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3.2.2021

With the approval of a High Court majority, the home of a women and her three underage children will be demolished: in the minority, Justice Baron held only the third floor should be demolished, as only the assailant used it

On February 3, 2021, in a majority opinion, the High Court of Justice rejected HaMoked’s petition against a punitive order for the demolition of two floors in a three-story family house in Tura al-Gharbiya village in the northern West Bank. The military order concerns the building’s second floor, the home of a woman and her three minor children, as well as the third floor, with a single room and bathroom. The order was issued following the arrest of the father of the family suspected of committing the fatal attack in which Esther Horgen was murdered on December 20, 2020. On the first floor of the building live the assailant’s father and the father’s wife.

The majority justices Amit and Barak-Erez declined to review HaMoked’s persistent claim that these demolitions constitute collective punishment and that use of Regulation 119 of the Defense (Emergency) Regulations entails substantive moral and legal questions. The facile manner with which both justices declined to hold a principled review is revealingly expressed in Justice Amit’s brief comment that “I am… willing to assume that this is not collective punishment in the usual sense of the word”. With similar ease, he added that “with a degree of caution… according to the material presented for our review by the Respondents, there is… substantiation to their position as to the existence of effective deterrence…”. As in the past, Justice Barak-Erez noted “I maintain that there is room for the [principled] issue to be revisited by an expanded panel of this court”. It should be noted that in the judgment, Justice Barak-Erez chose to pointedly deplore the fact that the military does not announce on its own initiative that the demolition will not be carried out until the petition is ruled upon, and thus compels the court to issue a temporary order to ensure the home is not demolished before full exhaustion of remedies.

As to the case in hand, the court ruled that the complete innocence of the mother and children does not justify halting demolition of their home.

In the minority, Justice Baron held that the second floor should not be demolished due to the disproportionate harm it would cause to the innocent family, and that it would suffice to demolish the third floor, which was used solely by the assailant (as claimed the State). “Deterrence is not a ‘magic word’ that can justify use of the measure of home demolition without exercise of discretion”, wrote Baron. With regard to the security opinion presented to the judges in camera that supposedly shows the deterrent effect of the demolition, Baron wrote that “I find no basis for a positive determination that use of the Regulation… does indeed achieve actual deterrence of terror acts and perhaps even the opposite. At the very least, it seems… that this is an open question, the answer to which is far from conclusive”. Justice Baron concluded that “I find that the decision to also demolish the second floor of the house is disproportionate – given that this floor is home to a woman and three children who, as stated, uncontestably had no involvement or knowledge in the terrible deeds, and did not even express support for them after the fact.”
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