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High Court agrees to reconsider order to demolish West Bank outpost homes

Judges will weigh scope of law allowing Israel to appropriate Palestinian lands if structures were built ‘in good faith,’ after telling state it must raze part of Mitzpe Kramim

Mitzpe Kramim. (Gideon Mermelstein)
Mitzpe Kramim. (Gideon Mermelstein)

The High Court of Justice on Tuesday accepted a petition by the state to again try a case involving Israeli homes in a central West Bank outpost built on private Palestinian land, three months after ordering structures demolished.

The state had petitioned the court to rehear the case with a larger bench, given the importance of the case, Hebrew-language media reported. Defense Minister Benny Gantz and Justice Minister Avi Nissenkorn had both argued that “an injustice has been done to the residents.”

In August, a panel of three judges ruled 2-1 that the state had three years to demolish homes in the Mitzpe Kramim outpost, saying a controversial legal measure allowing the government to seize private Palestinian land that had been built on by Israel “in good faith” could not apply.

The new hearing will focus on the bounds of the good faith argument, Justice Yitzhak Amit ruled. The date and the number of judges who will preside over the new hearing will be decided later, the High Court said.

Binyamin Regional Council chairman Yisrael Gantz said in August that the original ruling affected four permanent homes, 30 mobile homes and several other community buildings.

Gantz on Tuesday expressed pessimism that the court would overturn its ruling ordering the demolition of most of the homes.

Binyamin Regional Council chairman Yisrael Gantz (left) and Yesha Council director Yigal Dilmoni speak to reporters in the Ateret settlement on June 16, 2020. (Jacob Magid/Times of Israel)

“Unfortunately, the court has proven throughout that its rulings are politicized according to the school of thought of the left wing. We have no expectations from the judges,” he said in a statement.

The same statement, sent out by the Binyamin Regional Council, included residents of Mitzpe Kramim saying they expected the court to overturn the decision in line with a lower court ruling that found the homes were built in good faith and could remain intact.

“We have been terribly wronged and the court did not give enough weight to the severe harm to families,” it quoted them saying.

Gantz and Nissenkorn both welcomed Tuesday’s decision, saying the state’s request had stemmed from “the difficult consequence of the evacuation of the residents who came with the full initiative and involvement of state officials.”

In its original decision, the panel of judges greenlit the use of a legal tactic endorsed by Attorney General Avichai Mandelblit known as “market regulation,” which grants retroactive legalization to outpost homes built on Palestinian land so long as they were constructed in “good faith.” Legal experts have said the judges’ authorization could lead to the legalization of nearly 2,000 wildcat homes throughout the West Bank.

However, Justices Esther Hayut and Hanan Melcer, in the majority opinion, ruled that the tactic could not be used to legalize much of Mitzpe Kramim, as the state and private bodies involved in establishing it should have been aware of its problematic location.

The judges wrote that the Defense Ministry official responsible for earmarking the land on which the outpost was built “closed his eyes to avoid seeing the many warning signs brought to his attention over the years, including the fact that the outpost was established on private Palestinian land.”

The court issued a stop-work order on the several acres of land registered to Palestinians from nearby Deir Jarir, and gave the state 36 months to demolish the homes. The judges also ordered the state to provide an alternative housing solution for the residents before their homes are demolished.

Chief Justice Esther Hayut (right) and Justice Hanan Melcer at the Supreme Court on May 4, 2020 (Screenshot)

Mitzpe Kramim was established in 1999 adjacent to the Kochav Hashahar settlement, on land granted to the settlers by the semi-state-controlled Settlement Division of the World Zionist organization. Shortly after, the Civil Administration — the Defense Ministry body that authorizes West Bank construction — determined that the state did not have rights to the land that the Settlement Division provided.

In 2011, a group of Palestinians from the village of Deir Jarir, claiming ownership over the land on which the outpost sits, submitted a petition to the High Court of Justice to have the community of some 40 families removed.

In order to delay the process, the residents issued their own petition to the Jerusalem District Court, claiming the Defense Ministry had been responsible for settling them on that particular central West Bank hilltop after their original site had been deemed similarly illegal.

In August 2018, the district court accepted the petition in a ruling celebrated by settler leaders, who were hoping it would lead to similar decisions regarding the legalization of other outpost homes throughout the West Bank.

But the district court ruling did not relate to issues of property ownership. With that decision handed down, the High Court was able to move forward with its ruling on the Deir Jarir residents’ claims to the land.

A general view shows the Israeli settlement of Mitzpe Kramim in the West Bank, on August 29, 2018. (AFP / THOMAS COEX)

While the settlers waited for the High Court ruling, they were further emboldened in December 2018 when Mandelblit issued a legal opinion endorsing the use of “market regulation.”

August’s ruling had been another in a string of blows to the settler movement, which had seen its prime goal of West Bank annexation tabled for the foreseeable future in exchange for a normalization agreement with the United Arab Emirates and the so-called Regulation Law struck down by the High Court.

The High Court in June ruled that the aforementioned legislation to legalize settler homes “violates the property rights and equality of Palestinians, and gives clear priority to the interests of Israeli settlers over Palestinian residents [of the West Bank].”

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