Petition for access to land, HCJ 9512/10 – Head of Yasuf Village Council et al v the Commander of IDF Forces in the West Bank
In 2001, a year after the unauthorized outpost of Tapuach West (Tapuach Ma’arav) was established, an access road leading to the farmland owned by residents of the Palestinian village Yasuf was blocked with large mounds of earth and rocks, farmland that spans thousands of acres. The petition to the High Court of Justice (HCJ), submitted by the head of the village council and several residents with the assistance of Yesh Din, argued that in parallel to prevention of access, a process of illegal takeover of land was underway, which includes Israelis invading the area, paving paths, positioning temporary structures and planting saplings.
The petitioners claimed that settlers, backed by the army, expelled them from their land using physical force. They also claimed that in 2006, the Palestinian council heads of the nearby villages were summoned to meet with a DCO officer in the Nablus district, who notified them that access to part of their land was prohibited, while other parts required coordination. This notice was provided verbally, without any legal order that certifies such severe restrictions on movement.
In the petition to the HCJ, the residents asked the Court to sanction free access to their private land near the settlement Kfar Tapuach, remove the obstacles that prevent their free access, and enable them to exercise their right to farm their land all days of the year.
“Preventing access creates a new reality ex nihilo, which the police and army treat as the de facto reality, while ignoring the legal situation,” the petition stated.
In its response to the petition, the State reported it had decided to declare a substantial part of the land as a closed military zone, which means access to it requires its owners to coordinate with the military in advance. The justification provided was that there were security challenges in protecting the unauthorized outpost of Tapuach Ma’arav. The justices levied sharp criticism on the State for barring Palestinian residents access to their land.
“As long as there are lawbreakers, the role of the military commander is to deal with them. He must guarantee access, and if there are lawbreakers, deal with them. Anyone who exerts violence – the state must deal with. The State’s role is to maintain order,” Justice Miriam Naor said in the hearing.
In 2013, the State announced a new regulation that would allow Palestinian farmers access to their land. According to the regulation, landowners would address the Civil Administration through the Palestinian District Coordination and Liaison to inform them of their intention to access the land. The Civil Administration must authorize access within days, “as subject to operational constraints.” In March 2014, the regulation was validated by the Court.
Petition Status: Partially accepted
Petition to remove the unauthorized outpost of Tapuach West, HCJ 2297/15 – Head of Yasuf Village Council v the Minister of Defense
Submission Date: 31.3.15
A year after the HCJ ruled on the previous petition, the head of the Yasuf Council petitioned the HCJ again to demand removal of the unauthorized outpost of Tapuach West. All of the outpost structures were built without the necessary permits, some on private Palestinian property.
The petition demands the outpost be removed because construction there is illegal and because it constitutes a source for constant violations of the human rights of the residents of Yasuf. The petition claimed that since the access road was paved connecting the settlement of Kfar Tapuach to the outpost two kilometers away, several physical assaults against the residents of the village by the residents of the outposts were documented, as well as 10 cases of damage to cars, arson of a mosque, uprooting and torching of olive trees and many other cases of trespassing – all designed to prevent the Palestinian residents access to their farmland.
The petition states: “The existence of the unauthorized outpost means the denial of the petitioners’ basic liberties, and they are forced to live under a regime of permits, restrictions and fear. The petitioners are forced to plan every simple activity several weeks in advance, and coordinate every step they want to take with many different bodies, all so that the residents of the unauthorized outpost may go on living there”.
The new petition noted that the military did not meet its obligation to ensure the Palestinian residents access to their agricultural land.
In its response to the petition, the State Attorney admitted that the construction in the outpost is illegal, and that there is no planning procedure for authorizing the outpost. However, it added that the State intends on performing a land survey in the area, “after which the feasibility of planning in that area will be examined.” In other words, the option of authorizing the outpost was being considered.
During the petition hearing in December 2015, Chief Justice Miriam Naor criticized the State’s conduct. “It needs to be made clear that the even on State land the law must be upheld…State land may be authorized, but something must be done, not merely look on until a petition is submitted. At the end of the hearing, the HCJ issued an order nisi instructing the State to explain within 120 days why it does not remove the outpost.
The State’s response to the petition received in June 2016 states that in the late 90’s, as part of an outpost agreement signed between then Prime Minister Ehud Barak and settler leaders, the area that is the subject of the petition was deemed a grazing zone, not a residential one. However, the response by the outpost representatives, submitted to the High Court at the end of May 2016, proves that for them, this was merely a preliminary stage. “The government’s policy is applied in two stages: first, agricultural settlement approval is advanced, and at the same time, permanent construction plans are advanced,” the response cited.
Over the years, residents of the outpost continued to build in the area, while claiming that they were promised it would be authorized. This, while the State response cited that the Civil Administration had rejected the master plans suggested by the outpost in 2002. During this period, 25 illegal structures in the outpost were demolished.
The State’s response indicates that a decision was made to stop keeping up appearances and move forward with retroactively authorizing the outpost. This, even though the State admits that part of the outpost was built on private Palestinian land and continues to violate the law, and despite the grave damage to the human rights of the residents of the Yassouf village.
In the beginning of February 2017, the High Court of Justice ordered the State to demolish 17 structures in the unauthorized outpost of Tapuach Ma’arav, which were built on private Palestinian land, by June 2018. However, following the State’s declaration that it intends to try and authorize the outpost, the Court rejected the appeal to evacuate the entire outpost.
Petition Status: Partially Accepted
Petition to revoke military order permitting paving of a road leading to structures in the unauthorized outpost Tapuach West (Tal Binyamin) while bypassing regular planning procedures
HCJ 890/20, Head of Yasuf Village Council et al v the IDF Commander in the West Bank et al
The structured that were marked for demolition by the court order (Petition 2297/16) included a road and electricity poles used by the outpost Tapuach West (also known as Tal Binyamin), an outpost the State seeks to retroactively authorize. As the deadline for demolition neared, in June 2018 the State filed a request to delay demolition of the road and the electricity poles until an alternative route is paved for the outpost residents. The rest of the structures were demolished on time according to the judgement.
In parallel, in May 2018 the Civil Administration declared 152 dunams of land belonging to the Palestinian village Yasuf to be state land. This is part of the State’s effort to retroactively authorize the outpost of Tapuach West. In September 2018, the Head of Yasuf Village Council and thirteen landowners appealed the declaration with the assistance of Yesh Din. The appeal is still pending.
In January 2019, the court rejected the State’s request to delay demolition of the poles and the road and asserted that all remaining construction must be removed within three months, by April 2019. But in April, the State submitted an additional request to delay the judgement. This time, the State claimed that given the political echelon’s decision to retroactively authorize the outpost Tapuach West, the commander of Israeli army forces in the West Bank (the commander of Central Command) will be asked to issue an order enabling the State to circumvent planning and construction procedures in order to pave an alternative route swiftly, in violation of planning laws. According to the State, demolition of the existing road must be delayed until that time. This request was accepted and the new deadline for demolition was set for December 31, 2019.
In September 2019, the commander of Central Command signed Order 1821, which allows for a new “temporary route” to be paved without a permit from planning authorities because it is a “route of regional importance”. This order bypasses planning procedures, which include professional review and hearings for the public to object. The appeal against the declaration of state land is still pending and therefore the status of the land subject to the order has not been decided yet. These steps are being taken in order to swiftly pave a road leading to structures built illegally, and to delay demolition of illegal Israeli construction on land owned privately by Palestinians.
After their objection to the road plan was rejected, on February 2, 2020 residents of Yasuf petitioned the High Court demanding the military order be revoked along with any decision to pave the road based on this order.
The petition argues that legislating Military Order 1821 violates the provisions of IHL, which prohibit the occupying power from legislating new laws that alter current laws unless this legislation is necessary to protect the local population (the Palestinians), protect public order or for security needs. Order 1821 fails to comply with these stipulations. Instead, it is designed to enable access to structures built illegally by Israeli settlers in an Israeli settlement that the State seeks to, but has not yet, retroactively authorized. Paving this road bluntly violates planning procedures. It will harm landowners and residents of the nearby Palestinian villages, their right to property, their right to freedom of movement and their safety. The petition also addressed the profound failures in the planning procedure that allegedly enabled the order to be issued.
At the time the petition was submitted, the road and the electricity poles slated for demolition by the court in February 2017 are still standing. This is despite the state’s undertaking to the High Court that it would demolish the structures by December 31, 2019.
Status: In proceedings