Rights group demands criminal probe of Gallant and Smotrich over Homesh yeshiva
Construction of new building in outpost was ‘deliberate dismantlement of rule of law,’ caused ‘constitutional crisis’ as ministers allegedly approved structure, says Yesh Din
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Yesh Din human rights advocacy organization has written to Attorney General Gali Baharav-Miara demanding a criminal investigation of two cabinet ministers regarding the illegal construction of a yeshiva building in the outlawed West Bank outpost of Homesh last week.
In the letter, Yesh Din asserted that the legal adviser to the IDF’s Judea and Samaria Division of the army’s Central Command had said that the new structure was illegal, but Defense Minister Yoav Gallant and Bezalel Smotrich, a minister in the Defense Ministry, nevertheless authorized its continued construction.
Michael Sfard — one of the lawyers who filed the letter to the attorney general on behalf of Yesh Din — stated that the incident was one of the worst violations of the rule of law he had encountered. Sfard added that it constituted a form of constitutional crisis since it placed the army in a situation of having to choose between obeying instructions from government ministers and obeying the law.
Yesh Din advocates for Palestinian human rights in the West Bank and has since the 2000s represented the residents of the Palestinian village of Burqa, close by to Homesh, in their efforts to gain access to their land on which the outpost is situated.
Last Sunday night, a new structure for the yeshiva was built on state-owned land in Homesh so it could move from its previous location on private Palestinian land.
The move was part of an effort by settler activists, coalition parties and the government itself to legalize the Homesh outpost in the face of previous decisions by the High Court of Justice that the current yeshiva must be evacuated since it is built on private Palestinian land.
In March, the Knesset passed a law repealing a 2005 ban on Israelis residing in the area of Homesh and three other settlements in the northern West Bank, and a military order was issued implementing the legislation. The four settlements had been evacuated along with those of the Katif bloc, as part of a unilateral withdrawal from Gaza known as the Disengagement.
The military commander also issued an order appending two areas of state land in the Homesh outpost to the Samaria District Council, which then sought to build a new yeshiva on one of those parcels of land.
Planning and construction in the West Bank needs approval from the Civil Administration, a department of the Defense Ministry. At the same time, the current designation of the state land in Homesh is for agricultural purposes, explained Sfard. In order to change that designation, planning permission and approval from the Civil Administration would be required.
Since such plans have not been authorized, the construction of the new yeshiva was illegal.
Sfard also noted that since the state land on which the new yeshiva has been built is surrounded for the most part by private Palestinian land, it will be virtually impossible to build the requisite infrastructure at the site, such as water supply and access roads, without further violating the private property rights of the landowners.
The IDF declined to confirm to The Times of Israel whether the Judea and Samaria Division Division’s legal adviser had indeed stated the construction would be illegal before Gallant and Smotrich authorized it.
Similarly, the Defense Ministry refused to say whether Gallant had ordered IDF chief Herzi Halevi to approve the construction work, and said the issue was a matter for Gallant’s office, and the offices of both Gallant and Smotrich refused to comment on the matter.
Sfard asserted that it would have been illegal for Gallant and Smotrich to have ordered Halevi to contravene the legal opinion of an IDF legal adviser.
Yesh Din said in a statement that the “disregard for the rule of law and human rights demonstrated by ministers Smotrich and Gallant, when they blatantly ignored the warnings of the legal adviser and knowingly violated the law, is only a preview of what may happen if the legal overhaul is implemented. Those who gave the illegal orders and those who carried it out should be held accountable. This is a moment of truth for the attorney general and the rule of law.”
The Attorney General’s Office did not respond to a request for comment.
