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 Burka 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 Burka. 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 – Burka 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However, the success of the legal struggle remains solely on paper: although the seizure order has been revoked and the area has been removed from the list of localities listed in the regional councils, in practice there is an illegal and unauthorized Israeli presence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.
Petition status: pending