HCJ approved punitive demolition of apartment in a seven-story residential building where dozens of people, mostly minors, live: Court ruled “low probability of low-level damage” to neighboring apartments

On May 30, 2022 the High Court of Justice (HCJ) unanimously rejected HaMoked’s petition on behalf of families living in a building in Jenin, where the military commander had ordered the demolition one of the building’s apartments. The apartment in question was the home of the assailant in an attack against Israelis on April 7, 2022, in which three people were killed (the assailant was later killed by the Israeli security forces). No one else lives in the apartment, which is on the fourth floor of a seven-story building, in which 20 families live, numbering some 80 people, most of them minors.

HaMoked petitioned the court on behalf of fifteen families who own or rent apartments in the building. The petition focused on the likely damage to apartments of the indisputably innocent neighbors due to the military’s intent to demolish it using “hot explosion combined with mechanical means”. HaMoked argued, based on an engineering opinion it had commissioned, that there was considerable likelihood that a demolition, and especially in the manner planned, would cause significant damage to the adjacent apartments and to the building’s stability and infrastructure. Therefore, HaMoked demanded that the demolition be cancelled or at the very least, be limited in scope or substituted by sealing in order to prevent damage to the other apartments. In this context, HaMoked listed a series of cases where following punitive demolition of an apartment or part of a building using this method involving explosives, entire structures were damaged and rendered inhabitable, leading to a severe harm to their uninvolved and innocent occupants.

The Court ruled that its intervention was unnecessary in this case given that the demolition was not expected to cause disproportionate harm to the neighbors, based on the opinion of the military engineer – whom the Court heard in camera and ex parte for some inexplicable reason –  and also his undertaking that steps would be taken to minimize damages to the structure. In this, the Court relied on previous case law, whereby the opinion of an “external” expert should not be preferred over the opinion of the expert on behalf of the administrative authority, and also held that the State had the benefit of the presumption of administrative regularity in the matter.