HCJ 5549/16 Ahmed Abu Shema v the Head of the Civil Administration in the West Bank

Petition Submission Date: 12.07.2016

The Biar Aqueduct is a historical site, part of an underground tunnel that channelled water from the high mountains and rainwater springs located in the area of Judea to Jerusalem. The site is located on agricultural land just west of the settlement of Efrat, at the settlement’s foot. Though not on the list of Israel’s National Heritage Sites, the Biar Aquaduct does appear in the “historical path of the Land of Israel” route, which is an appendix to the heritage sites project. The tunnel was in use until the time of the British Mandate.

It is impossible to walk the entire length of the tunnel, however, the Gush Etzion Regional Council and the Kfar Etzion Field School cleared a spring and a 100-meter underground pathway for walking tours during the summer and fall.

In 2000, a resident of the Palestinian village of Al Khader noticed several individuals, allegedly from the Efrat Municipal Council, trespassing on his lands, uprooting trees and destroying terraces and stone walls. He filed a complaint with the Civil Administration. Shortly after, the Gush Etzion Development Company signed a contract with the petitioner in order to regulate tourism operations in the area by allowing tourists to pass through his land, although the site was never allocated to the company.

The petitioners turned to the head of the Civil Administration in the West Bank and to its head of archaeology, to protest the fact that the historical site was transformed into a center for tourism by developers and managers who lack any authority to do so. When no response was provided, the landowners and the head of the village petitioned the High Court with the assistance of Yesh Din and Emek Shaveh.

According to the petition, “This touristic site is an example of a settlement based on tourism: establishing a touristic site based on antiquities and branding it as an Israeli heritage site. In this manner, antiquities are appropriated and Israeli presence is established, although the it is unequivocally situated on land under Palestinian ownership.”

The petition also argues that “Antiquities sites in the West Bank are first and foremost local heritage sites and part of the local culture and tradition. As such, they should be connected and accessible to the local residents. Appropriation of heritage sites by the Gush Etzion Regional Council, the Efrat Municipal Council and the other respondents, violates the heritage rights of local Palestinian residents, and certainly infringes on their rights to manage historical heritage sites of the area.

After submitting the petition, it turned out that contrary to the information provided by the Civil Administration to Yesh Din and Emek Shaveh as part of the Freedom of Information petition about the permits and allocations for historical and archaeological sites in the West Bank, an agreement was signed between the Civil Administration and the Gush Etzion Development Company regarding management of the site. As a result of this misinformation, the Civil Administration set up an investigative committee to examine the circumstances under which misinformation was transmitted, to formulate recommendations for preventing such incidents from repeating and to take “corrective steps regarding the entities involves, assuming it is discovered that they operated deficiently.” Since the petition was based on inaccurate information passed on to the Civil Administration, a request was made to dismiss the petition.

Petition Status: Dismissed.