Israel’s High Court legitimizes looting of land in Derekh Ha’avot outpost

Published: 
5 Sep 2010

On 1 September 2010, Israel's High Court of Justice sanctioned the looting of land and the unlawful building carried out in establishing the Derekh Ha'avot outpost, near the Elazar settlement, in the Etzion Bloc. The court's decision was made even though the state had declared for almost nine years that the construction in the outpost was unlawful. The court rejected Peace Now's petition, filed in 2008, demanding evacuation of the outpost and its residents, who had taken control of land they did not own and had built houses without obtaining a building permit. It also refrained from ordering the state to set a binding time-table for enforcing the law. The court based its decision, written by Justice Edmond Levy, with justices Edna Arbel and Neal Handel concurring, on the claim that the court refrains, as a rule, from interfering in priorities of the defense establishment relating to law enforcement. On this pretext, the Israeli judicial system, including Supreme Court justices sitting as the High Court of Justice, has not ordered enforcement of the law on the outposts for 12 years.

Residential dwellings in the Derekh Ha'avot outpost, Bethlehem District.  Photo: Noam Preiss, B'Tselem, 4 May 2010.
Residential dwellings in the Derekh Ha'avot outpost, Bethlehem District. Photo: B'Tselem, 4 May 2010.

The Derekh Ha'avot outpost was established in February 2001, 500 meters from the boundary of the Elazar settlement's area of jurisdiction. According to Talia Sasson's report on outposts and the database prepared by Brig. Gen. Baruch Spiegel, the former assistant to the minister of defense, the outpost was established on private Palestinian land and survey land (land whose ownership has not yet been determined). Residents of the village of al-Khader contend that the outpost was built on farmland that they had worked continuously for many years. The Israeli law-enforcement authorities have never taken any action to dismantle the outpost.

In its response to Peace Now's petition, the state agreed that the outpost had not been authorized and stated that enforcement measures, including the issuance of stop-work orders and demolition orders, were being taken with respect to all structures in the outpost, and added that no “planning whatsoever” had been approved for the outpost. In light of the state's position, the justices ordered the state, in July 2009, to present a “clear time framework for executing the orders.”

Playground in the outpost. Photo: Noam Preiss, B'Tselem, 4 May 2010.
Playground in the outpost. Photo: B'Tselem, 4 May 2010.

No time framework was submitted. In April 2010, the State Attorney's Office filed a statement with the High Court that relied on the government's decision to temporarily freeze construction in the settlements, which, it argued, “requires postponement of other enforcement actions.” In the view of the State Attorney's Office, executing the demolition orders in the outpost “was not a high-priority matter anyway.” The State Attorney's Office added that it had been decided to implement the survey-land procedure, which will determine the kinds of ownership of land on which the outpost was built. If it is found that the settlers built on state land, the authorities would consider authorizing the construction; if it is found, as the residents of al-Khader contend, that the land is privately owned Palestinian land, “the demolition orders would be executed in accordance with the order of priorities.” The State Attorney's Office emphasized that, due to the “political-security significance” in this procedure and the decision that will subsequently be made, the state finds no “justification” in setting a time-table for completing the procedure.

Israel's obligations under the Road Map, which were formulated in 2003 and ratified in the understandings with the Bush Administration and recognized in Prime Minister Binyamin Netanyahu's speech at Bar-Ilan University in June 2009, prohibit the establishment of new settlements and the expropriation of land to expand existing settlements. Therefore, even if the survey-land procedure is carried out, as mentioned above - a process which, as Justice Levy observed in his opinion, “nobody knows when it will be done” - Israel has the obligation not to allocate land for the outpost.

The High Court's decision, which adopts the state's position with respect to the Derekh Ha'avot outpost, legitimizes the looting of land and ongoing contravention of the building laws, in this outpost and in all the other settlements, and exempts the law-enforcement authorities from enforcing the law on criminal settlers and lawbreakers. Given the illegality of the settlements in the first place, B'Tselem demands that the government of Israel dismantle the outpost along with the rest of the settlements and immediately enforce the law on the settlers.