Top Court Rules Against Returning Palestinian Land in Hebron Due to Security Concerns

Israel's High Court of Justice upheld the military's use of a Palestinian-owned compound in Hebron, arguing that 'returning the land … would significantly harm the security of the Israeli population in the area'

הגר שיזף
Hagar Shezaf
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Israeli soldiers keeping guard as Israeli children play outside the Beit Hadassah settlement in the West Bank city of Hebron, May 29, 2017.
Israeli soldiers keeping guard as Jewish children play outside the Beit Hadassah settlement in the West Bank city of Hebron, May 29, 2017.Credit: MENAHEM KAHANA/AFP
הגר שיזף
Hagar Shezaf

Israel's High Court of Justice on Monday denied a petition filed by Palestinians to stop the Israel Defense Forces from continuing to use a building in Hebron that was built mostly on privately-owned Palestinian land, saying settlements are part of the IDF's “security doctrine.”

The IDF built a military post on the land in the 1980s, which had prior served as the West Bank city’s central bus station. Following a 2018 cabinet resolution, part of the land was excluded from the original military requisition order so that a new Jewish neighborhood could be built on it.

The petitioners argued that excluding a portion of the property for residential construction proves that the requisition orders were not issued for the purpose of security, so they must be canceled. In rejecting the petition, the court ruled that a Jewish presence is part of the IDF's regional security doctrine, and that allowing Jews to live there does not invalidate the justification for confiscating the plot. Justice Alex Stein wrote the majority opinion.

The former bus station partially belongs to the city of Hebron, which had leased the site from the supervisor for government and abandoned property under the Israel Lands Authority in Judea and Samaria as a protected tenant.

In 1983, a military requisition order was issued for the property in order to build a military post. The order has been challenged in the courts a number of times since then. Each time, the IDF argued that the expropriation was solely based on security needs and the petitions were denied.

Thirty-five years later, the government cabinet decided that in order to build a new neighborhood – the Hizkiya Quarter, with 31 housing units – the requisition order should be reduced, and the area owned by the Lands Authority ought to be excluded from it. Such an administrative maneuver ultimately allowed the Jewish community of Hebron to submit a building plan for the new neighborhood, which would be built on authority lands. Later, the military requisition order was renewed for the rest of the building with private Palestinian ownership, on which permanent military buildings are currently planned.

The petitioners, the owners of the property and the city of Hebron, argued that making an exception for part of the land in order to build a new Jewish neighborhood revealed the military confiscation orders' true motive: a desire to expand the settlements.

Returning the land to its Palestinian owners, however, would “significantly harm the security of the Israeli population in the area and the military company located there,” the state argued. The government also said that it had considered building permanent structures for the military post on the state-owned land – where the new neighborhood is planned today – but that it remains impossible from an engineering standpoint.

As for the petitioners’ claims that a Jewish neighborhood on the site is evidence that the military need is not valid, Stein wrote in the court’s decision, “The civilian Jewish presence is part of the regional security doctrine of the IDF in the area. This is because the presence of citizens who hold the confiscated property makes a great contribution to the security situation in that same area, and makes it easier for the military to carry out its mission.”

Stein cited two rulings from the late 1970s that are considered to be central to the debate over the settlements: the Beit El and Elon Moreh rulings. Both of these cases dealt with the establishment of Jewish communities on privately owned Palestinian land based on military orders.

The 1978 ruling allowed the Beit El settlement, adjacent to Ramallah, to remain because a civilian presence aids in the state's security apparatus. The Elon Moreh ruling, issued a few months later, found the opposite – the Jewish community should be removed from the petitioners’ lands. This was in part because then-Defense Minister Ezer Weizman had voted against establishing Elon Moreh. This ruling gave birth to what is called the Elon Moreh rule, according to which a military confiscation order may not be issued for privately owned Palestinian land to build a Jewish community on it.

In a dissenting opinion, Justice George Karra wrote that the moment part of the land was exempted from the military confiscation order due to the government’s decision to build a civilian neighborhood there, the military commander is no longer being guided by strictly security considerations. Therefore, he said, the court should have issued a show-cause order – the first step toward granting the petition – that would require the state to explain its refusal to cancel the confiscation order.

In his concurrence with Stein, Justice Isaac Amit wrote that the real question arising from the petition is why the permanent military structures are being built on the privately-owned Palestinian land rather than on the section where the new Jewish neighborhood will be built. He admitted that he agonized over this question, but finally decided to accept the state’s position that the latter section was found to be structurally unsuitable for the planned military buildings.

In any case, he added, even if the military's buildings had been built on the land slated for the Jewish neighborhood, the army wouldn’t have returned the other section to the Palestinians, since its position is that allowing Palestinian homes near the military buildings would endanger the soldiers.

Samir Shihadia, the lawyer representing the Hebron municipality in the case, said the petitioners “proved in court that the military need for whose sake the land has been confiscated for years isn’t strictly military, but is mixed with extraneous considerations, especially given that some of this land has been removed to build a settlement. What’s happening here is the theft of Palestinian lands.”

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