ISRAELI HIGH COURT RETURNS PALESTINIAN LANDS?

Don't Believe the Hype!

by David Bloom, WW4 REPORT

Despite over a thousand nonviolent protests, international media attention, worldwide condemnation, a decision by the International Court of Justice at The Hague declaring Israel's "Separation Wall" illegal where it is built inside the occupied West Bank, and over 120 petitions to the Israeli courts, Israel's High Court has issued only five decisions supporting changes in the wall's route. As a result, only a small percentage of Palestinian land has been "returned" to the eastern side of the barrier. The wall still encloses 11.9% of the West Bank's land, according to the Israeli human rights group B'Tselem.

A review of the decisions shows that even in the few cases where the High Court decided in favor of Palestinians, the benefits to the villages have been minimal. In one case, around the settlement of Alfe Menashe in the northern West Bank, the court's decision actually made the situation worse for some of the villagers.

Lower courts have also heard cases. Sheikh Sa'ed, a neighborhood in the village of Sawahra, East Jerusalem, had the wall moved to the neighborhood's eastern flank by the Tel Aviv Magistrate's Court last year. This cut the neighborhood off from the rest of the West Bank, instead of Sawahra and East Jerusalem. This was an improvement for the village, but it is still negatively impacted through separation from the West Bank.

As of Oct 1 2007, the Israeli courts have heard over 120 Palestinian complaints against the wall, 89% of which runs through Palestinian territory inside the West Bank. In an Aug. 6 article, the fence's main architect, Col. Danny Tirza—a settler—told the Washington Post that he lost only three of those challenges. As of Jan. 3, 2007 the Defense Ministry reported that 39 petitions against the barrier had still to be decided.

In a widely publicized ruling, on Sept. 4, the town of Bil'in won a case at the High Court to have the barrier moved, saving 500 acres of its farmland which had been isolated from the rest of the village by the wall. But the very next day, in a separate ruling that received little media attention, the court ruled that Matityahu East, a large, new settlement outpost being built within the wall on part of Bil'in's land, could stay. So while the publicized decision returned lands to Bil'in, the quiet one upheld an illegal grab of other, more outlying village lands.

Israeli anti-wall activist Nir Shalev says the court "laundered" Mattiyahu East with its ruling. According to correspondent Akiva Eldar of the Israeli daily Ha'aretz, the court couldn't countenance dispossessing all the settlers living in Matitatyu East — despite the fact that it was built illegally according to Israel's own laws.

Mohammed Khatib, a leader of Bil'in's non-violent resistance movement, wrote on Alternet Sept. 26, "In Bil'in we celebrated, along with our Israeli and international supporters. But Israel's Supreme Court demonstrated both the power of nonviolent resistance to Israeli occupation, and its limits. On September 5 the court rejected our petition to stop the construction of another Israeli settlement, Mattiyahu East, on our land even further to the west. Israel, with US support, appears determined to retain major West Bank settlement blocs, including one west of Bil'in, that carve the West Bank into bantustans."

The court's bait-and-switch tendency demonstrated with the two Bil'in decisions is not new. Indeed it has been in evidence since its first rulings on the wall's path.

On June 30, 2004, one week before the International Court of Justice in The Hague was to give its ruling declaring the barrier route illegal, the Israeli High Court ruled the route in Beit Surik was disproportionately harmful to the village. The ruling appeared timed to blunt the impact of the Hague court's, and at the time drew some praise.

However, Muhammed Khaled, the former mayor of Beit Surik, in a Deccember 2005 article on the website Stop the Wall, wrote: "But the Occupation court decision was worth nothing and made things even worse." The wall's location in Beit Surik was moved, but it still effectively surrounds the village on all sides, which is penned in additionally by a settler-only road. And Khaled writes that the Israeli army retaliated against those who had brought the petition: "Right after the court decision, they started uprooting my land for the Wall's new path. My land is situated in the middle of its path—the only reason why they started from the middle was to retaliate against me and to intimidate whoever else wants to resist the Occupation. My land was planted with olive and almond trees as well as grapes. I carried the resolution and went to the soldiers who were working there in order to stop the uprooting of my trees. In response, they beat me very badly and then they arrested me."

The Israeli state twice simply ignored the High Court's order to dismantle a 41-kilometer section south of Hebron, along Route 317, affecting the villages of At-Tuwani and Yatta. The court first ordered the barrier removed in six months, in a 2006 ruling. According to a March 8, 2007 article in the Isreali daily Yediot Aharonot, Chief Justice Dorit Beinish noted: "The State…despite the court order, intends to keep the existing barrier… [T]he State chose not to comply with a court order…" As of July 24, 2007 it still had not been moved, according to Ha'aretz. The state was then given fourteen days to dismantle it, and according to Christian Peacemaker teams, it was finally dismantled on Aug. 7. A Palestinian leader of the non-violent movement in the area told CPT, "The IDF routinely disregards Israeli court decisions. We believe what happened is a success for the people's nonviolent resistance. This is a very important step."

On Sept. 15, 2005, the High Court ordered part of the fence dismantled where it enclosed five villages, Arab a-Ramadan, Arab Abu Farde, Wadi a-Rasha, Ja'arat a-Dara and Hirbet Ras a-Tira, with a collective 2,000 residents, inside the barrier with the settlement Alfe Menashe, just south of Qalqilya. At the time, the decision was hailed as a significant, precedent-setting victory. The villagers' lawyer, Michael Sfard, declared, "The High Court has saved five Palestinian villages from utter annihilation, because if the fence had been left in place, they would not have been able to continue to exist"

But on July 31, 2007, the court changed its decision, leaving Arab a-Ramadan and Arab Abu-Farde trapped inside the barrier along with the settlement, according to the Jerusalem Post. These two villages, with a total population of 400, said they would be worse off with the re-routing of the wall, because they are now cut off from the other three villages and the city of Qalqilya. But the court rejected their petition.

Reached for comment, attorney Michael Sfard said, "Naturally, I am disappointed. The second decision strips the first of most of its humanitarian concerns and achievements."

A Dec. 18 2003 report by the Anti-Apartheid Wall Campaign of the Palestinian Environmental NGOs Network (PENGON) had warned, "The completion of the Wall and its ghettoization of Arab Ramadin are turning a community of shepherds into exploited workers for Israeli settlement industrial zones, as they are unable to sustain their lives."

The Association of Civil Rights in Israel (ACRI), which brought the petition on behalf of the five villages, said in a press release Dec. 26, 2006: "Moreover, the solution being formulated by the military authorities regarding the two villages that were not removed from the enclave (Abu-Farde and Arab a-Ramadan) is a shameless one that is based on population transfer. Although this transfer has been presented as 'voluntary' and 'consensual,' in fact the villages are being pressurized into accepting a process of immoral and illegal transfer of protected persons from their land."

ACRI added, "The proposed route will also result directly in the destruction of 1,400 acres of cultivated land, and will cause a great deal of damage, indirectly, to large tracts of land. This is in addition to the destruction of some 2,000 acres of agricultural land that is required for the construction of this section of the barrier. The 'amended" route of the Barrier places it in extremely close proximity to the homes of the residents, something that has already been proven to pose a real danger to their lives by a number of cases in the past in which villagers were shot and killed. Any movement close to the Barrier, which is almost on top of their homes, arouses the suspicion of the soldiers and others guarding the Barrier. In some cases this has resulted in the security forces opening fire."

Across the valley from Alfe Menashe, to the north of Qalqilya, the villages of Azzon and Nabi Elias south of the settlement of Zufim also brought petitions against the barrier. The first, in 2002, was turned down by the court. A second, in June of 2006 succeeded, though it has yet to be implemented, Ynet reported last year. A ten kilometer section was ordered moved, to return more than 250 acres to the villages, within six months. The reason the first petition failed, according to Meron Rapaport in Ha'aretz, was that fence designer Col. Danny Tirza, in a 2002 affidavit defending the route, did not mention that the route of the fence was planned for the sake of building an industrial zone, expanding Zufim further onto privately held village lands. Tirza claimed only security considerations were involved.

Justice Aharon Barak appeared shocked by Tirza's lack of candor, writing in his decision that "a grave phenomenon has been revealed in this petition. The High Court was not presented with the entire picture in the first petition. The court rejected the appeal based on partial information." B'Tselem was more blunt: "The High Court of Justice in fact ruled that the State lied when it claimed that the fence route is only based on security considerations."

Tirza's failure to mention the industrial zone led Israeli Attorney General Menachem Mazuz to tell the then-Defense Minister Amir Peretz that this was "a severe gaffe that must not be tolerated." Yet in spite of being ordered by Peretz to desist from appearing before the court representing the Defense Ministry, Tirza continued to do so. On March 3, 2006, Palestinians petitioned to have Tirza dismissed, arguing that as a settler, he has a conflict of interest in designing the fence route.

On the northern side of Zufim are the villages of Jayyous and Falamya. On Oct. 30, 2006, according to Jayyous farmer Shareef Khaled Omar, the Israeli courts issued a recommendation to move the barrier on Jayyous' lands. Khaled said, "the army told our advocate that they would move the path of the wall to release 1,500 of the 8,600 dunums [375 of 2,140 acres] currently isolated from the village by the wall. This does not make us feel glad. The new path of the wall may even fall within the 1,500 dunums that they will release. We would like them to move the wall to the Green Line."

Two other routes suggested by the army are also seen as inadequate, and the villages' lawyer is insisting on the Green Line as the only alternative route. Omar points out that on the Green Line adjacent to Jayyous, "there are two fences, one electric, the other razor-wire, that will never allow a cat or a dog to pass through. So, if it is a matter of security, those two fences are sufficient and it is not necessary to build others six kilometers to the east of the Green Line in Jayyous land!"

In July 2006, on the second anniversary of The Hague ruling that the barrier had to be dismantled, the Israeli government approved a revised route for the barrier that had only "marginal overall effect" in reducing harm to the Palestinians' fabric of life. The new route was actually thirty kilometers longer than the old route, and only one-half of one percent of the total area in the West Bank was removed from the "seam zone," as Israel calls the area between the barrier and the Green Line. Four Palestinian villages, totaling 2,300 residents—were placed back on the Palestinian side, but at the same time another village of 900 was placed inside the "seam zone." The human rights organization Bimkom reported that "some 250,000 Palestinians will be trapped in enclaves either on the 'Israeli' side of the security barrier or almost completely surrounded by concrete walls or fences inside the West Bank."

Tel Aviv University psychologist Carlo Stenger writing in Ha'aretz on Sept. 25, warned that Israel is "On the way to [becoming] a pariah state... Behaving in a manner befitting the standards of the Western world is far more important for Israel's long-term survival than gaining a few square miles here and there, by building the security wall through Palestinian territories, tearing apart villages, homes and schools, and expanding settlements. Every such act is not just a moral outrage; it pushes Israel one step closer to being disqualified from belonging to the West."

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