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28.11.2017

The HCJ, in a majority opinion, approves another punitive demolition of a home in the West Bank: the home – in which live a couple and three minors – is to be demolished in a few days

On November 12, 2017, HaMoked petitioned the High Court of Justice (HCJ) against a military order issued on November 6, 2017, for the punitive demolition of a house in Qabatiyah, the home of the father of a man accused of committing a fatal attack against an Israeli on October 4, 2017, in Kafr Qasem. Other than the father – who is divorced from the accused’s mother – in the home live the father’s pregnant wife and toddler son from his second marriage and his two underage children from his first marriage – none of them are under any suspicion.

In the judgment, issued November 26, 2017, the majority justices, Justices Elron and Shoham, opted not to consider HaMoked’s principled arguments against the very legality of demolishing a home under Regulation 119 of the Emergency (Defense) Regulations, saying these had been considered in the past.

It was also ruled that the decision was proportionate according to the various tests established in the case law, including the question of the accused’s residency link to the targeted home. This, despite HaMoked’s claim that the accused had not lived at his father’s home on a regular basis, but intermittently there and at his mother’s home, to which he returned repeatedly because of his recurring disagreements with his father.

Only Justice Mazuz, in the dissenting opinion, held that the order should be cancelled as it “did not meet the test of the law, and at the very least is not proportionate”. Justice Mazuz reiterated his opinion about the need to revisit the principled aspects of punitive demolitions, and reasserted that in his view, the sanction should not be employed against “uninvolved” family members. Although finding that there was a link of residency in this case, Justice Mazuz ruled it was “a limited residency link, which has bearing on the reasonableness and proportionality of using such a harsh sanction…”. In support, Justice Mazuz recalled the fact raised in the petition that initially the punitive demolition order was directed against the mother’s home, and was amended only later. Justice Mazuz also criticized the decision to issue a demolition order for the entire home – the family’s only home – rather than just the room the accused had used occasionally.

The temporary order the court issued in the case will expire on November 30, 2017, to allow the petitioners to get ready and clear their house before the demolition.
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