High Court of Justice (HCJ) 5165/15 Qassem et al the officer in charge of issuing permits in land seized for military purposes
Petition Submission Date: 26.7.2015
In July 1979, the IDF issued a secret seizure order designed to enable the expansion of the Beit El settlement through the seizure of lands belonging to the residents of the Palestinian village Dura al-Qar’. The seizure order was issued while the High Court of Justice was discussing the Elon Moreh case, which outlawed the practice accepted in the 1970s of military seizure for the purposes of establishing illegal settlements.
The current petition is a result of the petition filed regarding the demolition of the illegal structure of the Dreinoff complex. As part of that petition, the petitioners, represented by Yesh Din, demanded the annulment of seizure order 23/79T, which permitted the army to seize lands the private contractor Dreinoff had invaded – a ploy to circumvent the fact that houses cannot be built on lands seized by the army. The High Court of Justice didn’t see any reason to discuss the demand in light of the fact that the State undertook to evacuate the structure.
Nonetheless, after the High Court of Justice instructed the evacuation of the the structures, the Civil Administration began an accelerated proceeding to retroactively authorize the construction, despite the court ruling. Yesh Din submitted a series of objections to the set of directives issued by the Civil Administration and demanded the prohibition on construction in the area. When the Civil Administration rejected the July 2015 objections, Yesh Din petitioned the High Court. The petition specified that this is private Palestinian property and that military seizure cannot serve private construction, but rather only urgent military purposes.
In its response, the State claimed that the purpose of the seizure was “realizing the potential of the settlements, designed to preserve the motivations behind its establishment,” and that “the said land constitutes an integral part of the settlement of Beit El,” even though no legal structure was built there during the period it was under seizure. The State also claimed that the petition was submitted with a significant delay (while diminishing the importance of the fact that the seizure order was concealed from the residents), and that the area seized is currently located within the fenced off borders of Beit El.
Following the petition in June 2017, the State decided to freeze the guidelines designed to allow the construction within the seizure order in Beit El, where the Dreinoff Houses had been built. However, the State Attorney notified that it is examining the advancement of construction on state land in Beit El. In Yesh Din’s response to this decision, the organization claimed that by doing so, the State is choosing to freeze the guidelines, leaving an illegal situation in place, and as such it must be annulled since it constitutes illegal use of the petitioners’ private property. It also claimed that the State has no justification on security grounds, certainly not urgent or necessary ones, for damaging the petitioners’ property and allowing civilian construction in the said territory.
In September 2017, following the State’s notification that the plan would be frozen, the High Court of Justice ruled to dismiss the petition without discussing annulment of the seizure order. “The decision by State respondents to freeze the aforesaid advancement of the instructions altered the factual and judicial status. In effect, it rendered the issues in the petition – which include questions regarding international law – theoretical,” Supreme Court President Miriam Naor wrote in her ruling. “As a rule, the Court is not obligated to address a theoretical petition, even if the matter raises fundamental legal issues of importance, and even if it was at first practically relevant. This is the situation in our case.”
Petition Status: Dismissed. The State is obligated to pay expenses totaling 10,000 ILS.