HCJ approved punitive demolition of three-story home in West Bank; Court voids demolition of storage floor, as assailant used it for commercial purposes rather than residence

On May 19, 2022, the High Court of Justice (HCJ) rejected most of HaMoked’s petition against the punitive demolition of a home in the West Bank village of Ya’bed. The apartment to be demolished is the home of the parents, the siblings and the grandparents of an assailant who was killed while perpetrating a fatal shooting attack against Israelis on March 29, 2022, in which 5 people were killed, three Israelis and two foreign nationals. The military issued an order to demolish the entire three-story apartment on the west side of a four-story building, as well as the ground floor which contains storage rooms and also serves the apartment on the east side of the building.

The HCJ approved the demolition of the three residential floors, rejecting once again HaMoked’s principled claims that this was collective punishment prohibited under international law. The Court reiterated the steadfast position of the majority of the justices that this was the standing precedent and that harm to innocent family members was just “a byproduct”, albeit a “harsh and complicated” one, of this measure serving deterrence purposes. The Court also adopted, yet again, the State’s position, based on security officials’ opinion presented ex parte, that “at the present time” this was an effective measure for deterrence, but noted that the matter must be reexamined “over and over again”.

As to the case in hand, having considered the “residential tie” between the assailant and the structure, Court President Hayut ruled that the military commander’s finding that such a tie existed with regard to the three-floor apartment was without fault. The HCJ however accepted HaMoked’s petition with regards to the ground floor containing storage rooms, ruling that this floor was not directly linked with a staircase to the west-side apartment and that the assailant’s tie to this floor – where he and his family stored merchandise to be sold in their stores– was a commercial tie rather than the residential tie necessary to justify its punitive demolition under Israeli case law.