Case Number
HCJ 8091/14
Date Decided
12-31-2014
Decision Type
Original
Document Type
Full Opinion
Abstract
The petition concerned the Respondents’ authority to employ reg. 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Reg.119 or the Regulation) in a manner that would permit the forfeiture, demolition and sealing off of the homes of those suspected of involvement in hostile activity against the State of Israel. The Petitioners sought a declaratory order stating that the use of Reg. 119 in that manner and for such purposes is unlawful, inasmuch as, in their view, it contravenes international law and Israeli constitutional and administrative law.
The High Court of Justice (per Justice E. Rubinstein, Justices N. Sohlberg and E. Hayut concurring) denied the petition for the following reasons:
The use of the authority to demolish houses by virtue of Reg. 119 was only recently renewed, and only in a few instances, following the last wave of attacks, which began with the abduction and murder of three youths, and was followed by frequent, despicable instances of intentional harm, murder and attempted murder of innocents in Jerusalem. In all that regards the question of authority for the use of Reg. 119, it has been held that we are concerned with the lawful use of this means, both in accordance with international law and domestic law. The central question concerns reasonableness and discretion in regard to its use.
As held in the past, and as recently noted, the purpose of Reg. 119 is deterrence and not punishment. Its purpose is to provide the Military Commander with tools that can create effective deterrence, the importance of which, itself, is hard to deny. The question of the effectiveness of the demolition of a particular structure is given to the evaluation of the security authorities. It has further been held that although the legal force of the Regulations is not subject to the provisions of Basic Law: Human Dignity and Liberty, inasmuch as they constitute “law in force prior to the commencement of the Basic Law”, they must be interpreted in accordance with the Basic Law, and must be exercised in a measured and proportionate manner.
Pursuant to this approach, the case law has established, , inter alia, the following criteria for the delineation of the Military Commander’s authority in exercising the authority granted to him under Reg. 119 to order the demolition of the home of a person suspected of terrorist activity: the severity of the offenses ascribed to the suspect; the number and characteristics of those who will foreseeably be affected by the exercise of the authority; the strength of the evidence against the suspect and the extent of the involvement, if at all, of the other dwellers in the house. The Military Commander is further required to examine whether it would be possible to suffice with exercising the authority only in regard to that part of the house in which the suspect dwelled; whether the house can be demolished without damaging adjacent houses, and whether it would be possible to suffice in sealing off the house, or parts of it, as a less harmful means relative to demolition. This is an open list, and the parameters must be examined as a whole. In other words, choosing to demolish the entire house, rather than sealing off a room or demolishing a particular part of the house, does not necessarily show that the means chosen is disproportionate and justifies the Court’s intervention in the discretion granted to the security forces. Similarly, it is not necessary to show that others who lived in the house were aware of the suspect’s terrorist activity. As noted, proportionality is, first and foremost, examined in relation to the severity of the act ascribed to the suspect, and the requisite degree of deterrence is derived therefrom.
The High Court of Justice further explained that the said authority of the Military Commander should not be exercised disproportionately, in a manner that would constitute collective punishment, which is prohibited under international law, and this applies whether the authority is exercised in the territory of the State of Israel or in the Administered Territories. The Court held in this regard that the demolition of the home of a proven assailant, where the harm, which should not be taken lightly, is to the property of the residents of the house but not to that of others or to human life, does not constitute collective punishment prohibited by international law.
The Petitioners’ claim as to discriminatory enforcement of Reg. 119 between Palestinians and Jews was rejected as the Petitioners did not meet the especially high standard of proof required to ground that claim.
However, the High Court of Justice emphasized the need for periodic review and research in regard to the means and effectiveness of house demolitions.
Justices Sohlberg and Hayut added remarks, inter alia, in regard to the question of the effectiveness of house demolitions as a means of deterrence. Justice Hayut also added, inter alia, that if a family whose house was to be demolished could present sufficiently persuasive administrative evidence that they tried to dissuade the assailant from carrying out the act, then it would be proper to attribute very significant weight to this element, which in appropriate cases could negate the decision to demolish the house of those family members.
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- State of Emergency and National Security, International Law
