On April 3, 2016, the High Court of Justice (HCJ) accepted three of
four petitions filed by HaMoked against the military’s plan to seal the homes of four families in Sur Bahir in East Jerusalem. Members of these families are accused of participating in rock throwing in the city which resulted in the death of an Israeli citizen on September 13, 2015. The HCJ revoked three of the sealing orders and approved one, issued against the young man alleged to have thrown the deadly rock.
In the judgment, Justice Hayut ruled that sealing the opening of the home in the case of the young person who allegedly threw the deadly rock was proportionate. She relied on
HCJ 126/83, a case in which the court declined to intervene in a decision made by the military commander to seal the homes of individuals suspected of throwing rocks that resulted in the death of an Israeli citizen. Justice Hayut, however, found that a similar act against the family homes of three other youths who were involved in the incident but did not throw the lethal rock, was not proportionate. Justice Zylbertal concurred with Justice Hayut.
Justice Vogelman concurred with the decision to dismiss the three orders, but believed an order nisi was warranted in the fourth petition as well to compel the state to explain its decision and consider confining the order to the young man’s room only, rather than the entire house. In his opinion, Justice Vogelman stated that though the youth is alleged to have thrown the lethal rock, no “lethal intention” is alleged, nor was there any involvement on the part of family members. The Justice, therefore considered the sealing of all the openings of the home disproportionate. He disputed Justice Hayut’s position that the court should follow rules set down by the court with respect to rock throwers (HCJ 126/83) more than three decades ago, and stated that current case law, which allows harming uninvolved family members, applies only in the case of hostile activity, carried out with intention to cause death and resulting in loss of life: “The case at hand goes a step further from case law established in the current era of use of the power, and I believe this cannot be sustained, even when said case law remains”.
