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30.3.2016

HaMoked to HCJ in motion for further hearing on punitive house demolitions: “Six justices of the Honorable Court believe themselves bound by case law… and are uncomfortable with this position”

On March 23, 2016, the HCJ, in a majority ruling, dismissed a petition filed by HaMoked against a demolition order threatening the family home of a young resident of Hebron who carried out an attack on Israelis at the Tomb of the Patriarchs on December 7, 2015. In the judgment, which upheld the demolition, two of the three justices on the panel expressed reservations about existing case law on the issue of punitive demolitions and called for a further hearing, before an expanded panel, of issues of principle related to the use of Regulation 119, pursuant to which punitive demolitions are ordered by the military commander.

Given the comments made by the justices in the aforesaid judgment, and similar comments made by other justices in recent judgments, on March 30, 2016, HaMoked filed a motion for a further HCJ hearing in the dismissed petition, with respect to the legality of using Regulation 119. HaMoked also asked the court to issue an order nisi to prevent the demolition of the Hebron home pending further decision.

HaMoked’s position, which was addressed in depth in a previous further hearing motion dismissed by the HCJ (HCJFH 360/15), is that punitive house demolitions constitute wrongful collective punishment and a grave violation of international humanitarian law.

HaMoked noted that in the judgment issued on March 23, 2016, Justice Vogelman stated he was dismissing the petition considering “case law”, but emphasized his position that “the weighty questions associated with use of power under Regulation 119 should be revisited”. Justice Mazuz, who accepted the petition, joined Justice Vogelman’s call for “having the issues associated with the use of Regulation 119 revisited by an expanded panel”. Moreover, further calls for revisiting the general issues were made in a judgment issued the next day, in three more petitions filed by HaMoked against punitive demolition orders. Justice Joubran noted: “I am not comfortable with the use of the authority established in Regulation 119 […]. Use of the power raises difficulties under local law and international law, which in my opinion have not yet been thoroughly addressed by the court in its judgments”. Justice Barak-Erez, who sided with the majority, said: “In view of the fact that the position of the court on this issue has only recently been revisited, I consider myself bound by it at this time”, but added that, “This court should ‘continue to examine the compatibility of case law to the changing circumstances’”.

HaMoked believes that the comments made by justices in a slew of judgments and minority opinions support the contention that this is a complex issue that warrants a further hearing by an expanded panel.
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