On November 4, 2015, the High Court of Justice (HCJ) held
a hearing on HaMoked’s petition against the military’s intent to demolish the family home of the suspect in planning the attack, perpetrated on October 1, 2015, in which the Henkin couple was killed. The family’s apartment is on the middle floor of a densely populated building in Nablus. HaMoked asserted that demolishing the floor could cause severe damage to the neighboring apartment and leave many innocent people without a roof over their heads.
In the hearing, the justices raised the issue of the proportionality of the decision to demolish the family home of anyone who committed, or is suspected of having committed an attack against Israelis – a decision which mainly harms those who are completely uninvolved in the offence for which the demolition order is issued. Justice Hendel posed a challenging question to the state: “You don’t want to deter only those who did the deed and those who may do similar deeds, but families. This is part of the deterrence. You want to deter people who may not necessarily commit these offenses. Why is this legitimate and is there any precedent for this?” The state replied that the demolitions' aim was to deter also those who could dissuade would-be attackers from carrying out their plans.
HaMoked stressed that in the present case, the suspect’s involvement in the attack was not sufficiently established. Therefore, in order to ascertain that the sanction for the deed was proportionate and reasonable, it must be suspended – i.e., its implementation frozen – until the criminal case was decided. On this point, the state reasserted that “the aim of using Regulation 119 is deterrence not punishment”. This led Justice Mazuz to say that, “The fact that the objective is to deter does not mean that it is not punitive as well. In general, it is the opposite. Deterrence and punishment go together”. And if the sanction was also punitive, held justice Mazuz, then the demolition procedure “does not meet the basic legal requirement that punishment is imposed based on the right of appeal, due process, etc.”
Justice Mazuz also noted that even if the exercise of the military commander’s authority under Regulation 119 is proportionate “in the sense that not every house is demolished”, there was room to think about other restrictions for its implementation. In this context, Justice Hendel inquired: “are there any similar provisions in other countries concerning demolition? You sometimes do it even if the person has died or if the house contains movable property. Is there such a sanction anywhere in the world?" The state representatives didn’t have answers to these questions.
Judgment has not yet been issued.
