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Article Israel: High Court Orders State to Conduct Criminal Investigation of Illegal Construction in West Bank

On May 9, 2024, Israel’s High Court of Justice ordered the police to open a criminal investigation into illegal construction in an outpost located within the Eli settlement in the West Bank. The court, by a two-to-one vote, accepted a petition by the non-governmental organization Peace Now.  (HCJ 2368/18 Peace Now v. IDF Command in the West Bank.)

Background

The petition that was the subject of the decision was filed over six years ago, and more than three and a half years have passed since a conditional order was issued in relation to it. (Justice Daphne Barak-Erez opinion, para. 1.) The petitioners initially applied to the court seeking the cessation of construction and the prevention of occupancy of buildings unlawfully constructed in the Hayovel outpost, located within the municipal boundaries of the settlement of Eli. The state’s respondents did not dispute that the housing units at issue were built without lawful permits and in violation of the plan for the area. They notified the court, however, that the construction had continued, that all the buildings that were the subject of the petition were occupied, and that they intended to legalize them. (Justice Yael Willner dissent, para. 4.) Under these circumstances, since 2019, the review of the petition has focused on the petitioners’ demand to open a criminal investigation into alleged offenses relating to this construction. (Willner dissent, para. 1.)

A decision on the merits has been delayed for several years based on the expectation that the government would establish a dedicated unit with expertise in planning and building laws in the West Bank, in accordance with a 2013 decision by the Minister of Defense at that time. (Willner dissent, para. 9.) Such a unit could investigate alleged violations, including those at issue in the petition. On September 29, 2023, however, the respondents informed the court that the government would not establish such a unit. (Willner dissent, para. 25.)

Decision

According to the majority opinion by Justice Daphna Barak-Erez, with Justice Ruth Ronen concurring, the scope of discretion vested in law enforcement agencies in deciding to open a criminal investigation is broad and the court will intervene in their decisions only in exceptional cases. The current case, the court ruled, is such an exceptional case in which judicial intervention is justified due to the repeated delays that were based on the government’s assertion that a dedicated unit would investigate the matter, a unit the government ultimately decided not to establish.

Justice Barak-Erez stated,  

the conditional order against the respondents should be made absolute for both formal and substantive reasons. First, for formal reasons—according to the rules of procedure, when no substantive answer is given to a conditional order, let alone after repeated delays—there is no other way than making the order absolute. Second, for substantive reasons—in the absence of any substantive answer to the question of why an investigation will not be opened, the situation amounts to a sweeping and inexplicable delay in clarifying the suspicions relating to planning and building offenses in the area. (Para. 8.)

In her dissenting opinion, Justice Yael Willner opined that the court may not substitute a decision by authorized authorities on whether to start a criminal investigation with its own decision, particularly in light of the “very broad discretion given to law enforcement agencies regarding the opening of a criminal investigation, within the framework of which the competent authorities are required to consider clear professional considerations that often involves policy decisions.” (Para. 29.) She wrote, however, that the failure of the competent parties to make a decision after such a long time would justify the court ordering them to make a decision within 90 days whether or not to open an investigation. (Para. 44.)

Ruth Levush, Law Library of Congress
June 25, 2024

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Chicago citation style:

Levush, Ruth. Israel: High Court Orders State to Conduct Criminal Investigation of Illegal Construction in West Bank. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-06-25/israel-high-court-orders-state-to-conduct-criminal-investigation-of-illegal-construction-in-west-bank/.

APA citation style:

Levush, R. (2024) Israel: High Court Orders State to Conduct Criminal Investigation of Illegal Construction in West Bank. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-06-25/israel-high-court-orders-state-to-conduct-criminal-investigation-of-illegal-construction-in-west-bank/.

MLA citation style:

Levush, Ruth. Israel: High Court Orders State to Conduct Criminal Investigation of Illegal Construction in West Bank. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-06-25/israel-high-court-orders-state-to-conduct-criminal-investigation-of-illegal-construction-in-west-bank/>.