Why does the state support a petition asking to cancel a High Court ruling? Everything you always wanted to know about the Ulpana Hill compensation conspiracy and never asked
On July 19th, 1979, as the High Court of Justice (HCJ) was debating over what would one day be known as the Elon Moreh ruling, a Civil Administration officer, Major Amnon Shasha, signed a seizure order for a plot of land in the village of Dura Al Qara. In his letter, a copy of which can be seen here, Shasha emphasized that the order “is not to be published to the locals.” By so doing, Shasha prevented the villagers from appealing.
Why do I go back to a 36-year-old affair? Firstly, because it is not yet over; secondly, because a few months back the state repeated this dirty trick: it held a secret meeting of the Secondary Settlement Committee in order to rush through a decision that would effectively rescinding a HCJ ruling without informing the relevant parties—that is, the land owners.
The details are complicated, hence they will be presented in chronological order. But the core issue is quite simple: the government of Israel, with all of its various branches, is collaborating with Israeli nationals who seized land illegally, in order to allow them to keep that land, all while giving a finger to the courts.
As mentioned, the affair began with Shasha’s order in 1979. For many years after, the land seized by the IDF under the auspice of that particular order remained barren and served no purpose whatsoever. We remind you that the seizure of land by military order is intended to fulfill a pressing military need, and that such needs are temporary by nature: the invader may have been repulsed, the theater of battle likely moved elsewhere, and the land may be returned to its owners. But for decades, the IDF did nothing with the land it seized in Dura Al Qara.
We skip in time to September-October 2010. Our petitioner, Ahmed Abd Al-Rahman, find outs that illegal construction is taking place on his privately-owned land. The construction is being carried out by M.D. Yehonathan Building and Development Ltd., run by Meir Dreinoff. We note that building on private land seized by a military order is forbidden by international law as well as the rulings of the HCJ, both because military seizure is supposed to serve clear military goals and because the residents of the West Bank are protected by the Geneva Conventions (this protection extends to their property). At Al-Rahman’s request, we prepared a petition to the HCJ, which was served in December 2010.
24.1.11: The HCJ issues an interim injunction against the continuing of the construction, ordering, in effect, the state to ensure this injunction is enforced. M.D. Yehonathan carries on with the construction.
March 2011: Since the interim injunction was disregarded, we demand the HCJ issue a contempt of court order.
7.4.11: The state informs the court (Hebrew) that it will demolish the illegal structures within a year, unless the builders demolish it themselves, or the zoning status changes.
29.4.11: The state admits that construction is ongoing, despite the interim injunction. It notes that the contractor was warned by the Civil Administration that construction is illegal and ordered to cease work immediately. In reply, the company claims it never received the injunction. The police tells the court it received orders from the deputy state attorney to immediately investigate the construction violations. The investigation is closed without any indictments. A month later, taking into consideration the state’s replies and its commitment to halt construction, HCJ President Beinish decides not to rule on the contempt of court request.
20.6.11: The state informs the HCJ that it will grant planning status—i.e. begin the process of granting building permits—to the buildings built on public land, but not those on private land.
9.4.12: A year after its commitment to demolish the buildings, the state informs the court it will not fulfill its promise to demolish them by 7.4.12. All this happens with another HCJ ruling in the background, which orders the evacuation of Ulpana Hill, also in Beit El. The settlers demand compensation from the government for the evacuation, and receive it. As we shall see, the land in question this petition is part of the compensation package.
9.5.12: The state asks for permission to re-open the Ulpana Hill case, and is kicked out of the court, which cites the basic principle of enforcing court rulings.
26.7.12: The smoking gun. A protocol of the Beit El Local Council points directly to a deal with the government about building in the “Dreinoff Neighborhood.” The speakers are perfectly aware that the land is under military seizure, and that “even though they [the government] approved it, there are still some delays.
10.9.12: The state asks the court for permission to build on the seized land as compensation to the settlers for enforcing the Ulpana Hill ruling. That is, the state tells the court that it considers privately-owned land to be a bargaining chip in negotiations, and for that purpose is willing to withdraw from its long-held position. The fact that this is private Palestinian property does not seem to concern the state.
27.1.13: Since we represent the owners of the land in court, we ask the state to inform us about any change in the status of the land.
18.6.13: More than a year after the state was supposed to—by its own pledge—to remove all illegal construction from the land, it informs the court that it intends to keep building, making a mockery of the military seizure order. The state now claims that it is true that there is neither a military usage or a military need for the land, but that when the order–which, as you will recall, was concealed from the residents–was issued, there was such a need. So the state now invents the interesting legal term: “frozen military need.” We are left with no option but to serve another petition to the HCJ, in which we demand the cancelling of Shasha’s seizure order.
29.10.13: The state pledges to the court that by April 2014 it will remove the parts of the buildings which exceed the limits of the seizure order. As usual, the state does not make good on its obligations, and asks the court to accept an opinion which will deviate from the way maps were examined until its request, so as to include the parts of the buildings that exceed the boundaries of the seizure order.
8.9.14: The HCJ issues a final ruling, ordering the the demolition of the buildings by March 7th, 2015. In the majority opinion, President Grunis and Justice Arbel reject the possibility of waiting for extenuating the planning process and legalizing the land. The court rules that under these circumstances, waiting for the planning process would violate the state’s promises to the court regarding a concrete pledge to carry out the demolition orders, as well as its sweeping guarantee to enforce the law on private Palestinian land. The majority view refuses to deal with the request to cancel the seizure order by saying it is void, since the court ordered the illegally-constructed buildings demolished.
The important phrase is “majority view,” since only one judge held a minority view: Miryam Naor. Today, Naor is the President of the High Court, and the state has presented her with a challenge we shall delicately call unusual.
Early 2015: A few days before the retirement of President Grunis, who led the court in its decision to order the demolition, the state begins a quick and secret process to begin issuing land usage permits, while refraining from informing the land owner, despite repeated requests on this issue.
11.2.15: In a flash meeting of the Secondary Settlement Committee, the Guidance System for Depositing for Objections (i.e., a preliminary step before permitting the changing of the status of the land), the state provided the committee with wrong facts and biased commentary on the HCJ ruling.
Early February 2015: M.D. Yehonathan petitions the HCJ to demand that its earlier ruling be cancelled, pointing out that the planning procedure has advanced. The state informs the court it has no objection.
What happened here? This is an attempt to carry out one of the dirtiest tricks in Israel’s legal history. By using the fact that the judge who wrote the minority opinion has become president, while the previous president who wrote the majority opinion on the case has retired, we think that M.D. Yehonathan—a company which has disregarded the court’s orders— is trying (with the help of the state) to rescind the ruling. The state does not object to the move, despite the fact the petitioner has carried out illegal construction in contravention of the interim injunction and has breached several administrative orders. Despite the principle which forbids a criminal from enjoying the fruits of his crimes, the state now suggests President Naor may fix history and turn her minority opinion into the majority one.
By so doing, it tramples several principles: that of the finality of ruling; that of not building on private Palestinian land; and the principle according to which the court will not aid those who acted against its rulings. If this trick works, speaking honestly about the “rule of law” will become much harder. No ruling will be final—there will be no trick left untried.
All of this is happening, we remind you, three years after the government already pledged its support to the settler to preserving the construction under discussion. The politicians want to give the settlers what they promised, and the attorney general is willing to twist every principle in order to grant his masters their wish. Two weeks ago the court debated the petition, and the judges asked the state some tough questions. We’ll keep you updated when a decision is reached.
Update, 24.6.15: Yesterday a ruling was made on the petition. President Naor made it clear in her verdict that she cannot overturn the earlier ruling by President Grunis just because she was in a minority opinion. The court ordered the building demolished by July 30th 2015. Judge Rubinstein noted that “he who builds on private land, is building at his own risk.”