In a split decision, the High Court of Justice on Monday cancelled the planned demolition of the home of a Palestinian who has been charged with the killing of an IDF soldier earlier this year by dropping a block on his head from the building’s roof.
The court instead permitted the army to seal up just one room of the apartment of Nazmi Abu Bakr, 49. Abu Bakr was charged in June with killing 21-year-old Sgt. First Class Amit Ben-Ygal by throwing a brick at him as the soldier took part in an operation in the West Bank village of Yabed.
The IDF had already begun preparations in June to demolish the home, leading the Abu Bakr family to file an appeal against the measure.
Justices Menachem Mazuz and George Karra ruled to cancel the demolition, reasoning that Abu Bakr’s wife and eight children, who were not involved in the attack, still live there. Justice Yael Willner was in favor of carrying out the measure so that it could serve its purpose as a deterrence against future attacks on Israeli forces operating in the West Bank.
Mazuz wrote that the “the serious harm done to innocent family members cannot be ignored — those to whom no involvement in the attack is attributed.”
Kara, agreeing with Mazuz, wrote that “justice will come to the attacker when he gets his punishment. But the consequences of his actions should not be cast on to those who have not sinned.”
Willner meanwhile cited “the seriousness of the act… its fatal and serious consequence” as well as “the use made of the structure where the attack was carried out” to argue the order to demolish the home was proportional.
Prime Minister Benjamin Netanyahu tweeted in response that the ruling was “a sad decision by the High Court that refused our request to destroy the home of the terrorist who killed IDF soldier Amit Ben-Ygal, who was an only child.
“I demand to hold an additional hearing with an expanded panel [of judges],” Netanyahu wrote. “My policy as prime minister is to destroy the homes of terrorists, and I intend to continue with it.”
Defense Minister Benny Gantz also said he was saddened by the decision.
“Of course we’ll respect every High Court ruling but the verdict that cancelled the order to demolish the house of the terrorist… is very unfortunate. Destroying homes for deterrence is an important tool in the war against terror,” Defense Minister he wrote on Twitter.
Gantz said he instructed Defense Ministry officials to reach out to the attorney general to request another hearing.
Public Security Minster Amir Ohana, a Likud party of ally’s and vocal critic of the High Court, slammed the justices over the ruling.
“The judges’ decision not to destroy the house in which and from which the murderer threw the brick on the head of Amit is a mark of disgrace (another, and particularly ugly) on the head of the High Court of Justice,” he tweeted.
Likud MK Gideon Sa’ar likewise tweeted that the “state must request a further hearing on a decision that harms Israel’s deterrence and the war” on those who seek to destroy it.
“It is not only his home,” Sa’ar wrote. “It is the place from which he acted and carried out the murder.”
Sa’ar said he had requested that the Knesset Foreign Affairs and Defense Committee, of which he is a member, hold a meeting on the matter and said the forum would convene for that purpose on Thursday.
Fellow Likud MK Avi Dichter responded that “the High Court dropped a large rock on an important component in the anti-terrorist deterrent.”
Dichter urged that the building be destroyed “for the sake of making an example.”
Jessica Montell, executive director of the HaMoked legal aid group which filed the appeal on behalf of the Abu family, welcomed the decision saying in a statement that it “saved an innocent mother and eight children from being thrown into the street.”
Montell lamented that the court did not further rule that the home demolition policy in general is “invalid collective punishment” of doubtful usefulness in deterring attacks.
The Shin Bet security service said in May that Abu Bakr confessed to being the one who threw the brick that killed Ben-Ygal during the West Bank raid. He was arrested along with several other people who were believed to have been in the building at the time, and confessed several weeks later, according to the security agency.
The soldier was killed in the predawn hours of May 12, after the Golani Reconnaissance Battalion carried out a series of arrests in Yabed.
According to the IDF’s initial investigation, as the Golani Reconnaissance Battalion was making its way out of the town at roughly 4:30 a.m. Ben-Ygal apparently heard a sound coming from one of the rooftops on the outskirts of the village and looked up.
As he did, exposing his face, a man on the roof of the three-story building threw the brick at him, the IDF said.
The indictment stated that Abu Bakr threw the brick in the direction of the IDF soldier’s voices with the intention of causing death.
Ben-Ygal was fatally wounded by the brick. He received treatment at the scene before being flown by helicopter to Haifa’s Rambam Medical Center, where he was pronounced dead.
Home demolitions are a controversial policy that the IDF says helps deter future terror attacks. Over the years, a number of Israeli defense officials have questioned the efficacy of the practice and human rights activists have denounced it as unfair collective punishment. They are often carried out before conviction.
Judah Ari Gross contributed to this report.