HCJ 5480/15 Mariam Ismail Ali Mussa v the Minister of Defense
Petition Submission Date: 11.8.15
The unauthorized outpost of Derech Ha’avot was constructed in 2002 on land belonging to the Palestinian village of Al Khader, near the settlement of Elazar, by taking advantage of the security situation during the peak of the second intifada.
In 2007, the Civil Administration confirmed there were dozens of illegal structures in the outpost, but did not enforce the demolition orders it issued. According to an internal Civil Administration document from 2010 that the State Attorney barred from publication, 60 percent of the structures in the outpost were built on private Palestinian land.
The outpost was built quickly and with sophistication: the first stage was positioning prefabricated caravans; then permanent walls were built around many of them. Finally, a roof was built, transforming the portable structures into permanent ones. Later on, the structures were connected to the water, electricity and a sewage grids, and roads were paved. All this construction and connection to infrastructure took place without permit, and in contradiction to the building plans, which designated the land use for agriculture.
Yesh Din petitioned the High Court of Justice (HCJ) on behalf of the four Palestinian landowners from Al Khader, demanding it call for the demolition of the illegal structures. One of the petitioners at the time submitted a separate petition to the HCJ, which was subsequently dismissed after the State undertook to demolish the illegal structure built on his land. Despite this binding ruling, the State did not carry out its obligation.
The state argued in its response that the petitioners had failed to show legal cause to compel the state to execute the demolition orders issued for the structures “specifically at the present time and all at once”. This contention is based on the argument that since the homes are built on state land, the execution of the demolition orders against them is low on the priority scale. It also claimed that there is no point holding a discussion regarding the implementation of demolition orders until the appeals against the declaration is determined.
On November 16, 2015, the High Court of Justice issued a temporary order prohibiting construction or occupancy in the relevant plots and ordered the state to take photographs of the site within 48 hours. Shortly thereafter, the petitioners discovered that construction went on in defiance of the order, and Yesh Din filed a motion under the Contempt of Court Ordinance. The state argued in response that it had not been in contempt of the order issued by the High Court and that “Enforcement and implementation action with regards to this new construction, which, as stated, took place after the temporary order was issued, are now how on the priority scale”. However, after legislation of the Regulations Law, the State claimed that Netiv Ha’Avot is explicitly mentioned in the law as one of the “settlements” over which enforcement proceedings of demolition orders apply; as such, until the High Court of Justice does not make a decision regarding the petitions against the law, there is no room to determine the petition.
On May 2, 2022, the High Court deleted the petition. The High Court Justices’ ruling is outrageous at best. The Justices held that “It is indisputable that all the structures subject to the petition – large two-three story structures – were built illegally, without an approved plan for the outpost and without the necessary permits, in a manner that constitutes a gross violation of the law.”
Further, the High Court Justices criticized the Israeli authorities’ law enforcement policy and wrote, “We wonder why Israel Police investigators were unable to locate whoever gave the ‘green light’ to set up on the land and connect the structures to water, electricity and sewage grids.” The Judgement also notes “the State’s deliberate inaction”, and the fact that “ten years have gone by without any real progress” regarding the State’s commitment to establish a designated unit for investigating planning and construction violations in the West Bank.
At the end of the judgement, the High Court Justices wrote that “both remedies demanded in it [the petition] are still of relevance” but instructed the petition be deleted because of prolonged proceedings in the appeals committees. In this way, the State exercises “deliberate inaction” and ultimately is rewarded by the High Court Justices deleting the petition.
In an unusual move, the Justices instructed the State to pay the petitioners NIS 7,000 for court expenses, underscoring the petition’s necessity and importance.
Petition status: Deleted.