HCJ 9949/08 Maryam Hassan Abd al–Kareem Hamad v the Minister of Defense
Amona, which is located by the settlement of Ofra, northeast of Ramallah, is the largest unauthorized Israeli outpost in the West Bank. It was established in 1995 after an alleged archaeological site was built, as well as a site for water tanks installed. The first caravans were placed in the area in 1996. The first demolition orders for permanent structures were issued in 2000 and in 2005, Peace Now petitioned the High Court of Justice (HCJ) to demand the demolition of nine structures in the area; the demolition took place in February 2006 and included grave violence by Israelis who resisted evacuation and the police, who came to evacuate them.
In 2008, Yesh Din petitioned the HCJ on behalf of a group of landowners from surrounding villages (Silwad, Ein Yabrud and Taybeh) demanding the removal of the entire outpost, which is situated in its entirety on private Palestinian land. The State admitted to the High Court that this was illegal construction and undertook to evacuate Amona peacefully, as it put it, by the end of 2012,
However it did not fulfill its obligation. In November 2012, the State changed its position and notified of its request to limit the petition to the plots owned by the petitioners, and not on all the land on which the outpost was built. The State requested to postpone the evacuation itself by half a year in order to examine purchase claims by the residents. In its response, the High Court of Justice instructed to evacuate Amona by April 2013 and later on the evacuation was postponed to July 2013.
Close to the time of the evacuation, residents of the outpost claimed that Al Watan – a company tied to a series of forged land purchases – had purchased land in Amona. As a result, the HCJ ordered the demolition of the structures built on plots for which no purchase claims were put forth, and postponed demolition of structures on land under dispute. After the Attorney General announced that only the structures on plots that the petitioners have ownership claims to would be removed, Yesh Din filed for contempt of court. As a result, the HCJ determined that all the structures that were not built on land claimed to have been purchased must be removed, “this, specifically because there was no dispute that the entire settlement was built on private Palestinian land.”
Following the alleged purchase claims, a complaint was filed with the police for forgery of purchase documents; The Division of Identification and Forensic Science (DIFS) in the police submitted its finding, according to which there is suspicion of forgery regarding the purchase documents of the said plots.
In December 2014, the High Court rejected the State’s claims and instructed it to remove the entire outpost within two years. “It is not with easy heart that we instruct enforcement of the orders for removing structures in the settlement used for residence for years. There is no doubt that the consequences of enforcing these demolition orders are difficult and painful for the residents and their families,” former Chief Justice Asher Grunis wrote. “Nevertheless, this difficulty does not allow for the authorization of illegal construction on private land, and does not justify the failure to enforce the law. The failure to remove structures constitutes a breach of the respondents’ repeated obligations to the Court to carry out the demolition orders and severely violates the rights of the protected persons in the area and the denial of access to their private property. Violation of the rule of law and of the rights of the protected population compels the evacuation of the structures, despite the harm it causes to the residents of the settlement.”
In addition to the HCJ petition, the landowners also sued for compensation through the Jerusalem Magistrate Court with the assistance of Yesh Din, to demand compensation for the State’s violation of its obligation to remove the intruders, which caused loss of potential income from farming. For ideological reasons, the landowners did not demand compensation for use of their land by the Israeli settlers because they do not seek profit from the invaders’ inhabitation of their land.
In June 2014, an agreement was signed between the landowners and the State, according to which the State would compensate the landowners a total sum of NIS 300,000. The State admitted as part of the agreement that “the petitioners have rights to the land in question, which is registered private land,” and that “structures were established on some of these plots without a permit, and yet, prior to 2005, government bodies transferred funds for the purpose of investing in infrastructure. While the Civil Administration conducted supervision over the years, most of the illegal structures on the plots in question were never evacuated. As a result, the petitioners were denied access to their lands and the ability to farm them.”
The petition was accepted and the HCJ ordered the removal of the outpost by 25.12.16. In October 2016, less than 2 months before the scheduled demolition of the outpost, the State Attorney’s Office submitted a request to defer evacuation by seven months, in order to examine alternatives for the relocation of the residents of Amona. According to the request, there are two options being examined: relocating the settlers to adjacent plots of lands that the state is attempting to declare as abandoned property, or moving the settlers to a new planned settlement near the settlement of Shvut Rachel in the Shilo Valley.
On November 2016 the petitioners filed a response to the HCJ, objecting to the state’s application to delay the removal of Amona. Yesh Din claims, in the response, that the states application is politically motivated, intended to prevent a coalition crisis. Granting it will harm the real victims, Palestinian landowners who have been waiting 20 years to return to their land, as well as harming the rule of the law and the status of the High Court of Justice.
A week after the petitioners response was filed, the HCJ rejected the State’s request for a deferral. “In the case before us, as well as in previous instances, the state asked at ‘the last minute’ to extend the date of evacuation as set in a court ruling,” the Justices’ wrote in their decision. “We need to ensure that a date set in a court ruling doesn’t turn into a recommendation”.
Just four days before the deadline for evacuation, the government submitted another request with the High Court of Justice to delay the evacuation by 45 days, after an agreement was struck between the government and the Amona settlers. According to the agreed plan, the residents of Amona would move to private Palestinian plots adjacent to the outpost, which were declared abandoned property. The government claimed that the delay in the evacuation is necessary in order to guarantee the evacuation is carried out peacefully and more time is needed to prepare the ground.
In their response, the petitioners argued that there is no reason to delay the evacuation since the settlers had agreed to peacefully vacate even if the proposal isn’t implemented, and that they knew when they agreed to the proposal that there are recognized owners of the proposed plot. “The request for a stay of execution, submitted just four days before the deadline set by the court, which gave the government two years to carry it out, is the pinnacle of a process in which the respondents have lost all remnants of the appearance of upholding of the rule of law, equality, protection of property and decency,” the response submitted to the High Court stated.
The HCJ decided to grant the state’s request of delay, 2 days before the court’s deadline, and postponed the removal by 45 days. The judges criticized the state’s request but granted it nevertheless after Amona’s residents signed of on a statement committing them to evacuate peacefully in any case. The judges wrote in their ruling that “it was possible to deny the request and rule that the deadline stay the same. Everything that was done now, could have been done before. However, following recent efforts to reach an agreement, though much delayed, there is now a commitment for peaceful evacuation, without conflict and resistance by the newly postponed deadline. This commitment is unconditional, and therefore we grant this request ex gratia”.
The evacuation of Amona began on February 1st 2017.
Petition Status: The petition was accepted and the outpost was evacuated.
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