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23.12.2015

The HCJ approves the punitive demolition of two homes in Jabal al Mukabber: in the dissenting opinion, Justice Mazuz held that “a sanction which directs itself at harming the innocent cannot, in my opinion, be justified under any circumstance”

On December 22, 2015, the High Court of Justice (HCJ) rejected HaMoked’s petitions against the impending punitive demolition of two homes in the East Jerusalem neighborhood of Jabal al-Mukabber, in which live the families of two assailants who perpetrated attacks against Israelis on October 13, 2015: one on Egged line 78 bus in Armon HaNatziv Neighborhood, the other on Malkhei Yisrael St.

The court ruled that the petition must be dismissed despite the non-simple questions arising from the petitions – including the question of the demolition policy's efficacy for deterring potential attackers. Dismissal was unavoidable not only because no flaw was found in the military commander’s discretion in using Regulation 119, but also, and more importantly, in light of the precedent recently set by the court on the same questions now raised (HCJ 5839/15; HCJFH 360/15). In the judgment, Justice Zylbertal, in the majority opinion, addressed the dissenting opinion of Justice Mazuz, and noted that the latter’s principled opinion raised “weighty considerations based on basic constitutional principles”, which, “had it been the first time these considerations were brought before this court, I might have been inclined to join his main views”. However, Justice Zylbertal went on, the position of Justice Mazuz was not accepted by the court and, “deviation from a precedent must be made with extreme caution, following a period of time since the precedent was established, and usually by an expanded panel…”

Justice Mazuz, in the minority opinion, held with regard to the petition of the family of the assailant in the bus attack in Armon HaNatziv – a single man who lived at his parents’ apartment, as do his younger siblings – that causing “conscious and deliberate harm to the innocent, and especially severe harm to their constitutional rights, and this only so that others potential offenders ‘may behold and beware’ [emphasis in the original], is an unthinkable act in any other context”. Therefore, Justice Mazuz maintained, there is need for a renewed and rigorous examination of the circumstances and manner in which Regulation 119 was used. He also pointed out the progressive weakening of the link – vital in using the Regulation – between the targeted home and the assailants’ deeds. As part of this process, “even the consideration of harming the innocent occupants of the home remains mostly just rhetoric”, said Justice Mazuz.

In his dissenting opinion, Justice Mazuz also determined that the principles of Israeli constitutional law as well universal values, “compel in my opinion the conclusion that the sanction under Regulation 119 cannot be implemented against uninvolved family members, and this irrespective of the severity of the incident and the deterrence objective underlying use of the authority”. He further held that it is precisely by not harming the innocent relatives that the deterrence objective, which the state maintains underlies the Regulation, can be achieved, because this “may form an incentive for the family members to act to prevent attacks when they come to know about such as intention, in order to avoid the sanction they would face”. Therefore, the deterrence must be focused on “pertinent prevention of terrorist activity while minimizing and confining harm to the innocent”.

Justice Mazuz noted further that “in the past” – before it eroded in the mid-1990s – “for a long time, the practiced policy was such that the military commander refrained from exercising Regulation 119 when the terrorist was killed”. But “it seems that this policy and the considerations underlying it have since been forgotten”, said Justice Mazuz, referring also to the abandoned rational that the inflicted harm must be focused on the assailant rather than his innocent relatives.

In the petition on behalf of the family of the assailant in the Malkhei Yisrael St. attack, where the question of the identification of the assailant’s apartment was deliberated, Justice Mazuz held in the minority opinion that, “the evidence presented does not provide a clear and compelling evidentiary infrastructure. And so also the confidential material presented to us on this matter does not contain substantive evidentiary support on the matter in question”. In addressing the military’s contention that the family had not presented any positive evidence corroborating the claim that the young man had lived in the one-floor building and not in the ground floor of the three-floor building (both properties of the family), Justice Mazuz noted that “this is a baffling claim… as the evidentiary burden of substantiating the facts which justify such a severe harm to the petitioner and his family, rests entirely with the Respondent” (emphasis in the original).

The court ruled that the demolitions must not be carried out before the end of December 30, 2015, “in order to allow the petitioners to prepare for their implementation”.
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