HaMoked to the HCJ: “the picture presented thus far, whereby the measure of house demolition is very narrowly used and only for strict security reasons, does not reflect reality” המוקד להגנת הפרט
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08.11.2015
HaMoked to the HCJ: “the picture presented thus far, whereby the measure of house demolition is very narrowly used and only for strict security reasons, does not reflect reality”
HaMoked to the HCJ: “the picture presented thus far, whereby the measure of house demolition is very narrowly used and only for strict security reasons, does not reflect reality”
On October 29, 2015, the High Court of Justice (HCJ) held a hearing in HaMoked's petitions against the military demolition orders issued for six family homes of Palestinian individuals who either committed or are suspected of having committed attacks against Israelis. Following the hearing, the court instructed the state to submit a supplementary notice that would include, among other things, a detailed and reasoned list of demolition orders issued since 2013 that had been unsuccessfully challenged in court, but not executed by the state shortly after the court had upheld them.

In its supplementary notice, submitted November 2, 2015, the state maintained that in each of the six housing units, it had considered alternatives to the demolition order in its current form, such as sealing or partial demolition, but in each case it turned out that complete demolition was needed. This, so claimed the state, “because of the overall circumstances pertaining to the matter, including engineering, functional and operative reasons, and also deterrence reasons”.

It also emerged from the state’s submission that in some 50% of the punitive demolitions carried out in 2014-2015, the state significantly stalled in executing the demolition order once it was upheld by the court. But despite the court’s express instruction, the state did not present its reasons in choosing the timing of each demolition, and gave only a general statement, whereby the chosen time for executing the demolition orders was “affected by policy and security considerations ... given that, naturally, the deterrence need for executing an order is not the same during a time when one terrorist attack swiftly follows another, and ... during a time of relative calm”.

On November 5, 2015, HaMoked submitted six supplemental notices over the state’s notice, on behalf of the families, neighbors and house owners. In its responses, HaMoked stressed that the state deliberately ignored the court’s instruction to examine “with a willing spirit” alternatives less harmful to the petitioners, and chose not to detail in each and every case why it was impossible from an engineering standpoint to only seal the housing unit. HaMoked asserted that in this context, binding together the engineering reasons with the operative reasons and those of deterrence, was intended to divert the discussion and prevent the court from conducting judicial review on the state’s decision.

HaMoked recalled that the state never presented empirical research on house demolition's alleged efficacy for deterrence (although the High Court justices recently noted the importance of conducting such research); HaMoked appended to one of the responses an on-line commentary by Shlomo Gazit, Major General (ret.) and former chief of Israeli Military Intelligence, which clearly questions this "premise". HaMoked also noted that the state’s delay in carrying out demolition orders upheld by the court, reinforced the claim that the demolition act was aimed at nothing but satisfying the public thirst for revenge at times of attacks against Israelis, and was completely unrelated to the concrete actions of the suspect in each case.

Additionally, HaMoked held that the conditions the state had set in consenting to compensate the neighbors should their homes be damaged, rendered its consent meaningless; and that there was no practical difference between these conditions and the tort defense of “combat action”. Moreover, HaMoked opposed to the state’s assertion that any such compensation, if made, would be given “ex gratia”, as if it were charity.

Given all of the above, HaMoked asked the court to issue an order absolute prohibiting the state from demolishing the homes in question, and alternatively, to order the state to fully compensate the neighbors for all resulting damage to their homes, without reservation.
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On October 29, 2015, the High Court of Justice (HCJ) held a hearing in HaMoked's petitions against the military demolition orders issued for six family homes of Palestinian individuals who either committed or are suspected of having committed attacks against Israelis. Following the hearing, the court instructed the state to submit a supplementary notice that would include, among other things, a detailed and reasoned list of demolition orders issued since 2013 that had been unsuccessfully challenged in court, but not executed by the state shortly after the court had upheld them.

In its supplementary notice, submitted November 2, 2015, the state maintained that in each of the six housing units, it had considered alternatives to the demolition order in its current form, such as sealing or partial demolition, but in each case it turned out that complete demolition was needed. This, so claimed the state, “because of the overall circumstances pertaining to the matter, including engineering, functional and operative reasons, and also deterrence reasons”.

It also emerged from the state’s submission that in some 50% of the punitive demolitions carried out in 2014-2015, the state significantly stalled in executing the demolition order once it was upheld by the court. But despite the court’s express instruction, the state did not present its reasons in choosing the timing of each demolition, and gave only a general statement, whereby the chosen time for executing the demolition orders was “affected by policy and security considerations ... given that, naturally, the deterrence need for executing an order is not the same during a time when one terrorist attack swiftly follows another, and ... during a time of relative calm”.

On November 5, 2015, HaMoked submitted six supplemental notices over the state’s notice, on behalf of the families, neighbors and house owners. In its responses, HaMoked stressed that the state deliberately ignored the court’s instruction to examine “with a willing spirit” alternatives less harmful to the petitioners, and chose not to detail in each and every case why it was impossible from an engineering standpoint to only seal the housing unit. HaMoked asserted that in this context, binding together the engineering reasons with the operative reasons and those of deterrence, was intended to divert the discussion and prevent the court from conducting judicial review on the state’s decision.

HaMoked recalled that the state never presented empirical research on house demolition's alleged efficacy for deterrence (although the High Court justices recently noted the importance of conducting such research); HaMoked appended to one of the responses an on-line commentary by Shlomo Gazit, Major General (ret.) and former chief of Israeli Military Intelligence, which clearly questions this "premise". HaMoked also noted that the state’s delay in carrying out demolition orders upheld by the court, reinforced the claim that the demolition act was aimed at nothing but satisfying the public thirst for revenge at times of attacks against Israelis, and was completely unrelated to the concrete actions of the suspect in each case.

Additionally, HaMoked held that the conditions the state had set in consenting to compensate the neighbors should their homes be damaged, rendered its consent meaningless; and that there was no practical difference between these conditions and the tort defense of “combat action”. Moreover, HaMoked opposed to the state’s assertion that any such compensation, if made, would be given “ex gratia”, as if it were charity.

Given all of the above, HaMoked asked the court to issue an order absolute prohibiting the state from demolishing the homes in question, and alternatively, to order the state to fully compensate the neighbors for all resulting damage to their homes, without reservation.
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