High Court slams state's 'last minute' Migron deal

Justices chastise state for failing to include Palestinian landowners in negotiations it held with settlers to delay outpost evacuation.

Migron home 390 (photo credit: TOVAH LAZAROFF)
Migron home 390
(photo credit: TOVAH LAZAROFF)
The High Court of Justice sharply criticized the state on Thursday during a hearing on the government’s request to delay the evacuation of the West Bank Migron outpost, originally scheduled for the end of this month, until November 30, 2015.
The court is expected to decide early next week whether to accept the state’s request.
If it refuses the request, the state must evacuate Migron no later than March 31.
Justices Salim Joubran and Miriam Naor slammed the state for making its request this month, at the “last minute,” after the court had issued a ruling on the matter in August.
The justices also chastised it for failing to include the Palestinian landowners in the negotiations it held with the settlers, in which the latter agreed to voluntarily relocate to a site 2 kilometers away within the next three and a half years.
Supreme Court President Asher Dan Grunis said the matter was very simple.
“The court has already given its ruling,” he said. “We are dealing with a request for an extension of that ruling.”
In August, the High Court ordered the state to evacuate Migron because it was constructed without proper permits on land classified as belonging to Palestinians.
In that ruling, the justices had said there was “no justification for preserving the illegal situation and continued violation of Palestinian property rights.”
The Migron outpost, which is home to 50 families, is located in the Binyamin region, 5 km. north of Jerusalem. It was established in May 2002, with NIS 4.3 million from the Ministry of Construction and Housing.
Peace Now first petitioned the High Court to evacuate Migron in 2006, on behalf of Palestinians who own the land on which the outpost is built.
Earlier this month the state asked the court to set aside that ruling in favor of an agreement to relocate the outpost to state land that it had brokered with Migron residents with the help of Minister-without-Portfolio Bennie Begin.
Peace Now opposes the state’s request, saying it undermines the rule of law because it effectively overturns the court’s ruling on Migron.
As Thursday’s hearing opened, attorney Osnat Mandel, representing the state, said the state had come to the court with a “very simple request, behind which is a strong desire from the political echelons to reach an agreement by peaceful means.”
Mandel said Migron’s residents were not willing to accept the solution offered them by the state in 2008, to move to the neighboring Adam settlement. However, she added, Migron residents accepted their obligation to comply with the court ruling to evacuate the outpost.
“The Settler Council’s proposal [to move Migron residents to Adam] was not successful, and we regret that,” she said. “However, we have come to an understanding that all illegal buildings in Migron will be demolished.”
Mandel explained that the solution reached in the state’s agreement with Migron residents would take until 2015 to carry out, because it involves planning and construction work to create the new houses, which will be built on state land.
She said the state would report to the court every six months on its progress.
“The proposed solution will allow the rule of law to be maintained, despite all the difficulties it raises regarding the court ruling,” Mandel added, referring to Peace Now’s objections to the move.
Attorney Barak Bar-Shalom, who represents Migron Council secretary Avi Teksler, also slammed the state in the hearing – saying that previous governments were to blame for the current state of affairs.
“Israel is responsible for the situation. The state was very involved in Migron’s development, pouring millions of shekels into it, and the Housing Ministry issued permits for 500 housing units in Migron,” he said, adding that the state therefore had a responsibility to find a peaceful solution for Migron’s residents.
Bar-Shalom said Migron residents were prepared to leave but were not yet ready to do so.
“The [Palestinian] petitioners would never have known they had a claim to the lands, if it wasn’t for Peace Now,” he added, saying that no real harm had been done to the Palestinians.
Joubran said that the rule of law must be upheld.
“How would it seem to the man in the street if there is a court ruling that is not upheld?” he said.
Joubran asked why the state had not reached a similar agreement with Migron residents five years ago, when the petition was filed, and noted that some of the petitioners had since died.
“There is no guarantee that the plan will be carried out during the extension you request,” he said.
Attorney Jacob Weinroth, representing the residents of Migron, said that the outpost had become a symbol of the whole debate over the settlement movement. The state’s agreement with the outpost’s residents was also symbolic, he said.
“Migron residents have two choices: to continue to live in their world and wait to be evacuated by force. Ideologically, this was the easiest thing,” Weinroth said. “The second way was for them to say, ‘Despite what I think, I will walk away because that’s what the High Court ruled.’” In response to a question from Naor about what would happen if the state’s plans were not implemented within three years, Weinroth said Migron residents would go to temporary homes.
Migron’s settlers wanted to stay on the same hilltop (i.e., move 2 kilometers as per the agreement) because they felt a connection with “ancestral land” and do not want to be uprooted, he said.
Attorney Michael Sfard, representing the Palestinian petitioners, slammed the state’s deal with the settlers and said it was not a request to extend a deadline but to overturn a court ruling made months ago.
There was a wider issue at stake, Sfard said.
“If the government believes it can dismiss any court ruling if it feels uncomfortable with it, it will continue requesting such ‘delays,’” he said.
The Peace Now attorney also criticized the state’s presentation of the deal as a “peaceable solution,” calling it a “ticking timebomb” and accusing the prime minister and the attorney- general of “crawling to accept the bizarre demands of Migron residents.
“Behind that word is another word – ‘war,’” he said. “They are asking the court to accept the deal – or else. But what would they say if I were to say that if the agreement was accepted, there would be an intifada?” Unusually for a High Court hearing, in which in most cases only lawyers for the various sides speak, the justices permitted Minister-without-Portfolio Bennie Begin to make a statement.
Begin opened by saying that Migron was an “error by previous governments,” and that there was no dispute over the fact that settlements cannot be built on private Palestinian land.
“I see great importance to this agreement. It shows that in the final analysis, there is no alternative but to accept court rulings, even for people who believe strongly in a particular ideology,” he said.
Justice Naor criticized Begin for “leaving the Palestinian petitioners out of the picture” in the negotiations, as if they did not exist.
“I didn’t ask the petitioners because I thought it would not help us reach an agreement,” the minister responded.
Yariv Oppenheimer, general director of Peace Now, said after the hearing that he hoped the court would not accede to the state’s request. To accept the deal with Migron residents would mean “bringing politics into the court,” he said.
Peace Now attorney Sfard said he felt more optimistic coming out of the hearing than when he entered it, but that it was clear the state had reneged on its obligation to consider the greater public interest and not just that of Migron residents.