Israeli Court Asked to Reconsider Legality of Demolishing the Homes of Terrorists’ Families

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Palestinians looking at a house that was demolished by the Israeli army, in the Qalandia refugee camp on the outskirts of the West Bank city of Ramallah, November 16, 2015.
Palestinians look at a house that was demolished by the Israeli army, in the Qalandia refugee camp on the outskirts of Ramallah on Nov. 16, 2015.Credit: AP

A petition filed by human rights lawyers recently is calling on the Supreme Court to reconsider the legality of demolishing the homes of terrorists' families. 

The motion was field by lawyers Lea Tsemel and Michael Sfard in the wake of recent rulings in which one-third of the Supreme Court’s 15 justices have said that more debate is needed on the legality of such demolitions. Their view is not shared by the President of the Supreme Court, Justice Miriam Naor, who in November turned down a similar petition.

Two of the five — justices Daphne Barak-Erez and Zvi Zylbertal — have joined rulings approving house demolitions, but nevertheless said the court should reconsider their legality. In minority opinions the other three — justices Menachem Mazuz, Salim Joubran and Uzi Vogelman — have argued that it is unconstitutional to demolish terrorists’ homes in individual cases.

In light of the dissent within the court, lawyers Tsemel and Sfard refiled a petition demanding new deliberations.

“We are aware that half a year ago, a petition to hold another discussion on the matter was rejected,” Tsemel and Sfard wrote, adding, “But we believe that given the many juridical opinions that have accrued since that time, a critical mass has been created for discussion by an expanded panel of the main issues.”

One of the rulings they cited was issued on March 24, when the court upheld an order to demolish the homes of the families of three Palestinians who murdered policewoman Hadar Cohen in Jerusalem in February. Writing the minority opinion, Joubran wrote that he was uncomfortable using the force of the law to order the demolition “of the homes of terrorists when the other residents of these homes were not involved in the terror activity.” He added that such demolitions are problematic under both Israeli and international law and that he believed the Supreme Court had not given sufficient attention to the issue.

Barak-Erez, in contrast, joined with Justice Elyakim Rubinstein to approve the demolitions. Nevertheless, she wrote, “the practice of demolishing a terrorist’s home as a deterrent isn’t at all simple and raises weighty questions. ... This court should continue to examine the precedents’ suitability to changing circumstances and the lessons learned from cases in which demolition orders were carried out.”

One day earlier, on Wednesday, the court upheld a ruling allowing the demolition of the home of the Palestinian who killed Gennady Kaufman in Hebron in December, by a vote of 2 to 1. Justice Noam Sohlberg upheld the demolition unreservedly, Vogelman joined him in approving it but again urged the court to reconsider the constitutionality of such demolitions and Mazuz dissented.

Explaining why he upheld the demolition order, Sohlberg noted indications from previous rulings that fear of home demolition is indeed effective in deterring potential terrorists.

Vogelman joined Sohlberg’s opinion but again called on the court to reopen discussion on demolitions.

“Given the different opinions expressed in the rulings, my view is that we ought to revisit the weighty questions entailed in exercising this authority,” Vogelman wrote. He then quoted his own dissent in an earlier case, in which he argued against approving a demolition order, because “it’s one thing” to do so when the terrorist lives by himself, but “another thing” when the house is shared by other members of his family, “who weren’t involved in his evil plans, and yet their house is brought down upon them through no fault of their own.”

Mazuz, in his dissent, said the court should cancel the demolition order. He, too, then proceeded to quote one of his own earlier opinions, in which he wrote that such demolitions “raise a series of difficult legal questions, which in my view haven’t yet been given a sufficient and up-to-date response in this court’s rulings.”

Like Vogelman, Mazuz was mainly concerned with the fact that demolitions often leave other members of the terrorist’s family homeless, even though they aren’t suspected “of any involvement in, knowledge of or assistance in the terrorist’s acts.”

Sohlberg, in his own opinion, rejected the argument that the court hasn’t sufficiently examined the issue, saying all these difficult questions had been discussed “in a long list of recent rulings.”

Despite the controversy over the issue in court circles, in November, Naor rejected a petition to have an expanded panel of justices discuss the principles, after a panel of three justices — Rubinstein, Sohlberg and Esther Hayut — ruled that it was unnecessary. Hayut did write in her rejection that “to be honest, the issues raised in the petition are difficult and worrying, and I will not deny that walking down the path of precedent in this matter is not easy.”

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