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HaMoked to the HCJ: a further hearing before an expanded panel of justices is needed on the question of legality of punitive home demolitions, which has never been properly considered thus far

On November 26, 2017, The High Court of Justice (HCJ), rejected in a majority decision HaMoked’s petition to cancel a military order issued on November 6, 2017, for the punitive demolition of a house in Qabatiyah Village – the home of the father of a man accused of perpetrating a fatal attack against an Israeli in Kafr Qasem. In a dissenting opinion, Justice Mazuz ruled the house should not be demolished, among other things, because it constituted an infliction of great harm on innocent people.

On November 29, 2017, before the temporary court order delaying the home’s demolition expired, HaMoked filed an urgent request for a further hearing before an expanded panel and additional postponement of the demolition until final decision was made on this request. HaMoked clarified that this was the only home of the family members – the father, his pregnant wife and three underage children, none of whom was under any suspicion – whose demolition would leave them without a roof over their heads.

HaMoked’s request focused on the principled questions emanating from the use of the authority to punitively demolish homes – questions never considered on their merits, other than in early and inadequate rulings issued in the 1980s. One principled argument at the core of HaMoked’s request was that the authority established in Regulation 119 of the Defence (Emergency) Regulations should not be used against innocent family members, given that a basic principle of the Israeli legal system was that a person should not be punished for the deeds of another.

HaMoked also maintained that there were substantial doubts concerning the actual deterrence that was achieved by the practice of house demolitions – deterrence which the state claimed was the only aim of this practice. HaMoked said, among other things, that the existing analysis on this issue was partial and biased, and did not take into account the dire contribution this practice had to the exacerbation of both the security situation and the attitude towards the State of Israel. HaMoked stressed that the prohibition on demolishing the homes of innocent people was absolute and that Israel’s policy was illegal, both under international law and Israeli law, irrespective of the efficacy of this policy or it deterrence effect.

Later that day, Supreme Court President Esther Hayut rejected the request, ruling that “walking the path of binding precedent on the use of Regulation 119 is not easy, but this alone does not justify straying from it or holding a further hearing”. (02) 627 1698   (02) 627 6317

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