High Court demands government explain refusal to demolish Homesh outpost

Justices issue injunction after state tells court that new coalition intends to legalize wildcat settlement, repeal clause in 2005 law mandating its evacuation

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

The unauthorized West Bank settlement outpost of Homesh, November 17, 2022. (Nasser Ishtayeh/Flash90)
The unauthorized West Bank settlement outpost of Homesh, November 17, 2022. (Nasser Ishtayeh/Flash90)

In a rebuke to the new government, following its announcement on Monday that it intends to legalize the West Bank outpost of Homesh, the High Court of Justice demanded the state explain why the illegal settlement should not be evacuated.

The court issued an injunction against the government, requiring an explanation within 90 days, after a court hearing earlier on Monday about a petition submitted by the Yesh Din organization seeking the evacuation of Homesh on behalf of Palestinians who own the land upon which the illegal outpost is situated.

The court also demanded the state explain why it should not take the necessary steps to grant the Palestinian landowners regular access to their land, something they have been systematically denied for years, due to the presence of the outpost and restrictions imposed by the IDF.

Earlier on Monday, the state informed the High Court that it had taken the highly controversial decision to legalize Homesh instead of evacuating it, as the previous government had pledged to do, by repealing part of the 2015 disengagement law which led to the evacuation of four settlements in the region and prohibited Israelis from living there.

Yesh Din welcomed the High Court injunction, arguing that the government’s intention to repeal part of the disengagement law “would not change the fact that this is private Palestinian land.”

Representatives of Homesh said, however, that the injunction was a test of the new government’s right-wing bona fides and “its ability to fix the injustice of the expulsion [from the northern West Bank in 2005] and not allow the High Court to direct the government.”

Supreme Court Chief Justice Esther Hayut at a court hearing for a petition demanding the evacuation of the illegal settlement outpost of Homesh, January 2, 2023. (Yonatan Sindel/Flash90)

The Yesh Din petition demands that an illegal yeshiva at Homesh be removed and the Palestinian residents of the nearby village of Burqa be given access to their private land on which the yeshiva sits.

In May, under the Bennett-Lapid government, the state acknowledged in response to the Yesh Din petition that Homesh was illegal and informed the High Court it would evacuate the outpost, though it did not set a date for enforcement.

The court ordered the state in June to report back within two months on the steps it was taking to evacuate and demolish the outpost, but the government subsequently fell and Prime Minister Benjamin Netanyahu’s right-wing, religious coalition, which is ideologically committed to expanding the settlements, took office last week promising to legalize Homesh.

The state therefore told the High Court on Monday morning that it now intends to repeal the section of the 2005 Disengagement Law that ordered the evacuation and demolition of the four settlements in the northern West Bank, including Homesh, and which banned Israelis from living in the area without authorization.

Settler activists have long demanded that Homesh be resettled and have repeatedly rebuilt an illegal yeshiva at the site since the outpost was demolished in 2005.

The recently signed coalition agreement between Prime Minister Benjamin Netanyahu’s Likud party and the far-right Religious Zionism specifically states that the new government will repeal part of the disengagement law to enable Homesh to be rebuilt, with the state attorneys citing this in their response to the court on Monday.

Right-wing MKs, including former Knesset speaker Yuli Edelstein, visit Homesh in 2022. (Roi Hadi)

Defense Minister Yoav Gallant and Finance Minister Bezalel Smotrich, who heads Religious Zionism and is also a minister in the Defense Ministry,  issued a statement on Monday morning announcing the policy reversal.

Homesh was originally built in in 1978 on private Palestinian land belonging to residents of Burqa. As a result, the landowners have been denied regular access to their land for decades, leading to a decade-long battle at the High Court that Yesh Din has fought on behalf of the Burqa landowners.

During the hearing on Monday, Supreme Court President Esther Hayut asked the state attorneys how they intend to legalize the outpost, given that it sits on private Palestinian land.

In a similar vein, Justice Uzi Vogelman noted that the court had not heard the state claim that it could make use of private Palestinian land since a landmark case regarding the Elon Moreh settlement in 1979.

Head of the makeshift Homesh yeshiva Rabbi Elishama Cohen at an inauguration ceremony for a Torah scroll in the Homesh illegal outpost. (Courtesy Homesh Yeshiva)

A statement put out by the Homesh yeshiva and former residents of Sar-Nur, another settlement evacuated in 2005, thanked Gallant, Smotrich and Justice Minister Yariv Levin, saying it would “correct the historic injustice of the disengagement from northern Samaria,” using the Biblical term for the region.

Shlomo Ne’eman, head of the Yesha Council umbrella group representing municipal authorities across West Bank settlements, also welcomed the policy change, saying it expressed the change in attitude of the new government.

“We hope that from now on the state’s response to the political [High Court] petitions against the settlements will be answered in the same spirit as this one,” said Ne’eman.

Yesh Din, however, denounced the decision.

“Legalizing the Homesh outpost violates international law, and will deepen the oppression and dispossession of Palestinian residents and landowners at the site,” said the organization.

“Homesh is on private Palestinian land and it cannot be legalized. This is what robbery and theft look like under the cover of the law.”

Otzma Yehudit MK Limor Son Har-Melech looks out at the Homesh hilltop, from her Shavei Shomron home, May 26, 2022. (Carrie Keller-Lynn/The Times of Israel)

The left-wing Peace Now organization, which opposes the settlements and Israeli control of the West Bank, charged that the state’s policy reversal was part of a “dangerous messianic coup” and said the new government was violating the rule of law.

“Instead of evacuating the outpost as soon as possible, the government of annexation prefers to trample on the law, morality and Israeli interests for the whims of the delusional far-right. If we don’t wake up and stop the Jewish supremacy project for the [West Bank] hilltops, the new government will see to it that the territories occupy Israel,” the group said.

Separately, forces from the Border Police and Civil Administration carried out a series of evacuations and demolitions at several illegal outposts around the northern West Bank on Monday morning, leading to denunciations from right-wing, pro-settlement organizations.

The enforcement actions came less than a day after former defense minister Benny Gantz vacated the ministry and was replaced by Gallant, a top member of a government that has put settlement expansion at the top of its agenda.

The evacuations and demolitions were carried out at the outpost of Nahalat Zvi, adjacent to the Maale Michmash settlement some 15 kilometers (9.3 miles) northeast of Jerusalem, and the Yahish Tzion outpost next to the Psagot settlement which is also several kilometers northeast of Jerusalem.

According to settler activists, two families were evacuated from Nahalat Zvi and two residential structures and another building designated for prayer and study were demolished. The outpost was established four months ago.

Structures were also demolished at Givat Yahish, where several youths were residing. The outpost was established in July during a campaign by the radical Nachala settlement organization to set up numerous outposts around the West Bank.

In addition, security personnel uprooted grapevines planted by settlers from the Yitzhar settlement in the northern West Bank on land that Israeli officials have said is Palestinian property, although the settlers dispute this.

A vineyard planted by settlers from Yitzhar on allegedly private Palestinian land belonging to residents of the village of Burin. (Elazar Riger)

Dozens of settlers arrived at the scene to protest, two of whom were arrested and four detained by Border Police forces at the site. The Yitzhar settlement secretariat said that a “Disruptive Land-Use” order was used by the Border Police to carry out enforcement at the site, referring to a legal tool used by security personnel against unauthorized use of non-state land in the West Bank.

The head of the Yitzhar secretariat, Golan Ivgy, denounced the destruction of the vineyard and called on the new government “to immediately halt this disgrace and lend its support to the Jewish settlers and farmers and, God forbid, not the opposite.”

The right-wing Regavim organization, which opposes Palestinian construction in parts of the West Bank under Israeli civilian and security control, denounced the action against the vineyard. It also insisted that Palestinian ownership of the land has not been proven, although Palestinians from the nearby town of Burin have filed ownership claims with the High Court through Yesh Din.

Regavim alleged that less than half a kilometer away from the vineyard stood an illegally built mosque, which has never been demolished despite a longstanding demolition order against it.

“The Disruptive Land-Use Order is a draconian measure that has been applied in a wildly discriminatory fashion, and should be struck down without delay,” said a Regavim spokesperson.

Peace Now said in response that “there are more than 140 illegal outposts in the West Bank that still need to be evicted.”

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