The High Court of Justice has just rejected a petition submitted by Mahmoud Nasser against the commander of Israeli army forces in the West Bank in which Nasser sought to prevent the demolition of his house in the Ramallah area. Nasser's son was accused of recruiting the terrorist who blew himself up at Cafe Hillel in Jerusalem in 2003. Even though the petition was turned down, the house will not be demolished because the army has meanwhile decided not to raze the homes of terrorists in the territories anymore.

In the history of the Israeli occupation, there may not be any practice more despicable than the home demolition of the families of terrorists. The High Court has repeatedly lent a hand to it, since when it comes to the occupation, the court has been far from its image as the stronghold for the defense of human rights.

Based on the court's earlier rulings, one could surmise that if the army hadn't announced this change in its policy, Justices Aharon Barak, Mishael Cheshin and Esther Hayut would have permitted it to demolish the home of Mahmoud Nasser as well.

But a committee appointed by the former Israel Defense Forces chief of staff, Moshe Ya'alon, recommended a few months ago that the homes of terrorists' families not be demolished anymore, since the damage done by the demolition outweighed the benefit. The deterrent aspect of home demolitions is limited and does not compare to the hatred and hostility that this drastic step arouses among the Palestinians, the committee concluded.

Therefore, the army informed the High Court that Mahmoud Nasser's home would not be demolished and the High Court rejected his petition on the grounds that the demolition was no longer at issue. The rejection of the petition enabled the justices to sidestep a highly embarrassing situation: The army, out of a cost-benefit calculation, adopted a more humane policy than the court would ever have dared to impose on it.

Until the IDF decided to halt the home demolitions, Emergency Regulation No. 119, one of the laws that Israel inherited from the British Mandate, was used for this purpose. Attorney Andre Rosenthal, representing Mahmoud Nasser and Hamoked Center for the Defense of the Individual presented the justices with an argument that, if accepted, would mean that almost six decades of Israeli policy would have to be considered in a new light. It turns out, Rosenthal claimed, that the British Emergency Regulations are not valid at all since the British themselves annulled them right before they left the country on May 14, 1948.

Rosenthal's petition is crammed with citations of things that were said and recorded in the name of British monarchs, including legal interpretations from 1889, during the reign of Queen Victoria. The point, argues the lawyer and history aficionado, is that from the day that Israel's independence was declared, the British Emergency Regulations were no longer in effect. In order to govern the West Bank in accordance with these regulations, the IDF should have reinstated them - and since it never did so, their annulment by the British is still valid.

The British left behind quite a mess and never got around to properly publicizing the cancellation of the Emergency Regulations. Therefore, a decision must be made as to whether the cancellation of the regulations is valid even though it was not publicized, which means there is room for more arguments and more, mostly historical, citations - from 1937, 1945, 1948 and 1967.

The justices looked askance at Rosenthal, as if asking themselves if it were possible that he was kidding them. If they accepted his argument, it would mean removing the primary legal basis for Israeli rule in the territories and almost everything done there on that basis during the past four decades would be rendered null and void. Rosenthal is not the first lawyer to raise this argument, but he is the first to use it as a central argument and seek a ruling on it. As far as one can tell, he intends to pursue this track in all seriousness.

Astonishingly, the High Court did not reject the attorney's arguments and stated that it would discuss the fundamental issue of home demolitions in another petition that is pending before it.