The HCJ approved a punitive demolition in the West Bank: Justice Kabub in the minority ruled that the order was disproportionate and that the military should submit an update regarding collateral damage

On April 10, 2023, a majority of the High Court of Justice approved the punitive demolition of a residential unit in Ramallah, which was the home of the man who perpetrated two fatal attacks in Jerusalem on November 23, 2022. The apartment in question is on the second floor of a five-story building (containing 8 apartments in total and several stores), and is the home of the assailant’s parents and three sisters (one of whom is a minor), none of whom are suspected of any wrongdoing.

The majority justices, Amit and Groskopf, rejected HaMoked’s principled arguments that this was prohibited collective punishment. They also rejected HaMoked’s claim that Regulation 119 should not be used in this case, given the occupants’ innocence and absence of support for their relative’s actions. The HCJ also rejected the argument that the punitive demolition policy does not achieve deterrence, in Justice Amit’s words: “as long as it has not been disproven, I am willing to accept the assessment [of the security bodies] that in this case also, the use of the authority under Regulation 119 constitutes a measure of deterrence that may promote the prevention and reduction of further attacks”. Similarly, in rejecting the requested alternative remedy to limit the scope of the demolition to just one bedroom, Justice Amit unreservedly adopted the State’s claim that this “would lead to the nullification of the deterrence effect…”.  

Justice Kabub, in the minority, opposed each of the majority’s conclusion and reiterated his principled position that use of Regulation 119 was legally problematic and required an up-to-date, thorough and extensive“ examination before an expanded panel of justices. As to the case in hand, Justice Kabub ruled that the order was disproportionate and should be cancelled, among other things, because the petitioners took no part in the assailant’s deeds; the apartment was not used for any terrorist activity; the assailant was merely an auxiliary occupant with low-level residential ties to the apartment; and also in view of the significant potential for collateral damage to other innocent occupants in the building and in its vicinity, as a result of the planned method of demolition using explosives. On this last matter, Justice Kabub added that “the military commander and the petitioners are expected to submit an updating notice, with visual documentation, regarding the impact of the current demolition… shortly after its commission”. In this context, Justice Kabub also criticized the State for merely declaring that anyone whose property is inadvertently damaged as a result of a punitive demolition may apply for monitory compensation from the Ministry of Defense, and called for the establishment of an accessible and practicable compensation procedure.

Justice Kabub strongly opposed the majority’s ruling concerning the weight to be given to the fact of the family’s innocence and the scope of the demolition, and held that as the family had no foreknowledge about their relative’s deeds, the logical conclusion should be that their home must not be demolished in its entirety, as also arises from the purported deterrence purpose. He also noted that in future cases, “security officials should submit an opinion, as detailed as possible, regarding all that relates to the deterrence aspect of demolishing part of the home or its partial sealing”. In addition, he expressed concern that “use of this disproportionate measure could give rise to feelings of anger and frustration that would lead to the opposite result to the one desired”.