Center for the Defence of the Individual - The HCJ rejected HaMoked's petition to daily open the Separation Barrier ‘Anin gate and ruled that the current arrangement allowing farmers to access their olive groves twice weekly was proportionate; Court did not address military’s plan to further limit farmers' access
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חזרה לעמוד הקודם

The HCJ rejected HaMoked's petition to daily open the Separation Barrier ‘Anin gate and ruled that the current arrangement allowing farmers to access their olive groves twice weekly was proportionate; Court did not address military’s plan to further limit farmers' access

A decade ago the High Court of Justice (HCJ) approved the military permit regime enforced in the West Bank areas that are trapped between the Separation Wall and the Green Line – areas Israel calls the Seam Zone. This regime applies only to the Palestinian population of the oPt, bars most of them from entering the Seam Zone, and compels those who seek to go there to obtain a permit in advance, subject to the military’s draconian bureaucracy. In the judgment of 2011, the Court recorded the state’s undertaking “to enable, to the maximum extent possible, easy entry of the inhabitants to the seam zone areas”, particularly farmers whose lands are trapped there, in the absence of any individual security preclusion. However, time and again it turns out that the arrangements and their implementation on the ground prevent farmers from having reasonable access to their plots in the Seam Zone, for reasons completely unrelated to security considerations. Thus in the case of the residents of the village of ‘Anin in the Jenin district.

On March 16, 2023, HaMoked petitioned the HCJ on behalf of five ‘Anin residents, including the Head of the village Council, to demand that ‘Anin gate – which enables direct passage between the village and its trapped lands – be opened all week long and that its opening hours be expanded to at least three times a day and for more than 20 minutes each time, instead of the current arrangement where the gate opens twice a week for only 20 minutes in the morning and again in the afternoon. The petition focused on ‘Anin landowners’ demand that they be allowed to reach their lands trapped inside the Seam Zone, but was also filed on behalf of the Head of Council of nearby Umm ar-Rehan (located inside the Seam Zone), to request the expansion of the gate's opening times to enable Umm ar-Rehan residents to easily and frequently access 'Anin for family visits. The petitioners argued that the limited opening times of the gate are contrary to the Court’s ruling concerning the Separation Barrier and the permit regime, since they disproportionately harm the basic rights of protected persons to property, freedom of employment and freedom of movement, given that reaching the lands by an alternative route is impractical, taking close to two hour in each direction.

In its preliminary response of July 18, 2023, the State announced that following an updated review of the situation on the ground, “the military commander reached the conclusion that the current arrangements challenged in the petition are irrelevant, as he intends to turn the gate into a seasonal gate that would be opened, as a rule, only during the harvest and plowing seasons …”. This on the grounds that “the use of the gate for agricultural is limited and serves only for cultivation of olive groves – which do not require daily cultivation, and the main use of the gate is its exploitation for the purpose of illegal entry into Israel”. Therefore, the State argued, the petition should be deleted, not only on its merits, but also because in the framework of the anticipated process of changing the opening arrangements, the Palestinian residents would be given the opportunity to present their claims, and this “would allow the petitioners the right to plead their case… and in any event would alter the factual basis underlying the petition….”. It should be noted that this is not the first time the military has decided to radically limit the opening times of an agricultural gate after HaMoked demanded to improve the gate’s manner of operation.

On August 1, 2023, HaMoked submitted its own response, which included an expert planning opinion by architect Alon Cohen on behalf of Bimkom – Planners for Planning Rights. In its response, HaMoked reasserted that under the HCJ case law, the legality and constitutionality of the permit regime depend on Israel’s adequate protection of the fabric of life of the local residents. The supplemented expert opinion provided detailed substantiation for HaMoked’s claim of uninterrupted and significant agricultural work in the ‘Anin farmlands. As Cohen concluded: “an analysis of areal footage from the past twenty years, shows that despite the limitations and difficulties, the residents of ‘Anin continue to cultivate their lands beyond the Barrier continuously and intensively. The olive groves beyond the Barrier have received maximal care and have been continuously cultivated all these years”.  

HaMoked added that under the HCJ case law, the State must uphold the right to property of the protected population and enable the continuation of their fabric of life as it had been before the construction of the Barrier. HaMoked emphasized that it was due to the Barrier that farmers had been forced to limit cultivation to just olive groves rather than crops that require daily cultivation, and so the State cannot now exploit this change it had forced upon the residents to justify its wrongful decision to further limit the gate’s opening times. HaMoked also condemned the State’s position whereby a putative decision to turn the gate into a seasonal gate justified not only deleting the petition but also a repetition of the exhaustion of remedies on part of HaMoked before it could petition the Court anew. HaMoked argued that on the contrary, the exacerbation of the policy regarding this gate indicated that there was no point in attempting to persuade the military to expand the current opening times and claimed that this was simply an attempt by the State “to bring about an end to the current proceeding without exposure to a judicial review”.

However, on August 7, 2023, a panel of three Justices – Justice Ronen, Justice Willer and Justice Stein – rejected the petition and ruled that the current opening arrangements are proportionate. The Court clarified that the judgment does not address the prospective changes in the gate’s operation. In its ruling, the Court adopted the State’s position and ruled there was no agricultural need that warranted intervention in the current opening arrangements, as olive groves require nothing but seasonal cultivation and given that the petitioners themselves sought a change of the opening arrangements solely to facilitate their agricultural needs. And thus wrote Justice Ronen in her perplexing pronunciation, seemingly oblivious of the petition’s essence: “It seems no one disputes that the current opening arrangements satisfy the agricultural needs of the ‘Anin villagers in cultivating the olive groves on their lands – [therefore] I did not find that this harm is disproportionate so as to warrant intervention”.

The Court also rejected the petition as regards the residents of Umm ar-Rehan, ruling that the presented infrastructure was insufficient.