Center for the Defence of the Individual - HCJ approved punitive demolition of a Palestinian home in the West Bank; minority opinion of Justice Kabub: the demolition should be cancelled as it would render innocent people homeless; the principled issues should be heard before an expanded panel of the court
العربية HE wheel chair icon
חזרה לעמוד הקודם

HCJ approved punitive demolition of a Palestinian home in the West Bank; minority opinion of Justice Kabub: the demolition should be cancelled as it would render innocent people homeless; the principled issues should be heard before an expanded panel of the court

On July 7, 2022, a majority of the High Court of Justice (HCJ) rejected HaMoked’s petition against the punitive demolition order targeting a single-story home in Rummanah village in the West Bank. This is the home of the parents and four siblings of a man indicted for the commission of a fatal attack against Israelis on May 5, 2022, in which three Israelis were killed. The home is owned by his father.

In the majority opinion, penned by Justice Elron, the Court ruled the demolition order was proportionate. HaMoked’s principled arguments that this was collective punishment prohibited under international law were dismissed out of hand. The Court unreservedly adopted that security officials’ position that this measure contributed to deterring potential attackers. As to the case in hand, the Court rejected HaMoked’s argument that just to seal the assailant’s room would serve the alleged purpose of deterrence, ruling that the assailant had a residential tie to the entire building, and also that scaling down the order would weaken the deterrence impact sought by use of Regulation 119 of the Defence (Emergency) Regulations of 1945. The majority opinion began with an extensive description of the attack – as if this were the indictment against the assailant – and ended in the same vein, with phrases encapsulating Israel’s policy of punitive home demolition: “At the end of the day, the [assailant]’s choice and his inhuman deeds landed his family in their present predicament. If others aspiring to commit terrorist attacks wish to spare their family such misery, they can do so. May they choose to turn their back on these murderous aspirations, at least out of concern for their family’s home”.

In the minority, Justice Kabub ruled that there were flaws in the Military Commander’s decision that warranted canceling the demolition order. As to the principled issue, he wrote that he did not share his fellow justices’ position that, based on previous case law, there was no need to review the issue anew, and stressed: “we must keep in mind that we are not dealing with a petition of the assailant petitioning against the proportionality of the harm done to him. The assailant is standing trial, and if and when he is convicted of that attributed to him, he is likely to spend the rest of his life behind bars and rightly so…”; instead, at issue is the severe harm to six innocent family members who are to become “all of them, in one fell swoop, homeless”. Justice Kabub clarified that in his opinion, “although I am aware of the practiced precedent, I am bound to note that the principled arguments raised in the petition… are weighty arguments, which raise legal and moral questions both regarding issues relating to international law and regarding issues relating to our own legal system”, arguments which should be revisited “by an expand panel of this court, so that they receive comprehensive, rigorous and up-to-date scrutiny”. In this context, the Justice emphasized that “The State of Israel, as a democratic state, is obligated to protect the lives of its citizens, while blocking every attempt to attack them. But it is also obligated to do so without harming the lives, property, and rights of innocent people”.   

Regarding the matter of discretion, Justice Kabub wrote that the military commander is obligated to use his authority under Regulation 119 “cautiously and with considerable restraint, reasonably and proportionately”, as “use of the authority entails a severe violation of several basic rights, including harm to property and human dignity…”. In the present case, wrote Justice Kabub, “no one disputes that the home was not actually used in terrorist activity; and contrary to my fellow justices, I do not find that the materials presented before us substantiate the claim that the decision to carry out the attack was ‘hatched’ on the roof of the home of the assailant’s parents; moreover, the assailant is merely an ‘accompanying tenant’. The home in question is not his home or property… the assailant’s affinity to the home, therefore, is on a low level; additionally, no one disputes… that the assailant’s parents were entirely uninvolved… and the same is especially true with regards to his minor siblings… to all this, one must add the health condition of the assailant’s mother, who has cancer”. In these circumstances, ruled Justice Kabub, “at the very least [given] the absence of any involvement on the part of the household members, the severe violation of the rights of uninvolved persons tips the balance and overrides the considerations of deterrence… insofar as these are indeed deterrence rather than punitive considerations”.

As to the issue of deterrence, Justice Kabub held that the majority justices’ determination that proof that the family members “lacked any awareness of the assailant’s intentions” was insufficient “to nullify the need to demolish the entire house”, was “contrary to reason and common sense, and certainly is not compatible with the claimed deterrence objective”, because if family members knew that their home would be demolished in any event, they would have no incentive to prevent attacks against Israelis. He added that neither could he accept Justice Elron’s conclusion that merely sealing the assailant’s room would reduce the deterrent effect, especially as “no evidence has been brought before us on the deterrence achieved by use of a more proportionate measure, such as sealing the assailant’s room”. He also suggested that in future, the State present “an opinion, as detailed as possible, on all matters relating to the deterrence aspect of a home’s partial demolition or sealing”. He went on to add that “it is impossible to ignore the concern that the severe and disproportionate harm to the innocent family members… who in an instant are made destitute [and] homeless, would lead to feelings of anger and frustration, causing the opposite of the desired outcome”.   

Justice Kabub also criticized the absence of an explicit Ministry of Defense guarantee to compensate neighbors who suffered damages due to the implementation of a punitive demolition order, particularly when “hot detonation” was used. The Justice added that “the competent entities would do well to establish a viable and accessible procedure” for such cases.