As a result of three petitions submitted by the Association for Civil Rights in Israel (ACRI) to the High Court of Justice, against the route of the Separation Barrier between Qalqiliya and Tulkarem, and the illegitimate inclusion of criteria that is based on future expansion of Jewish settlements in the area, as a basis for determining the route of the Barrier, the Court is seriously considering the issue of whether or not the State is authorized to include existing construction plans for settlement expansion, which have been sanctioned but not yet implemented, as a legitimate consideration in the determination of the route of the Barrier. The Court further ordered, as a preliminary measure, that the State re-examine the route of the Barrier in this area and present its findings, within 45 days, to the Court, together with a report on the level of effectiveness of additional steps that were taken by military personnel on the orders of the Minister of Defense, to improve the management of the Barrier’‘s agricultural gates along this section of the Barrier. These gates were originally placed along the length of the Barrier to allow Palestinian farmers to access their lands but have proved to be extremely ineffectual.
Two of the petitions call for the dismantlement of existing sections of the Barrier which are built on the agricultural land of six villages located in the area between Qalqilya and Tulkaram: Jayyus, Hirbat Jabara, Falamia, Faroun, A-Ram, and Kfar Tsur. ACRI Attorney Azem Bishara originally submitted the petition in 2005 on behalf of the aforementioned villages.
Since the construction of the Barrier in the area, four years ago, the daily lives and livelihoods of over 14,000 residents of the villages has been severely undermined. For residents of five of the villages, access to their agricultural lands (thousands of acres of which are located on the western side of the Barrier), is dependent upon the issuance of special permits. The process for obtaining these permits is both convoluted and lengthy, and not all agricultural workers are entitled to receive the permits even though their livelihoods depend on them. Additional hours were therefore added to the gates` extremely limited opening times, however these hours are not formally adhered to and do not reflect the needs of an agricultural lifestyle. Some of the water sources have also remained on the other side of the Barrier. Thus, many farmers cannot access and work their land, or in other cases, the agricultural produce, which is not harvested on time and cannot be marketed, is left to rot and is eventually thrown away. Many crops die for lack of water, as they cannot be irrigated regularly or effectively. An additional problem is the limited access of traders to agricultural land, which cannot be guaranteed and so therefore severely curtail the farmers` ability to market their produce. The result is a fatal blow to the local agricultural market that has acted, for generations, as the sole source of livelihood for the residents of the village.
The sixth village, Hirbat Jabara, is not only separated from the majority of its agricultural land, but is also located on the western side of the Barrier and is therefore cut off from the rest of the West Bank. Thus, the permit regime not only violates the rights of the residents of the village and their livelihood, but also their ability to maintain family and community ties. Family members and friends are not permitted to pass through the Barrier to see them, even when the family members submit requests for permits to allow them passage. Some are refused on the basis of “security” concerns, which are impossible to appeal as no explanation is provided for the refusal. In order to find a solution to the distressing situation of the village residents, after ACRI submitted a petition regarding the passage points, a decision was taken to change the route of the Barrier. The new route places the village on the eastern side of the Barrier. However, even this proposed route still cuts many villages in the area off from half or more of their agricultural land. Therefore, ACRI states, the route is untenable.
The route of the Barrier, the petition concludes, violates in a disproportionate way, the basic rights of the Palestinian civilian population, permits the prohibited de-facto annexation of occupied land to Israel, and has been determined by illegitimate criteria, which allows for the future expansion of adjacent settlements, Salit and Zofin. These criteria, and not concerns for the protection of the Israeli civilian population is what lay at the root of the determination of the route, and it is these criteria that are responsible for the harsh violations of the rights of the residents’‘ from the neighboring Palestinian villages. The State even admitted this before the Court, at least in relation to the planned expansion of the settlement of Zofin. These criteria, emphasizes Attorney Bishara, are in direct contravention to the judgment issued by an expanded panel of nine High Court Justices, to the principled petition submitted by ACRI against the route of the Barrier in the area of Alfei Menashe. The ruling explicitly stated that criteria relating to the expansion of settlements cannot be a consideration in the determination of the route of the Separation Barrier.
Hearings of these petitions were due to be held a few months ago, but were delayed after the Minister of Defense requested more time to re-examine the route in the area. Despite this delay the State has yet to provide any proposals for an alternative route (except for a problematic suggestion for an alternative route in the area of Hirbat Jabara that was raised long before the current Minister of Defense was appointed).
The third petition, which also relates to the same area, was submitted some two years earlier. In this petition, one of the first to be submitted on the issue of the Barrier, the High Court was asked to order the IDF to open Barrier passage points to allow the regularized passage, at all times of the day, for residents of adjacent villages, including the movement of vehicles, and agricultural and mechanical equipment. The petition, which was submitted in 2003 by ACRI Attorney Fatmah El A’‘jou, in the name of Palestinian residents from four villages in the area, states that even the gates that were constructed along the Barrier have not eased its impact on the residents, and do not provide freedom of movement, other than in a very few cases.
In one of the preliminary hearings of the petition, the then President of the High Court, Aharon Barak, criticized the State’‘s managing of these gates and told representatives of the army and the State Attorney’‘s Office that “If you cannot provide solutions to the opening hours of the Separation Barrier (gates), then the Barrier has to be moved”, and he added that “one does not build a Barrier before resolving these problems! First you solve the problems and then you build the Barrier. We are talking about human beings here”. The justices at that time asked the two sides to reach an agreed compromise that would allow the residents of the village to carry on their daily lives and work their land, but despite the fact that three years have passed since the submission of the petition, the majority of the problems created by the route of the Barrier remain, including the fatal undermining of the area`s local agriculture.
Attorney Azem Bishara further emphasizes that the handling of this petition over the last three years proves that the in order to preserve the residents’‘ fabric of life, the solution is not through the establishment of a permit regime, or through the provision of agricultural gates, but through the relocation of the Barrier to a site that does not cut the residents off from their land.
last updated : 06/02/07
