For the first time in years, the HCJ approved the punitive demolition of a family home in East Jerusalem following an attack without fatalities

On March 20, 2024, a majority of the High Court of Justice (HCJ) approved the punitive demolition of an apartment in East Jerusalem. This is the family home of the parents and two siblings of a 17-year-old who opened fire on a police station in East Jerusalem on October 12, 2023, wounding two police officers, one critically, and was himself shot dead. On February 20, 2024, the military issued a punitive order for the demolition of the family’s apartment, in a three-story building in Beit Hanina in East Jerusalem. The military rejected HaMoked’s objection to the order, and the family petitioned the High Court of Justice (HCJ) to cancel it via atty. Nasser Odeh.

The petition claimed, among other things, that the punitive demolition of a home pursuant to Regulation 119 of the Defense (Emergency) Regulations of 1945 was prohibited under international law and constituted forbidden collective punishment of innocent people (as also argued in dozens of HaMoked petitions on this matter). The petition also stated that this measure had never been proven to achieve deterrence (which Israel claims is its sole purpose), and that this was a weighty consideration especially in this case where the home was in a peaceful Jerusalem neighborhood, in which no home had been punitively demolished before. The petition also argued against demolishing the home in this case, which would constitute an expansion of the punitive demolition policy, given that the attack caused no fatalities.  

The majority ruling, written by Justice Mintz, approved the demolition order in deviation from the case law on the punitive demolition of homes. The majority justices repeated the – unproven – recurring claim that the demolition was necessary for “the creation of real deterrence against the commission of more terrorist acts”, and as before, relied on classified information presented ex parte. Justice Elron, who sided with Justice Mintz, added: “I do not see fit to set a rigid restriction on the authority [of the military commander] and to allow its use only in cases where the terrorist succeeded in his intention to kill the victim”; “undeniably in the past use of Regulation 119 was more moderate. Now, in the circumstances of our times and situation [i.e. the war in Gaza and southern Israel], we have been presented with the need to intensify the use of Regulation 119. […] That which in the past would have seemed like an avoidable step, is now a necessity arising from the harsh reality enforced upon Israel”.

In the minority, Justice Amit held that the punitive order was disproportionate and so an order nisi should be issued. He noted that “the consideration of deterrence was one of several considerations the military commander takes into account in using the sanction pursuant to Regulation 119, which constitutes a drastic step that the harm it causes must not be taken lightly”. He averred that the Court should act as it did in a 2014 case in which the military had sought to demolish a home although the attack had not led to a loss of life. In that case, after an order nisi was issued, the military limited the scope of the order so that only the assailant’s room was sealed, with the HCJ’s approval, as an expression of proportionality, “which is relevant also when dealing with deterrence”.