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The High Court of Justice approved the punitive sealing of one room in a West Bank family home: the scope of the demolition order was reduced following HaMoked’s petition

On February 28, 2018, the High Court of Justice (HCJ) rejected HaMoked’s petition to cancel a punitive demolition order, issued January 16, 2018, targeting two rooms in a house in Qabatiyah village – the family home of a man accused of perpetrating a fatal attack against an Israeli on October 4, 2017, in Kafr Qasem, inside Israel.

Thirteen people live in the two-story house – the accused’s parents and siblings, as well as the wives and young children of two of his brothers – none of whom are suspected of any involvement in the acts attributed to the accused. The military order was directed at two rooms, on the first floor of the house: the accused man’s room and an adjacent kitchen.

HaMoked filed a petition against the demolition on January 21, 2018 and requested to have the petition considered by an expanded panel of justices. This request was rejected on the grounds that it was essentially identical to HaMoked’s request in HCJFH 9324/17, which was also denied. HaMoked also requested to hold a principled hearing on the legality of the punitive demolition policy as a whole. This request was also rejected.

As part of the petition, HaMoked brought an expert opinion of an engineer, which stated, among other things, that the planned demolition would harm the entire apartment and could even damage the stability of the whole building. The military subsequently announced it intended to destroy the two rooms by filling them with concrete rather than by manually demolishing them. It also later announced that the scope of the planned demolition had been reduced to target only the room in which the accused had lived.

Given that the scope of the order was reduced, and the demolition method altered, the court rejected the petition, ruling that the claim that the building could sustain substantial damage had been rendered redundant. The court also said that the military’s current decision to seal only the accused man’s room indicated that a distinction was made between the accused man and his family members living in the house. In the words of Justice Uzi Vogelman: “this to my mind retains the proper balance between the severe accusations against the assailant and the suffering that will be caused to the family members as a result of the room’s seizure and sealing”. Given the fact that the scope and method of the demolition were changed only following HaMoked’s petition and engineer opinion, the court stressed that it was the military commander’s duty to examine in advance the “engineering feasibility” of the elected measure, including the possibility that other parts of the building might sustain damage.

HaMoked had argued that punitive demolition in this case ran contrary to the military's own policy, given the fact that the accused man’s brother had turned him in to the Palestinian security agencies. The court noted that it was persuaded by the clarifications it had received from the military ex parte, about the distinction between turning in a relative to the Palestinian Authority (PA) and turning him/her in to the Israeli security forces. However, the court did note that turning in a relative to the PA should be regarded as a significant consideration by the military commander when contemplating if and how to implement his authority under Regulation 119, “as obviously this step expresses clear reservations about the terrorist action”.

The court ordered the sealing is to be postponed for ten days after the judgment, in order to give the petitioners time to prepare. (02) 627 1698   (02) 627 6317

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