HCJ 9144/18, Jalud village council head v Commander of IDF forces in the West Bank
Date of submission: 26.12.18
The head of the Jalud village council, Abdallah Tawfiq Abdallah Haj-Mahmoud, and the human rights organization Yesh Din, petitioned the High Court of Justice against the OC Central Command, namely the commander of military forces in the West Bank, demanding that the court order the evacuation of the agricultural invasion of Israeli civilians into an area that was under a military seizure order.
In 2016, following Yesh Din’s previous petition (HCJ 7637/15), the scope of the seizure order in the Jalud area was significantly reduced, detracting privately-owned lands belonging to residents of Jalud. However, following the detraction, landowners discovered that agricultural saplings had been planted on their land by Israeli civilians, prior to the change and detraction of the order.
The seizure order was issued in 1978. A military seizure order enables the military commander to seize land in cases wherein there is a necessary, urgent, and substantive military necessity. The military seizure is temporary in nature, while the land remains privately owned. As a result, when the military necessity ceases, land-use rights must be restored to landowners, and the land must be restored to its original state, prior to the military seizure.
Over two and a half years have passed since the land of the residents of Jalud was detracted from the territory included in the military seizure, yet landowners are still prevented from accessing them. The harm caused to landowners by the agricultural invasion is twofold:
The saplings that settlers planted on the land prevent landowners from using the land at will in accordance with their needs. Moreover, the process of independently uprooting the crops will compel them to invest extensive and costly resources. In addition, ongoing planting of saplings indicates that those who tend them continue to access the land, causing Palestinian landowners to remain at bay accordingly. The landowners, having learned from bitter experience, fear undesirable, even violent, encounters, with the invaders who appear to be among the residents of surrounding illegal outposts.
The planting of saplings on private land belonging to residents of Jalud, while the area was still under a seizure order, indicates that even when the original order was in place the military commander violated some of his obligations. First, he violated his obligation to ensure that the lands under the order would solely be used for military purposes. The infringement of private property by means of a seizure order can only be justified on a military need, and the use of land for civilian purposes negates the justification for the harm, deeming it illegal. Second, he violated his duty to prevent illegal activity in the lands under his control, and to enforce the law against invaders by evacuating them and furthering criminal proceedings for trespassing. Third, he breached his duty — stemming, from the temporary nature of the seizure order, among other things — to return the territory to landowners in its original state upon the onset of seizure, or to take all necessary measures to minimize damage caused to the land.
The current petition demands that the military commander order the evacuation of the invasion, and return of the land to its original state prior to the military seizure and invasion.