criminal acts of their family member, the perpetrator.”

Referring to the court’s decision as “unfortunate” and a “big mistake,” Netanyahu vowed to continue to demolish terrorists’ homes. Defense Minister Benny Gantz concurred. Calling such demolitions an “important tool in the war on terrorism,” he said that he’s instructed his staff to contact the attorney-general and request another hearing on the court’s ruling.

Ben-Yigal’s parents also were outraged, with his mother telling Channel 12 that “it feels like they killed him again,” and his father weeping at his son’s gravesite, “What happened to the judges in Israel? Where is the deterrence?”

Despite HaMoked’s victory, its executive director, Jessica Montell, was not entirely satisfied.

“We welcome this decision, which saves a mother and her eight children, against whom there are no allegations of wrongdoing, from being made homeless,” she responded. “However, the court should have ruled against the whole policy of punitive demolitions as an illegal collective punishment, with doubtful effectiveness as a deterrent, even according to the military. It is long past time to end this barbaric practice, which contradicts basic principles of morality and justice.”

As it happens, the only “barbaric practice” going on in relation to the slaughter of Jews is that in which the Palestinian Authority engages. Encouraging violence against Israelis in schoolbooks and the media, the PA completes the circle by paying hefty stipends to terrorists and their families. Abu Bakr’s “poor” wife and kids have undoubtedly begun to collect their salary for his slaying of Ben-Yigal.

In addition, if they are patient, they have good cause to hope that one day in the not-so-distant future, Abu Bakr will be released from jail in a “prisoner swap” deal. Though the death penalty exists in Israeli law, it has only been implemented once in the country’s history, in 1962, against Nazi architect Adolf Eichmann. Palestinian terrorists know, therefore, that they have nothing to worry about in that respect, particularly those who set out to become “martyrs for Allah” while shedding the blood of Zionists.

This presents a deterrence problem that Israel only has been able to reduce—certainly not solve—through home demolitions. Just as the PA invites and incites terrorism by rewarding the families of terrorists, Israel curbs it somewhat by holding those families accountable in a manner that causes would-be perpetrators to think twice before embarking on missions that might have a negative effect on their parents, spouses and/or children. Abu Bakr is no exception.

That left-wing activists consider this extremely mild form of deterrence—culled from assessments of the culture in which the Palestinians are submerged—a cruel form of “collective punishment” is par for the course.

But the Supreme Court is not supposed to base its rulings on the political bias of its judges. Sadly, however, many of these consider it not only their job to overturn government moves that they oppose, but their moral imperative to do so.

Justice for the likes of Ben-Yigal and every other Israeli who daily risks his/her life for the country doesn’t seem to come into the equation.

Amit Ben YigalHaMokedPalestinian terror