On December 1, 2015,
the High Court of Justice (HCJ) issued its judgment on HaMoked’s
petition against the military’s intent to demolish the family home of the suspect in planning the attack, which was perpetrated on October 1, 2015, in which Mrs. and Mr. Henkin couple were killed.
The court ruled that the military’s decision was reasonable and proportionate and so there was no call to interfere with it. “I am satisfied that the Respondent has lifted the burden laid on him, with regard to the deterrence effect that exists in exercising the authority under Regulation 119, and it seems that these matters have been considered, with gravity, recently, against the backdrop of the terror incidents assailing us in the past weeks”, wrote Justice Shoham in the judgment. Justice Handel joined this position, adding that the secret information presented by the state concerning the purported efficacy of demolition assailants’ homes, was more compelling than had he anticipated.
Conversely, Justice Mazuz, in the minority, held that the evidentiary infrastructure was insufficient for rejecting the petition. On the one hand, a criminal investigation was still underway against the youth who had not participated in the shooting attack, but is suspected of involvement in preparing the attack; on the other hand, implementing the demolition order means causing severe and irreparable harm to the youth’s family – harm to the innocent.
Justice Mazuz noted that the use of Regulation 119 raises poignant questions not only regarding international law, but also in context of Israeli law. The Justice addressed the arguments raised by HaMoked in a series of petitions against punitive demolitions, as well as in the current petition, whereby Regulation 199 “
conflicts with international humanitarian law, including those [rules] which prohibit collective punishment and damage to property”, and
breaches the proportionality principle in Israeli constitutional law. In this context, Justice Mazuz noted that the finding “that the sanction under Regulation 119 constitutes a means of deterrence and not punishment, is not free from doubt”, and so is the finding that this regulation “remains in force as a provision in internal law which prevails over a provision in international law”. The Justice also stressed that a rigorous scrutiny of these principle issues is required, and noted that “examining Regulation 119 according to the rules of
Israeli administrative and constitutional law as stated, might require setting limitations and conditions for its use and setting various distinctions as to the scope of the permitted and prohibited in this matter.”
