HCJ 5288/21, Yesh Din – Volunteers for Human Rights, and Bimkom – Planners for Planning Rights v. the Military Commander in the West Bank

Submitted: July 2021

Yesh Din and Bimkom – Planners for Planning Rights petitioned the HCJ to challenge the amendment to Order No. 2013, Order regarding Appeals Committee (Amendment No. 28), 2021. The petition addresses the Israeli military commander, head of the Civil Administration and the Supervisor of Governmental and Abandoned Property in Judea and Samaria. It asks to revoke the sections in Order No. 13 that restrict the possibility of appealing expansion of “state land” declarations (government property) before said order came into force. The petition also demands that all amendments and expansions of “state land” declarations by the Civil Administration’s blue line team be published and made available to the public.

Israel’s land declaration policy is pursuant to military law (Order Concerning Government Property [No. 59]), which allows taking possession of West Bank land considered government property by the military government unless proven otherwise. Since 1979, Israel has declared hundreds of thousands of dunam of land in the West Bank “state land”; nearly all of it was subsequently allocated to the Israeli settlement enterprise. Under military law (Order Regarding Appeals Committees [No. 172], Palestinians may appeal to the military appeals committee, which serves as a judicial instance, if the status of their land was changed through “state land” declaration procedures; their right to appeal is contingent on public declaration of “state land”.

In 1999, the Civil Administration established the blue line team, tasked with reviewing Israel’s declarations of public land in the occupied territories since the 1970s. Following the team’s unpublicized and secretive examination, Israel expanded several past declarations of “state land”. Thus, without official declaration procedures and without informing the public, thousands of dunams of West Bank land became what Israeli authorities define “state land”. Israeli authorities did so without allowing Palestinian landowners to object to the expansion of these declarations and without a proper judicial process that would enable the landowners’ claims to be heard.

In 2016, the State Comptroller’s report criticized this practice, which enabled altering the status of land in the West Bank with no right to appeal and without making the information public, as did several legal proceedings. Finally, military authorities in the West Bank agreed to grant Palestinians the right to appeal these expansions of “state land” declarations. This current petition was submitted following previous legal proceedings challenging the military government’s wide-scale practice of altering the status of land in the West Bank without due process and while denying the rights of Palestinian residents of the West Bank.

This petition challenges Order No. 2013, which allegedly grants the right to appeal decisions to expand the areas declared “state land”, yet this possibility does not apply “to decisions…signed and published before [the order] came into force”. In practice, Order 2013 is used to circumvent the procedure of declaring “state land”; it precludes the possibility of freely appealing, without restrictions, expansions and additions to declarations made before the Order came into force in January 2021. The Order also ensures that information regarding additional areas Israel retroactively recognized as “state land” is hidden from the public.

The petition argues that Israeli authorities in the occupied territories are obligated to make all expansions of “state land” declarations public and grant Palestinian residents of the West Bank the right to appeal additions made by the blue line team since 1999 and prior to the time the order came into force. This includes over 260 instances in which state land declarations were expanded to include additional land and hidden from the public and the Palestinian stakeholders when Order 2013 came into force.

The petition argues that by restricting appeals to changes made after the amendment to the order became effective, while simultaneously refraining from publishing information about previous cases, Israel is advancing measures and promoting a policy of retroactively authorizing Israeli settlements and outposts constructed on land owned by Palestinians. Israel is doing so by limiting the possibility of appealing changes and severely infringing on Palestinians’ rights to property in violation of international law, which requires Israel as the occupying power to protect the property of Palestinian residents of the West Bank, who are considered protected persons. The petition also argues that the order in question fundamentally contradicts Israel’s duties according to the instructions of military law and the tenets of administrative law, which apply to Israeli authorities operating in the West Bank.

 

Status: In proceedings