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Implications of article 212 / 5 of the Israeli Planning and construction law on East Jerusalem housing

The 1965 Planning and Construction Law and the various amendments made in recent years apply to construction in Jerusalem. The law defines the powers of the Interior Ministry and local authorities in planning, regulation and control of construction. In line with this, the relevant authorities developed a framework that determines the legality of construction sites according to zoning restrictions that determine whether land will be available for public or private use.
The law permits the relevant authorities to amend the master plans in accordance with the needs of the population and the state to create a so-called balance between the interests of citizens and the interests of the state. According to the law, district committees formed by the ministry of the interior must ratify the master plans according to the conditions stipulated by the structural plans. No citizen is permitted to build unless a license is granted by the authorities. Construction as defined by law is any building of cement, stone, wood, iron or any other material, and this includes any fences or walls, as well as extensions or demolitions to parts of existing buildings. Anything so described, built without a permit, is subject to sanctions provided for by law.
If the legislature had sought to achieve the highest degree of balance between individuals, the state and urban development, it seems to have failed in everything related to organizational policy in Jerusalem.
Shortly after the June 1967 war and the occupation of Jerusalem, Israel announced the annexation of approximately 70 thousand dunums  of the West Bank into the Jerusalem area and changed the municipal boundaries of the city to reflect this, applying Israeli law to all of the new Jerusalem. The New Jerusalem (Western and Eastern) of 110 thousand dunums became almost three times as large as it was under the old municipal boundaries which had encompassed 40 thousand dunums. It should be noted that the area of the eastern section of the city which was under Jordanian sovereignty was 4,000 dunums, and this included the Old City of Jerusalem.
The Israeli government‘s decision was based on the principle of annexing as much land as possible while incorporating as few Palestinians as possible along with the creation of a strategic defensive line to secure West Jerusalem. The main considerations of the Israeli administration were:
1.    Creating a security belt around West Jerusalem from the east and strengthening settlements there to enhance the defense capacities of the capital.
2.    Creating a barrier between the Palestinian populations of Jerusalem and the West Bank.
3.    Increasing the proportion of reserve land for Jewish building in Arab Jerusalem. For this purpose, 35% of Palestinian land in Jerusalem was confiscated (about 23,500 dunums) and later used to build Israeli settlements. This has facilitated a large growth of Jerusalem’s Jewish population.
4.    Judaization of Jerusalem by encouraging settlement in East Jerusalem and its surroundings and forcing the Palestinian population to leave through discriminatory policies.
Planning and zoning policy in Jerusalem
In order to achieve these objectives, the Israeli authorities have pursued a policy of legalized racism to obtain the maximum possible gains for the Jewish population at the expense of the Palestinians. Measures to encourage the growth of the Jewish population in Arab Jerusalem, include expanding the yellow zones (areas reserved for Jewish construction only,) increasing the rate of construction in Jewish settlements, and building a sophisticated network of services and infrastructure to support the settlements and facilitate further growth.
The second element of planning policy is the establishment of territorial continuity between Jerusalem and the settlements. Thousands of dunums of Palestinian-owned land located between the settlements and the city have been designated as ‘public areas’ in order to prevent Palestinian construction and to deny territorial contiguity with the rest of the West Bank.
In contrast to the measures to increase Jewish construction in Arab Jerusalem, many obstacles have been placed in the way of development of new housing for Palestinians. Israeli politicians talk openly about the aim to displace the Palestinian population outside Jerusalem to resolve the demographic balance in favor of the Jewish population.
The Israeli-defined Jerusalem municipality has prepared a structural blueprint for Jerusalem, the so-called "Jerusalem 2000 plan". The primary aim of the plan is to reinforce and develop the status of the city as the capital of Israel. In this context, the plan puts forward measures to increase the proportion of the Jewish population in Jerusalem to 70% by 2020.
The scheme proposes to increase the number of housing units for Jews and to expand public places and industrial zones in response to the needs of the Jewish population, while placing unprecedented restrictions on Palestinian construction, and urging ‘densification’ of existing Palestinian neighborhoods.
Construction without a license and the resulting penalties
In light of the difficulties in obtaining a building permit in East Jerusalem, many Palestinian citizens are under pressure to construct unlicensed buildings. Despite the willingness of the authorities to prevent building, the need for housing is greater than they can prevent and Palestinians have continued to construct new buildings and extend old ones. The task of obtaining a license is very difficult and sometimes impossible, not to mention the high cost that must be paid before one can even know what is acceptable to build. Unlicensed construction is punishable by fines ranging from US$ 120 - 150 per square meter, this amounts to tens of millions dollars paid to the Jerusalem municipality over the past forty years.
In other cases, building permits are issued for a specific period, in most cases one year and they can be renewed once. If construction is not completed within the timeframe, a fine may be imposed and the house may become subject to demolition. Despite the magnitude and severity of the penalties, many Palestinians still reside in "illegal" buildings.
Obstacles to licensing:
Over the years, the Israeli authorities have refused to implement a structural planning scheme to regulate the development of Arab East Jerusalem. They have refused to take into account the growth in the Palestinian population or their patterns of development. The area where construction is permitted is very limited, and even where construction is permitted, there can be no building unless there is an approved neighborhood planning scheme in place. In areas where there are schemes, the rate of construction is too low to cover the needs of the population and large areas have been allocated for other purposes such as open spaces, green areas, public buildings, streets and so on.
Licensing procedures cannot progress without a proof of ownership. The problem lies in the difficulty of proving ownership, especially since most Palestinian lands and homes have been inherited from their parents, and most abstained from registering their property in the TABO (official land registry). This requirement aims to complicate the proceedings, to the degree of impossibility and therefore block access to authorization.
Additionally, licensing procedures are costly and often exceed the financial means of ordinary citizens. Costs include property tax and other charges, as well as water, sewerage, engineers’ and lawyers’ fees amounting to tens of thousands of shekels per application.
In light of all this, citizens have been forced to build without licenses despite the financial and legal risks involved; it is certainly a less harmful situation than becoming homeless. In order to prevent unlicensed construction in East Jerusalem, the Israeli authorities have resorted to all means in order to deter people from building.
Palestinian residents of Jerusalem who move outside its boundaries risk losing their Jerusalem identity cards. This practice has led tens of thousands of Palestinians to move inside the Israeli-defined municipal borders in an attempt to maintain their access to the city, as well as to the social security and health insurance available to Jerusalem residents, and to preserve the Arab identity in the city. The construction of the separation wall and the restrictions on travel between Jerusalem and its surrounding villages has also led many Palestinians to move within the Israeli-defined municipal boundaries. These factors, along with the high Palestinian birth rate, create additional pressure on the housing market and an urgent need for urban expansion.
The provisions of the Planning and Zoning Law:
Article 204 of the Planning and Zoning Law states that the penalties for building without a permit include payment of a fine or two years imprisonment. Article 205 additionally states that "If a person is convicted of an offence according to Article 204, the court may order the building, or any part thereof which exceeds the licensing restrictions, to be demolished, dismantled or removed by the guilty party or by the local committee, if requested and sentence him to pay the necessary expenses of the demolition.
Article 206 gives the court the power to postpone the implementation of a demolition order for duration of time so as to provide the opportunity to continue the licensing procedures.
It can be noted from articles 204, 205, and 206 that unlicensed construction is a criminal offence under the provisions of criminal law and that the sentence is to be imposed after the accused is convicted guilty by the court and that the demolition should be carried out only after exhausting other, less harmful sanctions. Accordingly, demolition under article 205 should only be applied in certain rare cases. Additionally, the law gives discretion for the court to postpone the implementation of a demolition order in order to grant the accused the opportunity to license the building.
Article 212 of the planning and construction law
In many cases, conditions make it impossible to submit an indictment against the perpetrator of violations, for example, if the perpetrator has died or the building has become obsolete. In order to deal with such cases the law supplied the local authority with Article 212 of the same law which states:
If the building violation is committed under this chapter, and if the convicted person has been sentenced in accordance with Article 205, the court is entitled to render a judgment even without convictions, provided that the following conditions are met:
1.    That the offender (who built the building) is of unknown identity or can not be brought to trial.
2.    That the offender is known, but would not be available for trial either because of an unknown address or because he lives outside the country.
3.    That the offender may have waived his responsibility to the building by sale, donation or any other form of legal behavior.
4.    That the identity of the offender cannot be proven.
5.    That the offender has died or can no longer be brought to trial. The legal scope of this definition has expanded to include many cases in which not possible to bring a person to trial, for example, not knowing the history of the offence.
This article does not prosecute the perpetrator of the offence but instead tries the unlicensed building, which means that the court can issue a demolition order without any individual being in violation of planning regulations. According to this article, the authority may apply to the court of local affairs for an order to demolish a building on the basis that it constitutes a danger to the public interest, even if no individual can be charged with unlicensed construction
According to this article, the accusation is directed toward the building and not towards its owner, and as such there is no accused and it is not possible under the article to impose a penalty on the owner of the building. If the intention of the legislator in article 205 is to punish the offender (by a fine or imprisonment), or to bring the case before the court to justify the building in accordance with the license, it is the intention of the legislator that article 212 is directed towards a specific building under the claim that it causes harm to the public interest.
To issue a demolition order according to article 205, it is sufficient to convict an individual of unauthorized construction. However, in the case of a request for demolition under article 212, it is not sufficient that evidence is available to empower the court to order a demolition based on article 205. The local authority is also required to prove that the public interest outweighs the personal interest in order to enact demolition, and the burden of proof is on the local authority. At the same time, the court must allow the owner of the building to prove that their personal interest outweighs the public interest. The law gives the court discretion to decide according to the individual circumstances of the case in whether public or private interests prevail.
The decision that public interest prevails over private property rights is usually taken when a building is about to collapse and must be demolished to protect public safety. In these cases, the State examines expert submissions and concludes whether or not the danger can be averted without demolition of the house.
Since the legal text does not take into account the factor of time and date of the construction, the legal position settled that the authority should not be exempt from the responsibility of neglect and silence during the last period which may extend to tens of years. For instance, in a case where the owner of a building has been continuously paying the required municipal taxes, the judge should not be able to use article 212 to instantly order the demolition, as the authorities failed or neglected to notify the owner of the building‘s legal status in advance. While certain judges see that there should be no reward for negligence, other judges do not preclude the use of Article 212 since, in their opinion, the authority‘s neglect dos not make the building legal.
In the case of The State versus Meir (04/004161), the court refused to issue a demolition order according to article 212 because it not only failed to demonstrate the damage caused to the public interest by a kiosk at the seashore, but concluded that there is “a public benefit from this kiosk which preserves the public character of the beach”.
In the case of The State against Badran (05/1239) the judge refused to order demolition of the family home in the Silwan neighborhood in accordance with article 212 / 5, because "the state did not prove that the construction constituted a nuisance to the public by blocking the path of cars or pedestrians, and that it is not causing serious violation to the law or the public order". Accordingly, the court may take into account the history of construction and investment spent on the building since that time.
Israeli authority’s use of Article 212 in East Jerusalem
While the courts were very strict and reluctant in using article 212 due to its grave implications on the building owner, these same courts have softened their stance on this article in cases pertaining to the East Jerusalem district. In fact, these courts have in many instances allowed and even passed sentences to demolish houses under article 212/5. Some of these houses existed for over 10 years and some have been built before the 1967 war, even before the enactment of the Planning and Construction Law in East Jerusalem.
The state usually resorts to this article when it fails to provide enough evidence to convict the owner of the house for construction without a license or in cases where it is not capable of ordering a fine or a demolition order under article 205.
However, in the past, the State has not referred to article 212 in its decisions to carry out demolition ‘in the public interest’, and the court has issued demolition orders without referring to the article. Demolition orders have been issued even if construction was carried out under license from the Jordanian government, and in these cases the court did not give an opportunity for objection as required under article 212. The best example of that is the demolition of the Moroccan Quarter of the Old City of Jerusalem, which was bulldozed four days after the 1967 occupation of East Jerusalem in order to expand the courtyard of the Western Wall, without considering the legal and regulatory status of 135 homes inhabited by some 650 people. Two mosques were also demolished in the neighborhood along with other family businesses to provide parking for the Jewish quarter. There are no details available of the demolition orders and legal action taken prior to the implementation of the demolition, but it is clear that the legal basis used to justify these orders was the article 212, subsection 5 of them which states that: "The offender died or was unavailable for trial" for any reason. This article has been exploited for the implementation of Israeli policy in Jerusalem, namely the Judaization of the city and creating the demographic imbalance between Arabs and Jews.
Bustan neighborhood in Silwan
On 11/11/2004, an engineer acting on behalf of the Jerusalem municipality designated the al-Bustan Valley region as a public zone, and ordered the removal of all existing "illegal" buildings there. He added that it was an ancient region of historical significance to the Jewish people.
Based on this, in 2006, a request was made to the Jerusalem Municipal Court of Local Affairs for an order to demolish dozens of houses in the Bustan region. The planned area of demolition is 46 dunums (11 acres) with around 100 houses. Some owners have full building permission, but all have been informed by written notice, which has been pasted on the walls of their homes that a decision has been passed for demolition. The municipality used Article 205 against some houses and article 212 / 5 on others whose owners were unknown.
The Municipality states that the homes on the order are built without permits on land intended to be an open public area according to the structural plan (מ/ע 9). The orders also highlight "the historical and archaeological significance of the region to the Jewish people". A grassroots campaign by the people and institutions of Silwan in collaboration with national institutions has brought the demolition process to a standstill. The authorities realized that it was not possible to demolish such a large number of houses without serious damage to Israel‘s international reputation.
Bustan neighborhood is part of the basin No. 29986 as designated by the British Mandate, and the land is mostly owned by families of Silwan. Bustan includes a garden area, which contains some houses built over 100 years ago, and others inherited from the parents and grandparents of the current owner-occupiers before the occupation of East Jerusalem in June 1967. As a result of the increasing population and scarcity of land, several families have been forced to share houses or build on horticultural land. The structural plan (מ/ע 9) which was prepared in 1970 and ratified in 1977 considers the garden area as an open public space, ignoring the old houses already there.
The long-term purpose of the scheme was to identify the region as an open public zone. However, in light of the realities of existing buildings and the nature of land use, the garden area will not be affected as stated on page 11 of the plan. Accordingly, the owners of these buildings can apply to obtain building permits for additions or modifications, if any relevant committee deems them necessary to ensure an appropriate level of accommodation.
The Jerusalem 2000 master plan refers to the "Al Bustan" in brown, which designates the area as a zone for housing and services. The proposed scheme suggests transforming part of the area into a national park. However this proposed park does not cover the Bustan area. It should be noted that at least one house in the garden is licensed from the Municipality of Jerusalem which could not have issued such approval if the plan specified the area as part of a public park.
This leads us to conclude that the use of article 212 - especially item 5 - to justify the demolition orders in the Bustan area is flawed, and without legal basis for the following reasons:
1.    The state based its plan on a short and vague report prepared by individual engineer that tried to make a link between the al-Bustan valley and an area of importance to Jewish history.
2.    Both the state and the engineer ignored the fact that the existing residential buildings were built dozens of years ago and some of them had obtained building permits under Jordanian rule valid until 1967.
3.    The state paid no heed to the master plans prepared for the region, both those certified (מ/ע 9) and those they have yet to validate (Jerusalem 2000), under which the area is considered an open green area (and not a national park); and further failed to take into account the existence of houses predating 1967 inhabited by around a thousand people. These buildings should not be eliminated; instead, they should be licensed once they are reorganized or re-modified.  
4.    The state did not base this request on the views of professional bodies competent in engineering, planning or archaeology in reaching their decision that state interests take precedence over the 1000 citizens living in the area.
5.    The state did not prove that the existence of these homes harms the public interest. Under Article 212, it is not sufficient to prove the existence of public interest: a case must be made that the buildings are actually harmful to that public interest.
6.    The municipality has been negligent in following up on the issue of unlicensed houses. The municipality has continued to collect taxes from residents and to provide municipal services as they have done to licensed homes. Municipal neglect throughout this period does not affect the legality or otherwise of the buildings, but it carries weight in terms of deciding whether it is appropriate to invoke article 212, a matter that should be taken in favor of the home residents.
7.    Scheme (מ/ע 9) does not propose the demolition of houses built in the garden area, but gives consideration to the possibility of licensing the houses. Some are in the process of licensing, which prevents the invocation of Article 212. As long as there is the possibility of licensing, the state is legally obliged to use article 205, not 212.

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