HCJ 5383/09 Ahmed Shama and Wajiya Abed AlKarim v the Defense Minister, Ehud Barak

In 2009 the village council head of Deir Dibwan petitioned the High Court of Justice, with the assistance of Yesh Din, asking that demolition orders be enforced against an illegal structure in the unauthorized outpost of Mitzpe Danny, whose construction began not long beforehand. Mitzpe Danny is located near the settlement of Ma’aleh Mikhmas, 20 kilometers from Jerusalem. The outpost was built on both private and state land and its establishment caused significant problems for the neighboring Palestinian residents, who were denied access to their land.

The petition was submitted after the Civil Administration failed to enforce the demolition orders and the illegal construction continued undisturbed. This, despite its declarations that the demolition orders for the structures in preliminary stages of construction and not yet inhabited were high on its list of priorities for enforcement.

The petition against the illegal construction in Mitzpe Danny addressed the matter of construction on public land (also termed state land) rather than construction on private land. The petition challenged the Israeli authorities’ widespread use of declaring land as public land as a tactic for transferring it to Israeli settlers rather than making it available for protected persons in the occupied territory.

“Relinquishing land defined as ‘state land,’ which is in fact public property, is a violation of the duty imposed on the respondents as an occupying force in so long as construction is undertaken while destroying the area, without a permit and does not constitute protection of the land and the property. It relinquishes the land in question to whomever the residents of the outpost see fit,” said the petition. “The [Israeli] settlers’ takeover of state land and use thereof as if it were their own property, without any concrete interference by the respondents, with their clear knowledge of the situation, is therefore a violation by the respondents of all of their obligations under humanitarian international law.” The petition also specified that the government funded construction in the outpost worth NIS 325,000.

The HCJ issued an interim order preventing further construction. The State then announced it was considering the option of retroactively authorizing Mitzpe Danny as part of authorizing and promoting a master plan for connecting the settlements of Ma’aleh Mikhmas and Kochav Hashachar. As a result of this announcement, the petition was dismissed in November 2015.

Petition Status: The petition was dismissed