The Separation Wall and the Permit Regime in “Seam Zone”

The plans are intended to increase supervision and control over Palestinians' entry into Israeli territory, but they are never materialized.

Haaretz news item, December 11, 1995; Haaretz news item, December 21, 1995 

Under the order, the land seizure is intended "for military purposes and given the special security circumstances". Many such orders are issued in the following months, expropriating thousands of acres owned by Palestinians along the entire planned route of the Wall.

The first stage of the construction work includes two segments: one is 137-km-long and stretches from Salem village to the Elkana settlement; the other is 20-km-long and cuts through the northern and southern parts of the “Jerusalem envelope”. 

The report focuses on aspects of the project relating to the security of Israeli citizens and the activities of the Israeli security forces. The report completely ignores the severe violation of the human rights of oPt residents caused by the Wall.

The B'Tselem position paper determines that the separation wall, which Israel plans to partially build inside the West Bank, will turn dozens of Palestinian communities into enclaves, trapped between the wall and the Green Line, and will separate villages from their farmlands located in these enclaves. B'Tselem maintains that the planned route was chosen with almost complete disregard of Palestinians’ human rights and based on extraneous considerations, among them, the desire to include as many settlements as possible on the Israeli side of the Wall, to facilitate their annexation to Israel.

In the report, the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) concludes that the Separation Wall has a harmful effect on the rights of Palestinians to property, land ownership, water access, employment, healthcare and education.

In his periodic report for 2003, the Special Rapporteur concludes that Israel’s claim that the Wall is designed entirely as a security measure is unacceptable, and calls on the UN bodies to condemn its construction as unlawful. 

The military issues an order declaring the Seam Zone to be a closed area which only Israeli citizens and residents, as well as any Jew, may enter and stay therein without a permit. Palestinians who live in the enclaves formed by the "closed area" must obtain "permanent resident certificates" in order to continue living in their homes; Palestinians who seek to enter the Seam Zone for whatever purpose – to visit their family, farm their lands and so on – must obtain a special permit from the military. That same day, the military issues a general permit that applies to "three types of persons" (sic): tourists, Palestinians with permits for employment in Jewish settlements, and Palestinians with permits for entry into Israel – who may enter the Seam Zone without need to apply for a special permit.

In the petition, HaMoked challenges the declaration of the Seam Zone as a closed military area, and argues that the permit regime effectively institutes apartheid and subjects West Bank Palestinians to blatant inhuman, immoral and illegal discrimination. The petition is based the provisions of international law relating to belligerent occupation, among them those of the Fourth Geneva Convention, the Hague Convention and the Rome Statute. The petition demands the cancelation of the decisions to construct segments of the Wall that extend east of the Green Line, creating enclaves inside the occupied territory, and also the ancillary apartheid orders. 

The report demands that Israel stop construction and dismantle segments of the Wall already erected in the oPt, pursuant to the resolution of the UN General Assembly.

ACRI argues that the opening of the gates for a limited number of hours and on certain days only, infringes on the fundamental rights of tens of thousands of Palestinians, and obstructs their daily lives.

In February 4, 2004, in the framework of principled petitions against the permit regime, filed by HaMoked and ACRI, the State Attorney’s Office informs the HCJ that Palestinian farmers will be given free entry into Seam Zone areas via “the crossings that are open 24 hours a day, 7 days a week, if they wish to enter the Seam Zone or leave it, in order to cultivate their lands”. In fact, most of the gates are not open daily, and only for brief periods of times per day.

The various petitioners request that the Court instruct Israel to dismantle segments of the Wall which violate Palestinians' rights and expropriate dozens of acres of oPt farmlands in order to expand settlements, unrelated to any security needs.

ACRI argues that the military closure of the area infringes on the Palestinians’ basic rights, particularly the rights to freedom of movement, dignified existence and family life.

Just ten days before the International Court of Justice in The Hague publishes its advisory opinion on the Wall, the HCJ rules that under the test of proportionality – which is based on international humanitarian law and Israeli administrative law – the damage to the Palestinians in the Beit Sourik area exceeds the security benefit gained by the Wall's construction. Nonetheless, in opposition to the petitioners’ claim, the HCJ rules that the reason underlying the construction of the Wall is security rather than political.  

In light of the ruling, the HCJ issues interim orders in several other petitions challenging other Wall segments along the designated route, suspending their further construction. The HCJ grants several petitions (HCJ 7957/04; HCJ 8414/05), ruling that the chosen route in each case disproportionately infringes on the rights of the local Palestinian population. Israel is compelled to dismantle these segments of the Wall and rebuild them on an alternative route less injurious to the Palestinian residents.

In its advisory opinion to the UN General Assembly, the ICJ rules that Israel must dismantle all parts of the Wall built inside the oPt and provide reparation to Palestinians harmed by its construction; and that the UN General Assembly and the Security Council should consider further action to put an end to the illegal situation. 

The Israeli government declares that the Wall will be constructed "to carefully minimize to the utmost ability its impact on the way of life of the Palestinians, according to the criteria prescribed in the case law of the HCJ".

Nonetheless, even after this declaration, some 85% of the revised route still runs inside the West Bank, rather than along the Green Line.

The Court rules that the route disproportionately infringes on the rights of the Palestinian residents of the villages trapped inside the “Alfei Menashe enclave” and severed from the rest of the West Bank; and orders Israel to dismantle the Wall in the area and to plan a route which is less injurious to the Palestinian residents. Nonetheless, the Court also rules that according to international law, the military commander is authorized to erect the Wall inside the occupied territory also for the purpose of protecting settlers. In the judgment, President Barak explains that the HCJ and the ICJ judgments share a common normative foundation, and that the difference in the conclusions results from the different factual basis presented to each court.

See criticism of the judgment 

In the judgment, the Court orders to dismantle a segment of the Wall, and severely criticizes the State’s conduct, for having chosen this segment’s route according to the Zufin settlement expansion plan rather than based on security considerations: "The petition before us points to an event that cannot be tolerated, whereby the information provided to the Court did not reflect all of the considerations taken into account by the decision-makers". 

The Court orders the state to pay the petitioners’ expenses in the sum of ILS 50,000.

The Court rules that the security advantage obtained from the Wall segment close to which an expansion of the Modi’in Illit settlement was planned, “does not stand in reasonable proportion to the degree of harm to the local residents”, and orders the State to modify the route in this area.  

Court President Beinisch finds that “This route can only be explained by the desire to include [a planned settlement expansion] west of the fence […] The current route of the Fence also gives rise to questions about the security advantage it provides. It is undisputed that the route passes mostly through topographically inferior territory […]. It endangers the forces patrolling the route".

In the framework of HaMoked’s petition against the permit regime, the military issues the Standing Orders, comprising dozens of pages and published in Hebrew only. The Standing Orders define no less than nine kinds of Seam Zone permits: permanent resident certificates, personal-needs permits, business permits, employment permits, farmer permits, international organization staff permits, education permits, infrastructure worker permits and medical staff permits. 

A farmer permit, for example, is not issued to those who cultivate farmland in the Seam Zone, but rather to the owners or inheritors of the plot of land, who have the documents to prove it. Family members who wish to farm the land are “employees in the Seam Zone”, and the farmer must obtain a separate permit for each of them, based on a military table, dictating the number of work days required for each type of crop. 

The Standing Orders contain a separate procedure for receiving each type of permit. Thus, for example, before a “Seam Zone resident certificate” is issued, military personnel are to visit the applicant’s home and examine tax payment certificates, the children’s school reports and “existing mapping available in the District Coordination Office [the Israeli DCO]”. Additional rules prescribe the manner of submitting an application and processing it, the types of documents which must be attached to the application and the composition of the committee that will decide on the application; and as the permit is issued for two years at a time, also the manner of handling an application to extend its validity period. 

Work to dismantle the Wall began in 2009, some three years after the judgment was issued in HaMoked’s petition, and only after HaMoked applied for an order for contempt of court. In their decision on this application, the justices determine that "this sort of conduct cannot be tolerated. The judgments of this court are not recommendations and the State is bound by duty to respect them and implement them with speed and efficiency". The Court instructs the State to pay the petitioners’ expenses in the sum of ILS 20,000.

Until 2009, HaMoked operated a hotline offering help in real time to individuals with complaints relating to the Separation Wall and the Seam Zone. Thus, among other things, HaMoked handled delays in the issuance of permits; delays in the opening of gates for the passage of farmers; delays in the checkpoints and crossings installed in the Wall and the refusal of soldiers to allow passage of livestock and transport of equipment and goods. These complaints were handled on the spot via telephone calls to relevant military personal. However, following the publication of the Standing Orders, with its numerous complex procedures, HaMoked realized that a hotline would no longer suffice and that it had to expand its assistance in this matter. Therefore, in early 2010, HaMoked forms a dedicated unit specializing in applying to the military authorities on behalf of Palestinians harmed by the permit regime implemented in the Seam Zone, and submitting Court petitions when necessary. The unit assists Palestinians throughout the process, from the moment they apply for a permit and until the end of the necessary administrative or judicial process.  

In these petitions, HaMoked argues that following the construction of the separation wall, thousands of Palestinian farmers have been cut off from their farmlands located in the Seam Zone. Many who file applications for Seam Zone entry permits in order to farm their lands are refused or receive no answer. HaMoked argues that Israel unreasonably and disproportionately infringes on the farmers' rights to freedom of movement, freedom of property and freedom of employment.

The new Standing Orders do not include substantive changes to the military orders implemented in the Seam Zone.  

The Court rejects the principled petitions against the permit regime which were filed by HaMoked and ACRI; this, despite finding that "the application of the permit regime, with the requirement to receive permits in order to enter and exit the Zone, constitutes a clear restriction of the freedom of movement in this zone of the residents of the Area, and restricts their access – to their homes, lands, and businesses located inside the Seam Zone".     

Nonetheless, the Court rules that the military must relax the rules for relocating into the Seam Zone from elsewhere in the West Bank or for visiting people living there. In Addition, the Court orders the State to set a clear and efficient timetable for handling permit applications, in order for daily life to continue in a reasonable manner. 

HaMoked and ACRI condemn the judgment in a press release: "The High Court of Justice chose today to endorse a systematic policy of discrimination that is done in the name of security but in fact forces Palestinians out of their own lands".

See criticism of the judgment 

In a decision on the request to cancel the scheduled hearing, issued after the State representatives announced just a day before the hearing that permits would be issued to the petitioners – a couple seeking to farm their lands trapped in the Seam Zone – Justice Rubinstein writes: “It is a great shame that a matter that could have been settled without a petition and a waste of secretarial and judicial time and all this entails – is settled at the last minute before the hearing. I request that this comment be put before the relevant officials, insofar as they care about the issue, and I hope they do [emphasis in original]. Thus Justice Rubenstein focuses on one aspect of the military’s problematic conduct – the wasted Court resources. But this conduct primarily harms Palestinian petitioners, who are entitled to access their lands, but must wait protracted periods of time until they receive a permit to do so, as well as all those Palestinians who do not have the knowledge, time, stamina and means to challenge the draconian bureaucracy of the permit regime and petition the Israeli court.  

The main changes in the new Standing Orders relate to the setting of timetables in the procedure for filing entry permits to the Seam Zone and the procedure of appealing a rejection of such an application. In reality, the timetables remain largely the same as they were before, at least with regards to the issuing of permits to Palestinians who are not "permanent residents of the Seam Zone", but seek to cross the Wall as part of their daily routine. 

See report

According to the State’s notice, submitted in the framework of a petition to allow a farmer living in the area of Tulkarm to access the plots he leases in the Seam Zone, the new Standing Orders are to establish, among other things, orders and procedures concerning Palestinians who do not own farmland in the Seam Zone, but rather lease such plots therein. The State’s undertaking is recorded in the Court's judgment.

The report shows the devastating consequences of Israel’s policy: the physical separation of the Palestinians living in the Seam Zone from the rest of the West Bank and their economic, familial, social and cultural isolation; and the change of agricultural practices in the area, including a sharp reduction in the scope of cultivated farmland in the Seam Zone. This reduction severely harms about 150 communities and villages located on one side of the Wall with farmlands trapped on the other side.   

This series of petitions concerns the military’s rejection or failure to respond to requests for Seam Zone entry permits filed by Palestinian farmers whose lands are trapped inside the Seam Zone. HaMoked argues that the military’s conduct severely and disproportionately harms the farmers’ rights to property, freedom of employment and freedom of movement; and that it is illegal, contrary to case law, to the State’s express announcements before the Court, and even contrary to the military’s own orders and regulations. In about 90% of HaMoked’s petitions in which proceedings were concluded, the petitioners received permits.

Thus says one of the justices during a joint hearing on three petitions filed by HaMoked on behalf of Palestinians who were previously in possession of Seam Zone entry permits for the purpose of land cultivation, whose applications to renew their permits were refused or left unanswered. Shortly before the hearing of the petitions, the military consents to issue permits to two of the petitioners, leading Justice Joubran to comment: “Why cause this hassle to people who only wish to cultivate their lands” in order to earn a living, "not to play and not to visit", and still they are forced to petition the Court. Justice Hendel adds that whenever the military knows in advance that a permit will be approved, it should expedite the process and not place needless obstacles before the farmers. 

Following the justices’ criticism, the military agrees to issue permits to all three petitioners, but its general policy regarding the issuance of Seam Zone permits remains unchanged.

The Court stresses in its judgment that given the military’s demand that application to renew permits for agricultural purposes should be filed “not earlier than three weeks before the expiration of the current permit”, special care must be made to ensure a response is given within two weeks from the date the military receives the request; “such care is especially necessary when dealing with a six-month-long permit, which creates a timetable that is not long in itself”. In addition, the Court rules that a procedure should be formulated to allow applicants to follow the handling of their applications and ascertain they have reached the correct entities to handle it.

The criticism falls on deaf ears; the military does not comply with the Court’s recommendations, and many Palestinian farmers continue to remain without the entry permit they require in order to cultivate their lands trapped in the Seam Zone. 

The new Standing Orders limit the issuance of agricultural-needs permits to landowners only; spouses and children, even if they are future inheritors of the lands, are no longer entitled to receive such permits. At most, the landowner may apply to grant them a permit for agricultural labor, according to a preset workers’ quota. Contrary to the guarantees, no special arrangement is established for Palestinians leasing agricultural lands in the Seam Zone and they are considered as part of the quota of workers in the plot. The timetables for filing and responding to permits applications are more limited than in previous versions of the Standing Orders.  

The new Standing Orders make the procedures for issuing agricultural permits considerably harsher. According to the new Standing Orders, a farmer permit is not to be given for a plot of land smaller than 330 m2, referred to by the military as a “tiny plot”. The plot size is to be calculated as a “multiple of the entire area of the plot, relative to the applicant’s percentage of ownership in the plot”. According to the military, there can be no “viable agricultural need” to cultivate such a plot, and therefore the owner must apply instead for a “personal-needs permit”, which is generally valid for just three months, whereas a farmer permit is valid for two years. Further restrictions introduced in the new Orders relate to grazing livestock in the Seam Zone: the permissible grazing area, the period of grazing, and the distance between the pasture and the livestock shelters.  

For the first time, after years of disregarding HaMoked’s demands in the matter, the military also publishes the Standing Orders in Arabic. 

HaMoked argues that the Military’s determination in the 2017 Standing Orders whereby a plot of less than 330 m2 does not require cultivation is entirely baseless. Moreover, most plots deemed to be “tiny plots” by the military are in fact larger than 330 m2, but in considering farmer-permit applications, the military divides the entire plot size by the number of joint owners, in disregard of the Palestinian traditional custom of collective cultivation, without dividing a plot among the heirs. On the basis of this groundless calculation, the military prevents farmers from receiving long-term permits, claiming their share in the land is too tiny to justify cultivation.

In the framework of HaMoked’s petition under the Freedom of Information Law, the military releases data showing the percentage of refusals to requests for “permits for agricultural needs” has reached an unprecedented peak: the military rejects some 72%(!) of requests for farmer permits and some 50% of requests for agricultural work permits. The vast majority of the requests are denied for various bureaucratic reasons, primarily “failure to meet the criteria”, which covers no less than 83% of all refusals for 2018. Whereas, the percentage of refusals on security grounds never reaches 6% throughout the years, and in most years stands at less than 2%.

In the new Standing Orders, now renamed “Regulations and Procedures for Entry to the Seam Zone”, the military not only retains the orders concerning the plot-size requirement for receiving a permit for agricultural needs, it also adds a harsher regulation, whereby permits for agricultural needs are valid for three years but for a limited number of entries per year, according to the military-defined “agricultural need”, that is, according to the size of the plot and the type of crop, as specified in the table of the Agriculture Coordination Officer. Thus, a farmer who owns an olive orchard will be allowed to access their plot 40 days a year.

A personal-needs permit, issued, among others, to owners of “tiny plots” as defined by the military, is also limited to a designated number of yearly entries, “according to the specific need of the applicant and according to the overall circumstances of the case”.

HaMoked submits ten petitions to the HCJ on behalf of Palestinians to whom the military refused to issue permits to cultivate the land their inherited because it is not registered in their name in the land registry (tabu). The military began enforcing this policy fully only in 2018; until then, applicants were only required to present a tabu document in the inheritor’s name, together with an inheritance order, to prove their “affinity” to the land. HaMoked argues that the implemented policy disproportionately infringes the heirs’ rights to property, freedom of employment and freedom of movement, and that real purpose of the tabu registration demand is to enforce subdivision the land among the heirs to increase the number of ostensible “tiny plots” for which the military refuses to issue agricultural permits, which are valid for a longer period of time.

In July 2021, the HCJ rules that the decision to enforce the demand for a tabu document in the name of the heirs stems directly from the security purpose underlying the permit regime, and does not burden the applicants unreasonably or disproportionately violates their rights.

The State’s response is submitted in the framework of HaMoked’s petition seeking, among other things, the cancelation of the annual quota set on the number of entries into farmlands trapped beyond the separation wall. The State claims that the limited permit “was defined from the start as a ‘pilot program’” and that during September 2020, a year after the program was launched, the decision was made to cancel it because it “failed to achieve its goals”. The State also announces that the military is about to publish a new version of the Standing Orders to reflect this revision.

HaMoked requests that the Court order the military to dismantle the 6-km. segment of the wall, trailing through the villages of Qaffin, Nazlat ‘Isa, and Akkaba, and isolating some 3,200 dunams of farmland belonging to the local villagers. As a result of the permit regime implemented by Israel, trapped farmlands have become barren, the yield of fruit trees in uncultivated areas has plummeted and many farmers have been forced to seek alternative sources of livelihood.

The petition includes an expert opinion of colonel (Res.) Shaul Arieli, an expert on Israel’s border, in which he concludes that there is no security logic to this segment; on the contrary: an alternative route along the Green Line is preferable by every operational parameter set by the military.

HaMoked amends its petition against the “tiny plot” policy, to demand that the military must be ordered to revoke the newly introduced annual quota on entries to the Seam Zone, established in the 2019 Seam Zone Orders.

Following HaMoked’s petition, the regulation on annual quotas of entry into farmlands is omitted from the new version of the Seam Zone Regulations; and at the same time, the period of validity of permits for agricultural needs is reset back to two years, instead of three. The “tiny plot” regulations are slightly altered, establishing that henceforth “a [single] cultivation permit for agricultural needs will also be issued based on a ‘summing up’ of the number of rights’ holders whose joint share in the land reaches a threshold of 330 m² – for one of them according to their choosing”; which effectively means all other joint owners are required to give up on their right to cultivate their land.

In its response to HaMoked’s petition filed to enable older farmers to access their lands without special permits, the State announces that such entry is limited to the 13 crossings used for entering Israel from the West Bank, rather than through the dozens of “agricultural gates” installed along the Separation Wall. In effect, the decision leaves the farmers in the same situation being challenged in the petition, because it compels them to continue applying for individual permits to enter the Seam Zone via the agricultural gate closest to them, with all the bureaucratic burden this entails. 

In October 2022, HaMoked petitions the HCJ anew to allow older farmers, in their sixth decade of life and above, who may enter Israel freely, to enter the Seam Zone freely also via the agricultural gates.  

The report focuses on the restrictions imposed on farming in the Seam Zone and shows that most requests for permits to access agricultural lands trapped inside the Seam Zone are rejected on the grounds that they fail to meet the criteria set out in the Standing Orders – due to the obtuse military bureaucracy or the military’s ever harsher criteria. Only a small fraction of all permit requests (up to 6%) are rejected due to considerations relating to security. As a result, many farmers despair of obtaining the necessary permits and trapped farmlands are left uncultivated and abandoned.

The Court recognizes that land cultivation in Palestinian society carries not only an economic value but also traditional and cultural values, and rules that the “tiny plot” policy results in disproportionate violation of landowners’ rights, primarily the right to property. 

The majority justices, President Hayut and Justice Amit, rule that if many permits have been requested in order to cultivate the same plot, the military may require that some of those who have rights in the land whose relative share is less than 330 m² waive their right to receive a farmer permit in favor of one of the others. The Court also requires the State to establish the possibility for an applicant to prove their “agricultural need” even for a “tiny plot”; and to issue long-term personal-needs permits which can be used for agricultural purposes even without establishing an agricultural need. 

Justice Barak-Erez, in the minority, maintains that the “tiny plot” regulation should be revoke in its entirety.

The Court rules that the State must amend the Standing Orders within 90 days.

Nonetheless, the Court notes that from the petitioning farmers' affidavits “a severe picture arises with respect to the effect of the permit regime on their access to their lands and on their ability to cultivate them”, but finds that the injury to the farmers should be resolved by “by challenging the relevant arrangements or the manner of their implementation in a concrete set of circumstances”.  

The new Standing Orders implement the Justices’ rulings in the judgment on HaMoked’s petition against the “tiny plot” policy: it becomes possible to prove the existence of an “agricultural need” to receive a farmer permit in order to cultivate a “tiny plot”; it is clarified that the condition regarding a “summation of rights”, whereby the owners whose joint share in the property is less than 330 m²  must waive their right to receive a farmer permit in favor of just one of them. is only to be applied when there is concern that the permits are misused [i.e. for the purpose of infiltrating Israel]; and the validly period of the personal-needs permit issued for agricultural purposes is extended from several months to two years, similar to a farmer permit.