HCJ 8395/14 – Turmusaya village council head Mr. Rabbhi Abed Al Rahman Muhammed Abu Awad et al v the Minister of Defense
Adei Ad is an illegal outpost built in 1998 near the settlement of Shilo. The outpost was built in part on private land belonging to residents of the Palestinian villages Turmusaya, Al Mughayer, Qaryut, and Jalud.
In 2013, Yesh Din published the report The Road to Dispossession, which demonstrated how the establishment of an outpost, with the assistance of authorities or by omission, led to systematic violation of the law and continued injury to the residents of the adjacent villages. The report presented a direct connection between the failures of the State of Israel to enforce the law and protect Palestinians and their property in order to enable the expansion of the outpost and the territories under its control while dispossessing Palestinians from their land.
In 2014, Yesh Din petitioned the High Court on behalf of the council heads of the Palestinian villages Turmusaya, Al Mughayer, Qaryut, and Jalud, demanding the court order the State to remove the outpost. The petition, the first of its kind, demands removal of the outpost not only because it was built illegally, in part on private Palestinian land, but also because it is a hub for criminal activity, severe violence and systematic violations of the human rights of Palestinian residents of the area, in an effort to drive them from their land.
According to the petition, “the outpost of Adei Ad, which stands defiantly on a hilltop overlooking the fields of the villages in the area…has amassed a decisive impact on the daily lives of the residents of Turmusaya, Al Mughayer, Qaryut, and Jalud, while expanding and spreading on the villagers’ lands; it is a source for violent acts committed against many Palestinians, primarily residents of the neighboring villages; constitutes a hub for advocating vandalism of property and land, with the goal of expelling them and expropriating additional land, as well as for expanding the outpost’s territory de-facto.”
In its response submitted in September 2015, the State admitted that there was widespread illegal construction in the outpost and that in effect the State is not enforcing the law regarding illegal construction there. The State Attorney also admitted that “the Shilo valley and Adei Ad area are marked as a key focal point requiring unique treatment and work.” Despite this, the State announced it intends to authorize the outpost of Adei Ad along with three other nearby unauthorized outposts – Kida, Esh Kodesh and Ahiya. According to the State’s response, after clarifying which lands are state lands and which are private lands, the structures on private land will be removed and the rest of the illegal construction retroactively authorized.
On October 12, 2015, The High Court of Justice issued an order nisi instructing the State to explain within 180 days why it refuses to evacuate the outpost. On February 13, 2017, the State Attorney informed the HCJ of the conclusion of the examination of the status of the land on which the outpost was built. It stated that some of the structures in the petition are located on land that was declared State Land. The State Attorney requested the petition regarding these structures be denied due to the intention to regulate their status.
In addition, the State Attorney requested not to demolish the buildings in the unauthorized outpost that are not on land that underwent a declaration due to the legislation of the Regulation Law. The State’s response claimed that the State Attorney “must examine the question of the ramifications of this law” on the structures built on private Palestinian land as well as structures built partially on State Land.
Yesh Din’s response claimed that there was no genuine plan to regulate the outpost, and in effect the State is requesting to grant the residents of the outpost a freehand to continue building inside the outpost, due to their open policy of not enforcing illegal construction regarding outposts whose regulation is being considered.
In January 2018, the High Court ordered a freeze on all construction in Adei Ad and sharply criticized the State’s conduct regarding the outpost, including its handling of the petition. The court rejected the petitioners request to have the entire outpost evacuated, but gave the State only nine months to authorize the outpost, on the provison that at that date, another petition could be filed to have some of the structures evacuated. HCJ president (retired) Naor made it clear that allowing the State to consider authorizing the outpost in this case must not be taken as a carte blanche by the court for the future. In the ruling, she wrote: “The conclusion must not be that expressing a general interest in retroactively authorizing illegal construction is enough to justify the granting of such requests in future, as a carte blanche for continued disregard for the law.”
Naor also criticized the way in which the State Attorney’s office handled the case: “On many issues, we were not presented with all the information needed to reach a decision, or were given partial information only, and not always in a precise enough manner. Too often, throughout the proceedings, it transpired that there was more to matters than met the eye. This kind of conduct leads to drawn-out legal proceedings, a waste of the court’s time and harms the litigants. That cannot be accepted. It is the duty of every attorney to help the court pursue justice. In particular, this duty lies heavily on the shoulders of State Attorney representatives, who are civil servants entrusted with representing the public interest. The state is expected to provide full and proper disclosure in every single case. It must present the facts clearly and in full.” The state was also obligated to pay the petitioners expenses totalling 20,000 ILS.
Petition status: Partially dismissed