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10.8.2020

In a majority opinion, the High Court of Justice cancelled a punitive demolition order for the home of a family of nine, as “the principle of proportionality requires mitigation of the harm”: The military was allowed to consider a partial sealing of the home

On August 10, 2020, the High Court of Justice (HCJ), in a majority opinion of Justices Mazuz and Karra, accepted HaMoked’s petition and cancelled a punitive order for the demolition of a third story apartment, home of the man indicted for killing soldier Amit Ben Yigal on May 12, 2020, in Ya’bad village, Jenin District. The accused man’s wife and 8 children, 7 of them minors, live in the targeted apartment; the apartments on the ground and first floors of the house are the homes of the man’s two brothers and their families.

Justices Mazuz and Karra held that so long as the accepted case law allows use of the authority granted under Regulation 119 of the 1945 Defense (Emergency) Regulations, it must be done “carefully and with a level of restraint, reasonably and proportionately”, not least with regards to the question of the family’s involvement. This given that use of this authority entails, in the words of Mazuz, “severe harm to a succession of rights, including harm to property, harm to human dignity and a succession of rights deriving from human dignity”.

In the case at issue, the court found that as there was no allegation that the woman and children were in any way involved in the man’s deed, not even after the fact, and as the accused, if found guilty, would serve a long prison sentence, it was clear that “the demolition of the home is primarily harm inflicted on the wife and children”, who are innocent beyond doubt. It was therefore ruled that “the principle of proportionality requires mitigating the harm”, despite the fact that in this case, there was a clear link between the attack and the house itself, as the lethal block was thrown from the roof. The demolition order was cancelled, while retaining the military commander’s authority to replace it with an order for sealing one of the apartment’s rooms. Justice Mazuz noted that this had been done in the past, including in a case where the HCJ had issued an order nisi, following which the military decided to replace the demolition order with a sealing order for one room. Additionally, Justices Mazuz and Karra repeated their principled position that using the authority under Regulation 119 raises a range of difficult legal questions, which are yet to be adequately addressed by the HCJ.

In the minority, Justice Willner opined that the petition should be dismissed, among other things, based on a classified opinion, presented to the justices ex parte, ostensibly showing that this measure serves to deter potential attackers.

HaMoked hopes that the military will refrain from issuing any sealing order in this case, and thus embrace the judgment’s spirit, with its emphatic emphasis on the complete innocence of the woman and her children.

In total, the HCJ has cancelled 9 punitive demolition orders since Israel resumed its punitive demolition policy in July 2014 – all of them on the grounds of disproportionality. During this period, 68 home were demolished or sealed (either completely or partially) under Regulation 119, almost all with the approval of the HCJ.

It should also be noted that on July 23, 2020, HaMoked wrote Supreme Court President Esther Hayut to request she clarify to the justices who presided over the case that it is their duty to make sure proper decorum is maintained in the courtroom. This following the unrestrained verbal assault on HaMoked’s attorneys at the hearing by the bereaved parents of the soldier, who were allowed to address the Court. Despite the personal attacks directed at HaMoked’s attorneys, which were unacceptable in a court proceeding, the justices opted not to intervene.

* In a brief response of August 18, 2020, the Supreme Court liaison coordinator stated that “given the circumstances of the matter, the panel of justices did not find the discourse in the courtroom warranted their intervention”.
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