The Supreme Court Issued a Decree Nisi in a Petition Demanding the Investigation of Settler Leaders

On 12/28/23 the Supreme Court issued a Decree Nisi in the petition of Peace Now demanding to open an investigation into crimes of organized illegal construction in the settlements. The injunction instructs the State’s Attorney and the Police to give reasons within 60 days why they would not open an investigation into the suspicions related to the construction in the illegal outposts of Haroeh, Alonei Shilo, and Ramat Gilad as well as in the Shvut Rachel settlement. The injunction comes after years during which the State tried to avoid investigating the involvement of the authorities in illegal construction in settlements and outposts. The meaning of a Decree Nisi is that the High Court of Justice accepts the petitioners’ claims in principle, and the burden of proof shifts to the State before a final decision on the petition.

While any construction of settlements in Occupied Territories is illegal under International Law, Israel has allowed settlements to be built following legal processes of planning set by Israel. However, many of the settlements and outposts in the West Bank are being built by violating the Israeli legal processes and are considered illegal even according to Israel. Much of this illegal construction is done with the help of the authorities and financed by public funds through the local authorities in the settlements. However, the police and the State’s attorney avoided the investigation of those crimes.

The injunction was given in three petitions submitted by Peace Now through attorney Michael Sfard regarding illegal construction in which there was allegedly involvement of public figures who used public funds for illegal purposes:

Shahar Hatzeira neighborhood (HCJ 1053/18) – In November 2016, Peace Now wrote to the State’s Attorney and the Police demanding that an investigation be opened against the Binyamin Regional Council, “Amana”, and the construction company who were involved in the construction Dozens of illegal housing units in the Shvut Rachel settlement. For more than a year, the State’s Attorney and the police refrained from opening an investigation and did not provide an answer to the substance of the matter. In January 2018, Peace Now filed a petition with the High Court of Justice demanding to open the aforementioned investigation. The court issued an injunction that prohibited the continuation of construction. Still, in the time that passed from Peace Now’s complaint and the submission of the petition, the construction of almost all the houses was completed.

Alonei Shilo and Ramat Gilad (HCJ 1244/20) – In February 2019, Peace Now wrote to the State’s Attorney demanding to open an investigation into the involvement of the Local Council of Karnei Shomron and its head in three illegal construction projects in the Alonei Shilo and Ramat Gilad outposts. The head of the council did not hide his involvement in the illegal construction. The brochure of projects published by the council included projects of illegal construction in outposts and on the Facebook page of the head of the council, he bragged about the fact that he worked to establish facts on the ground without waiting for permits. In this case as well, for about a year, the enforcement authorities refrained from opening an investigation, and in February 2020 Peace Now submitted a petition to the court.

Haroeh outpost (HCJ 2936/21) – In November 2016, Peace Now wrote to the State’s Attorney demanding an investigation into the involvement of the Binyamin Regional Council in illegal construction at the Haroeh outpost. Among other things, Peace Now presented evidence that the Regional Council approved a budget to finance the illegal works. The prosecutor’s office and the police transferred to each other the responsibility for handling Peace Now’s appeal, and for nearly five years they wrote that the issue was still under consideration. In April 2021 the petition was submitted.

In the three petitions, the state claimed that in order to investigate crimes of this type, a unique investigative body should be established and that it should wait until such a body is established in the Civil Administration. For years the State asked the court for extensions and updated how the establishment of the unit was “progressing”: meetings were held; decisions were made; budgets allocated etc. The court agreed to wait patiently for the establishment of the special unit that would finally investigate the suspicions.

However, immediately after the establishment of the current government and the appointment of Minister Smotritch as “Minister of Settlements” in the Ministry of Defense, the State informed the court that the establishment of the investigative unit was frozen for the purpose of a re-examination of the political echelon. In July 2023, the State announced that it was decided not to establish at this time an investigative unit for crimes of illegal construction in the territories. In light of this, and after the State did not give a satisfactory answer as to why an investigation would not be opened, the High Court of Justice issued the Decree Nisi requiring the state to provide reasons within 60 days as to why an investigation would not be opened.

Peace Now: “Today, the court sends a clear signal to law enforcement authorities that there is no longer room for the years of immunity granted by the state to leaders of the settlement movement. They have acted against the law and utilized public funds to determine facts on the ground, affecting the future of Israel as a whole. We hope that this message resonates, leading to an end to lawlessness in the settlements and outposts.”

For more information on the organized illegality in the construction of the outposts and settlements – click here.