For the first time I$raHell high court wrestles with legality of punitive home demolitions


Palestinian women stand in front of her Home

Israel’s renewed policy of punitive home demolitions was challenged in its highest court yesterday. The case comes as the Israeli government has ordered the homes of six Palestinians suspected in a series of Jerusalem attacks to be demolished. In the past judges have heard arguments to overturn demolitions on a case by case basis, but this was the first in Israel’s history to address the legality of the practice as such. And the hearing came with immediate consequences. The homes of five Palestinian families are slated for demolition, and one demolition has already been carried out.

The Abu Jamal family sat in wooden benches in the rear of the courtroom. They are the relatives of Ghassan and Oday Abu Jamal from the East Jerusalem neighborhood of Jabal Mukabar who killed five Israelis—four rabbis and one Druze police officer—in a gruesome West Jerusalem attack on November 18, 2014. They are in a bad way. On numerous occasions they readily condemned the slayings to the press. Despite their protests, Ghassan Abu Jamal’s wife and three children now face homelessness if the court upholds punitive home demolitions.

In Israel, as home demolitions stand now they can be ordered against the family houses of convicted and suspected attackers.

The petitioners, eight human rights groups, called for abandoning the practice along the same terms that were used in 2005 when the army unilaterally decided to stop razing homes as punishment at the end of the second Intifada. Lawyers with the Israeli human rights legal group Yesh Din cited the Shani Committee Report, the 2004 army document that deemed punitive home demolitions ineffective. The findings also stated destroying homes increases Israel’s insecurity, as demolitions bolster sentiments against the state.

“There is no data that shows these actions prevent of deter terrorism,” Yesh Din’s Andre Rosenthal told the court. “It is unethical, it violates international law and it is collective punishment,” he continued, “the act just increases hatred–there actually is nothing that would even justify the demolition of a home.”

“The direct harm of innocent people can’t be placed on the court’s hope that it will have a deterring effect, with all due respect,” said Yesh Din’s Michael Sfard, a leading Israeli human rights attorney with a reputation for taking on the state’s most controversial policies.

State attorneys insisted the court must support home demolitions because they deters attacks against Israel and its citizens, although they offered no evidence to back up the claim. State attorneys loosely left it at, “Those on the ground say it decreases [attacks],” adding, “There are sources.”

Israelis want a solution to the current strife in Jerusalem and they are looking to the court to provide an answer to lone wolf attacks. So the suggestion that home demolition could act as a deterrent appeared to prevail among the jurists even though the only evidence presented to the court on the effectiveness of the practice was the Shani report’s conclusion to the contrary.

“We’re not talking about punishment, but deterrence. The attacks haven’t stopped. There is no evidence [it is not a deterrent],” said a judge. As they considered the case, the tone from the bench was sympathetic towards Palestinians who had no part in the crimes that warranted demolition orders. “No one feel comfortable with the practice. No one takes it lightly,” said a judge.

State attorneys also challenged the use of debating the overall legality of home demolitions. They said the court had already done it. But Yesh Din’s Sfard disagreed stating after the trial, “In the hearing I challenged the state attorney to give an example of one case in the 30 years or more that this power has been used and implemented in which the court has ruled on these arguments,” He added, “As you could see in the hearing the state attorney could not point to even one ruling in which these arguments have been ruled.”

If Israel had developed their own customary law against home demolitions, the court would have followed that. But since they don’t, arguments of international law could be presented. However, Israeli courts do not apply the Fourth Geneva Convention to the occupied territories under the claim they previously did not hold status of a state.

“I think that it’s about time that the Israeli supreme court convene a serious hearing and discuss these matters because our position is that punitive house demolitions is one of the most heinous acts committed against–crimes actually–committed against innocent people,” Sfard continued.

In the court’s debate some of the arguments were technical, although not needlessly. Historically, punitive demolitions exist in a gray space in Israel but they are strictly illegal under international law. There is no explicit Israeli legislation green-lighting the practice, although one was introduced last week to the Knesset. Punishing home demolitions were adopted into both Israeli criminal code (practiced inside of Israel and East Jerusalem) and military code (practiced for residents of Gaza and the West Bank) when British Mandate emergency regulations were carried over en masse in May 1948, and in 1967, respectively.Regulation 119 allowed British authorities, now the Israelis, to “destroy the house or the structure or anything on growing on the land,” or “seize and occupy, without compensation” homes of persons where who conducted violent crimes.

Punitive home demolitions were re-instituted last month after Prime Minister Benjamin Netanyahu said he wanted to restore calm to Jerusalem and the nation, yet in reality they had restarted in the months before. In July, demolitions were ordered for the homes of Marwan Qawasmeh and Amer Abu Aisha, the two men suspected of kidnapping and murdering three Israeli settlers last June–Naftali Fraenkel, Gilad Shaar, Eyal Yifrach. Also, Abdel Rahman al-Shaludi was gunned down by an off-duty officer following a Jerusalem hit-and-run at a light rail station, and his family home where his three children resided was demolished by explosives in November.

In August the Israeli human rights group HaMoked attempted to cancel the Qawasmeh and Abu Aisha demolition orders in the high court. In that case, the court upheld the demolitions without discussing the merits of the law behind it. “The deterring purpose,”wrote Justice Noam Sohlbergthe bench’s first settler jurist appointed in 2012, “necessarily entails the impingement of innocent people. Otherwise, how shall deterrence be achieved? The sour fruits of the murderous terror compel us deter in advance against a horrible act.”

Outside of the courtroom, the Abu Jamal family left disheartened fearing the impending destruction of their house. They spoke of clashes from the night before and three border police checkpoints erected on the hill where their homes sit, and a series of shops demolished in nearby Shuafat refugee camp, but refused interviews or photographs. As of now, there is an injunction freezing the destruction of their homes until the three-judge panel makes a ruling, which is expected in the coming weeks. The judges found the court does not need reconvene again to debate this matter further.


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