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15.9.2020

HaMoked to the HCJ: if the state’s request for a further hearing on a punitive home demolition order is accepted, the hearing must be a comprehensive and in-depth review of the legality of this policy

Since Israel revived in 2014 its policy of punitive demolitions of homes in the West Bank in response to attacks against Israelis, HaMoked has asked the High Court of Justice (HCJ) time and again to hold a rigorous, principled hearing on the legality of this policy. HaMoked’s public interest petition asserting the illegality of punitive demolitions – joined by other human rights organizations – was rejected without thorough review, and the organization’s repeated requests to hold a principled hearing before an expanded panel – following various judgments approving punitive demolition orders – were all rejected by the court. Now, the state has asked the court to hold a further hearing before an expanded panel in a recent punitive demolition case, and undoubtedly, in so far as the request is accepted, the hearing must address all principled aspects of the issue.

The state’s request was submitted following the August 10, 2020 judgment of the High Court of Justice (HCJ) on HaMoked’s petition to cancel a punitive order for the demolition of a third-story apartment in Ya’bad village, Jenin District, home of the man indicted for killing soldier Amit Ben Yigal on May 12, 2020. The accused man’s wife and 8 children, 7 of them minors, live in the targeted apartment.

In the judgment, the majority justices Mazuz and Karra ruled that so long as the accepted case law allows use of the authority granted under Regulation 119 of the 1945 Defense (Emergency) Regulations to demolish homes, it must be done “carefully and with a level of restraint, reasonably and proportionately”, not least with regards to the question of involvement of family members, whose basic rights are at stake. In the case at hand, the court found that, as there was no allegation that the woman and children were in any way involved in the man’s deed and as they would be the primary victims of the demolition, “the principle of proportionality requires mitigating the harm”. The demolition order was, therefore, cancelled, while retaining the military commander’s authority to replace it with an order for sealing one of the apartment’s rooms. Additionally, Justices Mazuz and Karra repeated their principled position that using the authority under Regulation 119 raises a range of difficult legal questions, which are yet to be adequately addressed by the HCJ.

On August 25, the state submitted a request to hold a further hearing, before an expanded panel. However, the state requested that the further hearing would only focus on the majority justices’ determination that crucial weight is to be given to the question of family members’ knowledge of or involvement in the attack and the harm they would suffer. The state argued this was a significant new precedent, which completely contradicts the accepted and deep-rooted precedent whereby involvement or knowledge on the part of the family is not a condition for demolishing homes under Regulation 119. This new precedent, claimed the state, limits and even negates the authority under Regulation 119, and creates uncertainty regarding how to use the authority. The state requested to cancel the judgment and replace it with the minority opinion of Justice Willner, whereby there was no cause to intervene in the military commander’s decision in this case. Revealingly, against the backdrop of statements by various politicians on this case, the state noted that its application for a further hearing was submitted “at the request of the Prime Minister and Minister of Defense and with the consent of the Attorney General”.

On September 13, 2020, HaMoked submitted its response to the court, arguing that the state’s request to conduct a limited hearing dealing exclusively with the question of the relatives’ innocence must be rejected. HaMoked stressed that the development of a precedent does not necessarily constitute a new precedent which deviates from the original to such an extent that warrants holding a further hearing. Moreover, stressed HaMoked, the judgment in question is in line with the HCJ’s consistent and fundamental determination that each use of the Regulation must meet the test of proportionality – a determination which forms part of the precedent legitimizing the policy of punitive demolitions for deterrence.

Insofar as a further hearing is set, HaMoked argued, it must be conducted as an in-depth and comprehensive review of the principled issue of the legality of using Regulation 119 – a review which has never been conducted, despite HaMoked’s persistent requests over the years.
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