In April 2011, the High Court of Justice (HCJ) upheld the permit regime imposed by the military on the entry of Palestinians into the “seam zone” in the West Bank. The “seam zone” is an enclave that was created as a result of the fact that the separation wall was built inside the Occupied Palestinian Territory (OPT). The enclave has trapped some 7,000 Palestinian residents and some 120,000 dunum of West Bank land between the wall and the Green Line. In 2003, the military commander proclaimed the “seam zone” a closed military zone that may be entered by permit only. Permits are also required for remaining in the area. Israelis and foreign passport holders come under a general permit. Palestinian residents, however, must obtain a special permit, which is granted only to individuals who manage to prove that they are entitled to be present in the area. The petition focused on the lawfulness of the permit regime that was put in place following the closure of the area.
The original petition was filed by HaMoked: Center for the Defence of the Individual back in 2003 and was later joined with the petition filed by the Association for Civil Rights in Israel in 2004. The petitioners’ preliminary argument was that the permit regime was established without authority (the authority argument). The basis for this argument is simply that the power of a military commander in an occupied territory does not extend to taking a measure that harms the protected population to this extent, particularly when its (unofficial) purpose is to gradually expel this population from the territory, so that the population of the occupying power would be able to take over it in the long run, while cutting it off from the West Bank and annexing it to Israel. Another argument the petitioners presented was that the permit regime was an apartheid policy, since it divided the civilian population into two groups and instituted systematic discrimination between them based, essentially, on national origin. The authority argument was supplemented by the proportionality argument, namely, that even if the permit regime was not illegal per se, it was implemented in a manner that disproportionately violated the rights of the Palestinian population.
A review of the proportionality argument is substantively different from a review of the power argument. The question of whether or not the military commander has power to take one measure or another is a substantive question of principle. The question of the proportionality of same measure follows from a presumption that the question of policy had been decided – the measure had been ruled legitimate (it is within power and is meant for an appropriate purpose) – and all that remains is to determine under what conditions it may be used. Proportionality is, in essence, an exercise in bureaucracy. When a measure so cruel and discriminatory is legitimized in terms of the question of power, the legal review of its proportionality makes the cruelty banal. The “seam zone” itself is a cruel and discriminatory measure. It fences in an entire population, imprisoning it inside an area where it is physically cut off from its homeland, culture and center of power, an area where it is at the mercy of the settlers and the military and where its rights are the exception rather than the rule. The “seam zone” is a ghetto, and as such, it is inhuman. When the legal review turns on the question of how to control this ghetto (using a permit regime of one type or another), the entire discussion is an example of the banality of evil. This is, in essence, the nature of the judgment under discussion here.
It should be noted that the creation of the “seam zone” itself was not the subject of the petition, but rather the permit regime used to regulate the enclave. The reason for this is previous HCJ rulings about the route of the separation wall. Since its decision in the Beit Sourik case, the HCJ has steadfastly avoided addressing the separation wall and its outcomes as a whole, but rather chose to review individual segments of the wall separately. This methodology allowed the court to find that the fence was built for security purposes and that its route did not amount to annexing Palestinian territories to the State of Israel while dispossessing the Palestinian population. In this manner, the geographic parameters of the seam zone have already been upheld by the court, as has some of the harm done to the Palestinian residents as a result of their inclusion in the zone (the latter factors were some of the considerations the HCJ had to weigh during its review of the legality of the various segments). As a result, the petitions were ostensibly limited to the question of the legality of the permit regime. Yet even within the limitations of this restriction, the petitioners attempted in a literally subversive manner, to force the HCJ to reconsider what it had created. Unlike previous petitions, which focused on a single segment of the wall, this petition exposed the outcome of the wall as a whole: de facto annexation of the area to Israel, using coercive measures and humiliating the local population.
Unfortunately, the HCJ did not take up the gauntlet. Instead, it made a connection between this petition and its predecessors, on which it based its rejection of the claim that the “seam zone” embodied the alleged annexation. According to the court, “The findings made on the issue of recognizing the security purpose of the fence directly impact the matter at hand, since, here too, the State has clarified in its response that the seam zone is a necessary adjunctive of the route of the security fence […]”. The finding that the court had already ruled on the true meaning of the wall relieved it from the burden of addressing the overall impacts of creating “seam zones”. From this point on it was – once more – possible to compress the broad and complex legal issue so that it may fit inside the almost loathsomely narrow framework of analyzing proportionality.
Palestinians crossing an agricultural gate in Jayus Village to reach village farmlands trapped inside the “seam zone”, September 2012. Photo: Oren Ziv, ActiveStills
It is no coincidence that the court addressed the argument that the permit regime was a discriminatory measure that amounted to apartheid, completely dismissing it, only toward the conclusion of the judgment, rather than as part of the review of the issue of power. According to the court:
This finding can be made as a result of the fact that the legal review of the injury caused to Palestinian residents is limited to reviewing specific rights, such as the right to freedom of movement, within a discourse of proportionality. This discourse pits Palestinians’ specific rights against Israel’s national security interests, dwarfing the former.
The judgment further details that the Israeli coordination and liaison administration has created an entire mechanism around the process of issuing permits. It includes special committees, appeals committees, “specific professionals who address professional issues […] such as matters relating to land and infrastructure” and a public liaison officer. Entry arrangements include 53 gates (of which 37 are agricultural gates) in one part of the zone, some are seasonal and some are day-gates (meaning they open two or three times a day), others operate on a 12-24 hour basis.
The court concluded that the decision to close the area and create a permit regime meets the test of proportionality. First, the decision to close the area maintains a “clear rationale connection to the official security purpose”. Second, alternative, less injurious measures to closing the area – such as conducting physical searches in the crossings in the security fence to prevent armed individuals or weapons from entering the zone – are not sufficiently effective for “foiling terrorists’ plans to launch terror attacks inside Israel or in Israeli communities in the seam zone”. This was the military commander’s position, which the court accepted given that “in matters of security expertise, this court attaches significant weight to the professional position of the military commander [...]”.
As for the permits themselves, they were found to be proportionate based on this analysis. So, for example, with respect to “permanent resident permits”, the court held that they were reasonable “since they allow relatively routine movement between the territory of the Area [i.e. the West Bank] and the seam zone – even by car – and it seems that the right to property of those in receipt of such permits as well as their freedom of movement are curtailed to a relatively small degree”. At this point, the court makes its first reference to the fact that these permanent residents are imprisoned and cut off from their friends and relatives and that their normal community life and business relationships have been hampered. The court admits that “the harm is grave […] self-evident”. At the same time, the court does not find the harm unreasonable considering the possibility of obtaining an “occasional permit” or an “exceptional permit”, though issuance of such permits has been steadily decreasing.
With respect to permits for individuals with special interests, particularly farmers, the court found that they did appear to cause severe harm. This includes harm to these individuals’ land, business, as well as their family and social ties. Despite this, and despite the constant decline in the number of permits issued, the bureaucratic difficulties in getting them, the irregular opening times of the gates, the limited access by workers and vehicles to agricultural land and the damage to crops, the court found that this factual infrastructure, which did not refer to any particularly problematic area or specific farmers, made this harm “vague and general” and prevented the court from addressing it. Under this approach, individual cases in which the rights of land owners to property or a livelihood were severely violated require individual petitions. In light of the aforesaid, it was held that:
Bureaucracy at its best.
Adv. Keren Michaeli