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Since the termination of the British Mandate in 1948 and Israel's subsequent occupation of Palestine, the Israeli government has punitively demolished hundreds of Palestinian homes in the West Bank. After a slight downturn during COVID-19, numbers are once again on the rise. Israel's punitive demolition strategy targets the innocent families of Palestinians allegedly involved in security offenses against Israel. When a suspected offender is detained, Israel orders the demolition of their family home—usually, before the suspect is tried or convicted, and regardless of whether they own or permanently reside in the house. In support of its punitive demolition campaign, Israel cites Regulation 119, a British Mandate-era law sustained by and parasitic to Israel's perpetual "state of emergency." Regulation 119 affords broad discretion to the Israeli military in ordering punitive demolitions and is met with considerable deference from the Israeli High Court of Justice. However, this Note contends that Israel's punitive housing demolition strategy creates tension with due process norms elsewhere affirmed in Israeli jurisprudence. First, punitive demolitions violate Israel's respect for fair trial rights and the presumption of innocence, unlawfully constituting pre-conviction punishment. Second, they defy Israel's esteem for individual responsibility, manifesting collective punishment. Given Israel's stated desire for legal consistency and normative harmony, it is incumbent on the High Court to resolve the jurisprudential hypocrisy inherent in its treatment of punitive demolition orders and to curtail Regulation 119.
Rebecca Mooney, Jurisprudential Hypocrisy Under Israel’s Normative Umbrella: Punitive Demolitions as Pre-Conviction, Collective Punishment in the West Bank, 33 Duke Journal of Comparative & International Law 253-288 (2023)
Available at: https://scholarship.law.duke.edu/djcil/vol33/iss2/3