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Legal Experts: There is a Solution to the Demolition Issue

Two of Israel’s leading lawyers: there is already a legal solution to prevent the demolition of Judea and Samaria outposts.Use it.
By Elad Benari
First Publish: 12/7/2011, 6:45 AM

At Givat Assaf
At Givat Assaf
Hillel Meir

As the threat of demolition still hangs over the communities of Migron, Givat Assaf and the Ulpana neighborhood in Beit El, and as Prime Minister Binyamin Netanyahu is working to establish a legal team to find a solution for the issue, it appears as though the legal advisers of the residents and the Shomron Regional Authority were correct when they argued that a legal solution already exists.

Arabs, backed by extreme leftist group Peace Now, have filed motions to the Supreme Court, saying the communities must be demolished because they were allegedly “built upon private lands.” In at least one case, that of Migron, the Arabs who claimed the land is theirs withdrew their lawsuit when they were unable to present proof of ownership.

There may be good news for the Jewish residents, however: Two of Israel’s leading lawyers, Attorney Dr. Yaakov Weinroth and attorney Dr. Harel Arnon, published a  legal opinion on Tuesday, according to which there is already a legal solution to prevent the demolition of the outposts. Weinroth and Arnon agreed with the legal advisors of the communities and of Shomron's Regional Authority  that the solutions they proposed are legal, as they had claimed, under the law which currently applies in Judea and Samaria.

The two lawyers state that, despite the argument for the demolition being that the outposts were built on private land or non-state land, according to the law in Judea and Samaria there is no need or legal obligation to demolish outposts that were built in good faith. Therefore, in this respect, the Prime Minister does not have to adopt the Supreme Court’s recent ruling which stated that any communities built on private lands should be demolished and that non-state land is considered Arab even if unclaimed.

The opinion further restates that under the law applicable today in Judea and Samaria, in any case where construction took place in good faith (without knowing that the land had previous owners), there is a solution involving compensation rather than demolition. This has been proposed and suggested and was ignored by the court.

In some cases when the value of the homes exceeds the value of the land, the owner of the homes has the choice of either paying compensation to the owner of the land or demolishing the homes. In other cases, when the value of the land exceeds the value of the homes, the land owner has the choice and can demand that the homes be demolished or force the owners of the properties to purchase the land.

This had all been said to the court at the time the case was before it

The lawyers state that even in cases where the land owner has the choice, so long as he himself does not demand demolition, the authorities cannot choose to demolish homes. The lawyers also said that in Judea and Samaria there is no legal difference between regulated land and land that is not regulated.

The opinion was welcomed by Nachi Eyal, head of the Legal Forum for the Land of Israel and who heads a group called “Legalizing the Communities”.

“The residents’ claims are now legally binding,” Eyal said. “The Prime Minister and government ministers must stop the machine of destruction and bring this legal opinion to the team that the Prime Minister undertook to set up. I’m sure that an examination of the opinion will require the prosecution to inform the Supreme Court that there is a legal solution and that there is no need to demolish homes.”

MK Tzipi Hotovely also welcomed the corroboration in the legal opinion and said, “The opinion only reinforces what we have been arguing since the legal sword was raised over the outposts: The Supreme Court and Peace Now drew a non-binding and untrue legal purpose around their desire to destroy the communities. No more will injustice be done to families using twisted reasons of justice and honesty.”