High Court justices criticize the military for denying access of Palestinian farmers to the Seam Zone on the claim that their plots are too small
For over 15 year now, the Israeli military has been enforcing, on alleged security grounds, a draconian permit regime in parts of the West Bank it dubs the “Seam Zone”. These are the lands that are trapped between the Green Line and the Separation Wall, built inside the West Bank, contrary to international law. Any Palestinian who lives in these areas or wishes to go there, must obtain in advance a permit for this purpose – Israelis and tourists can access these areas freely. Requests for permits to enter and stay in the Seam Zone are submitted and processed according to a convoluted set of regulations, called the “Seam Zone Standing Orders
.” This document sets out numerous, restrictive conditions and criteria, mostly unconnected to security. Attempts to receive a permit or have it renewed often entail lengthy, cumbersome and exhausting dealings with the military
, which require endurance and persistence, as well as intensive professional assistance. Recently, the military has exacerbated its policy, leading, among other things, to a drastic reduction
in access of farmers to their lands inside the Seam Zone. All this, contrary to the state’s obligation prescribed in the case law of the High Court of Justice
(HCJ) to do the utmost to minimize the harm caused to Palestinians and their relatives who have agricultural lands beyond the Separation Wall.
During 2018, there was a significant rise in the number of agricultural-purpose requests denied by the military on the perplexing claim that the relevant plots were “tiny”, i.e. under 330 m², and as such did not require cultivation. Not only is it preposterous to consider any piece of land too small for cultivation, the fact is that usually the plots of land in question are many times larger and are under joint ownership of several members of a family. Rather than recognizing this joint ownership, the military – without any basis – acts as if the plot had been subdivided among the owners and treats each family member as sole owner of a small portion of the communal plot. This may mean that no family member is entitled to receive a permit, even for a large plot, as each person’s relative portion may be below the arbitrary minimum set by the military. Thus the military succeeds in further reducing the number of people who receive access to their agricultural lands, and increasing the area of uncultivated land inside the Seam Zone – while the owners have lost any ability to benefit from their lands.
On May 15, 2019, the HCJ held a hearing
on HaMoked’s petition on behalf of a Palestinian man whose request for a permit to cultivate his family’s 17,500 m² plot of land was refused on the grounds of “tiny plot”
. In the hearing, the High Court justices criticized the policy of the military, which treats large plots as if they were sub-plots, and does not give due consideration to the rights of the land owners. Justice Barak-Erez, heading the panel, said: “The petition before us raises a significant issue, and the commitments of the State were clear about what happens in the seam area. Especially when there is here the fact that the plots in question are not small when you do the calculation for it”. Justice Barak-Erez posed a question to the state: “[Why] is a 17.5-dunum-plot considered tiny? Just because the traditional way of life is that ownership is shared by many people [?]”. Following the state’s claim in the hearing that the “permit regime” is designed to provide for “needs”, Justice Barak Erez said: “It is not just needs but also the right to property”.
After it explained its refusal by saying “there is a large number of heirs”, the state had to admit that it did not know how many permits it had issued for the plot in question, aside from a single permit given to another relative “who perhaps received the permit before the Standing Orders were revised”. On this matter, Justice Barak Erez inquired: “looking forward… it seems… according to this method, that anyone who submits [a permit request] will encounter the same barrier?” The state also conceded that the short-term permit given for “personal reasons”, valid for three months and often given instead of an agricultural permit valid for two years, burdens both the applicants and the military’s District Coordination Office, and therefore the state was considering its extension. The court demanded the military explain
the questions left open, “including the issue of the response given to plots that are not small but have by many owners, and all given the applicable principles on maintaining the ties to the lands as outlined in the case law of this court”. The state is to submit an updating notice until August 15, 2019.
As in HaMoked’s other pending petitions on the issue, it was agreed, on the court’s recommendation, that the petitioner would receive a short term permit to allow him to access the land.