Construction Plans? The Court Doesn't Care

Apartment buyers in the territories should heed a ruling that might make contracts for planned neighborhoods worthless.

Decisions from the High Court of Justice to uproot entire sections of the separation fence because of excessive damage to the Palestinians' fabric of life have become routine. So, the ruling by a bench headed by Supreme Court President Dority Beinisch to invalidate - for the third time - the fence route in the disputed area that borders on the ultra-Orthodox Jewish neighborhood in the expansion of Modi'in Ilit and the Palestinian village of Bil'in has been shunted to the margins of the news. But many people would do well to peruse that court decision, particularly the following:

"Security considerations that shape the new route will take into account buildings that have actually been built, and not plans for future construction. The security distances will be measured from the existing construction and not from planned buildings that have not yet been erected."

The implications of this precedent-setting ruling go beyond the Modi'in Ilit dispute. They touch upon a considerable number of housing units planned for locales on the eastern side of the seam line. The High Court of Justice has, in effect, ruled it's possible these apartments, which have been sold "on paper," are not worth the paper the purchasers and the contractors have signed.

In recent years, including the "Annapolis years," tenders have been advertised for hundreds of apartments in Ma'aleh Adumim, the Etzion Bloc and other areas where the fence's intrusive route is waiting on a High Court ruling. The State Attorney's Office claims there's a need to keep (in fact, to annex) a hill that is intended for expanding these Jewish settlements on the western side of the fence. In the case of Modi'in Ilit, the fence stands 600-700 meters from its outermost buildings. This land has been added to what was expropriated from Bil'in villagers for the fence itself.

The High Court noted previously that to ensure the security of those living east of the boundary line of the Judea and Samaria District, it had found it permissible to build the fence east of the line of buildings, within West Bank territory "in accordance with the minimal security distance necessary within reason to protect the inhabitants."

In the new ruling the justices made it clear that "certainly it was not determined there that this protection justifies distancing the fence so far from the existing buildings in the neighborhoods." The justices reminded the government that even though the security of Israelis living in areas of the Judea and Samaria District justifies the building of the security fence to the east of the Green Line (the pre-Six Day War border), this does not justify all damage to the fabric of life of the Palestinian inhabitants. To dispel any doubt, they added: "The limitations on expropriating land for purposes of protecting inhabitants must stand the test of proportionality." Beinisch noted a High Court ruling of September, 2007 that the existing route did not pass the test and demanded the court be presented with an alternative route lessening the harm done to Bil'in's inhabitants. The court did not hide its displeasure over the evasive maneuvers of the state, which took advantage of the court's custom of refraining from setting a timetable for preparing this route. "It has emerged that the state required a great many months to determine the new route. Moreover, the alternative that was selected is for the most part not built on state lands but rather on private Palestinian lands, some of them intensively cultivated, and as a result of this many dunams of cultivated land and olive groves will be affected. And, most importantly of all, this alterative does not lessen the harm to the local inhabitants."

Therefore, the Supreme Court president ordered the state to carry out the ruling without further delay and to come up with a route meeting the court's criteria.

How much will it cost?

The government's actions will cost it tens of thousands of shekels, the legal fees of attorney Michael Sfard, who is representing the people from B'l'in. This is small change compared to the financial damage suffered by apartment buyers and construction companies. Sfard has already applied to the authorities for an order to halt construction for the expansion of Modi'in Ilit. In a letter to the attorney general and to he Judea and Samaria District command, he notes that according to the building companies and the Modi'in Ilit municipality, the work being carried has construction permits from the local planning and building committee. If indeed the work is being done with permits, argues Sfard, these are illegal permits, issued without authority, and contrary to instructions in the valid plan. If the work underway lacks permits, it's illegal and contrary to court rulings and security law. The Justice Ministry spokesman has said that the application is addressed mainly to the Civil Administration in Judea and Samaria, and he assumes it will be dealt with accordingly. The taxpayer will get the total bill at the end of the legal proceedings on Bil'in and the other fence cases awaiting a ruling. In addition to the tremendous expenditure (about NIS 1 billion) entailed in dismantling and rebuilding the fence, the cost will include rehabilitating tens of thousands of dunams of fertile agricultural land. The fence built there was dismantled by court order some time ago (for example, eight kilometers near Baka al-Sharqiyeh), but the earth is still full of gravel and rubble. Insofar as is known, to save the rehabilitation costs, the Defense Ministry has left the expropriation orders "for security purposes" in effect, even after the court ruled the expropriation was intended for Jewish settlement needs.

Egypt joins the axis of evil

As part of the government's policy of shoring up the standing of Palestinian Authority President Mahmoud Abbas (Abu Mazen), from time to time the Israel Defense Forces raid homes of civilians. They pull out people suspected of belonging to the second Palestine - the Gaza Strip. J., a 35-year-old native of Khan Yunis, was living with his wife in Ramallah until he was arrested on suspicion of being "an illegal sojourner in Judea and Samaria." That's the official Israeli term to define Palestinians - not Israelis, Indians or Dutch - who reside in the territories of Palestine. This is what is written in a letter from the bureau of legal adviser of the Judea and Samaria District to Hamoked, the Center for the Defense of the Individual, which came to the aid of J. The officer who interrogated the suspect noted that the man had infiltrated into Israel and then the Judea and Samaria District through the Sinai Peninsula.

The choicest bit is hidden in the "Interrogation Form for Intended Deportee," which was appended to the letter. It said "the aforementioned person infiltrated into the area through the 'axis of evil' subsequent to the year 2005.' It would be interesting to know just who is the evil doer.