HCJ 5023/08 Said Zahdi Muhammad Shehadeh v the Minister of Defense

Ofra is an Israeli settlement north-east of Ramallah, established without an area of jurisdiction or master plan, and a large number of its houses were constructed on private Palestinian land. In 2006, construction began on nine new structures on registered private land owned by residents of Ein Yabrud. The Civil Administration issued stop work orders against the structures; and yet, construction continued.

Because construction was not stopped, five residents of Ein Yabrud petitioned the High Court of Justice (HCJ) with the assistance of Yesh Din and B’Tselem to demand the demolitions orders issued against the structures be enforced. The petition noted that, “The settlement of Ofra, most of which was established on registered private Palestinian land, has no master plan or area of jurisdiction. As such, unlike most of the Israeli settlements in the West Bank, it is not part of any local council, its very existence and activities undertaken in it subject to an incomprehensible, hybrid legal framework.”

Two weeks after the petition was filed, the HCJ issued an interim order forbidding use of the structures for residence or connecting them to infrastructure, after Yesh Din updated the Court that construction was accelerated and that the rabbis of Ofra had even permitted construction to continue on Saturday and during the holiday of Shavuot. The State admitted this was illegal construction on private Palestinian land. It added that most of the houses were inhabited in the period between the petition submission date and the hearing on the order nisi (requested in the petition). A police investigation was opened as a result of the violation of orders.

Once it became clear that the houses were inhabited, the defense minister chose to avoid implementing the demolition orders. The justices levied criticism at this decision: “The impression is that actions were taken in order to create facts on the ground and to impede carrying out the interim order.” In March 2009, the HCJ issued an order nisi instructing the State to explain why the demolition orders had not been implemented. The State claimed that the petition raises “a sensitive matter that includes enforcement, planning, security, diplomacy and social considerations.”

In February 2015, the High Court ordered the demolition of the nine structures and gave the State two years to enforce the ruling. “I do not underestimate the significance of the decision to enforce the orders to demolish residential structures. Clearly, the decision has painful and difficult consequences for the residents and their families, who put down roots in the settlement and the community,” then Supreme Court Chief Justice Asher Grunis wrote. “Nevertheless, these circumstances do not justify retroactive authorization of illegal construction on private property or authorize the failure by State authorities to enforce the law, in a way that is not according to the policy they themselves determined. Had it been decided to dismiss this petition, it would have amounted to permission to gravely harm the rights of the protected residents in the area and the rule of law, and this is unacceptable.”

In February 2017, the High Court postponed the evacuation of the nine homes by a month, following a request by the residents to postpone the evacuation by three month.  High Court President Miriam Naor wrote in her decision that there is no dispute about the fact that the structures were built illegally on private Palestinian land, and that there was an effort to determine “facts on the ground by violating administration orders.”

However, Naor added that “beyond the letter of the law,” she proposes postponing the evacuation by a month to allow security forces a reasonable amount of time to prepare to carry out the ruling. “We hope that when the time comes, the petitioners will peacefully evacuate, as they testified in their affidavits. No person has the right to exert violence against law enforcement authorities or any other person,” the ruling stated.

After notification of the postponement, the residents of the houses requested that the High Court of Justice seal off the houses instead of demolishing them. This came after they claimed that the Regulation Law grants them a planning horizon, and that they can be rebuilt in the future if demolished. In its response the State clarified that the law does not apply to those nine houses. In its response to the residents’ request, Yesh Din stated that not only does the law not apply to the nine houses, but that, because they are on private Palestinian land, the homes cannot be built in the future, despite the Regulation Law. Following the ruling, the houses were demolished.

Petition Status: The petition was accepted