HCJ 6505/09 Barkat et al V the Minister of Defense et al

Petition Submission Date: 13.8.2009

In August 2009, residents of the Palestinian village Kafr Aqab discovered that construction had begun on 12 illegal structures on their land near the settlement of Kochav Yaakov. As a result, the village council head petitioned the High Court of Justice (HCJ) with the assistance of Yesh Din to ask construction be halted. After the petition was submitted, the GOC Central Command declared the area in which the illegal construction began a closed military zone to Israelis.

Despite the order, Israeli citizens who signed a contract with the settlement of Kochav Yaakov, which authorizes their residency, continued to reside in the area in spite of the military order. Several such contracts were even signed after the military area was issued. A complaint was filed with the police against those suspected of violating the military order, however the police closed the investigation file without indicting the suspects, and avoided prosecuting the settlement officials and other individuals who were suspected or persuading the residents to violate the military order. The appeal Yesh Din filed against the decision to close the investigation noted the suspicion that the Binyamin Regional Council chief architect bore false testimony regarding this matter.

On 3.9.09 the HCJ issued an interim order forbidding “any construction or connection of the existing buildings to infrastructures and any actions of paving or building roads between the buildings.”

In May 2013, over three and a half years after the petition was submitted, and while it was still being debated in Court, the Director of Government and Abandoned Property in Judea and Samaria declared 224 dunams (55 acres) in Kafr Aqab state land. The declaration included the area addressed in the petition without updating the petitioners, drawing sharp criticism from the HCJ. As a result of this declaration, in March 2014 the HCJ dismissed the petition due to “certain changes in the relevant factual and legal basis”, while upholding the September 2009 interim order.

Petition Status: the HCJ dismissed the petition

HCJ 5426/17 Barkat et al V Head of Civil Administration et al

Petition Submission Date: 5.7.2017

In October 2013, Yesh Din filed an appeal to the Military Appeals Committee on behalf of the landowners stating their opposition to the declaration. The appeal claimed that the declaration “was simply designed to enable retroactive authorization of illegal construction. This declaration, therefore, is a declaration meant to circumvent legal proceedings, the High Court of Justice, the duty to enforce the law and the basic tenets of the rule of law.” The appeal specified that the declaration was posted in the Mateh Binyamin Regional Council offices, but not in the Kafr Aqab Council.

In July 2015, the Appeals Committee, a military-judicial body, determined that the declaration was invalid. The committee found that a declaration proceeding had begun on the land in 1961, under Jordanian rule. As such, in order to declare the land as state land, the status of the cultivation of the land in the years prior to the start of the declaration proceedings must be examined –not the years before construction of the settlement Kochav Yaakov on adjacent land. The Appeals Committee determined that the declaration was void and that if the Civil Administration seeks to issue another declaration, it must examine the status of the land cultivation in the decade prior to the beginning of the Jordanian authorization proceeding – in other words, throughout the 1950s.

The Military Appeals Committee’s decisions are not binding. In April 2017, the head of the Civil Administration denied the recommendation, determining that accepting the recommendation would have “severe and wide-ranging consequences for the area.” This constitutes a rare occasion in which the Civil Administration did not adopt the Committee’s recommendations.

Following the Civil Administration head’s decision, the Kafr Aqab Regional Council head and three landowners filed a petition with the High Court of Justice in July 2017, demanding the court instruct the annulment of the declaration. The petition claimed that there is no legal basis for the decision to reject the recommendation, and that the entire declaration, along with the decision by the Civil Administration head, stem from external and unacceptable considerations designed to circumvent High Court proceedings regarding illegal construction in the settlement.

As described in the petition, it was IDF authorities that prevented the residents of Kafr Aqab from completing the land authorization proceeding they began in the village. It was done through a military order that froze the situation on the ground. Currently, the head of the Civil Administration is requesting to operate against international law and military orders to annul the regulation proceeding as has been conducted until now. As such, the head of the Civil Administration seeks to operate in violation of previous decisions made in the matter and in violation of Supreme Court rulings.

The preliminary response submitted in January 2018 argued that the petition should be rejected. The State Attorney’s Office claimed that the declaration of the land with which the state is concerned in this matter as state land was lawful. It also claimed that the Committee made several legal errors in its decisions and that, therefore, the head of the Civil Administration was justified in rejecting its recommendations. The response further argued that accepting the Committee’s position would effectively prevent the declaration of broad swathes of land as state land, creating wide “land pockets” that will not be usable “for the benefit of promoting and developing the area”.

In July 2018 the HCJ issued an order nisi ordering the state to explain why the military appeals committee position to cancel the declaration won’t be adopted, and why the head of the civil administration decision won’t be revoked.

On November 29, 2020, the justices accepted the State’s position and rejected the petition. According to the judgement, halting settlement of title where it had reached the stage of preparing a schedule of claims does not render continuous agricultural cultivation of land unnecessary, and that without continuous cultivation landowners could lose their rights to their land. Settlement of title proceedings were initiated under Jordanian rule and suspended by Israel after it occupied the West Bank.

The Court ignored the underlying rationale for Israel’s decision to suspend settlement of title proceedings after it occupied the West Bank: the absence of many landowners from the West Bank, who were therefore unable to cultivate their land. Furthermore, the judgement erroneously distinguishes between several stages of settlement of title and as a result undermines and contradicts the instructions of the law and previous jurisprudence.

In practice, the judgement enables Israel to declare “state land” in areas where settlement of title proceedings were initiated but never concluded because Israel suspended the procedure, and transfer these lands to be used by Israeli settlements in the occupied Palestinian territories.

Petition status: Rejected

HCJFH 9068/20, Barkat et al v. the Head of the Civil Administration et al

On December 24, 2020, landowners and head of the Kafr ‘Aqab village council filed a motion for a further hearing in an expanded panel of justices. The motion argues that the ruling established several new legal precedents, some of which constitute a substantive departure from decades-old jurisprudence, and some constitute precedents which pose significant difficulty with regard to land laws in the West Bank, the status of suspended settlement of title proceedings and the status of absentee property subject to settlement of title proceedings.

The petitioners argued that this judgement could contradict the duties incumbent upon Israel by the rules of international law regarding the occupied territory and the rights of protected persons present there, as well as the rights of absentees. This new precedent allows Israel to declare “state land” in areas where settlement of title was underway, in a manner that plainly contradicts several rules of international humanitarian law.

On September 14, 2021, the Chief Justice held that no new precedent was established in the judgement handed down in HCJ 5426/17, or any precedent justifying a further hearing. She rejected the motion for a further hearing in an expanded panel.

Petition status: Rejected