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Government responds to Yesh Din petition, says old military expropriation orders allow for construction on privately owned Palestinian land.

By Akiva Eldar for Haaretz

The government is working to enable new construction and has retroactively approved existing construction on private Palestinian land in more than 40 settlements, based on old expropriation orders that were issued for military purposes.

The efforts were revealed in the state's response to a High Court of Justice petition filed by the Yesh Din - Volunteers for Human Rights organization regarding the non-enforcement of demolition orders issued for structures built in Beit El on private land.

In the submission to the court, the State Prosecution acknowledged that some 40 Israeli communities in the West Bank were erected totally or partially based on expropriation orders for private land issued for military purposes.

The prosecution admitted that construction continued in these communities even after the Elon Moreh ruling of 1979, which stipulated that the army had power to confiscate land only for pure military purposes, and not for civilian settlements. But, the state argued, that ruling "does not prevent exploiting the potential of these communities."

The document defends the state's intention to use those expropriation orders, issued more than 30 years ago, by citing the need "to preserve the interest that was the basis of [the settlements'] founding and to prevent their atrophy."

In its response to the court, the prosecution asks "to exploit the potential" of the military expropriation orders in the area of Beit El to build buildings for the families evacuated from the town's Ulpana Hill in June.

The document states that the readiness to explore "regularizing the compound" that is the subject of the petition actually stemmed from a desire to encourage the process of evacuating privately owned lands.

The state is asking for the court's permission to use its judgment in planning construction on private Palestinian land so long as it exploits the potential of the town "to preserve the interest that was the basis of its founding."

The state notes that the defense minister "is prepared to pay the Palestinian owners of the land suitable usage fees." In other words, the state is volunteering to compensate those who violated the law, as in the case of Migron.

According to an internal document from the military prosecution's legal adviser for the West Bank, 44 settlements have been built wholly, mostly or partially on lands that were expropriated for military purposes before 1979. The document lists among them Ariel, Beit El, Efrat, Kiryat Arba and settlements in the Jordan Valley. According to data obtained by Yesh Din, Elazar and Mevo Horon also partially occupy private land expropriated for military purposes.

The settlement report issued in July by the committee headed by retired Supreme Court Justice Edmond Levy called on the government not to allow additional construction on private land in contravention of the law. The report stated, "This phenomenon that was revealed to us regarding settlement in Judea and Samaria constitutes inappropriate conduct for a state that champions the rule of law. If all that emerges from this report is that the 'tower and stockade' days that were fine for a period when a foreign government ruled the land are now over - it would be enough. It must be clear to settlement supporters that from now on, they are required to operate solely within the framework of the law."

In its 1979 ruling in principle issued by the High Court of Justice in the case of Elon Moreh, which had been erected on private land on the basis of a military expropriation order, Justice Moshe Landau, then vice president of the Supreme Court, wrote that a reasonable interpretation of Zionist doctrine still does not justify confiscating private property in an area subject to the military government.

One of the appendices that the state attached to its response to the court in that case revealed that the expropriation order for the lands used to build Elon Moreh had never been formally published, after a senior Israel Defense Forces official ordered "not to show the order to the locals."

Following the Elon Moreh ruling, then Prime Minister Menachem Begin ordered a stop to the issuing of military expropriation orders to confiscate private lands for the settlers. In a cabinet decision, the government decided to expand settlements in Judea and Samaria, the Jordan Valley, Gaza and the Golan Heights by "adding population to existing communities and by erecting additional communities on government-owned land."

The response submitted by the state to the High Court this week relates to a 2010 petition by a resident of the village of Dura al-Kara. The petition demands the enforcement of demolition orders for a number of buildings whose construction had begun on his land. It also includes a demand to cancel the military expropriation order from the 1970s that blocks his access to the area.

The petition was submitted by attorneys Michael Sfard, Shlomo Zaharia, Avisar Lev and Mohammed Shaqier, from the Yesh Din legal team.

In January 2011, the High Court of Justice issued a temporary restraining order that obligated the state to enforce the stop work orders which it itself had issued for these buildings and to prevent their connection to the infrastructures. The latest response was received after numerous requests for delays, which led to the state twice having to pay the expenses of the petitioners.