HCJ 794/17 Ziada et al v. head of IDF forces in the West Bank
Petition submission date: 23.1.2017
In August 2016, the Civil Administration published a map that includes 35 plots in the immediate vicinity of the unauthorized outpost of Amona, some of them just a few meters from its original location, where the possibility of declaring them ‘abandoned property” is being considered in order to transfer the outpost’s structures there.
In the beginning of September 2016, landowners from Silwad, Ein Yabrud and Taybeh submitted their objection, with the assistance of Yesh Din, to the proposed declaration of two thirds of the plots under examination. The Civil Administration was provided with aerial photos that prove the vast majority of plots were cultivated without interruption since the 1980’s and 1990’s, until the outpost was established. In the months following, a long series of objections were submitted for the remaining plots listed in the publication.
The Civil Administration did not reject the objections, however it decided to adopt a legal proceeding never before applied regarding West Bank properties – dissolution of partnership – which enables the relocation of Amona to three plots adjacent to the outpost, while leaving the Palestinian landowners without the option of filing objections.
In January 2017, the Palestinian landowners submitted their objection to the Civil Administration over the decision to declare these plots abandoned property as well as an objection to dissolution of property. After the objection was rejected, the head of the Silwad Village Council and the landowners of the plots in the plan petitioned the High Court of Justice at the end of January to demand the court annul the order to relocate Amona and annul the decision to enable a dissolution of property on the three plots. In addition, the petitioners requested the Court put an injunction on any construction on the plots until the petition is sorted.
The petition states that the decision to apply “abandoned property” for the benefit of the residents of Amona is illegal, based on a false pretext of an urgent public necessity. In practice, this is an act of expropriating private lands for political purposes, preserving the current government coalitions, as well as appeasing the residents of Amona. The petition also claims that the application of dissolution of property is being done in contravention of the law that applies in the territories in a way that directly harms the Palestinian landowners.
In its response to the petition at the end of January 2017, the State claimed that the plan was designed to maintain the public order and that there is no agreed upon alternative to peaceful evacuation. “This is an explosive event with consequences for security that extend beyond the scene of the evacuation itself,” the response stated.
On February 1st 2017 the court accepted the petition, cancelled the declaration of the three plots as abandoned property, and halted the intent to perform forced dissolution of partnership proceedings in said plots.
Petition status: accepted, the Amona plan was cancelled.
Petition for further hearing of the judgment HCJFH 9367/17 Ziada et a. v. Commander of IDF Forces in the West Bank
Petition submission date: 30.11.2017
The reasoning for the judgment was not published until late October 2017. It contains two findings Yesh Din believes to be contrary to international law and previous judgments of the HCJ. The reasoning of the Amona plan verdict establishes that the Military Commander has the authority to make temporary use of private Palestinian, even if such use serves the Israeli population exclusively, and that the Supervisor of Abandoned Property in the Civil Administration may initiate dissolution of partnership proceedings for Palestinian land, despite being a temporary trustee of this land only.
Evidence that these are precedent setting rulings came about a week after the reasoning was issued. Attorney General Avihai Mandelblit’s opinion regarding the access road to the outpost of Haresha noted that until the verdict, Palestinian land could not be expropriated for the benefit of Israelis alone, but that following the judgment, such a move became possible.
In late November 2017, Yesh Din petitioned the High Court on behalf of Palestinian landowners who challenged the Amona plan, asking for a further hearing by an extended panel in the judgment issued by Justice Salim Joubran, to decide on these two issues.
“It seems that the State is already implementing this new legal precedent and is working towards confiscating private Palestinian land in order to retroactively authorize the unauthorized outpost Harasha, while justifying this action as a need of the Israeli population, ”
the petition says, “This paves the way for governmental authorities to take private property from the occupied population and transfer it to sole use by the population of the occupying power – all in direct opposition to years of jurisprudence from this Court, that have created ‘legal impediments’ blocking said move”.
On May 30, 2018, Supreme Court President Esther Hayut determined that the Ziada judgment was indeed “… in conflict […] with previous rulings, presents a new development and raises difficulty”, but since they were made as an obiter dictum which was not required for the judgment in the petition, it was not a new rule and the statements did not have the force to serve as a precedent. The president added that “should future cases raise the questions referred to by the petitioners, the matter may be brought for judicial scrutiny”. The court ultimately denied the petition for a further hearing since the petition had been accepted, and therefore a further hearing would not have produced a material change in its results.
Petition status: dismissed.