The Supreme Court’s recent decision exemplified the Talmudic mandate that those who are merciful to the cruel will end up being cruel to the merciful.
Israel’s High Court of Justice, our Supreme Court, has accomplished the seemingly impossible: It has managed to get Bibi Netanyahu and Benny Gantz to agree on something.
In a decision that only adds fuel to the growing accusations of the Supreme Court as an oligarchic, anti-democratic, overreaching and increasingly arbitrary body, a split three-justice panel ruled that the planned demolition of the Jenin area residence of the murderer of IDF soldier Amit Ben-Yigal could not proceed as planned.
The court reasoned that the murderer, Nizmi Abu Bakar, had already been captured. Therefore, any actions regarding the destruction of his residence would primarily impact his wife and eight children.
The justices said that sealing the room that Bakar slept in would have been acceptable, but that destruction, even just the part of a larger building that was his personal residence, would be a form of misplaced punishment, since presumably his family was not part of the plan to kill Ben-Yigal.
With this ruling the Court has blazed a new trail in the quest to make laws that might (a) contradict existing ones and (b) can be made on the spot. In one fell swoop, they have implicitly condemned any policies of destroying enemy residences in the name of deterrence. In doing so, they have exemplified the Talmudic mandate that those who are merciful to the cruel will end up being cruel to the merciful.
The court’s reasoning is a classic case of losing the forest in the name of closely identifying the trees. They reasoned that Bakar acted alone, getting up at 4:30 in the morning from the comfort of his bed to throw lethal blocks from the roof of his house. It seemed to be significant to the court that he did not consult with his wife about this, though how this would be verified is incalculable.
Regardless, it is a truism to say that the demolition of a residence affects those who are living there. Similarly, if the perpetrator is in custody, it is also obvious that it is not affecting him immediately, as he is no longer in residence.
But house demolitions are done because they have been shown to be an effective means of deterrence. With a house destruction the message is being sent to other, would-be, yet-to-act terrorists to carefully consider the draconian ramifications of murdering a soldier.
Yes, it is harsh, and yes, it might significantly impact the lives of those not directly involved in murder. That, of course, is the point of the deterrence. But never forget that the murder itself was unspeakable, and any realistic steps to thwart other such acts vastly outweigh the dislocation experienced by the murderer’s family.
THE COURT’S ruling creates a moral equivalence between the loss of furniture and the loss of life. It also projects a naïve sense that such killings are spontaneous one-off attacks, not part of a cultural or geopolitical pattern of terrorism and warfare. From the court’s perspective, these acts of murder seem to be spontaneous, irresistible, individual needs to get out there and kill somebody.
If this court decision is allowed to stand, it threatens to undermine Israeli efforts to confront Hezbollah and Hamas in a future war. It is no secret that both forces extensively use human shields, embedding missiles in homes, schools, mosques and hospitals.
The thinking by these cynical enemies is that Israel would not dare to strike these locations in the name of creating collateral damage. Or if Israel does strike them, there will be an immediate appeal to the truly myopic European and UN authorities that Israel is committing war crimes.
Now, both Hamas and Hezbollah could also turn to Israel’s Supreme Court for a sympathetic hearing. Why should the IDF be allowed to fire at a civilian destination? After all, the missile has already been launched. Presumably the launchers have left the premises and so the only ones who would be harmed are the innocent civilians who were hosting the missiles in their basement.
Ironically, one can imagine Hamas and Hezbollah citing this court decision as additional support for the accusation that IDF attacks on embedded missile sites are crimes against humanity.
At the end of the day, the court, in its desire to be humane in the context of the truly detestable, ends up laying the groundwork for being cruel to the merciful. How is Israel supposed to deter wanton acts of murder and terrorism, if not by sending messages that there are stiff prices to pay and harm to be incurred?
We all know that in many countries in this region, a similar attack by someone on a soldier would not entail the destruction of a house, but the murder of the perpetrator’s entire family.
The IDF has utilized a policy that is measured and designed to create a powerful deterrence for future acts by creating true damage and dislocation to home and property. Its policy wisely and humanely prioritizes the saving of life over the saving of stuff.
The Supreme Court panel had no business wading into this area other than to exercise its own unrestricted and unregulated sense of what seemed to be merciful and appropriate.
In doing so, it has provided a glaring example of “the law is whatever we think it ought to be” that is increasingly marking the Supreme Court as being totally contemptuous of democracy, the separation of powers in Israel, and the institutions of the State.
The writer is the chairman of the board of directors of Im Tirtzu and a director of the Israel Independence Fund.
Im Tirtzu is a Zionist non-governmental organization based in Israel. Its name is derived from an epigraph appended to the frontispiece of Theodor Herzl’s novel Altneuland, ‘if you wish it, it is no fairy-tale,’ rendered into modern Hebrew in Nahum Sokolow’s translation in 1903, as Im tirtzu ein zo agadah.