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28.11.2019

The HCJ approved the punitive demolition of four homes in the West Bank; Justice Baron in a minority opinion opposed demolition of three of the homes

On November 12, 2019, the High Court of Justice (HCJ) rejected four petitions filed by HaMoked against the punitive demolition orders issued for the homes of four Palestinian families from Beit Kahil, Hebron District. The demolitions target these families because their relatives are accused of involvement in the murder of a young Israeli man, Dvir Sorek on August 7, 2019. The orders target three one-story homes, to be demolished completely, and another residential building in which a second-floor apartment was to be demolished – the homes of entire families, including 10 minors, some of them very young children.

The majority justices rejected HaMoked’s principle arguments against the measure of punitive demolitions as collective punishment harming innocent people and contrary to international law. Justice Baron, in the minority, reiterated her stance that the legality of punitive demolitions should be re-examined: “there is room to revisit the questions arising from use of the authority under Regulation 119 [of the Defense (Emergency) Regulations] before an expanded panel” – as HaMoked consistently demands in its petitions on the issue.

The court rejected HaMoked’s argument that the demolition order for one of the homes should be revoked because there was no affinity of residence between the assailant and the home – given that in the past year, since his parents and siblings moved to live in their new home, the accused stayed for a lengthy period in Israel (as expressly state in the indictment filed against him). Justice Mintz, who wrote the judgment, also rejected HaMoked’s argument that the level of – indirect – involvement of two of the accused men had not yet been sufficiently established. On this, Justice Mintz wrote, among other things, that “the degree of actual involvement is supported also by the classified material presented before us”. It should be noted that the court reviewed the classified material, but did not accept HaMoked’s position that the confessions and interrogation notes should also be examined.

The majority justices also rejected HaMoked’s arguments regarding the petitioning relatives’ lack of knowledge, in three of the cases, about the accused men’s plans. In the words of Justice Mintz: “even if I were willing to assume that there was no evidence regarding knowledge of the petitioners or some of them… about the intentions of the assailants… this would not have been enough to tip the scales…”. Justice Melcer, who is Deputy Chief Justice of the Supreme Court, sided with Mintz and added that only if the relatives were successful in persuading the court that “they had tried to dissuade the assailant from implementing [the attack]”, or had they “condemned the attack, even after the fact”, this could have served as a weighty consideration against the demolition. (it should be noted that in April 2019, the HCJ approved the demolition of an apartment which was the home of an assailant’s parents even though they had strongly condemned their son’s act).

Justice Baron, in the minority, held that orders nisi should be issued to require the state to justify demolition regarding three of the homes, due to disproportionality of the intended demolitions. This “given the family members’ lack of involvement and absence of knowledge regarding the intention to commit the murder” and “as the [act of] demolition inherently constitutes a severe violation of basic human rights and [the fact that] the deterrence effectiveness of using this measure is still in doubt”. Therefore, Justice Baron concluded, “my opinion is that there was a flaw in the military commander’s discretion”. Justice Baron added that “we are dealing with the homes of uninvolved and innocent people, among them minors”.

On November 28, 2019, the military demolished the four homes in Beit Kahil. This brings to 55 the total number of homes Israel has demolished as a collective punishment since it revived this illegal practice in 2014. During this period Israel also punitively sealed 10 homes.
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