'Diplomacy may trump law in settlement demolitions'

State advises High Court on enforcing W. Bank building regulations; Defense Ministry rejects Yesh Din demand to destroy Amona outpost.

By TOVAH LAZAROFF
Mitzpe Avihai 311 (photo credit: Courtesy)
Mitzpe Avihai 311
(photo credit: Courtesy)
Diplomatic considerations can outweigh legal ones when it comes to enforcing building regulations in the West Bank, the state told the High Court of Justice on Sunday.
It made the statement in response to a petition filed by Yesh Din – Volunteers for Human Rights, which demanded that the IDF uphold the law and demolish the Amona outpost, which is located just outside the Ofra settlement in the the Binyamin region of Samaria.
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In a 14-page document, the state argued that it did not plan to demolish the outpost at this time, even though it acknowledged that the hilltop community was illegally built on privately owned Palestinian land.
There is no justification for breaking the law, nor for taking private Palestinian land, the state said, in a document penned by the Defense Ministry’s settlement adviser Eitan Broshi.
The state is not renouncing its obligation to enforce the law; it has enforced the law in the past and it plans to do so in the future, Broshi said. But such enforcement has to take into current circumstances into consideration, he added.
In this case, considerations that stem from the diplomatic process with the Palestinians have to be taken into account, he said. The issue is not lack of enforcement but rather of the state and the Defense Ministry’s priorities in the West Bank, Broshi said.
These decisions that are of a sensitive nature should be beyond the court’s jurisdiction, he said.
To bolster his argument, he referred to a High Court decision not to interfere with the 10-month moratorium on new construction in Judea and Samaria that lasted from November 26, 2009, to September 26, 2010.
The court refrained from acting because the issue was diplomatic, he said.
This same logic works here as well, Broshi argued. The court understood in that instance that the nation’s diplomatic agenda was at stake and that as result the court should not get involved. It should take the same stance here as well, he said.
It’s the second time in less than a week that the state has made this argument with respect to outpost demolitions.
It argued that it could not move against six other West Bank outposts, which were the subject of a Peace Now petition to the High Court.
Although its response to the Amona petitions was significantly longer and involved case references, a few key paragraphs were exactly the same.
In both cases the state argued that the “the subject of building in Judea and Samaria in all its forms has become a core issue in the political dialogue between Israel and the Palestinian Authority, as well as with its diplomatic contacts with the US and other countries.
“As a result, the government’s policy with respect to actions that change the existing situation on the ground has to be weighed against wider national interests,” said the state.
In the case of Amona, it also noted that a significant amount of manpower would be needed to evacuate the outpost.
It noted that this manpower had been deployed instead to ensure that no new outposts were erected.
In May, in a response to the court, the state similarly cited the issue of manpower and said that all its resources had gone to enforcing the moratorium.
Built around 1995, Amona is one of the oldest West Bank outposts. The question of its legal status came up already in the late 1990s. In 1999, thenprime minister Ehud Barak allowed it to remain as part of an outpost agreement he made with the settlers.
It is best known for the clashes that took place there in February 2006, when the army and the police demolished nine permanent homes that were built there without permits.
Some 200 soldiers, police, settlers and activists were injured when protesters took a stand inside the homes and refused to leave until they were forcibly evacuated. Those demolitions were the result of a Peace Now petition to the High Court.
Currently, according to Peace Now, Amona has 58 caravans and two permanent structures.
Yesh Din’s attorney Shlomy Zachary said the state’s position was “outrageous” in that it was willing to ignore the rights of the Palestinian landowners and the sanctity of the law in favor of creating a bargaining chip for negotiations.
“This is extremely disturbing and should be treated very seriously,” Zachary said.
The attorney for the settlers could not be reached for comment.
As part of its response to the Amona petition, the state also said that during the moratorium the civil administration’s enforcement unit took 1,466 trips to settlements and outposts in an effort to identify illegal construction.
Hundreds of aerial photographs were also taken, it said.
A total of 547 cases were opened with regard to illegal construction in the settlements.
Some 45 pieces of equipment were confiscated on suspicion that they would be used in illegal construction.
For the first half of 2010, 71 illegal Jewish structures were destroyed in the West Bank, as were 53 Palestinian ones, the state said.


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