Ulpana outpost near Beit El 370 (R).
(photo credit: REUTERS/Nir Elias)
The High Court of Justice Sunday evening gave the state four months to present a
written argument in support of building on private Palestinian property in the
Beit El settlement that was initially seized by the IDF for military purposes
The court cautioned the plaintiff and the defendant against
viewing the decision as a sign of support for one side or the other. At issue
are five apartment buildings, two of which are already under construction and
three others which a developers hope to build.
organization Yesh Din, which represents the Palestinian land owner, attacked the
The state’s argument as already partially stated,
both in a September brief to the court and in a hearing on Sunday, runs counter
to 33 years of legal interpretations with respect to a 1979 High Court Decision
that dealt with the Elon Moreh settlement. In that ruling, the court prohibited
Jewish construction on private Palestinian property seized for military
Following Alon Moreh, the government turned its focus to the
development of state land for West Bank settlements.
The state is trying
to upend 33 years of legal precedent, Yesh Din said.
It added that if the
state’s “new” arguments, as they referred to them, are validated by the court,
it would impact private Palestinian property located within the boundaries of 40
West Bank settlements.
Yesh Din first filed a petition with the court in
December 2010, on behalf of a resident of the nearby Palestinian village of Dura
al-Quara. In April 2011, the state promised to remove the buildings, but has
subsequently changed its position, and is now looking to legalize
The court’s interim decision on Sunday was that the state would
have four months, until March 11, 2013, to elaborate on its position.
state said that its request to continue with the building and legalize the land
are not a question of an old or new position.
According to the state,
until recently, not all of the legal tools available for legalizing and
promoting building in the West Bank were being used.
Attorney Chani Ofek,
representing the state, said that military orders applying to the structures in
question had been issued prior to the 1979 Elon Moreh decision.
added that the same military orders that apply to these structures were the
basis for the entire Beit El settlement.
Thus, according to Ofek, the
idea of fulfilling the “potential” of the Beit El settlement and the rights to
use these lands predated the Elon Moreh decision, and cannot be “reversed” by
Yesh Din attorney Michael Sfard, representing a resident
of Dura al-Qara, slammed the state for changing positions in the case, and
emphasized that the position was not only new, but could undermine the Elon
Moreh precedent throughout the West Bank.
Sfard said that while he had no
problem recognizing the legality of actual housing built before the Elon Moreh
decision, where military orders were issued for taking land, but the building
itself all occurred after the Elon Moreh decision, the timing of when the
military orders were issued was irrelevant.
According to Sfard, the Elon
Moreh decision made new building on private Palestinian property
An earlier or later military order did not make the new building
any less illegal once the court had ruled.
According to a press release
issued by Yesh Din, such a large change in settlement policy would violate
international agreements that Israel has committed to, such as the road map
peace plan and at the Annapolis Summit.
Before this round of court
discussions, the High Court had acceded to several delays, at first for the
state to properly prepare to destroy the illegally built
However, in April, the state said it was weighing the
possibility of authorizing buildings plans that would legalize the
Since then, the state was granted several more delays to
present additional arguments.
The structures are located outside the area
included in Beit El’s master plan but are within the boundaries of the 1970s
land-seizure order that allowed the IDF to take land from Dura al- Qara for
military purposes. Beit El was built on that land.Tovah Lazaroff
contributed to this story.