The report Tailwind: non enforcement of judicial orders, foot dragging and the retroactive legalization of illegal construction in the occupied Palestinian territories follows the State’s handling of 16 separate petitions to the High Court of Justice by Palestinian residents, with Yesh Din’s assistance. Based on these cases, the report levies sharp criticism of the State’s conduct, through which it systematically evades enforcing the law regarding illegal construction by Israeli settlers in the West Bank, thus effectively assisting it.

The absence of effective law enforcement following construction offenses committed by Israeli citizens in the West Bank is one of the most blatant manifestations of how weak the rule of law is in the West Bank. A survey of the State’s conduct in the aforesaid petitions demonstrate that the authorities responsible for law enforcement in Israel turn a blind eye and fail to enforce demolition orders. Five out of 11 interim orders to halt construction were violated; illegal construction continues while the state delays and stalls providing responses to the High Court of Justice; the report also shows how, in fact, the State encourages violation of the law by retroactively authorizing illegal construction.

The experience accrued from the petitions Yesh Din submitted reflects that despite the State’s repeated declarations in court that it intends to enforce demolition orders issued for structures illegally built in settlements and outposts – according to the priorities it presented –the State refrains from evacuating construction, even when it is at the top of its own list of priorities. The State also consistently avoids trying those involved in illegal construction.

High Court justices have expressed their discontent with the State’s conduct: former Supreme Court Chief Justice Dorit Beinisch noted during a 2010 hearing on illegal construction in the Ulpana neighborhood, part of which was built on lands belonging to the Palestinian village Dura al Qara (HCJ 9060/08 Abdallah et al v. Minister of Defense et al), that “We are hearing a lot of cases like this and with all the declarations of enforcement priorities, in no case have we seen orders implemented. There is no priority because nothing is being done.”

The absence of effective enforcement, designed as a deterrent, combined with retroactive authorization that feed into the ideological motives underlying the offenses, are expected to lead to an increase in agricultural invasions and illegal construction. This deals a fatal blow to the rule of law, and the State’s conduct enables the ongoing violation of Palestinian property rights and encourages, by omission, theft of land.

The various cumulative aspects of lack of law enforcement on illegal construction in the West Bank amounts to the State of Israel’s breach of its obligation to protect the property of Palestinian residents under international law and in accordance with Supreme Court rulings.