High Court justices demand the state explain the deterioration in access to farmlands trapped beyond the Separation Barrier המוקד להגנת הפרט
High Court justices demand the state explain the deterioration in access to farmlands trapped beyond the Separation Barrier
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For over 16 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 Barrier, built inside the West Bank, contrary to international law. Palestinians who live in these areas or wish to go there, must obtain in advance a permit for this purpose – whereas 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 the “Seam Zone Regulations”, a convoluted document that sets out numerous, restrictive conditions and criteria, mostly unconnected to security.

Since 2018, HaMoked has seen a significant rise in the number of agriculture-related permit requests denied by the military on the perplexing claim of a “tiny plot”, i.e. under 330 m², which allegedly does 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.

HaMoked’s petition
to the High Court of Justice (HCJ) challenging this matter has been ongoing since late 2018. In mid-2019, the HCJ demanded answers from the state, particularly regarding the disparity between this restriction and its undertaking to ensure farmers’ continued access to their trapped lands, endorsed in the 2011 Seam Zone judgment. However, in September 2019, the regulations applied to the Seam Zone were made even harsher, among other things, by the introduction of a new drastic restriction, whereby permit holders can only reach their lands a set number of days per year, rather than daily as before.

Therefore, on February 27, 2020, HaMoked filed an amended petition, including the demand to cancel this new restriction. In a July 1, 2020 hearing on the petition, the justices directed several pointed statements at the state. Among other things, Justice Barak-Erez said: “the only thing you made easier is that a farmer applying for a permit has to deal with the bureaucracy once every three years rather than every two years. As far as the substantive criteria are concerned, they have been worsened”. Regarding the data presented by the state, Barak-Erez added: “We will allow you [the state] to present [additional] data. If there are data, they have not been presented to us in a transparent manner”. Justice Karra added “why is it necessary to change the policy?... a person who did not break the law [by illegally entering Israel], why should they be punished? This is collective punishment”.

At the conclusion of the hearing, the HCJ issued a decision directed entirely at the state. The state is thereby required to submit an updating notice, clarifying the scope of permits issued since April 2011, when the HCJ legitimized the permit regime applied in the Seam Zone, provided that farmers would be allowed to access their trapped lands to the extent possible. The state must now also clarify “the factual data concerning misuse of Seam Zone entry permits for the purpose of entering Israel illegally”. This, given that in its previous response to the petition, the state claimed that it new policy was necessary given the widespread phenomenon of abuse of permits by Seam Zone farmers. It should be noted that according to recent data HaMoked received from the military, only a very few of the thousands of refusals to grant a permit were denied on grounds related to this claim. In addition, as before, the state has been asked to explain “how and in what way does the current policy conform” to the state’s undertaking to respect the farmers’ rights.
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