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27.9.2016

The HCJ revokes one punitive demolition order and upholds another: Regulation 119 may be implemented against “indirect” culprits if their actions were crucial for the “realization of the attack”

On September 27, 2016, the High Court of Justice issued its judgment on HaMoked’s petitions against punitive demolition orders issued for two houses in Nablus, in which lived two men involved in a shooting attack against Israelis on October 1, 2015. One petition was accepted unanimously, the other rejected by the majority opinion.

Under the orders nisi issued in the petitions, the state had to justify its position that the decision to demolish the homes was proportionate and also to clarify the quality of the administrative evidence against the two men, who had acted in the second circle of those implicated in the attack. In the case of the man suspected of involvement in the attack, the justices ruled that the state failed to persuade the court that the administrative evidentiary infrastructure sufficed for using Regulation 119. However, in the case of the man who admitted to the allegations during the criminal proceedings against him, two of the justices held that he played a central and prominent role in the attack, and that his actions were of a “high level of severity”, sufficient to justify use of the Regulation. Justice Baron, in the minority, held that given the family’s non-involvement, demolishing the home would be disproportionate, and therefore the petition should be accepted. Justice Baron also emphasized the man’s wife and eight children – all innocent of the crime – would be the only ones to suffer from the demolition, hence it would be “an unbalanced violation of constitutional human rights of the highest level”.

One of the arguments in the petitions was that in deciding to demolish these homes the state employed a broad interpretation of Regulation 119, whereby the military commander’s authority extended also to those not directly involved in the attack. In this context, Justice Danziger determined that “the attempt to make a dichotomous distinction between ‘direct’ and ‘indirect’ perpetrators – such as the planners; recruiters; collaborators; or suppliers of the weapons and funding – is not without difficulties. In some cases it is precisely the action of the ‘indirect’ perpetrators that is so significant and central that it is doubtful whether the attack would have happened without it. Hence the question that must be asked is not necessarily whether it was the assailant himself who shot the victims in the attack or was physically present at the scene during the act, but what was the degree of influence his actions had on the realization of the attack, and whether it is sufficient to justify using the sanction under Regulation 119 against him” (emphasis in original).

Following HaMoked’s request that the family be given sufficient time to prepare before the demolition, the state announced it consents “in the circumstances, to give a 72-hour preparation period starting from the time the judgment was issued until the order is implemented”.
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