The state cannot demolish nine unauthorized homes in the Ofra settlement because
it financed the infrastructure for the property Yaron Kostelitz, an attorney for
the settlers, told the High Court of Justice during a hearing on
“It can’t be that the same hand that finances then destroys,”
Kostelitz told the judges during a debate on a 2008 petition by the
non-governmental group Yesh Din against the homes that were built without
authorization, on private Palestinian property.
Yesh Din, on behalf of
Palestinian landowners, turned to the court while the homes were still under
construction and asked it to enforce injunctions against the homes that the
Civil Administration had already issued.
Since then, families have moved
into eight of the nine homes.
Settlers claimed to have purchased the
property but said they did not register it with the Civil Administration for
fear of endangering the Palestinians, because selling land to Jews is punishable
by death in Palestinian courts.
But the issue under debate in the court
is not the purchase claim. Instead the debate has centered around three
arguments: the state’s priority list, the status of the Palestinian landowners
and the larger issue of the Ofra settlement.
Kostelitz noted that the
state financed the infrastructure for the property on which the nine homes
stand, already in 1994. There was a similar case in Bat Yam where it was
determined that a demolition order could not be issued for a state financed
project, Kostelitz said.
He called on the court to dismiss the
The state has taken a middle-of-the-road position in which it has
neither pushed to legalize the homes nor removed them. It has argued that taking
down the homes is not on its priority list.
“These are illegal buildings
that do not have permits,” the state’s attorney Enar Hellman told the
“But the Defense Minister has said that he is not going to
evacuate them in the near future,” Hellman said.
Yesh Din’s attorney
Michael Sfard told the court that the state has an obligation to protect the
rights of the Palestinian property owners and its failure to do so appears to be
politically motivated rather than a matter of law.
He referenced Ofra’s
special status. Located in the West Bank’s Binyamin region, Ofra was created
1975 as a governmental decision.
But a master plan was never approved for
the settlement and the bulk of it is located on private Palestinian property.
Its homes therefore are illegal based on 2013 standards and no new homes can be
authorized until a master plan is approved.
Sfard explained that he
understood that homes built in the past decades existed as the result of special
circumstances and therefore his organization had specifically focused on the
nine new homes. But that did not excuse the illegal status of the settlement, he
Ofra is the largest “outpost,” Sfard told the court. The state has
said that it does not plan to demolish the homes, but at the same time it does
not plan to legalize them, Sfard said. In short, Ofra has become a haven for
lawbreakers, he said.
He added that this case was similar to the one
against 30 unauthorized homes in the Ulpana outpost, on the outskirts of the
Beit El settlement. Those homes were demolished in the summer of
Kostelitz defined the overall status of Ofra saying that the
settlement was not “built by thieves” in the middle of the night but rather with
the overall support of the state.
Hellman defended the state’s stance
noting that it had not granted the nine Ofra homes immunity, but rather stated
that their removal was not on the priority list now and would most likely not be
on that list this year.
The fact that the Palestinian landowners named in
the Yesh Din petition were inheritors of the property and not the landowners
whose names appear on the property deeds was the argument focused upon in a
statement to the court.
It explained that when it came to taking down
private Palestinian property it had prioritized the removal of homes in cases
where there was a Palestinian who met the legal standard for property
Settlers have further argued that the absence of such a
property owner here invalidates the case.
The state also said that it has
a zero tolerance policy for new illegal construction, which it will immediately
Since the petition was filed, work began in Ofra on 24 new homes
that lacked authorization, Dror Etkes, a veteran left-wing activist against West
Bank settlements filed a case against the homes in 2010. As a result work was
suspended on those homes, he said.
The Ofra settlement has in the interim
prepared a master plan.
Etkes said that the state is looking to legalize
those parts of Ofra built on state land. He added that he plans to file a
petition against those efforts.