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A Sewage Treatment Facility as a Parable: HCJ 4457/09 Mana’ v. Minister of Defense (Judgment of July 27, 2011)
Court Watch | 4457/09 | 1.12.2012 | Adv. Clara Unger
The illegal facility in Ofra. Photo courtesy of Yesh Din
Criticism
There is no longer a need to delve into poetry or prose.

Reading the judgment and submissions in the Mana’ judgment reminds us that the metaphoric force of reality is as powerful as the inventiveness of a talented poet with the richest of imaginations.

The stench, quite literally, of this case which found its way to the High Court of Justice (HCJ), reeks to high heaven. It is the case of a sewage treatment facility that was built in Ofra, on stolen Palestinian land and with funding provided by the Israeli tax payer.

Ofra is one of the oldest, and most affluent settlements in the West Bank. It was established in 1977, pursuant to a government resolution and is now home to some 3,000 residents. Most of them live on privately owned and registered Palestinian land which was stolen from the residents of nearby villages. As Ofra was mostly built on private land, it should come as no surprise that it has no valid master plan and its area of jurisdiction has never been officially declared. Without these, no building permits can be issued in the settlement, and in fact, its status is exactly that of an illegal outpost – the largest in the West Bank.

These are well known facts. The authorities are aware of them and they have been published in a report commissioned by the Ministry of Defense (the Spiegel Report).[1]

In 2007, the then Minister of Environmental Protection, the late Gideon Ezra, decided to build sewage treatment facilities in a few settlements in the West Bank, including Ofra. Ofra had had serious sewage problems caused by the proximity of its sewage (released without treatment) to the mountain aquifer.

In the often superficial media and public discourse, the HCJ is associated with "judicial activism" and its actions are seen as serving the interests of the Israeli left wing

And so, at a pace that a local authority inside the Green Line would have been proud of, the Binyamin Regional Council built the Ofra sewage treatment facility on land that is privately owned by Palestinian residents of the nearby village of 'Ein Yabrud. According to various publications, the project received no less than 7.8 million Israeli shekels of public money via government loans and grants.

It was only well into the construction phase, after a request to connect the facility to the electricity grid was submitted, that the Civil Administration, the authority in charge of enforcing building and planning laws in the West Bank, began monitoring the project. In 2009, cease and desist and demolition orders were issued against the sewage treatment facility by the Civil Administration Enforcement Unit. Did the Civil Administration suddenly discover that a project of such magnitude was being constructed on privately owned land? Court documents submitted in the petition show that Civil Administration officials had been involved in the construction since the early stages. We have no explanation for this and this is not the topic of this commentary. In the interim, it turned out that the construction had commenced based on a forged building permit and the Police National Fraud Investigation Unit launched an investigation.[2]

All of the above was not sufficient for enforcing the demolition orders. They remained in the offices of the Civil Administration, untouched, waiting for the right moment, which would doubtfully come considering the lax enforcement of building and planning laws in the Occupied Palestinian Territories (OPT). The Binyamin Regional Council, for its part, openly defied the orders and continued building. This was also investigated during the criminal investigation into the forgery.

To recap: in 1977, the Israeli government built the largest illegal outpost in the West Bank, which continued to develop and expand, on privately owned Palestinian land. Three decades later, singing the praise of environmental protection, the State of Israel used public money to fund a sewage treatment facility for the benefit of Ofra’s Jewish settlers alone on adjacent land, also privately owned and also taken from its owners, without any legal proceedings.

Imagine a person whose neighbor took over his property and dumped waste on it. In order to remove the mound of waste that accumulated over the course of 30 years, the neighbor takes over some more property, with money and support from the authorities. When the victim complains, the neighbor says: “Why are you complaining? You should thank me. I’m going to remove your trash too”.


A Good Deed Begotten of Sin
Israel’s Supreme Court, which is known for its lengthy and detailed judgments, surprised everyone with a brief judgment that reveals nothing about the media uproar the case generated or the severity of the impingement on the rule of law perpetrated not too far from the air-conditioned court rooms in Jerusalem.

In the often superficial media and public discourse, the HCJ is associated with “judicial activism” and its actions are seen as serving the interests of the Israeli left wing. This case, which is extreme in terms of the facts involved, serves as an interesting acid test for the Court’s approach to breaches of the law in the West Bank. Its results are consistent with the claim legal scholars frequently make, that judicial activism stops at the Green Line.[3]

During the hearings in the petition and the debate regarding the unlawfulness of the sewage treatment facility, Respondents 1-6 said that they “do not dispute that the appropriate and correct course of action would have initially been to consider different alternatives for resolving the issues and initiate both planning and property procedures to implement the suitable alternative”.[4]

After noting the importance of meeting legal requirements, the respondents make their arguments on the merits as follows: 1. the premise is that a solution must be found for the sewage problem of the Jewish settlements and “the nearby Palestinian villages”. 2. The unlawfulness should not preclude a substantive examination of the issue of the sewage of Ofra and the Palestinian villages.

According to the State, even if various alternatives had been examined, due to the area's topography, the sewage treatment facility would have likely been built on the very same site, following planning procedures. The State also noted that the possibility of turning the sewage facility into a regional project that would serve residents of nearby Palestinian villages as well, was under consideration and that the option of expropriating the land on which the sewage treatment facility had been built was being contemplated for purposes of this future regional project.

At this point it should be noted that other than the unlikely possibility of purchasing the land from the owners, expropriation is probably the only way to legalize the facility.

Having presented the line of argument, it is impossible not to ask: Is potential damage to the environment really the appropriate point of departure for the HCJ review? Is it not possible to posit the problem differently, namely that the point of departure is the denial of the petitioners’ proprietary rights without even the faintest legal basis?

Even if we accept, for the sake of argument, that the central issue is the environment, how do we come to the conclusion that the ends justify the means? It is difficult to avoid the impression that the millions of shekels that were invested and the grave political repercussions any other decision would have had were, in fact, what paved the way to legalizing the facility.

The HCJ did not address the petitioners’ right to property and refrained from conducting a review on issues of principle from an administrative law perspective

LLet us not forget one important matter. How did the Palestinian villages suddenly enter the discussion? It was clear to anyone with common sense, that the facility was intended solely for the residents of Ofra. The answer is provided by the respondents themselves. The respondents' submissions indicate that during the discussions about the demolition orders, they realized that if the facility were to serve Palestinians as well, it could be legalized. And so, suddenly, the rhetoric changed and the sewage treatment facility became a fine example of coexistence, destined to serve both Ofra and the Palestinian villages.

For those not well versed in the law applicable to occupied territories, we shall say that according to the rules of international humanitarian law, the expropriation of land in an occupied territory by the occupying power (as, allegedly, should be done in order to legalize the sewage treatment facility), must be intended to benefit the protected persons rather than serve the needs of the occupier’s citizens. This principle is well established in Israeli jurisprudence and was recently reviewed in a case involving land expropriation outside the Green Line for the purpose of building the Tel-Aviv Jerusalem railway. In that case too, the State made the project look like it was planned for the benefit of Israelis and Palestinians alike, as if the confiscated land were in Switzerland.[5]

Unfortunately, the HCJ did not address the petitioners’ right to property and refrained from conducting a review on issues of principle from an administrative law perspective. Moreover, it fully embraced the line of thinking presented by the respondents and opened its arms to save them from their own conduct.

Jewish tradition recognizes the concept of a good deed, or an act of religious faith that is begotten of sin. The Talmud Bavli speaks of making a dough offering from bread baked with stolen grains, or observing the practice of the four species, arba minim, on the holiday of Sukkot with a stolen closed palm branch, or lulav. In neither case, does the Jewish faith recognize the person involved as having performed the religious observance. The story about the sewage treatment facility is quite like the story of the person who performed the right of purification by bathing in the mikva, while holding an unholy animal – no treatment facility could purify such a person.


Having the Petition and it Eating Too
The Supreme Court, which could not have been pleased about this case, returned the hot potato to the planning authorities to have them examine whether there was a way to make the facility legitimate:

Those institutions should consider all of the planning data, including the topographical and environmental aspects, and take into account the weight of the illegality discovered in this affair and the clear needs and planning considerations.

Let us ask an innocent question. What does it mean to weigh the illegality when it is crystal clear that all the authorities want is to legalize the facility? What is the value in making this statement when there is no doubt that the authorities would do anything in their power to find some kind of solution, even if feeble, in order to retroactively expropriate the land, legalize the facility and launder the land grab. It is difficult to escape the impression that this statement is nothing more than lip service, or perhaps an expression of the Court’s discomfort when reviewing the matter.

In their petition, the petitioners sought to have the construction of the sewage treatment facility halted. They also sought an order to execute the demolition orders the State itself had issued. The respondents, on the other hand, consented to a full stoppage of construction until planning was regulated (i.e., until the land was expropriated) and noted that construction could not continue in any event given the pending cease and desist and demolition orders.

Honorable President Beinisch notes that in returning the issue of the facility to the authorities she accepts the petition in part. It is no secret that HCJ petitions are not often accepted and that receiving the remedy sought in the petition, even if partially, is considered an achievement for the petitioner.

But was any remedy really given here?

The truth of the matter is that the HCJ did nothing except reaffirm the legal situation, which was known to the parties from the beginning. True, the HCJ added its seal of approval to the existing (and unenforced) cease and desist and demolition orders, so that construction could not continue until such time as the expropriation was put in place, if this occurred.

Yet, on reading the submissions, one would find that this was precisely the remedy the State sought when it asked to have the petition dismissed and give it a chance to consider turning the sewage treatment facility into a regional project. And so, all is well that ends all. The petitioner received his remedy in part and the State was given the green light to continue trying to legalize the facility, keeping in mind the HCJ’s polite request to have the unlawfulness weighed.

Could it have been different? In some sense, this case is reminiscent of another serious case brought before the HCJ, concerning the illegal outpost Migron.[6] In this case, after lengthy and tumultuous legal proceedings, the HCJ ordered the State to evacuate Migron, which had been built on registered, privately owned Palestinian land. In terms of the level of illegality, these two affairs are extreme cases, in which the State did not dispute that the law had been broken and that Palestinians’ ownership rights had been violated.

Yet, in the Migron case, the HCJ supported its decision with a quote from an earlier HCJ judgment, in which the then Deputy President Moshe Landau (later Court President) said:

[W]hen individual property rights are at issue, one cannot dismiss the issue on the argument of the “relativity” of the right. In our legal system, individual property rights are an important legal value which is protected by both civil and criminal law and it makes no difference, as regards the right of the land owner for legal protection of his property, whether the land is cultivated or simply rocky terrain...[7]

It would be interesting to find out why in the Migron case the result was insistence on the petitioners’ property rights as opposed to the sewage treatment facility case which ended with an opportunity to regulate the illegality.

Alongside the many differences that certainly exist between the two cases, the facility’s essence, or the act in question, may be offered as the basis for the distinction between them. The first case involved a large illegal outpost which continued to grow and expand even as the State was making plans and attempts to move it elsewhere. The second case exceeded the ordinary “division” into settlers and Palestinian land owners in the sense that the project in question was a sewage treatment facility which was meant to provide a solution for a (real and serious) environmental problem.

Perhaps this is one of the bases for distinguishing between the two cases, as in the current state of affairs, and as long as no diplomatic decision about Ofra (the sewage producer) is made – there is no dispute that there is a serious environmental problem and real danger of contaminating the aquifer. In this sense, the justification for the facility itself, unlike an illegal outpost which is, in and of itself, highly controversial, is seemingly obvious. This is also the reason why this case emphasizes, more than any other, the absurd legal and political situation in the OPT.

At the same time, and without underestimating the importance of environmental issues, we should ask whether, theoretically, there really is a difference that justifies the different result in the two cases. The Ofra sewage treatment facility is nothing more than an extension of the settlement, which is also built on private land. There is also no dispute that the facility is meant to solve the issue of the sewage produced by Jewish settlers and that it primarily serves the interests of the settlers of Ofra.

Perhaps this is what the then Deputy President Landau meant when he said that the individual’s right to property could not be shrugged off as “relative”. To him, there was no difference whether the land was rocky and barren, or cultivated. Land grab is land grab. Given this view, we must ask why in one case the property rights of the Palestinian land owners are superseded and in the other they prevail. Moreover, we must continue to ask whether in this, case under the guise of caring for the environment, an act that should have been rejected and denied received the seal of approval.


Adv. Clara Unger
The author is a lawyer, formerly on staff at the State Attorney's Office. She is currently a licensed tour guide and blogger.


[1] 
The Spiegel Report presents data secretly collected a Ministry of Defense team headed by Brig. Gen. (res.) Baruch Spiegel, then serving as a special advisor to the Minister of Defense. The report was exposed and published by Haaretz newspaper; see Uri Blau, “Secret Israeli Database Reveals Full Extent of Illegal Settlement”, Haaretz, January 30, 2009.
[2] 
See Chaim Levinson, “Israel Police Find More Settler Construction on Palestinian Land”, Haaretz, June 13, 2012.
[3] 
See Leon Sheleff, “The Green Line Is the Border of Judicial Activism: Queries about Supreme Court Judgments in the Territories”, 17 Tel Aviv University Law Review (1993), pp. 757-809 (in Hebrew).
[4] 
See HCJ 4457/09 Mana’ v. Minister of Defense (2011), statement of response of Respondents 1-6, submitted March 1, 2011, as quoted in the Mana’ judgment, issued July 27, 2011.
[5] 
HCJ 281/11 Head of Beit Iksa Local Council v. Minister of Defense (2011), judgment of September 6, 2011; and see commentary on this judgment.
[6] 
HCJ 8887/06 al-Nabut v. Minister of Defense (2011), judgment of August 2, 2011 (in Hebrew).
[7] 
Ibid., para. 16. The quotation is from the judgment, issued October 22, 1979, in HCJ 390/79 Duweikat v. Government of Israel (1979); and see commentary on this judgment.
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