The HCJ approved the punitive demolition of a family home in East Jerusalem: No weight was given to the unprecedented immediate expulsion of the family from their home and the sealing of the apartment

On August 3, 2023, the High Court of Justice (HCJ) rejected HaMoked’s petition to cancel a punitive order for the demolition of the home of a couple and their five children, four of them minors, issued following a fatal attack against Israelis on January 27, 2023, perpetrated by another son, who was killed in the attack. The apartment is owned by one of the grandmothers and has been rented to the family for years; it encompasses the entire third floor of a six-floor building in Ras al-Amud in East Jerusalem.

This is the first instance since the 2014 resumption of punitive home demolitions, where the security forces have immediately sealed the apartment, on January 21, 2023, without presenting an order or allowing the family the right to a hearing before the fact, and without giving them the opportunity to remove all of their possessions from the apartment. The family’s post-facto objection to the sealing was rejected by the military on February 7, 2023, and in this context, the family was also informed of the intention to demolish the sealed apartment pursuant to Regulation 119 of the Defense (Emergency) Regulations of the British Mandate. A second objection, against the intended demolition, was also rejected.

On July 12, 2023, HaMoked petitioned the HCJ against the demolition order. HaMoked repeated its principled argument that this constitutes collective punishment of innocent people which is prohibited under international law and also under Israeli law (which applies to the petitioners by virtue of their being indigenous residents of East Jerusalem, annexed by Israel). As to the case in hand, HaMoked argued that the demolition would cause severe and disproportionate harm to the family members, including the four minor children, all of whom are innocent and lacked prior knowledge of their relative’s intentions. HaMoked also argued, based on an engineering opinion it commissioned, that the military’s chosen method of demolition, using “hot detonation”, was liable to cause severe damage to other apartments in the building and in the vicinity, as had happened previously, and that this risk increased the disproportionality of this measure. HaMoked added that deterrence, insofar as it could be thus achieved, had already been sufficiently attained by the apartment’s sealing. In this context, HaMoked condemned the unacceptable implementation of the immediate sealing, carried out without prior hearing or notice.

In rejecting the petition, the Court reiterated that use of Regulation 119 was intended solely for deterrence rather than punishment and constituted “a necessity that cannot be condemned”, although it entailed “severe harm to the property rights of the occupants of the home slated for demolition, and could leave them without a roof over their heads, without their having been involved in the actions of their relative”. As in previous cases, the Justices ruled that “in view of the classified material presented before us [ex parte] and the answers given to our questions”, they had been persuaded that the measure was effective for deterrence. As to merits of the case, the Court ruled that the demolition order was reasonable and proportionate, and justified its issuance by noting that this case illustrated “a pressing need to deter potential assailants”. The family’s innocence, their lack of foreknowledge, the fact that this was the home of four minor children, all these and the fact that the home was leased, were not found to warrant the order’s cancelation. As to HaMoked’s alternative request to leave the existing sealing in place, the Court ruled that limiting the scope of the order to a sealing “would harm the realization of the deterrence objective…”. The Court rejected in passing HaMoked’s arguments against the use of immediate sealing, its manner of implementation and its impact on the demolition order’s proportionality, and ruled – based on a decades-old judgment of 1989 – that “the temporary sealing is a reversible act, so that even the assumption that it has been flawed… cannot lead to the conclusion regarding the demolition order’s nullity. In this matter, it has already been ruled that under certain circumstances, nothing prohibits retroactively granting the right to plead one’s case regarding a temporary sealing”.