After 15 years of delays, High Court issues blunt demand to demolish outpost

Right-wing ministers blast justices’ decision to take down 17 homes in Derech Ha’avot south of Jerusalem as serving ‘the extreme left’

Construction on an outpost near the settlement of Elazar. (Olivier Fitoussi /Flash90)
Construction on an outpost near the settlement of Elazar. (Olivier Fitoussi /Flash90)

Ministers and settlement advocates on Thursday blasted a High Court ruling that ordered 17 buildings demolished in an illegal West Bank outpost south of Jerusalem.

The court’s ruling attempts to bring to an end the 16-year saga of property disputes surrounding the Derech Ha’avot outpost, which straddles state and private lands near the Etzion Bloc settlement of Elazar and the Palestinian village of El-Khader.

A decade and a half of court appeals by Palestinian residents of El-Khader and over a decade of repeated promises by the state to demolish structures found to have been built on private land led a three-justice panel Thursday to issue an abrupt demand that effectively ends the appeals process and orders the buildings demolished by March 2018.

Chief Justice Miriam Naor, who chaired the panel, gave the state 18 months to carry out the order because of the large number of homes involved and the need to relocate families currently living in them.

Minister of Justice Ayelet Shaked speaks in Tel Aviv on August 30, 2016. (Tomer Neuberg/Flash90)
Minister of Justice Ayelet Shaked speaks in Tel Aviv on August 30, 2016. (Tomer Neuberg/Flash90)

The responses from right-wing ministers came quickly Thursday.

Justice Minister Ayelet Shaked, of the Jewish Home party, said she will “work with the Defense Ministry so that it will allocate all necessary resources” in order push a process of initial registration “to enable regulation of the homes.”

“This process can be a change of circumstances and enable the state to submit a request to cancel their demolition,” Shaked said.

Jewish Home leader Naftali Bennett, the education minister, called the ruling “very serious.”

In an apparent criticism of Peace Now, which helped bring the latest appeal, Bennett lashed out at “extreme leftist bodies” who “have given up their efforts to convince the nation of the need to establish a Palestinian state in Judea and Samaria and turned to a route that bypasses the public, exploiting the judicial system as a tool to impose the policies of the minority on the majority.”

“When the High Court lends a hand to that, it gnaws away at the public’s faith” in the court, he added.

Etzion Bloc Regional Council head Davidi Pearl, in whose council territory the outpost lies, charged that “the court has decided to mock the government, which proposed a wide variety of legal solutions that were examined and approved by the attorney general. I call on the prime minister to act immediately to legislate a law that will defend the honor of the government, and defend the residents [of Derech Ha’avot] who acted in good faith, and with the support of the government.”

Environmental Protection Minister Ze’ev Elkin (Likud) directed his criticism squarely at the High Court, calling the decision “scandalous” and saying it “crosses a red line that shows the complete disconnect between the High Court, common sense, and the history and heritage of the Jewish people.”

The decision also demonstrated “the urgent need to institute fundamental reforms in the Israeli judicial system,” he added.

Education Minister Naftali Bennett arrives at the weekly cabinet meeting at the Prime Minister's Office in Jerusalem on July 31, 2016. (Ohad Zwigenberg/Pool/Flash90)
Education Minister Naftali Bennett arrives at the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem on July 31, 2016. (Ohad Zwigenberg/Pool/Flash90)

MK Yehudah Glick (Likud) said the decision “left no choice but to legislate” a civil land registration regime for the West Bank “immediately.”

Tourism Minister Yariv Levin (Likud) said the decision was “outrageous and illogical,” and showed the High Court “in the service of the extreme left.”

‘Ongoing illegality’

The ruling reflected long-standing frustration by justices at years of delays in carrying out the state’s promises to the court, or implementing past rulings to demolish illegally built structures in the outpost.

The land has been contested since 2001, when a group of Israelis first established the outpost on lands whose ownership status was listed as “indeterminate” in the Jordanian land registry that was in effect before Israel captured the territory in 1967, while local Palestinians from nearby El-Khader insisted in a 2002 appeal to the High Court that they owned part of the area on which homes were being built.

Ownership of land is often difficult to determine in the West Bank, as Ottoman, Jordanian and British documentation from the periods of their rule is often incomplete or contradictory, and Israel has not instituted its own civil land-registration mechanism on the territory.

A state committee formed in 2004, in the wake of the High Court appeal, stopped operating before making a clear determination on the land in question. Palestinians once again turned to the High Court in 2008. That appeals resulted in a promise by the state to carry out multiple standing demolition orders against buildings in the outpost. Yet another appeal was filed in 2010, after which the state again said a comprehensive survey of the land and its surroundings would be undertaken, and again promised to demolish any buildings found to have been built on private lands.

In the ruling from that appeal, the High Court already noted that the state seemed to be dragging its feet, and wrote in its ruling that “there is reason to believe that [the state’s repeated promises] do not respect the judicial process that caused them to be made.”

In 2014, the state presented its conclusions from the survey, noting that parts of the land were public lands and could be declared held by the state, while some 17 houses were located either wholly or in part on Palestinian-owned land.

Minister of Jerusalem Affairs Ze'ev Elkin arrives for the weekly government meeting at the Prime Minister's Office, Jerusalem, June 19, 2016. (Marc Israel Sellem/POOL)
Minister of Jerusalem Affairs Ze’ev Elkin arrives for the weekly government meeting at the Prime Minister’s Office, Jerusalem, June 19, 2016. (Marc Israel Sellem/POOL)

The latest appeal, filed by seven El-Khader residents and the Peace Now, noted that even after the state’s long-promised survey was concluded, the state had still failed to keep its promise to the High Court to demolish homes found to be built illegally on Palestinian land, and charged that the government was callously disregarding both the court’s past rulings and explicit Israeli law.

In her decision, Naor noted this long history of unfulfilled promises to the court, and explained that the state’s latest request to delay another ruling until a solution could be found that would not involve demolishing homes “has no special standing in the judicial process.”

“The state’s standing is the same as that of other parties [before the court]. The request of the political echelon does not sanction ongoing illegality and the violation of past commitments given in the framework of the judicial process.”

Naor acknowledged “the significant difficulty” involved “in forcibly removing residents from homes in which they have been living for many years, beyond even the social ramifications of leaving a person without a roof over their heads.”

But, she said, the alternative was to accept and legitimize the illegally built homes and ignore the state’s apparently willful disregard for enforcing the law or implementing its explicit commitments to the court.

Indeed, she noted, “over the many years” of judicial appeals, “homes continued to be built [in the outpost] illegally, including after work stoppages and demolition orders were issued and a court ruling was given [against the construction] in the last appeal.”

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