Regavim petitions High Court of Justice: Apply the enforcement tools legislated in 2018 against new Palestinian Authority de facto annexation in Gush Etzion region of Area C.

Following the Regavim Movement’s urgent requests to the Ministry of Defense to halt further progress on an illegal road being paved by the Palestinian Authority in a strategic area of Gush Etzion, Regavim filed a petition in the High Court of Justice this morning (Wednesday). The road, which connects the Area B villages of Battir and Husan, will effectively strangle the Jewish community of Har Gilo.

Last week, the Regavim Movement submitted a second urgent alert to Minister of Defense Benny Gantz and to the Civil Administration, demanding immediate enforcement action against a strategic Palestinian Authority project in Gush Etzion – a road connecting the Palestinian villages Battir and Husan.

The road skirts the Jewish community of Har Gilo, spanning the Heletz Valley, and connects the illegal “northern extension” of Battir to the village of Husan, both of which are designated as Area B (under Palestinian Authority jurisdiction).

Eitan Melet, Regavim’s Field Coordinator for Judea and Samaria, who documented the ongoing roadwork, explains that the land on which the Palestinian Authority is laying the road is of particular strategic importance: “This,” he says, “constitutes the corridor connecting Gush Etzion to Jerusalem, and is a vital strategic asset for Israeli control of the area. The illegal road, and the further expansion of the Palestinian villages that it will eventually facilitate, will turn territory under full Israeli jurisdiction into an isolated enclave surrounded by territory under de facto Palestinian Authority control.”

Gush Etzion Regional Council head Shlomo Neeman stressed that this incident illustrates the Palestinian Authority’s systematic method of achieving territorial contiguity: “The Batir road is one more attempt to dismantle Israeli sovereignty. The road work must be stopped – yesterday! – and we must prevent the creation of a Palestinian state right under our noses. Protection of Israeli state land and law enforcement against illegal construction, land-grabs and encroachment on our national resources must be at the very top of the list of priorities of every Israeli official.”

Regavim issued two separate alerts in recent days calling for a criminal investigation against the perpetrators who are carrying out the work, and full disclosure of any and all enforcement activity that has been carried out. In light of the urgency of the matter and the pace at which the work on the road is progressing, and after no response was received and no enforcement activity was carried out, Regavim petitioned the High Court of Justice to instruct the Ministry of Defense to apply the relatively new legislation, passed in 2018 and approved by the High Court in recent rulings, that empowers the demolition of new structures.

The State of Israel enacted an effective enforcement order to fight the Palestinian takeover of Judea and Samaria, but the Civil Administration has refrained from using it – despite the approval of the High Court of Justice. Now, the Regavim Movement and the Samaria Regional Council have submitted a High Court petition demanding that the legislation be applied against Palestinian invasion of an archaeological site in Samaria.

Over the past several months, Regavim has documented a persistent stream of incursion and annexation, as residents of Burkin, a village located in the area under Palestinian Authority jurisdiction, have taken over a significant parcel of land in the Ariel Commercial Zone – located in Area C, under full Israeli jurisdiction.

The area that is being quietly annexed is adjacent to an archaeological site known as Khirbet Khurkosh, where a magnificent Hellenistic Era mausoleum was discovered, along with other remains dating from the Iron Age through the Middle Ages.

This gradual annexation began with road work, which was soon followed by land clearing and preparation for agricultural work. Mature olive trees were quickly planted, in an attempt to make the newly-cleared area look “old” – and now, a large structure, already connected to electricity infrastructure despite its considerable distance from the village, is nearing completion. This entire project is unfolding on “survey land,” Israeli state land for which full registration has not been completed.

The recently-filed High Court petition emphasizes that six different requests for enforcement were submitted to the relevant authorities at each of the stages of the annexation process, but the work continued, unhindered, and no discernable enforcement has been carried out.

For years, the Palestinian Authority and its partners in the European Union have exploited the Israeli bureaucratic and legal systems, successfully preventing law enforcement against illegal Palestinian annexation.

In 2018, the “Order for the Removal of New Illegal Structures” was enacted by the defense establishment and the State Attorney’s Office as part of the “Battle for Area C.” This legislation allows the demolition of new structures built without a permit within six months of construction. The order may be implemented within 96 hours of issuance of an eviction order.

The “Removal of New Structures” order is an effective enforcement tool that makes it possible to streamline the law enforcement process and make it more difficult for offenders to establish facts on the ground by abusing the judicial process.

After the “Removal of New Structures” order was enacted, left-wing organizations petitioned the High Court of Justice to strike it down, but their petition was rejected and the High Court approved the order’s use. Nonetheless, to this day the state has made minimal use of this order, despite the fact that it has proven to be the most efficient and effective tool in the fight against illegal construction.

In the petition filed by Regavim Movement and the Samaria Regional Council, attorneys Avi Segal and Yael Cinnamon requested that the High Court order the authorities to apply the “Order for Removal of New Structures” against the ongoing invasion of Khirbet Khurkosh.

Samaria Council Chairman Yossi Dagan said: “The Security Cabinet announced its intention to battle the PA’s annexation of Area C, and the time has come for the enforcement authorities to act accordingly – to approach the problem in a systematic fashion and to act systematically. We must stop the Palestinian Authority’s rampage, and tell them, loudly and clearly, who’s the boss.”

The joint petition stresses that “this case illustrates the PA’s systematic, well-financed and carefully-planned takeover of Area C, which seeks to shift the focal point of Palestinian development from Area B to Area C. The Palestinian Authority is establishing facts on the ground in order to tie Israel’s hands – both in terms of current security considerations and in terms of political leverage in strategic points in Area C. These one-sided facts on the ground will impact the opening positions for future negotiations, and the State of Israel must address them right now.”

An illegal structure built on Israeli state lands at the archaeological site of Khirbet Khurkosh
Cover of Regavim’s 2018 report on High Court bias

Yesterday (January 11), a new poll was published by the Israel Democracy Institute reflecting a dramatic drop in the Israeli public’s trust in its government systems. One glaring finding shows that only 42% of the public express trust in the High Court of Justice, Israel’s highest court.

To bring this problem into clear focus, it’s worth analyzing this statistic through the prism of political affiliation. While 84% of those who identified as left-wing expressed trust in the High Court of Justice, only 38% of those who self-identify as right wing expressed similar trust.

How has it come to this?

For 15 years, Regavim has been speaking – and proving- the uncomfortable truth: the High Court of Justice is politically biased. It’s not a hunch or a subjective impression; Regavim has presented actual, empirical and undeniable evidence of the HCJ’s bias in three separate reports spanning over a decade.

We analyzed more than 110 petitions, submitted to the High Court of Justice by both left- and right-wing appellants over a period of 18 years. All of the cases involved illegal construction in Judea and Samaria, and in each case the petitioners claimed that the Civil Administration had failed to enforce the law against the illegal construction.

Roughly half of the petitions were filed by left-wing organizations against Israeli communities, and the remaining half were submitted by Regavim and other Zionist organizations against illegal construction in the Arab sector in Judea and Samaria.

All the petitions dealt with extremely similar legal issues and based their arguments on the same points of law.

Regavim’s analyses examined the procedural aspects of these cases, rather than arguments presented or the rulings handed down. These procedural elements serve as a neutral indicator, reflecting the opening position for each petition and the basic, underlying attitudes of the judges toward the issue at hand.

Our findings painted a disturbing picture:

• In petitions filed by the left, the average time allotted by the Court for the defendants’ preliminary response was 18.5 days, while in petitions filed by the right, respondents were allotted an average of 30.5 days to respond – a disadvantage of 150% against right-wing petitions

• For right-wing petitions, the average time that elapsed between filing the petition and its first hearing was 342 days, some three months longer than the time elapsed for left-wing petitions to be heard (average of 248 days).

• Interim orders were granted in 84% of left-wing petitions in which they were requested, while right-wing petitions were granted interim orders in a mere 13% of cases.

• In right-wing petitions, the Chief Justice participated in the panel in only 21% of cases, as opposed to 58% of left-wing petitions, reflecting the importance attributed by the Chief Justice to each case.

• Of the 61 petitions filed by the right in which an order nisi was requested, the Court granted only one (1.7%). Of the 43 petitions filed by the left in which an order nisi was requested, the Court granted 19 (44%).

• The average number of hearings held by the High Court of Justice for petitions filed by the left was 2.64, as opposed to 1.06 hearings for each petition filed by the right.

• Left-wing petitions remained active over an average period of 33.3 months. On the other hand, the average life span of right-wing petitions was 16.7 months.

Small wonder, then, that fewer right-wing people believe the High Court to be impartial; their perception of unfair treatment by the legal system is borne out by the facts. A growing  majority of the Israeli public understands that High Court rulings are dictated not by the law, but by the personal politics and agendas of the judges. All too often, the outcome of a given petition is a foregone conclusion once the panel of judges is announced.

As if this weren’t bad enough, the Court’s bias continues to be compounded by the ‘judicial revolution’ launched  by former Chief Justice Aharon Barak, which paved the way for the judicial system to intervene in political realms that should be off-limits for non-elected officials. At the end of the day, legislators are elected and empowered by the public, and are held accountable by the public when they stand for re-election (which has been the case with alarming frequency recently!). Israel’s judges are appointed – in fact, they are, in effect, members of a self-selected elite. The public has no way to “un-elect” people who weren’t elected in the first place.

When lines are crossed, when personal bias and political agendas become so blatant that the public can no longer place its trust in the judicial system, we all have a problem – whether we consider ourselves “left” or “right”.

In order for trust to be restored, and in order to preserve our democracy and to restore a healthy balance between the different branches of government, Israel’s judicial system must be reformed. Until the process of judicial appointment is democratized and  the values of the entire Israeli public are represented on the bench, the public’s faith in our highest institutions will continue to decay – and with it, the very foundations of our democracy.