Mohammed Abu Khdeir is seen in this undated family handout picture.
(photo credit: REUTERS)
The High Court of Justice on Tuesday rejected a request by the family of a Palestinian teenager who was burned to death to compel the state to demolish the murderer’s house.
The family of 16-year-old Muhammad Abu Khdeir, who was murdered on July 2, 2014, said the state’s failure to demolish the house of Jewish terrorist Yosef Haim Ben-David was discriminatory since it regularly demolishes the homes of Palestinian terrorists.
While expressing hope that soon “evil will be removed from the earth... and there will be no need to use” house demolitions against Jews or Arabs, the High Court accepted the state’s argument that from the perspective of deterrence, Palestinian and Jewish terrorists should be viewed differently.
The three-judge panel of outgoing Supreme Court Deputy President Elyakim Rubinstein, outgoing justice Zvi Zilberthal and Neal Hendel wrote that house demolitions are only permitted under Israeli law to deter future attacks and not for the purpose of punishment.
They accepted the state’s argument that, as a simple matter of statistics, there are far more Palestinian terrorists and a greater need to deter them from future terrorist activity than there are Jewish terrorists, even if those numbers have increased marginally.
This meant the only grounds for granting the demolition request would have been punishment, which the court could not endorse.
In addition, the court noted that the circumstances of the petition were the opposite of what it usually faces.
Petitioners on demolitions are usually asking the court to block such actions. While the court allows most demolitions to go forward, it does stop some and views its role as being a guardian against unfair demolitions.
The justices did not appear comfortable with being asked to push the state to do demolitions that it did not believe were necessary. The court cited a greater readiness to defer to the state when acts to restrain demolitions.
In a legal brief to the High Court on March 2, the state said Prime Minister Benjamin Netanyahu, Defense Minister Avigdor Liberman, Attorney-General Avichai Mandelblit and State Attorney Shai Nitzan discussed the issue and found Palestinian terrorism to be a much wider phenomenon requiring special forms of deterrence than did Jewish terrorism.
At the same time, the brief said if the situation changed and Jewish terrorism became more widespread, they could potentially revisit the issue and be ready to demolish Jewish terrorists’ houses as well.
The state wrote in a prior filing that in 2015 there were only 16 Jewish terrorist incidents, and only two so far in 2016, including incidents that did not involve murders, far fewer than on the Palestinian side.
Mohanad Jabarah, a lawyer for the Abu Khdeir family, responded by stating they were “not surprised by the decision, because even when we filed the petition, the family did not have high hopes that the High Court would approve demolishing the houses of Jewish attackers.”
Jabarah said the purpose of the petition was two-fold. First, was “to expose the illegal different treatment between how security forces treat Palestinian attackers by destroying their houses, compared to the tolerance for Jewish attackers... This decision shows this.”
Second, they hoped the “next time that a petition is filed about demolishing a Palestinian’s house, the High Court won’t endorse it as easily... If they did not have the heart to do it to Jews, maybe they will stop doing it to Palestinians.”
Joint List MK Ahmad Tibi, responding to Ben-David’s conviction for murder at an April 2016 press conference, claimed the policy was discriminatory. While he said the court “had reached the correct decision,” Tibi attacked the absence of a government process for, or even discussion about, demolishing Ben-David’s house.