On May 31, 2016, the High Court of Justice (HCJ) unanimously
rejected HaMoked’s petition against the intended demolition of a family home of a minor who had carried out a stabbing attack on January 17, 2016 in the South Hebron Hills. The justices ruled that while there was no evidence that the family members knew about the son’s plan to carry out an attack, the family picture arising in retrospect was one of support of such attacks, and therefore, in the present case there was need for future-oriented deterrence of potential assailants and their family members.
On June 2, 2016, HaMoked
asked the court to extend the period given until the demolition may be implemented, which was to expire on June 10, 2016, in order to allow the family to apply for a further hearing in the petition. The court
rejected the motion.
On June 9, 2016, HaMoked filed an
urgent application for a further hearing before an expanded panel and for postponing the demolition pending the end of proceedings. HaMoked held that issuing a punitive demolition order for the family home of a minor was an exceptional and unbalanced act; and that despite the attacker’s young age (15.5 at the time of the event), no weight had been given to this matter in the judgement. HaMoked stressed that there was no clear data about the efficacy of punitive home demolition for deterring potential assailants, and that this issue had
never been examined in connection to minors.
In the application, HaMoked presented empirical data collected in recent years concerning punishment and deterrence of minors, which clearly indicated that the behaviour of minors was not necessarily rational and that there was no correlation between the severity of the punishment and the efficacy of deterrence. Moreover, Israeli jurisprudence has long accepted that as a rule, the behaviour of minors is motivated by other factors than that of adults, and hence that other legal tools must be used in the case of juvenile offenders. Despite that, these tools were not employed in the area of punitive home demolitions and the acts of minors and adults were not treated as essentially different.
The court ruled that using Regulation 119 against relatives was proportionate despite their lack of complicity in or knowledge of the son’s intention; this because they should have known about his intentions (“constructive knowledge” in legal parlance), given his age and the fact that he had lived at his parents’ home. To this, HaMoked countered that the boundaries of the term “constructive knowledge” were very blurred, and stressed that the court’s pronouncement meant that “a family has no way to avoid the demolition of its home if one of the family members decides on his own to carry out an attack”.
HaMoked asserted that thus using Regulation 119 was a punitive measure, contrary to the professed strict goal of deterrence. The court based its decision on statements family members had made after the fact, and from that deduced support of terrorism. Rather than focusing on deterring potential attackers’ families that might prevent the attack, the family in this case was being punished for statements and failure to condemn the attack after it took place; coupled with the court’s strange attempt to scrutinize parental skills of parents of juvenile attackers.
