“In the trodden path of case law”: Supreme Court president rejected HaMoked’s request for a further hearing in its petition to cancel the punitive demolition of a family home in the West Bank
The punitive demolition of homes constitutes collective punishment and is utterly prohibited under international law. However, since 2014, when Israel resumed demolishing and sealing Palestinian homes as punishment and on the pretext of deterrence, the High Court of Justice (HCJ) has approved the vast majority of punitive demolition orders, ruling each time that this was a proportionate measure given the circumstances of the case, without ever examining the principled issue in depth. Only in a handful of cases was a punitive order reduced in scope to just part of the house following HaMoked’s court petition, and only in eight cases did the HCJ completely cancel the demolition order.
In the evening of June 30, 2021, Supreme Court President Hayut rejected HaMoked’s request for a further hearing before an expanded panel of justices on the judgment of June 23, 2021, which approved a punitive demolition
in Turmusaya, the home of a woman and her three children.
In its request, HaMoked elaborated on the various flaws in the judgment underlying the erroneous conclusion that this was a proportionate demolition order. HaMoked argued that the judgment did not give due weight to a number of facts, which cumulatively should have led to the conclusion that this was a disproportionate order which must be either cancelled or reduced in scope. Among the facts presented:
• This was the only home of a women who had effectively separated from the suspect years ago, while he lived most of the time with his other wives and children in homes he owned in the United States. Thus, the suspect did not have significant "residential ties" to the house;
• While punitive home demolitions are only used in response to nationalist-motivated attacks, the suspect had a mental illness and repeatedly stated that he was motivated by suicidal thoughts;
• The state belatedly alleged “indications” that members of the household knew about the suspect’s plans. These allegations were not mentioned in the state’s written response, nor in the oral arguments presented to the court. HaMoked objected to this impromptu proposal to present secret evidence ex parte. Consequently, to HaMoked's dismay, the Court ruled that the state enjoyed the presumption that this classified evidence had merit.
The marginalization of these facts of the case means that the court failed to duly review the proportionality of the demolition order, and in effect rubber stamped the order, approving it solely based on the severity of the attack, without taking into consideration the harm to the innocent occupants of the house, and other relevant factors. As such, claimed HaMoked, this constituted a new precedent warranting a further hearing. HaMoked stressed that this judgment significantly eroded the consistent position of many High Court justices that, while the principled issue of the legality of these demolitions need not be revisited, the proportionality of each punitive order must be weighed on the merits of each case.
In her decision, the Supreme Court President ruled that this was not a new precedent which warranted a further hearing, but a judgment implementing previous precedents on the matter.
* The home was demolished on July 8, 2021.