Judgment on HaMoked’s petitions against the planned punitive demolition in Hebron: the HCJ dismissed the petitions, but also directed severe criticism at the state’s conduct המוקד להגנת הפרט
17.10.2015
Judgment on HaMoked’s petitions against the planned punitive demolition in Hebron: the HCJ dismissed the petitions, but also directed severe criticism at the state’s conduct
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On October 15, 2015, the High Court of Justice (HCJ) dismissed HaMoked’s two petitions against the military’s decision to demolish the family home of the perpetrator of the attack at Alon Shut Junction in November 2014. One petition was filed on behalf of the assailant’s wife and children, and the other on behalf of the families living in the other apartments in the same building.

In the judgment, Justice Rubinstein determined that there was no room to discuss anew the general issue of punitive demolition, since that the issue had already been debated in court, and ruled that there was no cause to intervene in the specific case in hand. However, the court stressed that “this matter is nonetheless subject to reasonableness, proportionality and common sense, and appearances are also important”. Moreover, the court ruled that the state must announce its decision to demolish the house “at the nearest possible date to the criminal case in question”. Despite the petitions’ dismissal, the justices pronounced that “in looking ahead, our comments must be taken into account, even though the exact date is essentially in the hands of the authorities”.

With regards to the manner of executing the demolition, the justices emphasized that the state must do the utmost to perform the demolition using careful means and with an engineer on site, as it had guaranteed; this, “surely and particularly with regards to the apartments of the neighbors, who are uninvolved in this difficult affair”. Furthermore, the justices noted that “in the case of unreasonable damage to the neighbors’ apartments, we hold that the door is not shut on the issue of compensation”.

The justices expanded on the underlying issue of principle, despite the court’s earlier dismissal of HaMoked’s public petition against punitive house demolition; Justice Vogelman, in the minority, expressed doubt as to “the actual deterrence achieved by using Regulation 119”, pursuant to which the military commander orders the demolition of Palestinians’ homes. Vogelman also noted that “exercising the power granted under the Regulation has required and still requires meeting the tests of proportionality”. Furthermore, the professed effectiveness of house demolition as a deterrence measure must be considered in balance with the consequences of the demolition. In the words of Justice Vogelman: “it is one thing to demolish the home of the person who has come to destroy us when he has lived there alone; it is another thing to demolish a structure where relatives or other occupants live, who were not involved in his malicious plan, whose home topples down on them for no wrong of their own”. In such a case, noted Vogelman, “the demolition of the home is done with authority, but the flaw is in the level of the discretion: in such a case, the action is unbalanced”.

As to case in hand, Justice Vogelman noted that it was unlike most cases “because of the excessive delay in the Respondent’s conduct”. In addressing HaMoked’s argument as to the proximity in time between the issuance of the demolition order – for an offence committed months before – and current events, the court said that “the outcome, as the argument goes, is that the assailant’s family is harmed not only for the crime it had committed itself, but also for crimes committed by others, who are not the assailant who came from it”.
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