9 March 2009
Mayor Nir Barkat
Jerusalem Municipality
Jerusalem
Via fax: (02) 629-6014
Re: Your call to expedite the demolition of the homes of terrorists’ families
Dear Mayor Barkat:
1. We write in response to your statements in the media following the terrorist attack in Jerusalem last Thursday in which you call for the expeditious demolition of the homes of terrorists’ families.
2. As you know, the terrorist who carried out the attack was killed, hence your statement calls for inflicting grave injury on family members without proof that they had any connection whatsoever to the attack. Destruction of a home means the devastation of that family’s life: Family members remain without shelter and bereft of the possessions they accumulated through a lifetime of effort, rendering them refugees. People lose their entire world, their lives are erased.
3. Demolishing a home constitutes a severe violation of several fundamental protected rights of the family who lives there. First, demolishing a home violates the basic right to dignity in its most elemental sense, as it uses people as a tool for deterrence, rather than treating them as human beings. Second, it violates the fundamental right of every family to a roof over their heads, their right to property, and their right to a life of dignity, as enshrined in the Basic Law: Human Dignity and Liberty. Furthermore, demolition of a home constitutes collective punishment, which is prohibited.
4. Three years ago, the IDF’s long-standing policy of destroying the homes of the families of terrorists was halted by order of the Chief of Staff with authorization of then Defense Minister Shaul Mofaz, following recommendations by a military committee appointed by the Chief of Staff and headed by General Udi Shani. The committee found that demolitions were not proven to be an effective deterrent, and that the damage they inflict outweighed their effectiveness.
5. To our dismay, a recent decision renewed the policy of demolishing homes in East Jerusalem, despite the committee’s recommendation and the patent illegality of the measure. The illegality and immorality derive from the fundamental and primal human principle that a person should not be punished for an act committed by a member of his family. Israeli law recognizes this principle in that it forbids acts of revenge. Former Justice Cheshin took this position in words that ring clear to this day:
In all these judgments, I rooted myself in a fundamental principle of law, from which – as I have said – I will not be swayed. This principle is one we recognize and learn from childhood: A man shall be held accountable for his own transgressions and punished for his own deeds. In the words of the Prophet: “The soul that sins, it shall die. The son shall not bear the iniquity of the father, nor the father bear the iniquity of the son; righteousness shall be upon the righteous and wickedness upon the wicked” (Ezekiel 18:20). One should punish cautiously and strike only the transgressor. This is the Mosaic creed and written in the Torah: “The father shall not be put to death for the children, nor the children for the father, but every man shall be put to death for his own sin” (Kings II, 14:6).(HCJ 2006/97 Janimat v. OC Central Command, PD 51(2) 651, 654, Minority Opinion)
6. Against this background, the decision to renew the demolition of homes is astonishing, and the idea that this measure would have a deterrent effect only in East Jerusalem appears unfounded, if not cynical. A law-abiding state cannot experiment with demolishing a family’s home because of a thoroughly groundless theory. We therefore protest your support for this populist notion. Harming civilians who are innocent of all wrongdoing, not guilty of any offense, is a highly dangerous precedent.
7. Your call to demolish the family home comes in the context of recent actions by the Jerusalem Municipality that suggest the massive renewal of demolitions in East Jerusalem of homes constructed without a permit. As you well know, it is not possible to obtain a construction permit in most areas of East Jerusalem because of a lack of planning and multiple bureaucratic failings, notwithstanding the population growth over the years and the Municipality’s obligation to engage in city planning.
8. In spite of this, just last week the Jerusalem Municipality demolished five structures built without permits, and issued new demolition orders for another 87 homes. Demolition orders were also recently renewed for the al-Bustan neighborhood, after rejecting the detailed plan prepared by the residents that could have saved their homes. The destruction of these homes also constitutes collective punishment, which is prohibited, as it penalizes residents for the failures of the Municipality, which did not and does not provide adequate planning solutions for East Jerusalem residents.
9. We call upon you to take responsibility, retract your call for the demolition of homes, and also put in place new planning policies that will provide fair and moral solutions for the many problems of East Jerusalem, for which you now also bear responsibility.
Very truly yours,
Adv. Tali Nir
