HCJ approves punitive demolition of three homes in Qabatiya: Two of the justices called for reconsideration of case law on demolitions המוקד להגנת הפרט
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04.04.2016
HCJ approves punitive demolition of three homes in Qabatiya: Two of the justices called for reconsideration of case law on demolitions
HCJ approves punitive demolition of three homes in Qabatiya: Two of the justices called for reconsideration of case law on demolitions
On March 24, 2016, the HCJ, in a majority ruling, dismissed petitions filed by HaMoked against demolition orders issued for three homes in Qabatiya, Jenin District. The homes belong to the families of three young men who perpetrated an attack in Nablus Gate, in the Old City of Jerusalem on February 3, 2016.

Supreme Court Vice President Rubinstein and Justice Barak-Erez agreed that given case law, which acknowledges house demolitions as a deterrent, there is no room for the court to intervene in the military commander’s decision. However, Justice Barak-Erez did find that use of house demolitions as a deterrent raises some difficult questions and the court should revisit case law on this subject. Yet, “since the position of the Court on this issue has been revisited only recently, I see myself bound by it at this time”.

Justice Joubran, in a dissenting opinion, believed the petitions should not be dismissed at that stage and that prior to making a decision, the court should receive the state’s full position on “the question of how the power is used in general, and the issue of deterrence in particular”. Justice Joubran stressed that he is not comfortable with the use of Regulation 119, which allows the military commander to order house demolitions, in cases in which family members were not involved in “terrorist activity”. On the theoretical level, Justice Joubran noted that “[U]se of the authority raises difficulties under local law and international law, which in my opinion have not yet been thoroughly addressed by the court in its judgments”, yet opted to follow these judgments on the “use of the power as a deterrent measure, per se”. In contrast, he did find that the manner in which the power was exercised was disproportionate and that “an abstract possibility to save lives does not suffice while confronted by an actual, real and tangible violation of the right to property and human dignity”.

Justice Joubran joined the call by Justices Mazuz and Vogelman, in a judgment issued the previous day in HCJ 1630/16 to revisit the issues of principle related to punitive demolitions before an expanded panel.
On the morning of April 4, 2016, the military demolished the three homes in Qabatiya.
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On March 24, 2016, the HCJ, in a majority ruling, dismissed petitions filed by HaMoked against demolition orders issued for three homes in Qabatiya, Jenin District. The homes belong to the families of three young men who perpetrated an attack in Nablus Gate, in the Old City of Jerusalem on February 3, 2016.

Supreme Court Vice President Rubinstein and Justice Barak-Erez agreed that given case law, which acknowledges house demolitions as a deterrent, there is no room for the court to intervene in the military commander’s decision. However, Justice Barak-Erez did find that use of house demolitions as a deterrent raises some difficult questions and the court should revisit case law on this subject. Yet, “since the position of the Court on this issue has been revisited only recently, I see myself bound by it at this time”.

Justice Joubran, in a dissenting opinion, believed the petitions should not be dismissed at that stage and that prior to making a decision, the court should receive the state’s full position on “the question of how the power is used in general, and the issue of deterrence in particular”. Justice Joubran stressed that he is not comfortable with the use of Regulation 119, which allows the military commander to order house demolitions, in cases in which family members were not involved in “terrorist activity”. On the theoretical level, Justice Joubran noted that “[U]se of the authority raises difficulties under local law and international law, which in my opinion have not yet been thoroughly addressed by the court in its judgments”, yet opted to follow these judgments on the “use of the power as a deterrent measure, per se”. In contrast, he did find that the manner in which the power was exercised was disproportionate and that “an abstract possibility to save lives does not suffice while confronted by an actual, real and tangible violation of the right to property and human dignity”.

Justice Joubran joined the call by Justices Mazuz and Vogelman, in a judgment issued the previous day in HCJ 1630/16 to revisit the issues of principle related to punitive demolitions before an expanded panel.
On the morning of April 4, 2016, the military demolished the three homes in Qabatiya.
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