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For the first time Israel’s high court wrestles with legality of punitive home demolitions

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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 Sohlberg, the 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.

Allison Deger

Allison Deger is the Assistant Editor of Mondoweiss.net. Follow her on twitter at @allissoncd.

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17 Responses

  1. amigo on December 4, 2014, 5:34 pm

    ” Israel defends only razing homes of Arab terrorists, not Jewish ones
    Human rights groups contend in High Court petition that practice violates law; state: demolitions meant to deter, no need to deter potential Jewish perpetrators.

    The state Wednesday defended the practice of demolishing the homes of Arabs – but not Jews – suspected of terrorism. State prosecution attorney Aner Hellman told the High Court of Justice that the aim of demolitions is to deter, not to punish. Since there is no need to deter potential perpetrators in the Jewish community, there would be no point in demolishing the homes of Jewish terror suspects, he said.”

    “Since there is no need to deter poential perpetrators in the Jewish community “Hell-man.

    WTF does that mean.You don,t want to deter them and just let them do as they please.That,s the message , eh.

    http://www.haaretz.com/news/national/.premium-1.629930

    • Sycamores on December 4, 2014, 6:20 pm

      hi amigo,

      the haaretz piece is behind a paywall, did Aner Hellman give a reason why Jewish perpetrators are exempt from home demolishing?

      • a blah chick on December 4, 2014, 10:37 pm

        Their “justification” is that since Jew-on-Arab crime is “rare” house demonlitions are unnecessary as a deterrent.

        Yeah, I know it’s a specious argument.

  2. pabelmont on December 4, 2014, 5:56 pm

    All illegal violence creates fear. But is it all terrorism? My understanding is that in order to be terrorism, the illegal violence must have a purpose of inducing a change of behavior in the people being set upon.

    Illegal violence is always illegal violence, but whether or not it is called “terrorism” is a choice by the speaker. I believe that any illegal Jewish violence against non-Jews in Israeli-controlled space is terrorism inasmuch as it (appears calculated to seem to) aim to induce such non-Jews to leave.

    Illicit violence by Israeli Jews intended to effect “transfer” of Arabs is terrorism. Israeli Jews doubtless see illicit violence in the other direction as “terrorism” although just what political action is intended to be induced by it is hard to imagine. Is it asserted that Arabs who attack Jews intended to make the remaining Jews leave Israel? Who’d believe that?

    At all events if home demolition is reserved for cases of terrorism, a close look at the definition of terrorism is required. Otherwise, home demolition is being applied on a strictly racist basis, pure and simple. And that would never do.

    • Marnie on December 5, 2014, 1:51 am

      Oh but then you’d have to do all sorts of tiresome things, like research, investigations, studies, consulting with the UN, etc., all so darn time-consuming activities. God knows the israeli courts can drag their collective feet as well as the next court, but when it comes to teaching those damn Arabs a lesson, justice must be incredibly swift and incredibly painful.

      There is no justice in the state of Israel for non-Jews. That makes it not the shiny happy people kind of place the merchants of aliyah purvey to prospective suckers, yahoos and other assorted idiots (yep, me) .

  3. Blownaway on December 4, 2014, 9:35 pm

    Even in the unlikely event the supreme court rules against the state, in Israel the Supreme Court is regularly ignored by the Jewish State in the Levant (JSIL)

  4. WeAreAllMadeOfStars on December 5, 2014, 9:48 am

    I personally love the contrast in the picture : Those oriental women wearing a veil, well-dressed and elegant facing a modern western faceless zombie. That sums it all to me

  5. bevkrell on December 5, 2014, 3:09 pm

    Demolition is self defeating and ruthless: this smacks of a society on the edge of human behaviour.

    What so called democratic society has one group of civilians ruled by judicial laws and the the rest under military rule. Nobody gives a damn about non Jewish civilians, however, the settlers are allowed to run amok in the occupied territories killing, running down children, etc with impunity.

    Israel is on the edge of the abyss.

  6. jaspeace2day on December 5, 2014, 4:36 pm

    The government of the Palestinians in Gaza, Hamas, need to change their Nom de Plume to Palestinian Defense Forces, PDF for short, and label the IDF has a terrorist organization. The UN should also follow suit labeling the IDF a terrorist organization is as well.

  7. Mayhem on December 5, 2014, 9:50 pm

    On numerous occasions they readily condemned the slayings to the press

    Total rubbish!

    Mother of Uday Abu-Jamal recited a chilling poem just a day after Jerusalem synagogue massacre: ‘I brought up my children on Islam.’

    Refer http://www.israelnationalnews.com/News/News.aspx/188190#.VIJkr8kr3Ws

    The Abu Jammal family got in the act, celebrating the “martyrdom” of their relatives – before police swooped in and arrested several of them….

    Refer http://www.israelnationalnews.com/News/News.aspx/187615#.VGvCdPmUdas

    Israel has very little choice when it comes to stemming the tide of violence from Palestinians, who just want to stir up trouble. Those who are in complicit in murderous crimes should be held to account as they are in any democratic society; signs of weakness by the Israeli authorities are seen as victories, encouraging others to commit similar dastardly acts.

    • a blah chick on December 6, 2014, 8:56 am

      Are the kids complicit?

      So let me get this straight, according to people like you Palestinians regularly use their children as “human shields” and therefore don’t care if they end up dead. So why then would these same people be deterred by their kids becoming homeless?

      The house demolitions are collective punishment. As for what other countries do they don’t blow up the homes of criminals accused or otherwise.

      Israel has a choice but they choose to do evil.

      • Mayhem on December 6, 2014, 6:13 pm

        Sorry to inform you blah chick but there is a war going on at the moment in Israel-Palestine.Just as collective punishment was used by the Allies to successfully end WWII Israel is being forced to resort to the same tactics.

        Rabbi Avihai Ronsky, the former Chief Rabbi of the IDF, wrote (http://www.tikkun.org/tikkundaily/2014/06/22/israeli-rabbi-evokes-hiroshima-to-justify-collective-punishment-of-palestinians/) that both the Hebrew bible and modern history give precedents for the proper way to deal with the Palestinians.

        And what are these precedents? The first is a biblical massacre from Genesis 34 in which Jacob’s sons, Simon and Levi, killed every male civilian in a tribal city after a local warlord raped their sister and then demanded her hand in marriage. The second precedent comes from World War II, per Ronsky’s words:

        “Only with a sharp blow will we make it clear that Jewish blood is not cheap. [Just as with the massacre in Genesis 34], the same goes today: only by dropping an atomic bomb on Hiroshima and Nagasaki, which caused millions of deaths, did the U.S. bring an end to World War II.”

        Indiscriminate collective punishment should be the last resort if the Palestinians decide to return to the violent strategies of their initifadas. In the meantime punishing those who raise and nurture and give succor to murderers should be strongly discouraged.

      • annie on December 7, 2014, 3:53 am

        zzzzzzzzzz

      • eljay on December 7, 2014, 11:50 am

        >> Mayhemeee: Sorry to inform you blah chick but there is a war going on at the moment in Israel-Palestine.Just as collective punishment was used by the Allies to successfully end WWII Israel is being forced to resort to the same tactics.

        For over 60 years, Israel – an oppressive, colonialist, expansionist and supremacist state – has been stealing, occupying and colonizing Palestinian land and oppressing, torturing and killing Palestinians.

        You are absolutely right to suggest that the Palestinians are entitled to resort to the same tactics as the Allies in order to end the war that Israel has been waging against them for over 60 years.

  8. just on December 6, 2014, 8:07 am

    O/T, but speaking of courts:

    “ICC drops murder and rape charges against Kenyan president

    Blow for court’s credibility as key prosecution witness refuses to testify in Uhuru Kenyatta trial and another admits lying

    All charges against Kenya’s president have been dropped by the international criminal court (ICC), highlighting the tribunal’s difficulties in bringing to justice the high-ranking officials it has accused of atrocities.

    With a show of reluctance, the chief prosecutor, Fatou Bensouda,on Friday filed a notice withdrawing allegations against the president, Uhuru Kenyatta. She accused the Kenyan government of harassing and intimidating potential witnesses.

    “Given the state of the evidence in this case, I have no alternative but to withdraw the charges against Mr Kenyatta,” the Gambian lawyer explained. “I am doing so without prejudice to the possibility of bringing a new case should additional evidence become available.”

    He added: “This is a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

    Kenyatta had been charged with crimes against humanity including murder, rape, persecution and deportation as an “indirect co-perpetrator” in violence that flared after Kenya’s 2007 elections, leaving more than 1,000 people dead.

    The collapse of the case is a new blow to the credibility of the court’s prosecution office. The office has begun nine full investigations since it was established in 2002, all of them in Africa, and has just seven suspects in custody.
    ……….
    Earlier this week, the UK charity Redress, which supports survivors of torture, criticised the court for failing to ensure Kenya cooperated. “Effectively, the court is saying: our powers to compel a state to cooperate with the ICC are limited so we will not even try,” said Carla Ferstman, director of Redress. “There should be real consequences for states who fail to cooperate with the court.”

    http://www.theguardian.com/world/2014/dec/05/crimes-humanity-charges-kenya-president-dropped-uhuru-kenyatta

    I really can’t see the value of the ICC.

    • amigo on December 7, 2014, 8:17 am

      Reply to Mayhem at 6.13 .

      “Indiscriminate collective punishment should be the last resort if the Palestinians decide to return to the violent strategies of their initifadas. In the meantime punishing those who raise and nurture and give succor to murderers should be strongly discouraged. ”

      Tell that to Biden!!!.

      ” Biden: Israel’s house demolition policy is ‘collective punishment’
      At Saban Forum, U.S. vice president urges Israel to stop settlement expansion, and to do more against ‘vigilante justice’ attacks against Palestinians.”

      http://www.haaretz.com/news/diplomacy-defense/.premium-1.630347

      ” [Just as with the massacre in Genesis 34], the same goes today: only by dropping an atomic bomb on Hiroshima and Nagasaki, which caused millions of deaths, did the U.S. bring an end to World War II.”mayhem

      Correct me if I am wrong but since when is Hiroshima or Nagasaki occupied or since when did the USA set out to annex Japan.

      And who the hell gives a rats posterior about mythical precedents set in a book written by Jews for Jews.

      Try a little harder to avoid filling cyberspace with trite self serving Trollope.

  9. a blah chick on December 7, 2014, 9:01 pm

    “Rabbi Avihai Ronsky, the former Chief Rabbi of the IDF, wrote (link to tikkun.org) that both the Hebrew bible and modern history give precedents for the proper way to deal with the Palestinians.”

    Do they? Well, I stand corrected. Far be it for me to question what a former chief rabbi of the IDF has to say about how to deal with the little Arabs. As to the Hebrew Bible do you really think the the extermination of the Amelekites and Canaanites something to emulate today?

    Then there is this: “…punishing those who raise and nurture and give succor to murderers should be strongly discouraged.” Fine, how about we start with the families of the Abu Khdeir killers.

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