Background: The wall’s route in the area of the “Zufin enclave,” and the harm it causes to residents of 'Azzun and An Nabi Elyas
The route of the separation wall in this area follows the Green Line west of Tulkarm and at its southern point splits and winds eastward creating two enclaves – one around the settlement of Sal'it and the other one, which involves our case, around the Zufin settlement. The planners did not only encircle the built-up area of the settlement, nor did they settle for adding a security space of a few dozen meters east of the settlement. Rather, the route swallowed up into the enclave 1,200 dunams of land belonging to residents of 'Azzun and An Nabi Elyas, two villages lying east of the wall.
The “permit regime” applies to the Zufin enclave, in the same way it applies to all the enclaves created as a result of the penetration of the wall into the Occupied Territories. According to the regime, Palestinians living in the area need permits to reach their homes (as is the case of the Alfe Menashe enclave, which lies south of Zufin), or their farmland (as is in this case). Jews do not need to obtain any permit, and the declaration of closed military area does not apply to them. The declaration sanctions discrimination based on ethnic origin, and is unlike anything found in Israeli law or in any other democratic regime.
That being the case, residents of 'Azzun and An Nabi Elyas need a permit to enter the closed military area to reach their fields, and to pass through one of the two gates in the wall in this area. The two gates are situated far from the two communities and far from the fields. Even worse, the path from the gates to the fields is very long, hilly, and impassable by vehicle, and even by foot in most cases. Thus, the landowners cannot get to their farmland, and certainly cannot haul their harvest along the long and arduous path.
As a result of the wall and the great hardship the residents have in reaching their fields, the annual yield from 'Azzun and An Nabi Elyas’ fields on the other side of the wall fell sharply in 2003 and 2004. For example, 9 families from 'Azzun and 6 families for An Nabi Elyas lost their entire crop in those two years. The other families from the two communities lost between 50 and 80 percent of their crops.
Actions taken by the petitioners
Immediately after the requisition orders relating to the construction of the fence were issued, residents of 'Azzun and An Nabi Elyas took legal action to void the orders. They ultimately petitioned the High Court of Justice in 2002 to achieve redress. The HCJ rejected the petition, in part in light of the State’s promise to set up gates in the fence that would enable the residents access to their fields, and to find concrete solutions to problems that arise on the ground.
In effect, the fence and its gates did not enable access to the fields. The gates were not staffed most of the day (one gate was opened three times a day, one hour each time, and sometimes less; the other gate was staffed around-the-clock, but was for the exclusive use of settlers from Zufin). After the fence was built and it was found that the gates did not help the farmers from 'Azzun and An Nabi Elyas, the residents requested officials at the Civil Administration to add a gate closer to their fields, in the area of the “Tahsin Mansur” gas station, near ‘Izbat at Tabib, which lies north of An Nabi Elyas. The request was left unanswered. Only after HaMoked’s attorney intervened did the legal adviser of the Civil Administration agree to add the gate. However, as of the date that the petition was filed, no work had been started to implement the decision and set up the gate.
Filing of the current petition
On 20 March 2005, HaMoked petitioned the HCJ against the authorities to reduce the damage to the residents. The petitioners emphasized that their action should not be understood to mean that they concur with the construction of the wall. The petition points out that the establishment of the promised additional gate (assuming that this time the promise is kept) would indeed enable access to certain sections of the lands that were previously inaccessible. However, access depends on a permit and applies only for the olive harvest, in that the Civil Administration provides seasonal, rather than annual, permits. The residents need access to their lands year round to enable them to care for the trees to prevent a drop in quantity and quality of the crop, and to provide the care needed in growing the seasonal crops – planting, plowing, spraying, and the like.
Furthermore, the State ignores the role that the land plays in the lives of the residents, which is much, much greater than the agricultural produce they reap from its cultivation. As the petition states:
"For two years, children of 'Azzun and An Nabi Elyas have been unable to hike through their fields. For two years, the families of 'Azzun and Nabi Elias have not gone to their fields to eat a meal under the trees or play ball in the orchards. For two years, the school children have not gone on nature hikes. The nature areas on the other side of the fence disappeared, and they had had no access to them…
The petitioners expressed… the great pain they felt in separation from their lands, and explained… the severe pain they felt was unrelated to the economic loss they suffered as a result of the separation. Time after time, they explained that the role the fields played in their lives was much greater than the produce they provided, because the trees and fields and hills were an integral part of their community, a central element of their identity…
The fence’s route in the Zufin area removed an organ from the body of the petitioners’ communities. Two years following this surgery, we realize beyond doubt that the organ was extremely vital for the economy, livelihood, dignity, way of life, and quality of life of the petitioners."
From a wider perspective, the petition states that the wall creates permanent change (or at least long-term change) that constitutes Israeli annexation of the area within the enclave. The prohibition on acquiring land by force is a fundamental principle of humanitarian law; therefore, the annexation of land being held under belligerent occupation is a breach of this field of international law and illegal. On this point, the International Court of Justice ruled in its advisory opinion that construction of the wall creates a fact on the ground that constitutes prohibited annexation of territory.
Clearly, in the area dealt with in the petition, the wall swerved eastward into the Occupied Territories, the purpose being to place the Zufin settlement west of the fence and establish territorial contiguity with the State of Israel. The petition also presents a map of the settlement, which shows clearly that the route of the wall runs along the municipal borders of the settlement; as a result, the enclave includes dozens of dunams of land far from the settlement, which are intended for its future development. This route cannot be accidental, and it proves that the fence’s route was not set according to security needs but was related to annexation and settlement needs.
Humanitarian law, human rights law, international law, and Israel’s constitutional law all view freedom of movement, the right to gain a livelihood, and the right to property as fundamental human rights. Clearly, construction of the wall in the Zufin area severely impairs these rights. It is also clear that the fence could have been built in a way that does not steal the land of the petitioners and residents of their communities, and does not breach their said rights. The declared objective – security – could have been achieved by running the fence along the Green Line with slight adjustments to meet topographical or engineering needs, and not by veering into occupied territory, unless it was necessary at time to run the route inside the Green Line. Even if we make the assumption (which HaMoked denies outright) that security of the settlement can serve as a basis for military needs, then, too, the existing route does not achieve its objective in a way that is less injurious to the rights of the residents of the occupied territory: the settlement can be fenced (it already is, but the fence can be made wider). In any event, there is no justification in building the fence kilometers away from the houses of the settlement.