High Court rejects petition seeking immediate razing of Khan al-Ahmar

Justices accept state’s argument it has discretion on when to demolish illegal West Bank encampment, due to security and diplomatic considerations

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

The Bedouin village of Khan al-Ahmar, in the West Bank, February 2, 2023. (Yonatan Sindel/Flash90)
The Bedouin village of Khan al-Ahmar, in the West Bank, February 2, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice rejected on Sunday a petition demanding that the government immediately demolish the illegal West Bank Bedouin encampment of Khan al-Ahmar, saying the timing of such an operation is at the discretion of the government itself.

The court said that due to “diplomatic and security matters of the highest level” related to any possible demolition of the encampment, it would not force the government’s hand.

The ruling means that Khan al-Ahmar will likely not be demolished in the near future, despite the frequent and vocal demands of numerous  right-wing organizations and politicians, including many in the current government.

Despite having previously demanded the demolition of the Palestinian village on numerous occasions, including during the course of the current government, neither Finance Minister Bezalel Smotrich or National Security Minister Itamar Ben Gvir immediately commented on the ruling.

The petitioning organization, the right-wing Regavim, which campaigns against illegal Palestinian construction in the West Bank, denounced the court decision as hypocritical and branded the government “a disgrace” for failing to follow through with what its senior cabinet ministers have promised.

Last month, the government asked the High Court to dismiss the petition demanding Khan al-Ahmar be immediately be demolished, insisting that the timing of such action is squarely within its own purview.

National Security Adviser Tzachi Hanegbi arrives for a meeting at the Prime Minister’s Office in Jerusalem on January 15, 2023. Yonatan Sindel/Flash90)

The state provided the court with confidential documentation, including the position of National Security Adviser Tzachi Hanegbi and other security officials, to illustrate its contention that demolishing Khan al-Ahmar at present would create diplomatic and security problems for the country.

The position was drawn up by a designated committee headed by Hanegbi, along with officials from the Defense Ministry, the commander of IDF Central Command responsible for the West Bank, the Shin Bet, the Foreign Ministry and the Justice Ministry, and was finalized in a meeting on April 23 between Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, Smotrich and Ben Gvir.

In a unanimous ruling on Sunday by a panel of three High Court judges, Justice Alex Stein wrote that the government’s position that the court allow it to evacuate Khan al-Ahmar at a time of its choosing, due to damage that might be caused at present to Israel’s security and diplomatic standing, was justified.

Stein wrote that the confidential documentation shown to the court by the state “put our minds at ease that these reasons, without exception, are tied to state security and foreign affairs,” and said the court’s practice was not to interfere with the priorities of a state authority in enforcing the law.

Justice Noam Sohlberg concurred with Stein, writing that the state had changed its stance — from requesting repeated delays in implementing the demolition orders against Khan al-Ahmar first issued in 2009 to requesting the petition be rejected outright, due to security and diplomatic considerations for which only the government is responsible.

“Like my colleague, Justice Stein, I am also convinced, after reviewing the confidential material that was presented to us, and after we received answers to the questions we asked, that current, real reasons, concerning the foreign relations and security of the country, do not allow for the evacuation [of Khan al-Ahmar] at this time,” wrote Sohlberg.

High Court Justice Noam Sohlberg presides over a court hearing over a petition by the Regavim organization demanding the evacuation of the Khan al Ahmar village, May 1, 2023. (Yonatan Sindel/Flash90)

He also wrote that since the executive branch has broad discretion in such matters, the petition against the government should not be left pending, but dismissed entirely.

Sohlberg did, however, have some tough words for the residents of Khan al-Ahmar and their backers.

He wrote that the encampment had been built illegally and that the residents had “openly and knowingly defied the law” in doing so, emphasizing that, as such, Khan al-Ahmar should be demolished.

The justice also wrote that the state had offered different dwelling alternatives to the Bedouin tribe inhabiting the encampment, and had invested considerable amounts of money and resources into providing an alternative site with better living conditions, communal and educational infrastructure, and public transportation options for the site.

These proposals had been “stubbornly” rejected by the Khan al-Ahmar residents, wrote Sohlberg.

“It stands to reason that choosing one of the proposed alternatives, [which have been prepared] with a huge financial investment, is necessary for those who truly have the best interests of the residents of Khan Al Ahmar at heart,” he added.

Khan al-Ahmar has for years been a target of strident criticism from the Israeli right and the settlement movement, which decries the demolition of illegal Israeli settlement outposts in the West Bank, but claims that there is insufficient enforcement against illegal Palestinian construction.

Likud MKs Yuli Edelstein and Danny Danon visit the Bedouin village Khan al-Ahmar, in the West Bank on January 23, 2023. (Yonatan Sindel/Flash90)

The encampment is located just east of Jerusalem, not far from Ma’ale Adumim, and is believed to be home to fewer than 200 residents. The state says the structures, mostly makeshift shacks and tents, were built without permits and pose a threat to the village’s residents because of their proximity to a highway.

Khan al-Ahmar’s Palestinian residents, members of the Jahalin tribe, say they arrived in the area in the 1950s after already being displaced during the 1948 War of Independence.

In 2018, the High Court ruled that there was nothing to prevent the government from enforcing demolition orders issued by the Civil Administration of the Defense Ministry in 2009 against structures in Khan al-Ahmar.

But the evacuation of the village has been pushed off repeatedly for four years, largely owing to the significant public interest in the affair from human rights activists, pro-Palestinian groups and the European Union.

The state has prepared a site for the relocation of the encampment some 15 kilometers (nine miles) west of the current site, next to the Palestinian town of Abu Dis, just outside Jerusalem, which includes various rudimentary structures and infrastructure for a sewage system, as well as the supply of water and electricity.

Religious Zionism leader MK Bezalel Smotrich standing above the Khan al-Ahmar Bedouin encampment in the West Bank, which he has frequently demanded be demolished, March 21, 2021. (Yonatan Sindel/Flash90)

But the UN, EU, and other international bodies have warned that forcibly moving Khan al-Ahmar’s residents would violate international law and might even constitute a war crime, as displacement of a population under occupation is forbidden under international law.

The Regavim organization, which first petitioned the court for the demolition of the encampment, said Sunday’s ruling demonstrated the court’s bias against the settlement movement, claiming the state has in the past argued that diplomatic considerations were preventing it from demolishing Israeli West Bank settlements, which the court nevertheless ordered demolished immediately.

“On the other side, the capitulation of the state to international pressure and the rubber stamp of the High Court to that capitulation is leading the state to anarchy: Whenever state policy is disliked by international elements, they will pressure the government to retreat… this is a disgrace for the State of Israel and a disgrace to the High Court,” said Regavim.

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