On February 28, 2016, the High Court of Justice (HCJ) dismissed
HaMoked’s petition against a punitive demolition order for a home in Hebron, in which lives the family of a young man who, according to the military, perpetrated a car-ramming attack on November 4, 2015 in Halhul Junction, during which an Israeli soldier was wounded, who later died from his injuries. The young man himself was killed from soldiers’ gunfire during the incident.
The court, in the majority opinion, dismissed HaMoked’s claim that the evidentiary infrastructure in the case was insufficient for determining that the incident had been an attack rather than an accident, and hence that Regulation 119 – pursuant to which the military commander orders the seizure and demolition of Palestinians’ homes – should not be employed. The court therefore ruled that the military’s evidence met the threshold required by the military commander in exercising his authority under the Regulation.
In the minority opinion, Justice Zylbertal held that “the Respondent did not have sufficient administrative evidence in order to exercise his authority”, and that given the severity of the home demolition measure, the evidentiary threshold should not merely have “sufficient proof value”, but must contain “clear, conclusive and compelling evidence”. Justice Zylbertal noted that the military had not invested enough effort in collecting the evidence; and that the evidence lacked, inter alia, an expert opinion by a traffic examiner, a report about the condition of car, background information about the driver, as well as a medical examiner’s report that “would try to ascertain whether the driver suffered, prior to the accident, any physical occurrence that might account for the loss of control over the vehicle”. Justice Zylbertal stressed that the military’s omission to explain the absence of these pieces of evidence, itself carried evidentiary weight, and concluded that as “we are dealing with a harm of enormous impact”, the issue of the military commander’s exercise of said authority should be decided upon “only after the exhaustion of the evidence collection”.
