Background
The petitioners live in Khirbet Mufaqara in Masafer Yatta, at the northwestern edge of Firing Zone 918. They challenged the military commander’s refusal to exempt their land, or permit licensing or planning proceedings, for three homes built without permits inside the firing zone. Demolition orders concerning the first two petitioners’ homes were issued in 2018, and the order concerning the third petitioner’s home was issued in 2012.
The petitioners argued that the decisions were generalized, factually deficient, and inattentive to their individual circumstances. They emphasized that their homes stand in the northwestern portion of the zone, where only “dry” exercises without live fire take place, and asserted discriminatory enforcement compared with Jewish outposts. The respondents maintained that the buildings were erected unlawfully within the closed military area and that, once their actual location inside the firing zone was confirmed, no licensing or planning process could be approved.
The dispute followed earlier litigation over Firing Zone 918. In Abu Aram v. Minister of Defense, HCJ 413/13, the Court upheld the military commander’s authority to close the area and found no evidence of permanent residence there before 1980. A separate 2012 judgment, however, recorded the defense minister’s decision to permit permanent presence in the northwestern, non-live-fire portion of the zone, including Khirbet Mufaqara.
The Court’s Holding
By a 2-1 majority, the Court dismissed the petition and ordered the petitioners to pay the respondents NIS 7,500 in costs. Justice David Mintz concluded that the buildings were constructed in violation of the closure order, noting counsel’s admission that the earliest structure dated only from 2010, roughly 30 years after the area was closed. He also held that seeking retroactive authorization for unlawful construction justified dismissal for lack of clean hands.
The majority rejected the proposed exception for buildings at the edge of the zone where only “dry” exercises occur. Justice Mintz reasoned that non-live-fire military training still implicates civilian safety and operational secrecy, and that recognizing such exceptions could progressively erode the firing zone. Deputy President Noam Sohlberg joined, viewing Abu Aram as governing buildings throughout Firing Zone 918 and emphasizing that the military commander had already reconsidered the petitioners’ applications after an earlier decision relied on an erroneous description of the buildings’ location.
Justice Daphne Barak-Erez dissented. She would have issued an order nisi and required a new decision on the exemption requests because the challenged decisions incorrectly assumed that the petitioners were not permanent residents. In her view, the 2012 judgment recognized permanent residence in the specifically delineated northwestern portion of the zone, Abu Aram concerned the southeastern portion, and the commander therefore had to assess the petitioners’ individual circumstances and civilian way of life alongside the constraints of the “dry” firing zone.
Key Takeaways
- The majority treated unauthorized construction anywhere within Firing Zone 918 as governed by the closure order and the Court’s Abu Aram precedent, including construction in the northwestern non-live-fire area.
- The absence of live-fire exercises did not require an exemption because military training may still raise safety and operational-secrecy concerns.
- The dissent distinguished lawful permanent presence from lawful construction and would have required reconsideration because the exemption decisions rested on an incorrect premise about the petitioners’ residential status.
Why It Matters
The judgment confirms the Court’s restrictive approach to retroactive authorization of unpermitted construction within a declared military firing zone. For the majority, recognized residence at the zone’s edge and the limited nature of local exercises did not overcome the closure order, final enforcement proceedings, or the petitioners’ lack of clean hands.
The dissent exposes an important unresolved tension between prior governmental recognition of permanent civilian presence in the northwestern part of Firing Zone 918 and enforcement against homes there. Although the petition failed, the disagreement may shape future challenges involving the geographic scope of Abu Aram and the legal consequences of the 2012 arrangement.