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14.1.2019

In a majority opinion, the High Court allows the punitive demolition of the family home of a teenage assailant: doubts are raised in the judgment about the effectivity of home demolitions as a deterrent

On January 10, 2019, the HCJ rejected in a majority vote HaMoked’s petition against the demolition of the top floor apartment of a three-story building in Yatta, Hebron District, West Bank. The apartment is the home of the family of a 16-year-old accused of committing a stabbing attack on September 16, 2018, at the Gush Etzion junction in the West Bank, and has been in custody since then. The petition was filed by HaMoked on behalf of the assailant’s parents and two brothers – the youngest about twelve years old – who live in the apartment targeted with demolition, and also on behalf of the grandfather who owns the building.

In the judgment, Justice Amit ruled that the decision of the military commander was proportionate. On the principle level, as before, the court rejected HaMoked’s argument that this is an act of collective punishment which is strictly prohibited in international humanitarian law. The court also rejected HaMoked’s request to revisit the judicial precedent allowing the demolition of homes pursuant to Regulation 119 of the Defense (Emergency) Regulations of 1945 – contrary to the minority opinion of Justice Karra that the precedent should be reconsidered by an expanded panel.

Justice Amit elaborated on the issue of deterrence, saying – somewhat apologetically – that “even the military commander is aware that the demolition of homes raises a considerable normative difficulty, whose justification – if only at a stretch – is based on presenting sufficient evidence for the claim that this is an effective tool for preventing terrorist attacks. And indeed, insofar as a weakness would surface in the degree of effectivity, it would affect the reasonableness of employing Regulation 119” (Emphases added). Justice Baron repeated her position, voiced in the Mar’i judgment (where the HCJ cancelled a punitive demolition order), that “there are real doubts hovering above the deterrence power of house demolition, and the situation is that there is no real possibility to gauge the degree of success of this tool in preventing attacks it cannot be ruled out that the use of house demolition achieves the opposite outcome…” (Emphases added).

Justice Amit acknowledged the difficulty arising from the fact that a family was being harmed because of the action of a minor “who is less settled in his mind”, but added at the same time that “it could be argued that the deterrence objective is especially realized in the case of a minor”. He also stated that: “the family had a real possibility to prevent the attack or at least to warn ahead of time about the assailant’s intent. These factual circumstances demonstrate the deterrence objective the military commander seeks to achieve”.

Justice Karra, in the minority as stated earlier, held that Regulation 119 should not be used in this case precisely because the assailant was a minor, along with his array of motives for the deed, including the “strong desire to hurt his parents”. "The minor in his interrogation admitted that he perpetrated the attack out of his desire to be a martyr, but from examination of the classified information presented to us by the security authorities, the picture that emerges is not clear-cut. The picture is of an angry and frustrated minor, who was in conflict with his parents, and against this background wanted to have revenge on them and bring them destruction and ruin. It doesn't seem that this multiplicity of motives for the attack perpetrated by a minor was taken into consideration by the military commander when deciding to use his powers under Regulation 119, and if it was considered – it isn't clear how much weight it received in his decision to order demolition of the entire apartment of the minor assailant's parents and how this serves the objective of deterrence."

Justice Karra also objected to the majority justices having assigned weight to the family’s alleged statements following their son’s action, and held that taking this consideration into account was “like ‘punishment’ for support for the deed after the fact”. Additionally, Justice Karra objected to the majority’s determination as to the proportionality of the planned demolition’s scope, and maintained that the military commander should have restricted the demolition order to just the room the assailant had used, in view of his age and motives, and the fact that his family took no part in his action.

In conclusion, Justice Amit criticized the military's time-frame: "the respondents [i.e. the military] took over two months to give the petitioners notice of the intention of the military commander to issue a demolition and seizure order. The petitioners were given five days to submit their objection and after the objection was rejected, were given a delay of 48 hours to get ready for demolition [i.e. to petition the High Court]. I have difficulty finding justification for this timeline. If the petitioners think that needs of deterrence warrant acting urgently – they are expected to act according to a suitable timeline. If they don't think time is a critical factor – they should allow the family members enough time to get organized. Either way, the conduct described causes difficulty."

The judgment recorded the military’s undertaking that the lower floors of the building would not be damaged in the demolition.
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