HCJ rules in petitions against six punitive house demolitions in the West Bank: Demolition of 5 homes goes ahead, demolition of rented apartment cancelled המוקד להגנת הפרט
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12.11.2015
HCJ rules in petitions against six punitive house demolitions in the West Bank: Demolition of 5 homes goes ahead, demolition of rented apartment cancelled
HCJ rules in petitions against six punitive house demolitions in the West Bank: Demolition of 5 homes goes ahead, demolition of rented apartment cancelled
On November 12, 2015, the HCJ issued its ruling in 11 petitions (ten of which were filed by HaMoked), against decisions to demolish six family homes of Palestinians who had committed or are suspected of having committed attacks against Israelis. Six petitions were filed on behalf of the families and five on behalf of neighbors or owners.
The court repeated its previous ruling that the purpose of Regulation 119, which gives the military commander the power to order the seizure and demolition of Palestinian homes in the OPT is deterrence rather than punishment. The justices noted that although house demolitions are a serious measure that harms families, when the acts attributed to a suspect are particularly severe, it may possibly justify the use of the extraordinary sanction of the demolition of his house based on considerations of deterrence”. On the question of the military commander’s power to order the seizure and demolition of homes, the court ruled that the power does exist, and therefore, judicial review should focus on the issue of discretion, rather than the root of the power itself. Addressing the argument made by HaMoked that punitive demolitions are a breach of international law, Justice Solberg stated that international law must be adjusted to fit the reality in which Western countries are facing the “phenomena of terror”, and noted that “the expectation that the state continues to adhere to the dichotomous distinctions created by international law may tie its hands in the war against terror, and put at risk the security of its citizens”.

The justices found that the classified material presented by the state indicated effective deterrence in many cases, though the material did not amount to research. However, based on the classified material, the court clarified it did not believe house demolitions create deterrence when the damage is caused to a “house owned by an ‘unrelated’ third party, who is neither a family member of the perpetrator nor has any knowledge of his intentions”.

And so, addressing an order issued for a rented apartment in Silwad, the court ruled there was no indication that the demolition creates deterrence in such circumstances, given that “most of the damage caused as a result of the demolition would be suffered by the lessor rather than by the accused and his family members”. Moreover, the justices found that in the particular case, the measure was disproportionate given the weak ties of the suspect and his family to the apartment slated for demolition, as this was a short term rental. The court ruled in favor of the petitioner – the owner of the building where the family rented an apartment, and ordered the revocation of the order, subject to the evacuation of the suspect’s family from the apartment until November 17, 2015 at 12:00 noon. The court did, however, stress that it would not automatically rule against a demolition in every case in which a terrorist or suspected terrorist lived in a rental unit.

In terms of the tight schedules the state forces on petitioners with respect to the time the order is issued (lately, on Friday morning) and the time an objection may be filed (48 hours from the time the order is issued, meaning until Sunday morning. Friday and Saturday are the weekend in Israel, Friday is a weekend day in the West Bank as well), the court ruled that this did present a difficulty and that the state must establish “reasonable procedures regarding the relevant dates, including the period for the submission of an objection”. The court also ruled that the state had no obligation to provide the petitioners with engineering reports on the demolitions since they were presented with the general picture concerning the demolition plans.

On the issue of compensation, the court held “When the demolition may cause damage to innocent third parties who are not family members of the perpetrator and were not aware of his intentions […] it would be appropriate to condition the demolition on repairing incidental damages or compensating therefore, even if they were caused without negligence on respondents' part”. “In the absence of this condition”, the court added, “[W]e cannot say that the demolition is proportionate”. The court ruled there was no need to establish preset conditions on this issue: “The default should be […] compensation shall be paid or damage shall be repaired”. However, the court did say that in “extraordinary circumstances”, the state will not be required to compensate “innocent third parties”, if it obtains a declarative judgment from a competent court exempting it from payment of such.

As for the five homes whose demolition the HCJ approved, on Saturday morning, November 14, 2015, the military demolished three family homes in Nablus and one in Silwad. On November 16, 2015, the military demolished another home, in Qalandiya Refugee Camp.
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On November 12, 2015, the HCJ issued its ruling in 11 petitions (ten of which were filed by HaMoked), against decisions to demolish six family homes of Palestinians who had committed or are suspected of having committed attacks against Israelis. Six petitions were filed on behalf of the families and five on behalf of neighbors or owners.
The court repeated its previous ruling that the purpose of Regulation 119, which gives the military commander the power to order the seizure and demolition of Palestinian homes in the OPT is deterrence rather than punishment. The justices noted that although house demolitions are a serious measure that harms families, when the acts attributed to a suspect are particularly severe, it may possibly justify the use of the extraordinary sanction of the demolition of his house based on considerations of deterrence”. On the question of the military commander’s power to order the seizure and demolition of homes, the court ruled that the power does exist, and therefore, judicial review should focus on the issue of discretion, rather than the root of the power itself. Addressing the argument made by HaMoked that punitive demolitions are a breach of international law, Justice Solberg stated that international law must be adjusted to fit the reality in which Western countries are facing the “phenomena of terror”, and noted that “the expectation that the state continues to adhere to the dichotomous distinctions created by international law may tie its hands in the war against terror, and put at risk the security of its citizens”.

The justices found that the classified material presented by the state indicated effective deterrence in many cases, though the material did not amount to research. However, based on the classified material, the court clarified it did not believe house demolitions create deterrence when the damage is caused to a “house owned by an ‘unrelated’ third party, who is neither a family member of the perpetrator nor has any knowledge of his intentions”.

And so, addressing an order issued for a rented apartment in Silwad, the court ruled there was no indication that the demolition creates deterrence in such circumstances, given that “most of the damage caused as a result of the demolition would be suffered by the lessor rather than by the accused and his family members”. Moreover, the justices found that in the particular case, the measure was disproportionate given the weak ties of the suspect and his family to the apartment slated for demolition, as this was a short term rental. The court ruled in favor of the petitioner – the owner of the building where the family rented an apartment, and ordered the revocation of the order, subject to the evacuation of the suspect’s family from the apartment until November 17, 2015 at 12:00 noon. The court did, however, stress that it would not automatically rule against a demolition in every case in which a terrorist or suspected terrorist lived in a rental unit.

In terms of the tight schedules the state forces on petitioners with respect to the time the order is issued (lately, on Friday morning) and the time an objection may be filed (48 hours from the time the order is issued, meaning until Sunday morning. Friday and Saturday are the weekend in Israel, Friday is a weekend day in the West Bank as well), the court ruled that this did present a difficulty and that the state must establish “reasonable procedures regarding the relevant dates, including the period for the submission of an objection”. The court also ruled that the state had no obligation to provide the petitioners with engineering reports on the demolitions since they were presented with the general picture concerning the demolition plans.

On the issue of compensation, the court held “When the demolition may cause damage to innocent third parties who are not family members of the perpetrator and were not aware of his intentions […] it would be appropriate to condition the demolition on repairing incidental damages or compensating therefore, even if they were caused without negligence on respondents' part”. “In the absence of this condition”, the court added, “[W]e cannot say that the demolition is proportionate”. The court ruled there was no need to establish preset conditions on this issue: “The default should be […] compensation shall be paid or damage shall be repaired”. However, the court did say that in “extraordinary circumstances”, the state will not be required to compensate “innocent third parties”, if it obtains a declarative judgment from a competent court exempting it from payment of such.

As for the five homes whose demolition the HCJ approved, on Saturday morning, November 14, 2015, the military demolished three family homes in Nablus and one in Silwad. On November 16, 2015, the military demolished another home, in Qalandiya Refugee Camp.
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