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HCJ to state: Demolish nine structures in the settlement of Ofra

Israel’s High Court orders state to carry out demolition orders issued for nine structures in the settlement of Ofra, despite state objection. Court: Denying the petition would have sanctioned severe harm to Palestinian rights and rule of law, which is unacceptable

Photo: Houses in the settlement of Ofra, with the petitioning village of 'Ein Yabrud in the background / by Baz Ratner, Reuters
Photo: Houses in the settlement of Ofra, with the petitioning village of 'Ein Yabrud in the background / by Baz Ratner, Reuters

In a dramatic decision, Israel’s High Court of Justice (former President A. Grunis, President M. Naor, and Justice I. Amit) ruled Sunday that the state must carry out demolition orders issued for nine illegal structures built on privately-owned Palestinian land in the West Bank settlement of Ofra. The Court accepted the petition filed by Palestinian residents of nearby villages and Israeli human rights organizations Yesh Din and B’Tselem to enforce the law regarding illegal construction in the area. In light of the state’s claim that the nine structures essentially share the status of many other houses in Ofra, the ruling has far-reaching implications for the issue of illegal construction on privately-owned Palestinian land.

The petition was filed in 2008 by five Palestinians from the village of ‘Ein Yabrud and Israeli rights organizations Yesh Din and B’Tselem against the minister of defense, OC Central Command, and the head of the civil administration, while construction of the structures and their connection to infrastructure was under way. The petitioners demanded that the court instruct the authorities to carry out demolition orders previously issued for the structures, prevent their connection to power, water and sewage networks and prevent people from taking up residence in the structures pending a ruling on the matter. In June 2008, the HCJ issued an interim order forbidding further construction or use of nine houses. In March 2009, after being notified that the order had been violated and people had taken up residence in the houses, the Court also issued an order nisi instructing representatives of the state to explain why the stop-work and demolition orders had not been implemented.

Unlike in other cases concerning illegal Israeli construction on Palestinian land in the West Bank, the state claimed in this petition that due to “special circumstances”, the usual priorities for enforcement of planning and building laws did not apply in this case. The “special circumstances”, the state explained, were that most structures in Ofra had been unlawfully erected on privately-owned Palestinian land, i.e. their status was almost identical to that of the nine structures under examination. The state’s problematic argument was that as almost the entire settlement of Ofra had been built on privately-owned Palestinian land, there was no justification to demolish those particular nine structures – although they were new and the petition was filed before they were completed. Therefore, the state argued, the fate of the nine structures would be determined along with the rest of the settlement, through negotiations on a permanent-status agreement with the Palestinians. State representatives referred to Ofra throughout the court sessions as “the largest illegal outpost in the West Bank”.

Last night, the Court rejected the state’s position and ordered execution of the demolition orders issued for the nine structures. In the ruling, the Court harshly criticized the conduct of various parties who worked to expedite construction of the structures after the petition was filed, in order to have them inhabited before the Court ruled on the matter: “The petition that lies before us pertains to structures that were unquestionably built illegally. They were constructed on registered land that is privately-owned by Palestinians […]. In addition, the construction was carried out in breach of stop-work orders and demolition orders issued by the authorities, and was completed in what appears to be foul play after the petition was filed.”

The Court added that accepting the state’s position “would have sanctioned severe harm to Palestinian rights and rule of law, which is unacceptable”.

Att. Shlomy Zachary of Yesh Din’s legal team said in response: “The High Court of Justice made it unequivocally clear that the property rights of protected persons and basic values such as the rule of law cannot be part of political wheeling and dealing or contingent on diplomatic negotiations. These are basic rights and their fulfillment must be safeguarded. One can only hope the state does some serious soul searching regarding the outrageous positions that justified violating the interim order under the presumption that different rules apply to Ofra and its residents.”

Hagai El-Ad, executive director of B’Tselem, stated: “In the years that have passed since the petition was filed, Israel’s land grab in the West Bank has continued vigorously. Whether carried out through declaration of state land – which state? – or taking control of privately-owned Palestinian land, the trend remains the same, and it has been led by Israeli governments for decades. The Court’s decision does not change the larger picture.”