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19.12.2018

Another home demolished in the West Bank with HCJ approval: in the proceedings it was revealed that the assailant’s will referred to punitive demolitions as one of the motives for the attack

On December 17, 2018, the security forces demolished, with the approval of the High Court of Justice (HCJ), the bottom two floors of a three-story building in Shweikah in Tulkarm District. This is the home of the family – parents, sister, brother, sister-in-law and toddler nephew – of the assailant who perpetrated a fatal attack on October 7, 2018, in the Barkan Industrial Park in the West Bank. The assailant was tracked down and killed by the security forces at his hideout a few days before the demolition.

The HCJ approved the demolition on December 6, 2018, unanimously rejecting the petition of the family and HaMoked against the punitive demolition order issued by the military commander for the building’s two bottom floors, in which the assailant had lived with his parents and sister. The HCJ also denied the request to join the proceedings filed by the families of those killed in the attack and the Shurat HaDin organization.

In the judgment, Justice Grosskopf rejected all of HaMoked’s claims, including its principled claim regarding the illegality of house demolitions pursuant to Regulation 119 of the Defense (Emergency) Regulations of 1945, for being a prohibited measure of collective punishment. Despite the rejection, Justice Karra voiced the principled position, shared by several Supreme Court Justices, that the HCJ should revisit the binding judicial precedent allowing the demolition of homes pursuant to Regulation 119. Justice Barak-Erez stressed that her opinion was not based on a principled, “external” review of the binding precedent, but solely on an “internal” review of the military’s decision, according to the facts of the specific case.

The court rejected HaMoked’s claim that the basement floor should not be demolished, and accepted the military’s claim that there was an “affinity of residence” of the assailant to this floor. The court also praised the military commander’s “considered and proportionate” decision not to include the second floor of the building in the demolition order, in the absence of such affinity.

The court rejected HaMoked’s claim that it was questionable whether the extreme measure of home demolition was effective as a deterrent. Justice Barak-Erez noted that the court was persuaded that demolition in this case would have a deterrent effect, adding that the security agencies must continue to examine the degree of deterrence achieved “over and over again”.

Despite these pronouncements, Justice Barak-Erez hinted at her own doubts in this very case, saying, without elaborating further: “Personally I find it disturbing that the will left by the assailant in this case mentioned ‘house demolitions’ as one of the motives underlying his lethal decision, rather than as a deterring factor” (emphasis in the original). It should be noted that the military refused to reveal the will in the Court hearing, and only paraphrased it in a single sentence: “the assailant wrote that he will carry out the attack against the background of the aggression against the Palestinian people, house demolitions and confiscation of property, and also that he would carry out the attack in support of Al Aqsa, prisoners and his country”.

The family reported to HaMoked that, in the course of the demolition, the building’s second floor and staircase sustained damage. The expert engineer opinion submitted by HaMoked warned of this eventuality, but the court accepted the expert opinion to the contrary submitted by the state.
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