In a surprising decision, the High Court of Justice on Sunday rejected a compromise agreement struck between the government and residents of Migron, the largest illegal outpost in Judea and Samaria. The agreement would have allowed the residents to remain in their outpost several years after a mandatory evacuation deadline, but was struck down on the grounds that no group of people is above the law.
The three-judge panel, headed by newly appointed Chief Justice Asher Dan Grunis, unanimously ruled that the state must comply with an August 2011 decision to dismantle Migron by the end of March, and relocate its residents.
This 50-family community, located several miles north of Jerusalem, has become a bone of contention since its establishment in 1999. Left-wing groups claimed the families who set up the community’s first bungalows had illegally trespassed onto privately owned Palestinian land, whereas the residents claimed that they had obtained the necessary authorization to establish the new community. Last August, the High Court of Justice ruled in favor of the left-wing organization Peace Now, which petitioned the court on behalf of the alleged Palestinians owners of the property. The state was ordered to evacuate the residents and dismantle the site by April 2012, in what was hailed by some as the most important court decision on disputed construction in Judea and Samaria in years.
Over the past several months, the residents and the state have tried to find a way to avert a forceful evacuation - and the political fallout it might generate. Minister Without Portfolio Ze’ev Binyamin (Benny) Begin (Likud), an ally of Judea and Samaria residents, eventually struck a deal with Migron representatives, whereby residents would voluntarily relocate within 3.5 years to a nearby community but would keep the vacated homes intact, pending a decision by the Civil Administration on their fate, thus leaving the door open to re-occupancy. Last week the state asked the court to approve the deal, saying that it complies with the August ruling. However, Peace Now said it flouts the court by ignoring its decision to completely remove the homes. The justices eventually sided with Peace Now on Sunday, but granted the state a four-month extension, until August 2012, to implement the decision.
The head of the High Court of Justice Division at the State Prosecutor’s Office, Osnat Mendel, asked the justices to allow the residents of the outposts to remain in the disputed community until Nov. 30, 2015, citing the time necessary to construct their new homes in Kochav Yaakov on a nearby hilltop. The move was unique in that it challenged a final ruling issued by the highest court in the land.
Justice Miriam Naor, whose ruling was signed by Grunis and the other presiding judge, Justice Salim Joubran, wrote that “the requested delay is patently unreasonable” and “opens the floodgates” [for other such delays]. The judges further wrote that delaying the outpost’s evacuation might “perpetuate an unlawful situation that flies in the face of the rule of law,” adding that Migron serves as “one of the most severe and unique cases in which outposts had been illegally built, even as the state continually acknowledged that it is illegal and could not remain where it was over time.”
The justices ruled that “agreed-upon solutions that may have been accepted when the [original Peace Now] petition was deliberated cannot be accepted now, as all the legal proceedings have been completed, with multiple stays. Everyone is subject to the rule of law, and the moment of truth is now upon us.”
The justices agreed that Migron residents “may rightly feel outrage toward the state and its various agencies in light of the encouragement by the state to settle there and the permission they had obtained to do so, to their detriment. “
“But,” the justices stressed, “while the need to accommodate the predicament of Migron’s residents should not be overlooked, this cannot come at the expense of the petitioners [who claimed the land] and law enforcement.”
The court also declared that “the voluntary and peaceful evacuation stipulated in the deal, while important, cannot be the only and decisive factor that trumps all other considerations, chiefly among them, the potential infringement on private property ownership and the rule of law.”
Toward the end of their ruling, the justices expressed hope that the “residents of Migron will come to their senses and by steering clear of the perception they are transgressors. The need to comply with a ruling is not a matter of choice; it is a necessary component in the rule of law, to which everyone is subject, in keeping with Israel’s character as a Jewish and democratic state.”
Reacting to the ruling, Prime Minister Benjamin Netanyahu said, “the government of Israel, just like all Israeli citizens, respects the court’s decisions and abides by Israeli law. Sometimes even the most obvious must be stated.”
The Prime Minister’s Office has begun exploring other possible solutions that would comply with the High Court ruling, sources at the Prime Minister’s Office said Sunday. One official declared that “the High Court ruling does not threaten the coalition’s stability.” According to the Prime Minister’s Office, the government will be able to meet the August deadline without having to renegotiate the main points of the signed compromise.
Begin, who defended the compromise agreement in court, echoed Netanyahu’s remarks on Sunday, saying, “the government respects the court’s decision, and will abide by it.” He added that the state would still comply with the provisions of the agreement it struck with the residents, such as the construction of the new permanent homes nearby.
The leaders of the coalition reportedly want to be in total lockstep with the residents and to facilitate a new agreement for the evacuation, which according to government sources would still have the residents relocate to the nearby community, but with an amended timetable that is drafted with their consent. “There are some realistic solutions out there and their provisions have already been accepted [in previous cases]; but what the High Court struck down was the proposed time frame; this is not insurmountable,” a senior political source said Sunday.
“We are now faced with a new reality; there are solutions and it is plainly obvious that we can carry out a voluntary evacuation and follow through on the solution outlined in accordance with the timetable set by the court,” another top official said Sunday. What the government may in fact be aiming at is an implementation of a past proposal to have the residents relocate to temporary housing units in Adam, another community in the area, until their future homes are constructed nearby, as stipulated in the evacuation deal.
Peace Now Secretary-General Yariv Oppenheimer welcomed the court’s decision Sunday. Echoing former Prime Minister Menachem Begin’s famous statement when he was handed down a similar ruling on disputed construction project in Judea and Samaria, Oppenheimer said, “There are judges in Jerusalem.”
“The High Court of Justice has made it clear to the settlers of Migron and the government that everyone is equal before the law, and everyone must comply with court decisions. The people of Israel expect the residents of Migron to follow through on their pledge to accept any High Court ruling and to peacefully leave the outpost.”