High Court hears arguments to ban policy of house demolitions

NGO lawyer: The court should make a historic change, like overturning state use of torture

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December 4, 2014 03:10
3 minute read.
knesset

Dozens of police officers secured a demolition crew in Jerusalem’s Shuafat neighborhood yesterday morning, as workers destroyed several illegally constructed Arab stores. Four people were arrested following a brief riot, police said. Officers used non-lethal crowd dispersal methods, including stun g. (photo credit: BATYA CAYMAN)

 
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The High Court of Justice heard on Wednesday a petition to ban demolitions of terrorists’ houses, with the petitioner's lawyer telling the court he wanted it to issue a historic ruling.

Just because it has accepted demolitions as legal for decades, it does not mean it cannot ban them, he said.

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He cited the court’s famous torture ban decision as one of many examples.

Until 1999, the state and the High Court officially or unofficially endorsed or looked the other way when the Shin Bet (Israel Security Agency) tortured security detainees to obtain information.

But in 1999, the court reversed course, banning the Shin Bet from torturing detainees.

Lawyer Michael Sfard, representing an alliance of Hamoked – Center of the Defense of the Individual and seven other NGOs, slammed the state for defending the home demolitions policy on what he said was the hollow ground that it has been going on for a long time.

Sfard said whereas the state argues it only carries out demolitions in “exceptional” circumstances, he believed the demolitions should be banned in all cases.



He continued, “the claim was that use of methods of pressure was only done in exceptional cases. When we are talking about the heart of human rights, whether or not we are talking about exceptional cases is not a reason not to judge the issue.”

Sfard said that Jewish law was against the collective-punishment premise underlying the house demolition policy and that the state could not impose collective punishment on the mere unproven “hope” of deterring terrorists.

A press release from the NGOs noted that “though the petition does not seek to protect a specific house but rather to challenge that practice of punitive house demolitions on the principle level, the court has scheduled it for a hearing at the same time as the hearing in the petitions against the intended demolition of the family homes of the two perpetrators of the attack on a synagogue in Har Nof in Jerusalem [who killed five and wounded seven others on November 18].”

The court did not decide any of the issues on the spot.

It was unclear after the court heard the specific case of whether the state could demolish the homes of the perpetrators of the Har Nof attack alongside the general petition to ban all demolitions whether they would continue to be heard together or separated into different case tracks.

The power to demolish houses arises from Regulation 119 of the Defense (Emergency) Regulations of the British Mandate, including in what the security establishment defines as “extreme cases.”

In the petition and in court on Wednesday, Sfard argued that the legal arguments made against the use of Regulation 119 must be revisited as they had not been considered on their merits since the 1980s, when the first judgments on house demolitions were issued.

Hamoked added “that over the years there have been significant developments in international law, including international criminal law, but the High Court has not addressed these developments in its expansive jurisprudence on house demolitions and should do so now.”

The state mostly stuck to arguing the status quo, namely that Israeli law permits house demolitions regardless of what international law says and that the High Court itself has permitted decades of such demolitions, including in recent months.

In 2005, the state declared a moratorium on demolitions after a state commission found that they failed to deter terrorists from committing acts of terrorism, the ostensible purpose of the policy.

The state restarted the policy recently, demolishing the homes of the terrorists involved in killing the three kidnapped Jewish teens in June, declaring that the security situation in Judea and Samaria has deteriorated to such an extent as to require restarting house demolitions.

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