Punitive house demolitions

Section 11 of the Ordinance stipulates: “The law which existed in Palestine on 5 Iyar, 5708 (14 May 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities.”

Israel contends that the revocation of the Mandate-era Defense (Emergency) Regulations was never published in the official Palestine Gazette, and, therefore, constituted “secret law,” as defined in Section 11 of the Ordinance: a law that “is not and never has been valid.” 

The adoption of the Defence (Emergency) Regulations into Israeli domestic law enables exercising the power to confiscate and demolish homes everywhere in the country. In practice, however, the power is not invoked inside Israel but only in the territories it seized in 1967.

A “secret” document authored by a Foreign Ministry official on June 15, 1967, indicates the demolition of the houses was considered a means of collective punishment against their residents. A mine intended to harm Israeli soldiers had been hidden near the homes, with tracks leading to them. However, there was no proof the person who laid the mines lived in any of these homes.

The houses are usually destroyed or sealed in the dead of night, with no proof of guilt. About 1,000 of the houses are demolished in the first five years after the occupation of the West Bank and Gaza Strip. 

B’Tselem report, September 1989, p. 11; Al-Haq report, 2003, p. 7.

Following a New York Times report about punitive home demolitions in East Jerusalem, the Human Rights Council passes a resolution, with a majority of 17 to one (Israel), expressing its displeasure with home demolitions in the OPT to the Israeli government. The US abstains, but its representative on the Council reads out a notice issued by the American State Department, stating the Fourth Geneva Convention applies to Israel’s actions in the OPT, including East Jerusalem.

See story in Davar newspaper, March 10, 1968 [H]

According to a letter entitled “House Demolition as Punitive Action” [H], sent to the deputy director-general of the Ministry of Foreign Affairs on December 16, 1970: “In light of the reduction in terror activities in Judea and Samaria,” the Ministry of Defense had decided to reduce the use of punitive house demolitions. The basic policy remains – punishing active participation in hostile terrorist activity – but with the intent to follow the criteria more stringently. The penalty will be employed only for depositing explosives or weapons possession.” The letter further stated that the Committee for the Security of Jerusalem had decided “to adopt the same policy and refrain from blasting or demolishing homes,” given the “importance of maintaining quiet in the east [side] of the city.”

The document [H], written ahead of a visit to Israel by a member of the ICRC Assembly Council, reviews the controversial issues the ICRC representative is expected to raise during his visit and asserts that Israel avoids applying the Fourth Geneva Convention to its actions in the OPT partly due to concern the ICRC would “interfere in matters we do not wish to be interfered with,” such as house demolitions. On this matter, the document says, the visitor must receive an explanation that “demolitions are carried out according to a law dating back to the British Mandate; and that Jordanian legislation in the West Bank and Egyptian legislation in the Gaza Strip also grant the authorities the power to demolish structures for reasons of security or defense. Our argument is that this punishment has a certain measure of warning power, especially as we avoid imposing the death penalty.”

In a constitutive judgment [H] on home demolitions, the HCJ finds that Regulation 119 of the Defence (Emergency) Regulations – being domestic law applicable in the OPT before the entry of the Israeli military – trumps provisions of international law instructing otherwise, and therefore, the military may use it to seal a room in a home, which was used by an OPT resident convicted of security offenses. On this issue, see also paragraph 6 of the opinion of President Shamgar in HCJ 897/86 [H]. The court also rules that since home demolitions are “an unusual sanction, the express purpose of which is deterrence against similar acts […] there is no flaw in the competent authority applying it to one person but not others.” 

Based on this laconic ruling and many other early HCJ decisions on punitive house demolitions, which produced case law without in-depth deliberation, hundreds of individual cases against the demolition or sealing of homes under Regulation 119 are dismissed.

The court rejects [H] a petition against the planned demolition of two homes of families whose members confessed to murder, but have yet to be convicted. The court rules that the military commander may use Regulation 119 without a criminal conviction and that the only pertinent question is whether a reasonable person would find the evidence sufficiently inculpatory. At the same time, the court does rule the Regulation may be used only in exceptional circumstances and following due discretion and diligent examination.

The court further states that the severity of the measure implemented pursuant to the Regulation (from confiscation alone to full demolition and anything in between) must correspond to the gravity of the act committed by the occupant. Complete demolition, the court rules, should only be undertaken in exceptional circumstances, such as the case at hand, “due to the threefold severity of a demolition: first, it may deprive the of a residence; second, it may be irreversible, and third, it may, at times, harm neighboring occupants.”

In a judgment [H] upholding the demolition of three homes in the West Bank, the court rules that Regulation 119 is aimed at deterring people around the offender, and does not constitute collective punishment. According to the justices, adopting an interpretation that precludes home demolitions when they may harm innocents would drain it of meaning, “leaving only the possibility of punishing a terrorist who lives alone in a home.”

A decision to demolish a home is largely arbitrary. It lacks clear criteria and depends on the military commander on the ground. The military demolishes the homes of individuals suspected of actions that put the lives of Israeli soldiers or civilians at risk, and often also the homes of “suspected agitators,” individuals who forcibly resisted arrest and non-immediate relatives of suspects. The military also demolishes homes rented out to suspects, whose owners have no connection to whatever triggered the demolition.

See B’Tselem report from November 2004, p. 17

According to the ruling [H], “Were it to turn out that any sanction can be avoided in advance by the perpetrator of acts of terrorism relying on a rented apartment, the deterring power anticipated from use of said legal provision would be nullified.” 

The court accepts, in a majority opinion, a petition against the planned demolition of a suspect’s home, given that some of the facts underlying the military’s decision had been wrong. The court rules the case should be referred for reconsideration by the military commander, stressing: “The decision of a public authority must be rooted in facts and figures which have been properly collected and examined prior to serving as the factual basis for its decision.”

The court rules [H] that so long as a demolition order has not been executed, all actions attributed to the suspect, “whether known at the time the order was issued or revealed thereafter,” may be used as justification and grounds for the order.

The court allows [H] sealing the room of an OPT resident who was twice convicted of throwing stones at a moving vehicle, ruling that given the prevalence of such offenses and the difficulty apprehending the perpetrators, partial sealing does not exceed the proportionality required between the severity of the act and the severity of the response. 

Section 5b [H] of the Amended Order regarding Punitive Measures (Judea and Samaria) (No. 332), 5729-1969, stipulates that the military commander may use Regulation 119 inside the OPT with respect to offenses committed outside them. The amendment is an attempt to overcome a legal obstacle that impedes using Regulation 119 against OPT residents when the offense was planned and committed entirely within Israel, which is not under the military commander’s control. 

According to the ruling [H], the military commander’s authority to demolish a home under Regulation 119 applies to the entire residential building, even when other occupants committed no offense. In a dissenting opinion, Justice Cheshin holds that only the residential unit occupied by the convicted offender should be demolished, otherwise the demolition constitutes collective punishment. However, he does rule that this would not be the case if family members knew of the actions, or “undertook” to turn a blind eye. 

Following the Oslo Accords, public criticism and HCJ petitions, the number of punitive home demolitions in the West Bank and Gaza Strip declines. In this period, Israel only demolishes the homes of suicide attackers, including if the occupants are relatives of the attacker or their operators.

B’Tselem report from November 2004, p. 17

The Court partly grants [H] a petition filed by the mother of a man convicted of voluntary manslaughter and membership in a hostile organization, against the demolition of her home, where ten members of the family reside. The court finds the demolition of the entire home disproportionate, and hence unreasonable, and orders the sealing of two rooms only, so as to enable the rest of the family to continue living in the house.

An extended panel of five justices dismisses [H] the petitioners’ argument that the assailant’s death obviates the power to demolish his home under Regulation 119 and approves extending demolitions to the family homes of Palestinians who carried out suicide attacks. The four majority justices explain that not targeting the homes of suicide attackers could prevent situations where relatives who live with the attacker and are aware of their plans try to dissuade them from going through with it. In a dissenting opinion, Justice Cheshin opposes the ruling and reaffirms the basic principle whereby “each person shall be liable for his own crimes and each shall be put to death for his own wrongdoing.”

The court, nevertheless, rules [H] that the authority granted by the Defence (Emergency) Regulations, 1945 should be interpreted in light of the limitations clause set out in the Basic Law.  

In a ruling permitting the demolition of a residential apartment in the village of Surif, the court notes it is not possible to determine with absolute certainty that house demolitions are, in fact, effective since, “A study that can show conclusively just how many terrorist attacks have been prevented and how many lives have been saved as a result of house sealings and demolitions has never been conducted and never could be conducted.” Still, the court states there is no reason to doubt security officials’ assessment that a certain measure of deterrence is in fact achieved through house demolitions. 

Justice Cheshin dissents, stressing that the principles of a free, democratic, Jewish state should be read into Regulation 119 of the Defence (Emergency) Regulations: “They shall say no more, the fathers have eaten sour grapes and the children’s teeth are set on edge.” 

The state’s response [H] in a petition filed by HaMoked regarding the demolition of homes of relatives of suicide attackers indicates the cabinet decision was made nine months after the demolition policy resumed on the ground.

Haaretz story from August 1, 2002

The petition is submitted on behalf of the family of a Hebron resident wanted by the security forces, after they were evicted in the dead of night purportedly in preparation for demolition. 

The HCJ rejects the petition after the military clarifies it has no plans to demolish the home and declares that “going forward, as part of the legal review, the legal advisor for the Area will note, in writing, on the appropriate form, that he considered the possibility of a prior hearing, and what prompted the decision not to hold a hearing in the circumstances of the specific matter.” 

The Committee condemns the demolition of the family homes of individuals suspected of involvement in terrorist activities and concludes that Israel is violating their rights to housing, equality before the law and protection from inhuman treatment. 

In its judgment [H] in HaMoked’s petition, the court reaffirms the obligation to give prior hearing to the families, as far as possible, or, alternatively, to provide a written explanation for a decision to deny such a hearing.

The report is circulated within the military to cap the first 1,000 days of fighting in the second intifada. It states that the number of attacks against Israelis rose a few months after the resumption of the home demolition policy in the West Bank.  

See Amos Harel and Avi Issacharoff, “The Seventh War: How We Won and Why We Lost the War with the Palestinians,” p.163 [H].

The committee is appointed following fierce criticism from the international community as well as intensive legal campaigning by HaMoked, including 67 HCJ petitions against punitive demolitions filed between January 2002 and October 2004. The committee is tasked with examining whether house demolitions are legal and effective, both as a deterrent and as a military measure during operational activity.  

Haaretz story from January 2, 2005

HaMoked officially discovers this on March 14, 2005 thanks to a Supplementary Notice on behalf of the State [H] in a petition to instruct the military not to demolish the family home of a suspected assailant. 

Haaretz report, February 17, 2005; Ynet report, February 17, 2005 [H]

The key points of the Shani Committee report are disclosed in 2008 in the form of a copy of a digital presentation [H] in proceedings in a petition filed by HaMoked. The military committee recommended ceasing the use of home demolitions as a deterrent, asserting: “the IDF […] cannot tread the line of legality, let alone, the line of legitimacy!!!” [sic].

The HCJ rejects HaMoked’s petition, allowing the military to seal with concrete two floors in a home where the family of an assailant lives in the East Jerusalem neighborhood of Jabal al Mukabber. The court describes the permanent sealing as “the same as demolishing the sealed area.”

The court finds no flaw in the state’s decision to reinstate the house demolition policy, given the change of circumstances: “[A]ccording to data produced by the General Security Service, since 2007 there has been a wave of terrorism involving residents of East Jerusalem. The wave of terrorism intensified in 2008. In contrast with the past, a principal characteristic of the current wave of terrorism, besides its extent, is that residents of East Jerusalem perpetrate the terrorist attacks themselves and do not, as in the past, as collaborators for terrorists who are residents of the Area [i.e., the West Bank].”

Five years after the claim [H] is filed, the court rules [H] that the demolition of the family’s home – carried out a year after the suicide attack – constitutes a wartime action, for which, under the Civil Wrongs (Liability of the State) Law, the state is exempt from paying any compensation to the injured parties. The court further determines that the demolition was legal, despite the plaintiffs’ being denied the right to a hearing and the fact that no written demolition order had been issued. The court even finds it acceptable that the family was given 25 minutes to remove their possessions from the home.

Despite the extensive damage caused by the blast – including dead livestock, uprooted fruit trees, destroyed cars and damage to adjacent buildings – the judge finds that: “The Plaintiffs have failed to prove any negligence on the part of the Defendant’s soldiers. On the contrary, they have proven maximum caution [had been exercised], which I hardly think is similarly exercised by any other military in the world.” 

In May 2003, the military demolished the fourth-floor apartment of a residential building in Hebron. The blast caused extensive damage to the building. The father of the family living in the apartment directly below, represented by HaMoked, filed a civil claim against the State of Israel [H] over the substantial, unjustified damage to his property caused by the blast of the neighbor’s apartment. In the settlement reached by the parties and endorsed by the court, the state agrees to pay the plaintiff a total of NIS 45,000 in damages.

The court rules [H] that the state’s decision to demolish one floor and seal a residential unit in a building belonging to the family of an assailant is “reasonable and proportionate.” However, the court does recommend the state refrain from executing the demolition given “the time that elapsed between the incident and issuance of the order at issue, and since the hearing [of the petition], and the changes in the security situation, insofar as such occurred.” 

The state’s notice in a petition filed by HaMoked some four years later reveals that Minister of Defense Ehud Barak signed a partial pardon on July 5, 2012, revoking the demolition order for the top floor of the building discussed in the previous petition, since the assailant’s parents and sister lived there. The sealing order issued for the unit occupied by the assailant himself remained intact but was never executed.

Following the kidnapping of three Israeli teens in Gush Etzion on June 12, 2014, the state announces its plan to demolish a house belonging to the brother of a Palestinian who carried out an attack about two months earlier, on April 14, 2014. In its ruling of July 1, 2014, the court rejects HaMoked’s claim that the military’s decision is tainted by extraneous considerations, namely, the kidnapping of the three Israeli teens, and holds that the military is entitled to change its policy due to a change in circumstances. 

The apartment was demolished that same night, before dawn on July 2, 2014. 

Haaretz story from June 6, 2014

The court accepts the state’s position that there is a “substantial and urgent need” to deter West Bank residents from committing abduction and murder attacks against Israelis, and rejects the petitions HaMoked filed on behalf of the three families. 

In response to HaMoked’s letter regarding the resumption of the punitive home demolition policy, the State Attorney’s Office says: “The security establishment is well aware of the ramifications of exercising the power granted under Regulation 119 to demolish the homes of terrorists, and therefore, said power is exercised very prudently.” The State Attorney’s Office states that decisions to use the power has been prompted by “extremely severe” attacks and that “any other case will be examined according to its specific circumstances.”  

In the petition, the organizations claim the court should revisit the legality of using Regulation 119, as the merits have not been reviewed since the 1980s, when the two earliest judgments on home demolitions were handed down. 

The petition is supported by an expert opinion authored by leading Israeli experts on international, constitutional and military law. The opinion asserts that the punitive home demolition policy contradicts a fundamental tenet of Israeli law, whereby individuals should not be punished for acts they did not commit and constitutes a grave breach of international humanitarian law, the international law of occupation and international human rights law. The opinion also stresses that in certain circumstances, the home demolition policy may constitute a war crime, legally jeopardizing everyone involved in its implementation. 

In the case concerning the family home of a Palestinian who shot an Israeli, the court holds that “the considerations as to whether or not the Regulation [119] should be used, consist, inter alia, of the results of the actions,” and as such, the fact that the victim survived the attack and his medical condition is improving is significant in determining the proportionality of the demolition. In this case, the court chooses to ascribe value to the fact that no allegation was made regarding involvement by family members in the attack, or even knowledge of the plan to commit it. In light of this, the court orders the state to provide reasons, once again, why the demolition is required and implies that a partial sealing of the home would be a more proportionate course of action. 

Following the state’s notice that it would seal the room used by the shooter without harming the rest of the home, the court rules on June 15, 2015, that the decision is “moderated” and proportionate, and approves the sealing. 

In the ruling, the court accepts the state’s argument that home demolitions are a deterrent rather than a punitive measure, yet holds that the measure of deterrence actually effected by punitive demolitions should be considered in the future. The court adds it will ask the state to present actual evidence of such a deterrent effect in the future.

On November 12, 2015, the HCJ rejects the motion for a further hearing before an extended panel made by the petitioners. In her decision, President Naor states: “A further hearing is not meant for reconsidering matters that were not considered in the judgment,” and therefore, “is not the appropriate venue for presenting such arguments.”

The court dismisses HaMoked’s argument that deterrence cannot serve as a cause for a demolition eight months after the attack that prompted the decision. The court rules that a delay in execution is not a flaw justifying the revocation of a punitive demolition order. 

The cabinet affirms the decision, which also prohibits rebuilding a house demolished under Regulation 119 of the Defense (Emergency) Regulations. 

The court dismisses two petitions filed by HaMoked for the revocation of a demolition order issued for a Hebron apartment, one on behalf of the assailant’s wife and two young children, and the other on behalf of the eight other families living in the same building, given the potential damage to their apartments and belongings. 

The justices note that in the case of unreasonable damage to the neighbors’ apartments, “the possibility of compensation remains open.” On the issue of the amount of time – over nine months – that elapsed between the attack and issuance of the demolition order, the court rules it insufficient to tip the scale. However, for the first time, the judgment includes a normative directive that “insofar as there is an intention to demolish, notification should be given as soon as possible after the criminal act in question.” 

In a dissenting opinion, Justice Vogelman maintains that the delay in exercising the authority calls for an order nisi in the petition of the assailant’s family and suggests that “we re-evaluate judicial precedent so as to fully examine all issues which may arise under domestic and international law.” 

The judgment concerns 11 petitions (10 of them filed by HaMoked) against plans to demolish six family homes of Palestinian attackers or suspected attackers; six petitions on behalf of the targeted families and five on behalf of neighbors or landlords. 

The court rules that the classified material presented by the state fails to indicate damaging the home of a person without kinship or other ties to the assailant and his family produces deterrence. The court also rules, for the first time, that in cases where the assailant and his family lived in a rented home on a short-term basis – which does not produce a strong “residency tie” to the home – the demolition is disproportionate, given that the landlord would sustain most of the damage. Therefore, the justices rule that a Silwad apartment leased to the family of a suspected assailant for a year would not be demolished, subject to the eviction of the family. 

The HCJ elects not to intervene in the decision to demolish the other five housing units, but rules that should any collateral damage occur, the state would have to repair it or provide compensation to any injured party who is not related to the assailant or suspect and did not know about his plans. Compensation and repair are warranted even when there was no negligence on the part of the security forces. 

In the five years after this ruling, the state reduces the use of explosives for the purpose of home demolitions, adopting more careful methods (demolition using mechanical engineering equipment, manual demolition of the internal partitions in the house, etc.), in order to avoid demands for compensation. 

By a majority of two to one, the HCJ accepts HaMoked’s petition to order the military to refrain from demolishing a home in Askar Refugee Camp in Nablus. Justice Mazuz rules that “refraining from using the authority soon after the incident is a decision not to use the authority; and therefore, after a significant period of time has elapsed – and particularly amid new and different circumstances – the military commander may not turn back time and decide to employ the sanction for the original incident.” Justice Zylbertal, on the other hand, holds the order should be revoked, not due to a lack of authority, but because the authority was exercised unreasonably. Justice Zylbertal believes that “use of the power almost a year after [the attacker’s] murderous acts would, in any case, fail to achieve the desired, legitimate, deterrent effect.” 

Following this ruling, Israel stops the practice of issuing demolition orders long after the attack. Dozens, if not hundreds, of homes where Palestinian assailants once lived are saved from demolition. 

The HCJ dismisses HaMoked’s petition against the military’s decision to demolish a Nablus home where a suspect in the planning of an attack lived. Dissenting Justice Mazuz notes that the finding that home demolitions under Regulation 119 are a deterrent rather than punitive measure is “not free of doubts,” as is the finding that this regulation is valid as a provision of domestic law, which trumps international law. Justice Mazuz also notes that an examination of Regulation 119 according to the rules of Israeli administrative and constitutional law might require introducing restrictions and qualifications for its use, including:

·         A distinction between a home which is the home and property of the assailant and a home in which the assailant is an “additional resident,” such as the home of their parents;

·         A distinction between homes actively used for the assailant’s criminal acts, and homes used only as the assailant’s residence;

·         A distinction between cases in which the assailant’s family members, living in the home slated for demolition, were accomplices in his acts, and cases in which the family members were not even aware of the assailant’s plans;

·         Restrictions on the timing of the order’s issuance and execution; 

·         A distinction between cases in which use of Regulation 119 must be subject to a criminal conviction, and cases where this is either unnecessary or impossible;

·         Proper correlation between the severity of the acts and the severity of the sanction (seizure only; sealing – partial or complete; demolition – partial or complete).

The HCJ dismisses HaMoked’s petitions against the military’s decision to demolish two homes in Jabal al-Mukabber, East Jerusalem, where the families of two Palestinians who carried out attacks in the city live. One of the assailants witnessed the punitive demolition of his cousin’s home a week before carrying out his own attack. 

Dissenting Justice Mazuz repeats his principled position that “a sanction directed to harm innocent people, cannot be upheld.” Referring to one of the petitions, where the identification of the assailant’s apartment has been called into question, Mazuz stresses that in cases involving a serious impingement of constitutional rights, the level of proof required of the state is “clear, conclusive and compelling evidence” [emphasis in original].

In a judgment upholding the punitive demolition of a cooperative-owned home in Surda, the HCJ rules that if, after a certain time, an application is submitted to pardon the structure’s confiscation for the purpose of rebuilding, it must be considered according to the principle of proportionality. 

The HCJ rules by majority opinion that an incident in which a Palestinian ran over a Border Police officer, killing him, was a terrorist attack rather than a car accident, and approves the demolition of the family home in Hebron. 

In a dissenting opinion, Justice Zylbertal finds the military had not made enough effort to collect evidence that could shed a different light on the case. Justice Zylbertal remarked that given the severity of the measure, weight must also be given to an evidentiary “deficit” that could have been filled.

Justice Joubran notes that he has not been convinced that the classified material the state presented during the hearing sufficiently supports the conclusion that use of home demolitions creates substantive, effective deterrence against future attacks. In the judgment, Justice Joubran writes: “In my view, an abstract possibility to save lives does not suffice while confronted by actual, real and tangible violation of the right to property and human dignity.”

The response [H] to an objection filed on behalf of the homeowners by the Jerusalem Legal Aid and Human Rights Center reads: “Having reviewed the details provided in the objection, the military commander has decided that there is no room for use of the authority in the case at hand.” This retraction is a result of an HCJ judgment from November 12, 2015, which established that the demolition of a home on short-term lease from a nonrelated person is disproportionate and has not been proven to be a deterrent.

Following communications from HaMoked, the military stops this wrongful practice.

For further details

Following HaMoked’s complaint regarding this improper and distasteful step, the state undertakes not to approve further requests by victims’ families to watch the execution of demolition or sealing orders. 

Video clip from the Arutz Sheva website, March 22, 2017

The court dismisses a petition filed by a Palestinian family requesting it to instruct the demolition of the homes of three Israeli Jews who burned a family member, Muhammad Abu Khdeir, to death in July 2014. The grounds for the dismissal is the considerable delay between the murder and the filing of the petition.

In principle, the justices reject the state’s position that there is no need to employ the home demolition measure against Jewish assailants. However, the court does rule that “given the difficulties arising from the exercise of the authority under Regulation 119, and with deterrence being the only justification for exercising it, it would not seem right to extend it to other attribution groups, regarding whom, even the state considers it unnecessary at this stage.”

The HCJ approves [H] the demolition of one floor in a three-story building in Beit Sourik, in part because it has been persuaded that the assailant lived there alone prior to the attack: “In the circumstances at hand, this is not a matter of demolishing the family members’ place of residence but of monetary damage, and there is no concern that the petitioners would remain without a roof over their heads.” 

Justice Mazuz, in a dissenting opinion, holds that as the assailant had been killed and given the family’s lack of involvement in his actions, the demolition order should be revoked, which would create an incentive to prevent attacks when the intention to carry them out is known.”

The response to the objection filed by HaMoked on behalf of the family reads: “Having considered all the circumstances of the matter [...] it was decided not to order the demolition of the terrorist’s home.” 

Haaretz story, September 6, 2018

On this issue, Justice Barak-Erez writes in the judgment [H]: “I personally find it troubling that the will left by the assailant in this case mentions ‘house demolitions’ as one of the motives underlying his lethal decision, rather than as a deterring factor.” Nonetheless, the HCJ rejects HaMoked’s claim that it is questionable whether the extreme measure of home demolition is effective as a deterrent, and allows the military to demolish the home.

In a judgment [H] delivered in a petition against a plan to demolish an entire four-story residential building in al-Am’ari Refugee Camp, the HCJ accepts the military’s position, despite the fact that the military first told the family it would demolish only the first and fourth stories, to which the assailant had distinct residential ties, and leave the other two stories unharmed.

In a dissenting opinion, Justice Karra, holds that the decision to expand the scope of the demolition fails to meet the tests of proportionality and reasonableness, especially as it relies on a confiscation and demolition order issued for the building back in 1990. Justice Karra concludes that: “The authority [pursuant to Regulation 119] must be used in a degree that does not exceed the necessary, with the chosen measure causing the least injury possible for attaining the purpose,” and determines that only two floors should be demolished.

The HCJ allows the demolition of the top floor in the family home of a 16-year-old Palestinian who stabbed a man to death at the Gush Etzion. The teen carried out the attack out of a desire to ruin his family after he had quarreled with them. The court rejects HaMoked’s argument that the young age of the stabber should feature in the assessment of both the severity ascribed to the actions and the deterrent effect.

Justice Karra, in the minority, maintains the demolition order should be revoked: “The issuance of a demolition order for the entire residential apartment by the military commander, without restricting it to the room in which the assailant had lived, shows that no weight was given to the assailant’s minor age and motives.”

In a majority opinion, the HCJ accepts[u1]  HaMoked’s petition to order the military to refrain from demolishing an entire floor of a residential building in Ya’bad, Jenin District. A block was thrown from the home’s roof, killing an Israeli soldier. 

Justices Mazuz and Karra both note that while there is a clear connection between the action and the unit slated for demolition, the measure would mostly harm the wife and children, who are not alleged to have any involvement in the father’s actions. In the circumstances, the demolition order should be revoked, without prejudice to the military commander’s competency to replace the demolition with sealing the room used by the father. 

The two justices repeat their principled position that using the authority under Regulation 119 raises a range of difficult legal questions that have not yet been adequately addressed in jurisprudence; hence, there is room to have these questions revisited by an extended panel of the court.  

The state claims the judgment made new law, whereby if an assailant’s relatives had no involvement in the actions, the injury caused by demolishing their home is disproportionate and that in such cases, the demolition should be, at the very least, reduced. Given this position, the state requests a further hearing [H] of the matter. In its response to the arguments made by the state [H] HaMoked states it insists that any further hearing would be comprehensive and address all issues related to the use of Regulation 119. On October 8, 2020, the HCJ dismisses the state’s request [H]. President Hayut states the majority decision “is confined to the specifics of the individual case before them” and should not be considered new law. 

In a judgment upholding the demolition of a home in Rujeib, Justice Mazuz, in a dissenting opinion, repeats his principled position that home demolitions should not be used where relatives are not suspected of any involvement in, knowledge of or support for the assailant’s actions either ahead of time or after the fact.

In a majority opinion, the HCJ approves the demolition of two floors in the family home of an assailant from the village of Turah al-Gharbiyah. In a dissenting opinion, Justice Baron maintains no intervention is warranted in the demolition of the story used only by the assailant, but the other floor, used as a residence by his wife and their three minor children, who are not suspected of any involvement in the attack either ahead of time or after the fact, should not be demolished. Justice Baron also expresses doubt about the measure of deterrence produced by house demolitions. In the Justice’s opinion, this state of affairs has a direct impact on the assessment of a demolition’s proportionality in each individual case.

See also the dissenting opinion of Justice Baron in HCJ 4359/22 [H] and HCJ 1374/23

The HCJ approves, by majority opinion, the demolition of a fourth-floor unit in a five-story building in Shu’fat Refugee Camp. In a dissenting opinion, Justice Karra maintains that justifying demolishing the home of a woman and her minor children, who knew nothing of the attack, requires clear evidence showing the demolition will lead to deterrence. In the absence of such evidence, the decision to demolish the unit is unreasonable and disproportionate and should be revoked.

See also Justice Karra’s dissenting opinion in HCJ 564/22

The HCJ approves the demolition of a home in the village of Rummanah by majority opinion. Justice Kabub dissents, stating the serious impingement on the rights of uninvolved family members tips the scale, outweighing opposing considerations of deterrence.

See also, Justice Kabub’s dissenting opinion in HCJ 2036/23 [H], where he notes that his remarks concerning house demolitions are even more relevant in the case of a residential unit in a shared building and suggests the “officials in charge” introduce a practicable, accessible compensation process.

Following a petition filed by HaMoked, the military announces [H] it will remove the temporary sealing of openings carried out in a house belonging to the parents of a Palestinian who ran over and killed three Israelis and will not use Regulation 119. The response says: “The inquiry led to the conclusion that the terrorist has a mental health history and a dual residency tie - to his parents’ home and another apartment, while the law requires a clear residency tie be indicated.”

In a unanimous judgment [H] upholding the demolition of a residential unit in the village of Ni’lin due to a family member’s participation in an attack, Justice Ronnen expresses reservations about expanding the use of Regulation 119 of the Defence (Emergency) Regulations, noting she shares the view that the case law on this issue should be reconsidered by an extended panel. Nevertheless, in the specific case, Justice Ronnen focuses on proportionality and discretion, arriving at the conclusion that: “Considerable weight should be given to the fact that the father, the person with title to the residence and in whose home the rest of the family live, is a Hamas operative and that he expressed clear support for his son’s actions and for terrorism in general after the fact.”

In the judgment [H], the court rejects HaMoked’s argument that the demolition order is disproportionate given the stabber’s age and the fact that the stab wounds were not the cause of death, but rather shots fired by a security guard at the scene. The judgment also states the parents can be culpable for “lack of parental supervision over their son’s actions.” 

In a dissenting opinion, Justice Vogelman maintains the boy’s age at the time the act was carried out should be given weight and that sealing his room would suffice: “Where the assailant’s age is closer to the age of criminal responsibility - the presumption that he acts rationally and not impulsively is not without question.”

From July 2014, when the house demolition policy resumed, to October 2023, the military demolished 84 homes in the West Bank (nine of them in East Jerusalem). In that time, the military sealed 11 homes (five of them in East Jerusalem) - all by virtue of Regulation 119 of the Defense (Emergency) Regulations. During that same period, following petitions, the vast majority of which were filed by HaMoked, the HCJ revoked eight punitive demolition orders. In each of these cases, judicial review centered around reasonableness and proportionality.

The justices of Israel’s High Court of Justice do recognize that the policy raises “difficult questions,” including whether it is legal or moral and how effective a deterrent it is. Yet, most of them avoid deliberating these questions, claiming case law is binding and no departure from it is possible without a change in the “legal climate.” There are exceptions, however, justices who consistently challenge case law, both in terms of the legal basis and with respect to whether Regulation 119 is used reasonably or proportionally, and call for its use to be revisited.