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Court Sitting As the High Court of Justice Disclaimer : The following is a non-binding translation of the original Hebrew document. It is provided by Hamoked: Center for the Defence of the Individual for information purposes only. The original Hebrew prevails in any case of discrepancy. While every effort has been made to ensure its accuracy, HaMoked is not liable for the proper and complete translation nor does it accept any liability for the use of, reliance on, or for any errors or misunderstandings that may derive from the English translation. For queries about the translation please contact [email protected] HCJ 390/79 ‘Izzat Muhammad Mustafa Duweikat et 16 al. v. 1. Government of Israel 2. Minister of Defense 3. Military Commander for the Judea and Samaria Area 4. Nablus District Military Commander 5. Felix Menahem 6. Shvut Avraham At the Supreme Court Sitting as the High Court of Justice (September 6, 1979, September 13, 1979, September 14, 1979, September 19, 1979, October 3, 1979, October 22, 1979) Before Vice-President M. Landau and Justices A. Witkon, S. Asher, M. Ben-Porat, D. Bechor Objection to the order nisi dated 25 Nissan 5739 (June 20, 1979) A. Hury - on behalf of petitioners 1-16; G. Bach, State Attorney – on behalf of respondents 1-4 A. Zichroni, A. Feldman – on behalf of petitioner 17 R. Cohen, M. Simon – on behalf of respondents 5-6 Judgment Vice-President (Landau) In this petition we must review the question of the legality of establishing a civilian community (a settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land privately owned by Arab residents. A similar issue was reviewed by this court in HCJ 606/78, 610/78 (HCJ 606/78 Suleiman Taufiq Ayub et 11 al. v. Minister of Defense et 2 al.; Jameel Arsam Matu’a et 12 al. v. Minister of Defense et 3 al, Piskey Din 33(2) 113, 127, 129, 124, 129--, 125, 131, 132-133, 130, 126, 116, 118, 119, 128.) (hereinafter for the sake of brevity: the Beit El case), in which judgment was rendered on March 13, 1979. We found there that the establishment of two civilian communities on private lands in Beit El near Ramallah and in Beqa’ot B, near Tubas, did not constitute a breach of domestic Israeli law, nor of international customary law which forms part of domestic law, as the two communities were established for military purposes as we interpreted the term. In the matter of Beit El (at the end of p. 128) it was stated, with regards to the justiciability of this matter, that the issue of the settlements was “disputed among the government of Israel and other governments and that it may come up in the crucial international negotiations in which the government of Israel is involved.” In the interim, the intensity of the controversy has not subsided; it has rather intensified among the Israeli public internally and this time, it was also reflected in the very resolution to establish a civilian community in Elon Moreh which was passed by a majority of the government of Israel. This is thus a profound issue which is currently stirring up emotions among the public. In HCJ 58/68 (HCJ 58/68 Binyamin Shalit on behalf of himself and his children Oren and Galia Shalit v. Minister of the Interior and the Registration Official, Haifa District, Piskey Din 33 () 477, 521, 2, 530.) (the “Who is a Jew” issue) I spoke, at the end of page 521, about “… the grim result is that the court seemingly abandons its proper place, above the disputes which divide the public, and its justices descend themselves into the rink…” and on page 530, I explained, as one of the minority justices that the court must refrain from ruling on the dispute therein in the absence of an appropriate source for making a ruling. I added that even in a situation such as this “there may be cases in which the justice sees himself as one who has been compelled to provide their personal answer to a question relating to a worldview, even though it is controversial.” In this instance, we have appropriate sources for ruling and we have no need to and indeed we must not, when sitting to pronounce judgment, bring into the mix our personal views as citizens of the country. Yet, there is still grave concern that the court would appear to be abandoning its proper place and descending into the arena of public debate and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the court. It forces me, knowing full well in advance that the wider public will not notice the legal argumentation but only the final conclusion and the appropriate status of the court, as an institution, may be harmed, to rise above the disputes which divide the public. Alas, what are we to do when this is our role and duty as justices. On the morning of June 7, 1979, Israeli civilians, assisted by the IDF, embarked on a settlement operation atop a hill some two kilometers east of the Jerusalem-Nablus road, and in a similar distance south-west of this road’s intersection with the road descending from Nablus to the Jordan Valley. The action was carried out with the assistance of helicopters and heavy equipment. Earthworks began for a road from the Jerusalem-Nablus road to the hill. The entire hill is rocky terrain (with the exception of a small plot on the north-western side of the site which had only recently been ploughed and planted and, according to an expert testifying for the respondents, this was done out of season, in a place which has no chance of yielding financial returns on the crops). However, earthworks on a 1.7 kilometer road necessitated damage to existing sorghum crops in an area 60 meters long and 8 meters wide and to about six four-year- old olive saplings. The hill’s lands are located within the area of the lands of the village of Rujeib which is close to its north- western side. The 17 petitioners, who are residents of the village, own plots of lands on the hill, which are registered in the Nablus registries after having gone through the land arrangement process. The total area of their lands is 125 dunum. The petitioners have no ownership rights on the lands where the road was built. On June 5, 1979, two days before the settlers occupied the site, Brigadier General Binyamin Ben Eliezer, Commander of the Judea and Samaria Area, signed Land Seizure Order No. 16/79. The order’s opening statement is: “By the power vested in me as commander of the Area and since I am of the opinion that the matter is required for military necessities, I hereby order as follows:” In the order, the signatory announces an area of some 700 dunum marked on a map appended to the order as “seized for military needs”. The petitioners’ plots are included in this area. Section 3 of the order states that any owner or lawful holder of lands located in the area shall be permitted to file a claim for periodic user fees due to the land seizure and for compensation for any substantive damage caused to him as a result of the seizure to the officer in charge of the claims division. According to section 5, “notice of the contents of the order shall be given to any owner or holder of lands located in the area”. A similar order regarding the route of the road to the hill (no. 17/79) was signed only on June 10, 1979, three days after the settlers occupied the site. In regards to the provision of the required notice to the land owner, including the petitioners, it emerged that notice of the orders was given to the mukhtars [village heads] of Rujeib, who were summoned to the office of the military governor in Nablus, only at 8 o’clock on the morning of the actual day on which the settlers occupied the site, around the time earthworks began. Written notices were handed to the mukhtars to be given to the land owners only on June 10, 1979. In the affidavit of response in this petition, given by the Chief of the Genera Staff, Lieutenant General Refael Eitan, the chief of the general staff states that it would have been appropriate to provide the land owners with advance notice of the intent to carry out the seizure, as is usually done in similar cases and that he had instructed that in future, notice would be given to the relevant land owners on an appropriate date prior to the land seizure. It is unclear why the officials in charge deviated from existing practice in similar cases. The impression one gets is that the settlement was organized in this manner, as a military operation, while using the element of surprise and in order to preempt the “danger” of this court’s intervention due to an appeal by landowners before earthworks begin. The petitioners appealed to this court on June 14, 1979 and on June 20, 1979 an order nisi was issued against the respondents – the government of Israel, the minister of defense, the military commander of the Judea and Samaria Area and the military commander of the Nablus district – instructing them, inter alia , to show cause why the seizure orders that were issued would not be revoked and why the land would not be evacuated of the vehicles and structures erected thereupon and the establishment of a civilian settlement thereupon not be prevented.
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