30/1/05
To:
Mr. Malchiel Blass
Deputy Attorney General
The Ministry of Justice
Jerusalem
Re: Expansion of Settlements and the Route of the Separation Barrier
Cite to petitions:
HCJ 2645/04 Farris Ibrahim Nasser v. Prime Minister (Deir Qaddis petition)
HCJ 2577/04 Taha el Hawaja v. Prime Minister (Ni’lin petition)
1. In the framework of the petitions referred to above, the IDF Commander for Judea and Samaria (the West Bank) decided on an alternative route for the separation barrier on the land belonging to the villages of Ni’lin, and Deir Qaddis. The modified route still passes through the land of villages and threatens to undermine the livelihood and lifestyle of hundreds of residents, in direct contravention of international humanitarian law. In light of these developments, the residents of Ni’lin and Deir Qaddis submitted objections to the new route.
2. However, we have since been notified that Israeli parties, who are interested in expanding the settlements of Modi’in Elite and Hashmonaim object to the alternative route: the Israeli contracting company Philandendrom 12 claim that the new route will impede the plan to expand the settlement of Hashmonaim on land that is adjacent to Ni’lin farmland. The Israeli contracting companies Zip’ha International 1994, Kiryat Sefer Modi’in Housing, The Ge’ulat Fund for Developing and Constructing Settlements, the Pisgot Na’ot Company and the Modi’in Elite City Council, contend that the new route will also impede the plan to expand the settlement of Modi’in Elite. They also claim that part of the agricultural land of Deir Qaddis that is situated between the newly planned route and the previous one (the route that was adjacent to the houses of Deir Qaddis) was purchased by them, although these are alleged purchases that were never formally registered.
3. As a result of the Israeli companies` objections and that of the Modi’in Elite city council, you are now demanding that we present documents and survey maps to prove the ownership rights of the potential victims if the route of the barrier is moved back towards the homes of the villages placing the villages’ vineyards on the Israeli side of the barrier. You also made clear to us that if the Israeli claims of lawful purchase of the agricultural land prove to be convincing there will be no consideration of the affect on the protected Palestinian residents as a result of moving their land to the other side of the barrier.
4. Moreover, in the letter of 15.12.04, Attorney Major Gil Limon, Deputy Legal Counselor for the area’s military command, stated that the intended method for examining potential alternatives for the route of the barrier, would be to assess the damage that is liable to be caused to the protected residents versus the damage likely to be caused to Israeli residents who want to expand the settlements.
5. We completely reject the attempt to use the construction of the separation barrier as a means of advancing the settlement expansion plan in the area adjacent to the villages of Ni’lin and Deir Qaddis, and of introducing changes to the right to hold or own the agricultural land in these villages.
6. Initially, the rationale of the barrier was to act as a physical barrier between the land held in belligerent possession and Israel, and to block access to those whose intention it was to carry out attacks in the heart of Israel. At a later stage an additional claim was added stating that the barrier was also intended to provide security for the settlements that were established in the territories. In our opinion, the defense of Israeli citizens that live in the territories can and should, from the perspective of international law, be carried out by means that do not in any way infringe upon the protected persons. Even if we leave this issue to one side and adopt your point of reference, there is still no legal basis for determining the route of the barrier by the “need” to expand settlements or as a means of protecting speculative ownership rights of alleged land purchases.
7. When planning the route of the separation barrier the military command is obligated to consider the potential harm that is liable to be caused to those protected persons who are residing in the territory – the most important of which is the possible denial of their right to possess agricultural land and maintain their source of livelihood. Any person who claims that the possession by protected persons contravenes his right to ownership, a claim that according to our investigations is incorrect, must pursue all the necessary legal procedures to enshrine his/her claim in the records of the Israeli Land Registry, and to address the claims of those holding the land in tribunals and courts authorized to deliberate on these issues.
8. In the event that there is any substance to the contention of alleged purchases of agricultural land in Deir Qaddis, it can only be considered after they have been approved and authorized by the relevant authorities. In this context it is not superfluous to note the position presented before the Israeli and international judicial forums, that the separation barrier is temporary and can be removed or its direction changed in accordance with or change in circumstances.
9. In light of the aforementioned, I will now relate to your presumptuous attempts to supersede the courts and tribunals that were established by law to rule on property claims. It is well known that the legal system and structure of ownership rights in the occupied territories are unprecedented in their complexity. For example, the majority of the land is not registered. For 38 years, during which the occupied territories have been subject to belligerent occupation, the army command has prevented protected persons from registering their ownership rights in the Lands Registry. The steps taken by the army command to clarify land rights were primarily to declare the protected persons’ land as “state land” for the benefit of the occupying state and its citizens.
10. This situation combined with the various actions of the army officer to assist in relocating Israeli citizens to the settlements that were established in the occupied territories under his command, has been abused by schemes for fictitious land purchases and to deprive the protected persons of their land. Thus it would be manifestly unreasonable if now, by using the barrier, the army officer utilizes his power to expedite the consideration of alleged land claims and subsequently relies upon these claims to determine the route of the separation barrier.
11. Furthermore, the investigation of claims against ownership or possession by protected persons of agricultural land must be carried out by procedures and courts that are designated by law. Your attempts to process these claims through hasty and improvised procedures constitute a deviation from the scope of your authority.
12. Moreover, I will note that the demand to produce “proof of ownership”, including survey maps, was presented as a necessary requirement in a sweeping fashion to all those impacted by the barrier`s construction, even in instances where there is not even a hint of any opposing claim of ownership. Demands such as these are distressingly puzzling – not to mention lacking in good faith, as you well know that such demands impose a financial burden on the residents that they cannot bear. We also reject the claim that the documents, that allegedly prove the land purchase by Israelis, must remain confidential because of supposed fear for the lives of those who sold the land. A claim that is based on an erroneous example of a Deir Qaddis resident who was allegedly murdered after he sold land to Jewish clients. However, after further investigation it was proved that although the man die recently, he died of natural causes and was not murdered.
13. In addition, the motive behind the claims made by Israelis – the real estate companies and the settlements Modi`in Elite and Hashmonaim – is their plan to extend the settlements into the land of the villages of Ni`lin and Deir Qaddis. Although the consideration of expanding settlements that has recently been raised by the army command again and again, sometimes independently, and sometimes concurrently with its attempts to cast doubts on the land rights of protected persons, is an illegitimate consideration, that cannot be any part of the army command`s considerations when determining the route of the barrier. In accordance with the principles of International Humanitarian Law and the recent ruling of the Supreme Court in the case of Beit Surik, the only consideration that can justify a proportionate violation of protected persons rights in the occupied territories are security considerations. The plan to expand settlements bears no relation to this consideration, and the army command is not authorized to take the expansion of settlements into account while determining the route of the barrier.
14. It has not escaped our attention that at least some of the authorization processes, that are under discussion in regard to the expansion of settlements, have taken place in participation with a representative of the army command and his legal advisors over a period of two years, parallel to the planning of the route of the barrier. In any instance that the army command believed that the intended expansion of the settlements did not accord with the route of the barrier, which must be determined by the balance between security considerations and the rights of protected persons, he is obligated to halt the plans for expansion. He should have warned those presenting the plan that the construction of the barrier was liable to prevent the plan from ever reaching fruition, or that the halt might be temporary until circumstances permitted the dismantling of the barrier. As if this was not enough, it became clear that recently the army command referred the Philandendrom 12 company to us a potential source of assistance in their attempts to purchase land from the residents of Ni`lin and expand the settlements adjacent to the village.
15. In determining the route of the barrier, the army command is obligated to consider the situation on the ground and weigh only the likely injury on the thousands of residents of Deir Qaddis and Ni`lin whose source of livelihood is their agricultural land against his legal responsibilities. These responsibilities do not include preparing a security infrastructure that will prepare the territory for settlement expansion and the relocation of additional Israeli citizens to the occupied territory, and they certainly do not include the realization of contractors` territorial aspirations, or improvised and binding arbitrations to clarify conflicting claims of land ownership. Moreover, assisting the relocation of Israeli citizens into territory under the authority of the army command, the establishment of settlements and their expansion, with all the suffering it causes protected persons, contravenes International Humanitarian Law. These violations assume added severity when added to the impact of the construction of the separation barrier.
16. Thus, I respectfully request that you order the army command to refrain from consideration of illegitimate factors when determining the potential route of the separation barrier on the land of Ni`lin and Deir Qaddis, and to consider only the legal aspects of the situation.
17. In addition, and in order to prevent difficulties and the “creation of facts on the ground” that will impede the litigation of the petitions here in the following must be considered.
In the past Israeli citizens took land from protected persons under the authority (passive or active) of the army. In view of this fact we ask you to instruct the army command to order all those under its command to prevent such action.
On numerous occasions, Israeli individuals and agencies have tried to alter the registered rights of protected persons with the army command (with overall authority for the Land Registry) without notifying the injured parties, or providing them with any opportunity to fight for their rights. Due to the fact that any action that is taken now to change the registered rights of residents of Deir Qaddis and Ni`lin is likely to have implications for the legal hearings on the aforementioned petitions, and that every action such as this can only be carried out with the full knowledge and authorization of the army command, I request that you inform me if and when such changes may be registered.
Sincerely
Avner Pinchuk, Adv.
last updated : 24/02/05
