High Court majority approved the demolition of a family home in East Jerusalem following an attack against Israelis; Justice Kara in the minority held that the classified security opinion did not substantiate the claim that demolition is an effective deterrent המוקד להגנת הפרט
20.01.2022
High Court majority approved the demolition of a family home in East Jerusalem following an attack against Israelis; Justice Kara in the minority held that the classified security opinion did not substantiate the claim that demolition is an effective deterrent
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The punitive demolition of homes constitutes collective punishment and is utterly prohibited under international law. However, since 2014, when Israel resumed demolishing and sealing Palestinian homes as punishment and on the pretext of deterrence, the High Court of Justice (HCJ) has approved the vast majority of punitive demolition orders, ruling each time that this was a proportionate measure given the circumstances of the case, without ever examining the principled issue in depth. Only in a handful of cases was a punitive order reduced in scope to just part of the house following HaMoked’s court petition, and only in eight cases did the HCJ completely cancel the demolition order.

On January 19, 2022, a majority of the High Court of Justice (HCJ) approved the demolition of a family home in Shu'fat refugee camp in East Jerusalem. The targeted apartment, which spans the entire fourth floor of a five story building, is the home of a widow and her five children – three of them minors – whose husband and father committed a fatal shooting attack against Israelis in East Jerusalem on November 21, 2021.  

Justice Stein, who wrote the main part of the judgment, rejected HaMoked’s principled arguments that this was prohibited collective punishment, and justified his ruling by making the flimsy claim that “the resultant harm to the assailant’s family members, harsh as it may be, is embedded in the very sanction of the home’s demolition”. Stein also rejected HaMoked’s argument about the questions surrounding the effectiveness of this measure for deterring potential assailants, ruling that this was an “expressly professional matter” and that “the position of the professional entities and the classified material presented before us constitute administrative evidence of the most stringent criteria”. However, despite his decisiveness in this matter, even he noted in an aside that the deterrent effect was “relatively modest”. Justice Amit, who sided with Stein, added with less conviction “as to the deterrence aspect… although I am less decisive than my colleague… I agree with him that before us is real administrative evidence”.

Justice Kara, in the minority, held that an order nisi should be issued to prevent implementation of the demolition order. Kara reiterated his position that the principle issues must be revisited before an expanded panel of justices, in order to explore “the difficulties in the fields of domestic law and international law that have not been rigorously analyzed and reviewed in this court’s case law” regarding use of Regulation 119. He repeated his stance that, given the fact that this measure was used routinely as the first and only measure in response to fatal attacks against Israelis – based on the questionable claim of deterrence, and without there having been a rigorous legal consideration of the principled issues – this constituted a prohibited act collective punishment.

Justice Kara criticized at length the unreserved acceptance of the classified security opinions the state submitted to the court to substantiate its claim that punitive demolitions were effective for the purpose of deterrence. Kara wrote: “I am not at all convinced that the opinion presented on behalf of the security entities shows that their conclusion in this matter is based on real evidence”. He added that the expertise of a member of the security forces in fighting terror “does not necessarily turn them into experts who can identify the potential of ‘collective deterrence’ of a civilian population using a tool such as house demolitions”. Justice Kara determined that “the time has come to revisit the professional validity, the credibility and the weight of security opinions presented before us in [such] cases…”.

Regarding the case at hand, Justice Kara ruled that given the fact that none of the family knew about the assailant’s plans or condoned the attack after the fact, the demolition decision was clearly “unreasonable and disproportionate collective punishment that has no moral or legal justification, and lacks any deterring effectiveness”. He added that in view of the complete innocence of the occupants of the house, “there is need for clear evidence – empirical or otherwise – that the act would provide a substantial contribution to security. No such evidence has been presented before us. Therefore, it appears there is no room to attach a substantial weight – if any at all – to the security opinion”.  

It should also be noted that in an unprecedented step, after the petition was filed, the HCJ refused to issue an interim injunction prohibiting demolition of the home before the end of the legal proceedings. In this matter, Justice Amit noted in the judgment that “insofar as the matter requires further clarification”, it is clear that “when a petition is filed, the implementation of the order will be suspended until judgment is issued”.

* On January 30, 2022, Supreme Court President Hayut rejected HaMoked’s request for a further hearing in the matter. In its request, HaMoked argued, among other things, that the majority justices had ignored its weighty argument regarding the current reality in Jerusalem: in 2008, the state justified the revival of the punitive house demolition policy in East Jerusalem by claiming a significant change of circumstances, i.e., an escalation in the security situation in the city (HCJ 9353/08); now, given the current opposite trend – the fact that in the past five years there had been no fatal attacks against Israelis in the city, and hence no punitive demolition orders had been issued – this also should be viewed as a significant change of circumstances warranting reconsideration of the demolition decision. However, in her decision, President Hayut maintained that this was an appeal argument and that the judgment’s silence regarding various arguments raised by HaMoked did not constitute a new precedent justifying a further hearing.  

The military demolished the home on February 1, 2022.

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