For the first time since 2016, the HCJ has cancelled a punitive order for the demolition of a West Bank home; HaMoked’s petition successfully saved a woman and her three young children from becoming homeless
On May 25, 2020, the High Court of Justice (HCJ) accepted, in a majority opinion, HaMoked’s petition against a punitive order for the demolition of a home in Beit Kahil, Hebron District. The order had targeted the family home of a Palestinian man accused of involvement in the murder of a young Israeli man, Dvir Sorek, on August 7, 2019. The accused man’s wife and three young children (aged two, seven and eleven) live in the targeted apartment, which spans the entire second floor of a two story house; his parents and brother live in the building’s ground floor. None of the occupants of the house are suspected of any wrongdoing.
The majority justices, Baron and Vogelman – against the dissenting opinion of Justice Mintz – accepted HaMoked’s argument that the order was disproportionate due to the excessive delay in its issuance. This, given that the military only notified the family of its intention to issue an order to demolish their home on January 10, 2020 – some 5 months after the attack and the accused man’s arrest in August 2019, and some 3 months after he was indicted in October 2019 (and also, as Justice Baron emphasized, given that some six weeks had passed since the demolition of four other homes
in which other suspects in the attack had lived).
Justice Baron reiterated her position that the order must be cancelled simply by virtue of the complete innocence of the family members living in the targeted home. She then determined that: “Use of the home demolition measure is intended solely for the purpose of deterrence
… and not as an another means of punishing the assailant and certainly not to appease public opinion” (emphasis in the original); “the aspect of time is therefore of prime importance in achieving effective deterrence…”; “The passage of time results in the severing of the ‘mental link’ between the murder and the consequential [demolition] sanction… and in the absence of the effect of deterrence, the demolition order appears to be purely punitive, and as such is unreasonable and disproportionate”.
Justice Vogelman reiterated his position that “Even when an authority exists, in light of the severe consequences involved in use of Regulation 119, there is a need for a meticulous review of the Military Commander’s exercise of discretion according to the standards of administrative law, including the requirements of reasonability and proportionality”; the delay [in this case] impacts the deterrence justification underlying the exercise of the authority by virtue of Regulation 119… and in particular, it increases the expectation by the petitioners that the passage of time since the indictment… without a [demolition] order having been issued, indicates that it was decided to refrain from exercising the authority…”.
The judgment repeatedly cites the Abu Hashiyeh case – a 2015 precedential judgment
in a petition by HaMoked, in which a punitive demolition order was cancelled due to the excessive delay in exercising the authority under Regulation 119. In total, the HCJ has cancelled 8 punitive demolition orders since Israel resumed its punitive demolition policy in July 2014 – all of them on the grounds of disproportionality. During this period, 68 home were demolished or sealed (either completely or partially) under Regulation 119, almost all with the approval of the HCJ.