HaMoked to the military: sweeping denial of access of Mas’ha and a-Zawiya villagers to their lands trapped beyond the Separation Barrier is a blatant breach of the State’s repeated promises, based on which, the Court upheld the Barrier’s route in this area

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 security grounds, and provided that the State fulfill its undertaking to allow farmers to access their lands trapped beyond the Barrier. 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 – and even those who receive a permit are restricted by the insufficient operating hours of the gates necessary to cross the Barrier, effectively dispossessing them of their property which goes uncultivated. Thus in the case of the villagers of Mas’ha and a-Zawiya, who are routinely denied access to their trapped lands via Magen Dan gate.

ON June 21, 2023, HaMoked, via Atty. Michael Sfard, wrote to the military to demand that Magen Dan gate be operated as an agricultural gate open year-round, as it was before late 2021, and not only opened for a few weeks per year. The letter was sent as a final notice before taking legal action on behalf of the residents and head of councils of the villages Mas’ha and a-Zawiya, whose access to their lands had been effectively denied for the past 18 months, since the gate was converted to a gate that opens only during the olive-harvest and plowing seasons, instead of year-round. Since the gate was turned into a “seasonal” gate, local farmers have lost the possibility to maintain their ties to the lands trapped in the Seam Zone and to make their living off them, and they no longer have even the limited access to their lands that they had before. HaMoked asserted that the State’s repeated guarantees to allow local farmers access to their lands were “promises intended merely to create a pretense of proportionality”. HaMoked argued that the drastic restriction of access means that the route of the Barrier in this segment is disproportionate and illegal, especially given the 2006 judgment of the HCJ – in the framework of HaMoked’s petition – in which the Court upheld this segment’s route based on the State’s guarantee that local farmers would continue to have “reasonable access to their lands via reasonable passage arrangements”. HaMoked clarified that if its demand is not fulfilled, it would turn again to the Court on behalf of the local residents, given the severe violation of their rights to a livelihood, property and freedom of movement. 

HaMoked described in its letter the gradual exacerbation in denied access to these farmlands: in September 2020, in the framework of HaMoked’s petition against the frequent disruption in the operation of Magen Dan gate, the State announced for the first time that it was considering turning this agricultural gate into a seasonal gate. In February 2021, the military began opening the gate just twice a week instead of daily, following which, HaMoked petitioned the HCJ in April 2021, to demand that the gate be reopened daily, or alternatively, that the separation barrier in this segment be dismantled. In its judgment of November 10, 2021, the HCJ deleted the petition based on another promise by the State “to emphasize the need to open the gate on schedule”. The Court added if a new policy is established regarding the gate’s operation, “there will be a need to provide an immediate solution to the Palestinian farmer who seeks to cultivate their lands” also during periods in which the gate would remain closed.  

A month later, on December 23, 2021, the Military informed HaMoked that the opening dates of Magen Dan gate had been changed and the gate would henceforth be opened only seasonally. In response to HaMoked’s query – and probably following the HCJ’s instruction – the military added that a new mechanism for coordinating individual passage via the gate during the rest of the year would also be established. Only after persistent efforts on HaMoked’s part, did the military clarify how such individual requests could be submitted. However, severe and routine irregularities and delays by the military in handling such requests render this possibility a dead letter. Thus far, despite repeated efforts, HaMoked has not succeeded in coordinating passage of farmers according to this scheme, except in one case. Moreover, during the 2022 olive harvest season, the gate was kept closed due to alleged “security considerations”, and it was later announced that “a substitution [of opening days] is being carried out”. In its letter, HaMoked wrote in conclusion that the continued unreliability in the gate’s operation coupled with its conversion into a “seasonal gate” prevent viable agriculture and constituted a deathblow to the farmers seeking to cultivate their trapped ancestral farmlands.