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State to High Court: Demolishing Ofra settler homes not a priority
By TOVAH LAZAROFF
25/12/2013
IDF modifies position on illegal Jewish structures on private Palestinian property; nine illegal Jewish homes in the Ofra settlement in question.
 
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 Wednesday.

“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 case.

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 court.

“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 said.

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 2012.

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 ownership.

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 remove.

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.
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