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19.6.2016

Following the HCJ’s order nisi requiring the state to justify the planned demolition of two homes in Nablus: the state opts to reversibly seal one of the homes, but insists on demolishing the other

On April 20, 2016, the High Court of Justice (HCJ) issued its decision on the planned punitive demolitions of the family homes of three Palestinian suspects implicated in a shooting attack near Beit Furik on October 1, 2015. The court rejected HaMoked’s petition in one case and issued an order nisi in the other two. The court held that in both these cases, there were difficulties concerning the strength of administrative evidence and the severity of the suspects’ alleged acts, necessitating clarifications from the state on the “nature of the administrative proof against them and also the proportionality of the seizure and demolition orders issued in their cases, in relation to the Respondent's assigned ranking of all the considerations he must weigh”. It should be noted that these men are suspected of peripheral involvement in the attack; the homes of those directly implicated have already been demolished.

Accordingly, on June 16, 2016, the state submitted its response announcing its decision not to demolish one of the homes but to reversibly seal it by shutting all the openings with iron sheets. The state insisted the other home should be demolished, saying it would be done manually, by demolishing the apartment's internal divisions and filling the space with barbed wire and a foaming material, “to minimize the damage to third parties”.

The state claimed the two had a vital role in bringing about the attack and asserted that without their involvement “the attack would not have materialized”. The state maintained that its decision to use Regulation 119 in both cases was proportionate in accordance with one of the proportionality criteria established by the HCJ, whereby crucial weight must be given to the severity of the act.

With regards to another important criterion for determining proportionality – the question of the family’s involvement – the state claimed that in one case, the man’s wife was involved in Hamas activities and although there was no “proof of [the wife]’s actual awareness of [her husband]’s activity in connection to this attack… it may well be that there was such awareness, or at least that [she] ‘turned a blind eye’ to [his]’s actions”. To justify its decision in the other case, where there was no indication that anyone in the family knew about their household member’s complicity, the state cited several justices’ recent determination whereby lack of prior knowledge on part of the family does not preclude using Regulation 119. Still, in this current judgment, Justice Baron criticized the state for not giving any weight to the question of the families’ involvement in deciding to use Regulation 119: “this consideration, despite its importance, was never examined by the Respondent in issuing the orders… and in this regard there was a flaw in his exercise of the authority”.

On June 19, 2016, the court decided the case would be brought for a hearing by the end of July.
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