HCJ majority approved punitive demolition of a 13-year-old’s family home in East Jerusalem, expressly for “deterring parents” of younger children

On August 24, 2023, the High Court of Justice (HCJ) approved the punitive demolition of a family home following an attack on February 13, 2023, in which the family’s 13-year-old son stabbed a Border Police officer at the Shu’fat checkpoint. During the attack, a security guard opened fire, inadvertently shooting and killing the officer. The apartment to be demolished is on the second floor of a five-story building in the Shu’fat refugee camp, and is the home of the boy’s parents and four siblings, none of whom are suspected of any involvement or even knowledge of the attack.  

In the majority opinion, written by Justice Stein, HaMoked’s petition was rejected in its entirety. Firstly, the Court ruled that there was no room to address HaMoked’s principled arguments that this was collective punishment of innocent people prohibited under international law. This was phrased in troubling terms, to say the least: “The issuance of such orders is, as stated above, a harsh sanction, and therefore we will not take the petitioners’ representatives to task for raising said [principled] arguments. Nonetheless, we will not lend an ear to these arguments because that which has been determined in our case law by way of setting a binding precedent must be respected without dispute [emphasis added]”. As to HaMoked’s argument that the significant 5-month delay in the issuance of the order nullified the alleged purpose of deterrence, Justice Stein ruled that the elapse of five months from the day of the attack until the military announced its intention to demolish the apartment did not amount to an excessive delay. The Court also rejected HaMoked’s claim that the chosen method of detonation to implement the demolition was disproportionate and could cause significant damage to the rest of the building, as had happened in the past.

HaMoked argued that the demolition order was disproportionate given the accused boy’s age, and submitted an expert opinion by child psychologist Professor Amiram Raviv, showing that adolescents were unlikely to be deterred by the home demolitions, given their tendency for risky behaviors, their susceptibility to peer pressure, and their underdeveloped sense of judgement and consequences. The majority justices rejected this claim on the basis of HCJ precedents where family homes of older boys were punitively demolished, the youngest of whom was 15 when he committed the attack (HCJ 1633/16). The Court also maintained in this context that the demolition’s purpose was not punishment but deterrence, particularly of “parents of potential assailants”, and especially younger children. Justice Stein dismissed Prof. Raviv’s expert opinion, which was titled “Typical characteristics of attributes and behavior of adolescents” as irrelevant as it did not specifically concern the offender and his atypical deed. Justice Stein also ruled that it was possible to ascribe to the parents “lack of parental supervision over their son’s actions…”. Justice Kanfi-Steinitz who sided with Justice Stein, noted that the assailant’s very young age did in fact constitute “a consideration requiring special review” and that “possibly in normal times”, this fact might have led to the order’s cancelation or reduction of scope, however “these are not normal times…”.     

In the minority opinion, Justice Vogelman briefly stated his basic position that the principled issue of punitive demolitions should be revisited anew, but reasserted that the current precedent was “binding so long as it has not been changed by an extended panel”. As to the case in hand, Justice Vogelman maintained that there was room to intervene in the military commander’s discretion in this case, and limit the order so that only the boy’s room be sealed. Justice Vogelman maintained that weight should be given to the fact that the boy’s age was close to the threshold age of criminal responsibility, which stands at 12, given that children’s immaturity affected their ability to act rationally, especially at an age far from adulthood, and that this matter impacts the proportionality of using Regulation 119 in this case. As to the parents’ responsibility, Justice Vogelman wrote: “in my opinion, a position that does not give proper weight to the concrete family situation of the minor or to the assailant’s age, is disproportionate…”. He added that blanket labeling of parents, as expressed in the majority opinion and the decision of the military commander, and without having taken into account “the concrete actions taken by the parents before the attack was committed… carries a damaging message towards the said group of parents, that is inherently linked to human dignity”.

Regarding the delay in issuing the order, Justice Vogelman held that “the longer the gap between the date of the attack and the home’s demolition, the weaker the link between the violent act that gave rise to the [use] of the authority and its implementation, and accordingly the weaker is the deterrence effect of the home’s demolition”. He added that the delay in issuing the decision also harms the occupants, who live under the “cloud of uncertainty regarding the fate of their home, so long as no decision has been made in their matter…”. Justice Vogelman also ruled that the State had not substantiated its claim that the delay stemmed from the uniqueness of the case.