Submission date: 18.4.19

High Court of Justice 2821/19 Iman Fawzi Abd a-Rahman Saif et al. v. Commander of IDF Forces in the West Bank et al.

 Landowners from the Palestinian village of Burqa petitioned the High Court of Justice along with Yesh Din demanding that they be granted unrestricted access to their land in the former settlement of Homesh, which was evicted as part of the “disengagement.” This is privately owned land belonging to residents of the village of Burqa. The petition was subsequently submitted to a long series of legal proceedings in the framework of which landowners sought unrestricted access to their land along with assurance of their security.

After the evacuation of the settlement of Homesh in 2005, a military seizure order was issued prohibiting Palestinian entry into the area. Only in 2013, after a legal battle was waged by some of the landowners along with Yesh Din, was the seizure order revoked such that they were granted access to their land. (HCJ 9389/11 – Burqa council head Mr. Abd al-Fatah Salah v. Commander of IDF forces in the West Bank).

However, the success of the legal struggle remains solely on paper: although the seizure order has been revoked and the area has been removed from the list of localities listed in the regional councils, in practice there is an illegal and unauthorized Israeli presence there. This presence began almost immediately after the evacuation and continues to date.

A few months after the evacuation of the settlement, an event was held on site for Hanukkah with the participation of approximately 1,000 Israelis. Since then, various Israeli officials have continued to visit the site and hold events, sometimes with the support or participation of the Samaria Regional Council, rabbis, and Knesset members, in flagrant violation of closure orders of the territory to Israelis. Security forces have secured events and gatherings on site more than once. All this occurs as Palestinian landowners are compelled to obey orders that forbid them from entering, and have had their presence restricted in the area all these years.

In addition to periodic events and gatherings, from 2007 to date, students of the Homesh HaMehudeshet (Renewed Homesh) Yeshiva, led by Rabbi Elishama Cohen, regularly visit the site. Its declared goal is to maintain a constant ongoing presence there.

Violation of the law that entails transgression of the orders and trespassing is typified by many cases of violence against Palestinian residents of the area, including: uprooting agricultural cultivation and destroying trees; vandalizing buildings; breaking into homes and causing destruction within; stealing equipment; spraying “price tag” graffiti; igniting hay used for animal feed; demolishing water pipes; breaking irrigation tanks; throwing stones at Palestinian homes while damaging property; stone-throwing at Palestinian residents; shooting at homes in the village; stealing animals; harming animals; attacking Palestinian residents, sometimes with sticks and stones, usually in groups and in many cases to the point of loss of consciousness. For some of these incidents, victims of the offenses filed complaints with the police.

The constant presence of Israelis on site and these acts of harassment led to the fact that even after the prohibition on Palestinian entry to the area was revoked (as noted, in 2013), landowners were afraid to access their land, lest they be harmed, knowing that as they neared the site their life was in their own hands.

In May of 2018, as part of Yesh Din’s efforts to bring about a solution that would enable landowners to safely access their land, we learned that seven months earlier in October of 2017, the military commander issued a demarcation order forbidding the entry of any Palestinian or Israeli to the territory. The explanation given for issuing the order is the need to vacate illegal construction that exists on the ground. The order was not brought to the attention of the landowners, and was tangentially mentioned to Yesh Din’s attorneys. The demarcation order did not deviate from its application to the landowners, thus creating a situation in which registered landowners are forbidden from accessing their land, while Israeli trespassers are routinely on the ground without law enforcement agencies directed to enforce criminal sanctions against them.

To this day, despite the issuance of the order in 2017, enforcement authorities have not yet acted to evacuate the buildings or the invasion, nor have they put an end to Israeli presence on site.

The demarcation order was therefore issued for one purpose only: to prevent landowners from accessing their land. Landowners were never suspected of establishing illegal structures in the said compound or of any other illegal activity. Israelis who violated the order regarding the implementation of the disengagement and the demarcation order were never brought to trial, insofar as no investigative actions were carried out. Instead of enforcing the law, the military commander and law enforcement authorities chose to continue to abuse landowners while violating their property rights.

The petition, filed in April of 2019, demands that the property rights of the landowners be secured so that they may have free and secure access to the land they own, either by revoking the demarcation order or by excluding the landowners from the application of the order. In addition, the landowners and Yesh Din request that the court order the state to enforce the demarcation order and evacuate illegal structures and invasion by Israelis.

The first hearing on the petition was held on September 9, 2019. On October 23, 2019 the Commander of the Army Central Command signed an extension of the demarcation order in effect over the land but amended it so that the clause prohibiting entry and stay on the land was deleted. The entry of Israelis to the area is still prohibited according to the order regarding the implementation of the Disengagement, while the new demarcation order permits Palestinian access to the land. However, in recent months, Israeli civilians have maintained presence in the area in spite of the order prohibiting it.

For almost two years, the State has delayed and derailed the discussions regarding the petition, until in June 2022 when it explicitly stated that “the place must be evacuated”. The time for the evacuation of the illegal outpost Homesh has not yet been determined.

On January 2, 2023, during the fifth hearing of the petition, the State reiterated its intention to vacate the outpost in Homesh and informed the Court that it intends to “work to attain a full legal regulation for the continuation of Torah study in the Homesh region”.

Following the hearing, the Supreme Court Justices issued a decree nisi stating that the State must justify within 90 days why the area is not cleared of construction and invasions by the settlers who do not own the land and why the State does not allow the Palestinian landowners to exercise their rights to the land without interference.

On 21 March 2023, the Knesset repealed sections of the Disengagement Law, lifting the ban on Israelis entering the site of the evacuated settlement of Homesh. The amendment to the law, however, did not alter the fact that the settlement was built on privately owned Palestinian land, nor did it regularize the illegal outpost Israelis set up on this land.

At the end of May 2023, contrary to the law but with government approval, the Homesh outpost was moved several hundred meters away from its previous location. The outpost’s new site is located mostly on land declared state land, but it remains a danger to Palestinian landowners and effectively denies them access to the land, continuing their dispossession.

On 7 July 2023, after multiple delays, the State submitted its response to the decree nisi. The State claimed that since the illegal construction on privately owned Palestinian land had been removed, there was no room for the court to intervene. The State further stated that a permanent structure had been built for the Homesh Torah study on adjacent plots registered as state land, in breach of the law and with government approval. The response also noted Israel was planning to retroactively approve permanent Israeli presence at the site.

The State’s response exemplifies the application of Israel’s annexation and apartheid policy: Government cooperation with a criminal act with the object of establishing a permanent settlement on lands belonging to the village of Burqa, while completely ignoring the Palestinian landowners’ property rights and personal safety.

On August 1, 2023, ahead of another scheduled hearing in the petition, Yesh Din filed an updating notice on behalf of the petitioners. In a rare occurrence, the notice included affidavits from two military generals, both of whom served as the commander of the West Bank – Nitzan Alon and Gadi Shamni. The two retired generals rejected the State’s position, asserting the illegal outposts in Homesh, even in its new location, would be a security liability for the military and harm Palestinians’ property rights and freedom of movement. Referring to the directions government officials gave the military, which knowingly allowed a breach of law, Alon and Shamni asserted this was a dangerous act the politicizes law enforcement and undermines the rule of law.

The next day, the justices of the Supreme Court announced they were “considering ordering the petition dismissed without prejudice.” The petitioners objected, insisting on their arguments and demanding the order nisi be made absolute so that Palestinian landowners could exercise their rights and gain unfettered access to their lands.

That same day, the justices of the Supreme Court issued a judgment dismissing the petition without prejudice and effectively approving a new Israeli settlement on Burqa lands. The justices found the facts of the case had changed given the relocation of the Yeshiva. While the justices did add they were not unaware of the arguments raised by the Palestinian landowners with respect to the illegality of the new situation, they stated these lay outside the scope of the petition. The justices also issued a costs order in favor of the petitioners.

And so, while Israelis all over the country fight to protect the High Court of Justice as an icon of democracy, the justices have proven that for Palestinians, there is no protection and no law, and the court favors Jewish supremacy. The Supreme Court justices’ shameful decision is yet more evidence of Israel’s apartheid rule in the OPT, making it a court-sanctioned norm.

Petition status: Dismissed without prejudice.