For over 17 years now, the Israeli military has been enforcing 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. Security needs was Israel’s justification for building the Separation Wall, specifically the mass-casualty bomb attacks of the second intifada. In 2011, the HCJ approved the Seam Zone permit regime solely based on these grounds, provided that the State fulfill its undertaking to allow farmers to access their lands trapped beyond the Wall. But although the security situation has significantly improved since then, over the years the military has imposed ever-harsher restrictions on farmers’ access to their lands. Consequently, fewer and fewer farmers manage to obtain the required permit to access their lands – effectively dispossessing them of their property which goes uncultivated.
On March 6, 2022, the HCJ ruled on HaMoked’s 2018 petition to cancel the drastic restriction introduced into the Seam Zone Regulations in 2017, whereby the military prevents farmers from accessing their farmlands on the perplexing claim that their request concerns a “tiny plot”, i.e., smaller than 330 m², and so allegedly does not warrant 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, which is then considered too small for cultivation. Often, this means that none of the family members can receive a farmer permit; instead some landowners receive a “personal needs” permit valid only for a few months. Following the petition, the military slightly revised its regulations on this matter and established that "A permit for cultivation for agricultural needs is to be given also on the basis of a 'scheme' of rights for a number of owners of rights whose joint share in the land reaches the threshold of 330 m² – for one of them according to their choice" (see Section 12A7b of the 2021 Seam Zone Regulations).
In the judgment, the HCJ unanimously ruled that “the plot-size examination section [of the Regulations] leads to disproportionate harm to the right to property of the landowners in the Seam Zone, and so cannot stand in its current format”. The Court also acknowledged for the first time that allowing access to Seam Zone farmlands is not only important for economic reasons but also for the cultural and emotional reasons of preserving the tradition of joint cultivation. As put by Justice Barak-Erez: “The value of agriculture for families and communities cannot be measured solely by the amount of produce or its value. This economic-commercial measure does not necessarily suit the value that land cultivation bestows on landowners, include the familial, traditional and cultural value”.
The Justices, however, disagreed as to the remedy warranted in this case. It was, therefore, ruled by the majority opinion of President Hayut and Justice Amit – contrary to the position of Justice Barak-Erez – that within 90 days, the State must amend the Seam Zone regulations “to provide an appropriate response… to the disproportionate harm to the residents’ rights to property”, and this by: a. changing the demand for the “rights’ scheme”, so that it would not be applied unless there is a suspicion of abuse of Seam Zone permit requests for unlawful entry into Israel; b. establishing the possibility to challenge the “tiny plot” finding and prove there is an agricultural need to cultivate even a “tiny plot”; and c. extending the validity period of a “personal needs” permit from a few months to two years, the same as a farmer’s permit.
In the minority, Justice Barak-Erez held that the petition should be granted and the order nisi issued on December 10, 2020 be made absolute, “in the sense that the tiny-plot regulation be cancelled…”, thereby also making redundant the section on the manner of calculating the size of the plot.
* On March 24, 2022, President Hayut ordered the State to pay the petitioners legal costs in the sum of NIS 25,000, “in view of the proceedings’ outcome, the long period of time they took and the changes that occurred during this period”.