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Israel: Supreme Court Rejects Government Request to Further Delay Eviction of Settlement Built on Land Privately Owned by Palestinians

(Nov. 25, 2016) On November 14, 2016, Israel’s Supreme Court rejected a government request to further delay implementation of the Court’s December 25, 2014, order requiring the eviction of the West Bank settlement Amona within two years.  The Court ordered the eviction having decided that the settlement had been built on Palestinians’ private lands without authorization.  (HCJ 9949/08 Hamad v. Minister of Defense (Nov. 14, 2016), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (2016 Decision); HCJ 9949/08 Hamad v. Minister of Defense (Dec. 12, 2014), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (both in Hebrew).)  The 2016 decision was rendered by Court President Justice Miriam Naor, with Justices Esther Hayut and Hanan Melcer concurring.

Decision

Recognizing that the Court has the authority to order extension of enforcement of its orders, Justice Naor clarified that this authority is reserved only for unusual cases in which the extension is necessary to prevent “terrible injustice.”  The approval of delays, Naor stated, must be given cautiously, considering that “it might leave intact an unlawful situation” and that the parties have relied on the outcome of the decision.  Naor went on to emphasis that such a delay also constitutes “harm to … [the principles of] finality of litigation… and … [respect for the] rule of law.”  (2016 Decision, ¶ 18.)

According to Naor, the final eviction order was rendered after many years of litigation in which the government was repeatedly granted extensions to enable a peaceful resolution of the matter.  The Court issued a decision after having recognized the continuing harm to private ownership and to the rule of law.  Recognizing the difficulty of destroying the buildings that had been used as dwellings and the need to find the settlers alternative residences, the Court had given the government a two-year extension to comply with the eviction order.  This period was longer than almost all other extensions previously given in similar cases.  (Id. ¶ 19.)  In view of the strong opposition of the settlers to relocating and the absence of any specific, clear commitment by the government to find an alternative place for their relocation, it was doubtful, Naor held, that an additional postponement would result in a peaceful resolution of the conflict.  (Id. ¶¶ 20-23.)

Naor rejected governmental concerns on “the potential dangers inherent in a non-consensual evacuation and its impact on the security of the area.”  (Id. ¶ 24.)  Prevention of implementation of court decisions for fear of threats and violence, she held, was unacceptable in a country that respects the rule of law.  This is especially applicable, Naor stated, to the current situation, in which the overwhelming majority of the residents of Amona have declared that they had no intention of agreeing to relocation.  Repeated extensions without end are also unacceptable, she averred, as non- implementation of judicial decrees harms “the public as a whole, the status of the judiciary, and the social foundation that leads to respect for the law.”  (Id. ¶ 27.)

Having rejected the government’s request, the Court reaffirmed that the Amona evacuation should be completed no later than December 25, 2016.

Post Decision Developments

On November 16, 2016, the Knesset (Israel’s parliament) passed in a preliminary reading the Arrangement Law, which is based on three separate draft bills.  The legislation

… [w]as designed to legalize Israeli settlements in Judea and Samaria [the West Bank] that were built or expanded without a proper planning process on land on which government authorities do not have usage rights, as long as this was done in good faith or with the consent of government authorities.  According to the proposed arrangement, if a person has not proved his/her ownership on the land, it would be registered under the name of the Supervisor of Government Property in the Judea and Samaria Regions; if a person has proved his/her ownership of the land, his/her usage rights will be confiscated and transferred to the Supervisor and that person will be eligible to receive  land use fees or an alternative plot of land.  The confiscation will be valid until [the adoption of] a political determination regarding the status of the region and the Israeli settlements on it. …  (Press Release, Knesset, Arrangement Law Approved in Preliminary Reading (Nov. 16, 2016), Knesset website.)

If adopted, the legislation could retroactively legalize existing settlements that were built illegally, such as Amona.