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14.4.2019

The High Court of Justice rejected two petitions by HaMoked against punitive home demolitions and sanctions the demolition of three apartments in the West Bank: Justice Karra in the minority holds that demolishing two apartments in one case excessively harms innocent people

On April 11, 2019, the High Court of Justice (HCJ) rejected HaMoked’s petition against the demolition of two apartments in the Hebron family home of an assailant who killed a young Israeli woman near Jerusalem on February 7, 2019.

In the judgment, it was ruled that there was no room to intervene in the decision of the Military Commander and no need to reconsider HaMoked’s principled arguments, primarily that this was prohibited collective punishment. The court also rejected HaMoked’s argument concerning the assailant’s mental condition as well as the argument that it was sufficient to demolish the apartment where the assailant had actually lived, ruling that the assailant had an affinity to both apartments.

In the minority opinion, Justice Karra considered that only the apartment in which the assailant had lived should be demolished, and that demolishing his parents’ apartment exceeded the needs of deterrence, constituted prohibited collective punishment and constituted disproportionate damage to the property of innocent persons, particularly as the parents have voiced their express disavowal of their son’s deed. In these circumstances, said Justice Karra, “the demolition of two residential units might achieve the opposite of deterrence”. On the principled level, Justice Karra held that the difficulties in the fields of domestic and international law, raised by the use of Regulation 119 of the Defense (Emergency) Regulations – on which the military commander relies in issuing punitive demolition orders – had not been rigorously explored and deliberated in the case law, and that there is room to revisit these questions anew”. Justice Karra added that “These matters gain validity with the passage of time and the frequency of use of Regulation 119, which the Respondent claims is made in response to the increase in terrorist activity and out of the desire to provide a response that would stop to it”.

That same day the HCJ unanimously rejected another HaMoked petition – against the demolition in Kobar, Ramallah District of the family home of a man suspected of involvement in an attack on December 9, 2018. A pregnant woman was among those wounded in the attack, and her newborn died subsequently.

The court rejected HaMoked’s principled and specific arguments in this case as well. However, Justice Vogelman recalled his position voiced in previous judgements: “the precedent is binding until such time as it may be changed, by an expanded panel." However, Vogelman added "it would be advisable to revisit this precedent in order to fully examine all issues”. Justice Barak-Erez noted her agreement with Justice Vogelman’s comment.

HaMoked recalls that punitive home demolitions are unacceptable acts of collective punishment, prohibited by international law; and that contrary to the repeated claim of High Court Justices that “there is no need to readdress these issues anew in each individual petition concerning the demolition of a specific home”, in fact the principled issue has not been addressed since the 1980s.
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