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26.10.2020

High Court of Justice approves punitive demolition in the West Bank, home to a woman and her five daughters: in the minority, Justice Mazuz considers the sanction in this case disproportionate

On October 25, 2020, the High Court of Justice (HCJ) issued a majority judgment approving the punitive demolition of a house in Rujeib in the West Bank, the home of a family of six, including four minors. The order for the home’s demolition was issued following the indictment of the father of the family for the fatal stabbing attack on August 26, 2020, in which Shai Ohayon was killed. HaMoked filed a petition against the demolition on behalf of the woman and her daughters, as well as the suspect’s father, who owns the land on which the home is built.

Justice Sohlberg dismissed all of HaMoked’s arguments. In rejecting the principled argument that the demolition order constitutes a violation of the international law prohibition on collective punishment, Justice Sohlberg maintained: “we cannot… interpret the international conventions that the State of Israel took upon itself [to uphold] separately from the specific aspect of the war on terror… We desire life, and will not die to sanctify the Geneva Convention”.

Justice Sohlberg also rejected HaMoked’s argument that in this case the measure was disproportionate given the occupants’ complete innocence, writing that “these things must be reviewed as a whole” and that “there is no obligation to demonstrate in each case that the occupants of the home knew about the criminal activity of one of the occupants, or even encouraged it”. As to the claim that this would inflict severe harm contrary to the principle of the child’s best interest, Justice Sohlberg wrote dismissively: “naturally, when dealing with domiciles, occasionally minors are to be found among the occupants; and still, the need for deterrence remains”.

Justice Mazuz objected to the ruling of the majority and reiterated his position that the home demolition issue raises a range of principled questions relating to international humanitarian law, “chief among them the prohibition on collective punishment”. He noted that although Regulation 119 is still valid under Israeli case law, from the “aspect of discretion and standards for employing the authority, it seems difficult to speak of clear or consistent case law”. As Justice Mazuz explained: “in practice, over the years, in the case law there have been different tendencies and approaches regarding the standards for reviewing the reasonability and proportionality of exercising the authority”.
Justice Mazuz also questioned Justice Sohlberg’s position regarding the measure’s effectiveness as a deterrent, and went on to stress that “even if indeed using the sanction under Regulation 119 contributes to deterring potential assailants, I do not think it can justify harming the innocent”. Therefore, Justice Mazuz held that in this case, “harm to the house primarily constitutes harm to the wife and daughters”, who are innocent, whereas the assailant “is expected to serve long prison sentences, if convicted”; and that given “these circumstances, I am of the opinion that a sanction directed at harming the innocent cannot stand”.
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