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Expropriation by Forestation: HCJ 704/85 ‘Attoun v. Ministry of Finance (Judgment of November 18, 1986)
Court Watch | 704/85 | 1.3.2012 | Adv. Yotam Ben Hillel
Criticism
In Shakespeare’s classic tragedy, Macbeth, the protagonist, asks the three witches to tell him what his future holds. The witches assure him that he will be king as long as Birnam Wood does not advance toward his castle. The witches’ prophecy calms Macbeth, but later on, the English army cuts boughs from the trees of Birnam Wood and uses them as camouflage to advance toward his castle. Macbeth’s end is near.

As far as we know, woods in our part of the world advance nowhere. And yet here too, woods do not always serve their obvious function, such as “green lungs” or sites for nature walks and picnics. Sometimes, woods are used to cover up the remains of a past whose memory the authorities wish to extinguish. Sometimes forestry is used to cover up the fact that the state or its agents have taken over land. And sometimes, when the state has already taken over some land, the woods are used to stave off attempts made by the original owners to get it back.


Annexation and Expropriation
The petitioners in HCJ 704/85 are residents of the village of Sur Bahir. Land belonging to them was expropriated in 1970 in order to build the neighborhood of East Talpiot (Armon HaNatziv) in East Jerusalem. As is well known, after the 1967 War, Israel annexed some 70,500 dunums of West Bank land and turned it into part of the City of Jerusalem. This area included the relatively small part of Jerusalem that had been under Jordanian rule and land belonging to 28 villages in the West Bank, including Sur Bahir. The annexed area, which came under Israeli law in late June of 1967, has been called “East Jerusalem” ever since.

The annexation of East Jerusalem is at odds with international law, according to which it continues to be an inherent part of the West Bank, an area that has been under occupation since the 1967 War.[1] Therefore, the issue of land expropriation in East Jerusalem should be examined primarily through the law of occupation. Expropriation is the involuntary transfer of privately owned land to the state for public use in return for monetary compensation. The law of occupation has been interpreted as allowing land expropriation on condition that it is carried out for the benefit of the population that is under occupation.[2]

This is not the case in East Jerusalem. Shortly after the annexation, Israel introduced a policy of wide scale land expropriation. To date, land accounting for more than a third of the annexed area has been transferred to the state.[3] The expropriation was carried out based on the Land Ordinance (Acquisition for Public Use) – 1943, which, like all other Israeli statutes, was applied to East Jerusalem in 1967. In East Jerusalem, “acquisition for public use” means that the public whose land is expropriated is largely Palestinian and the public that benefits from the expropriation is Jewish. Quite a number of neighborhoods have been built on expropriated land over the years. These neighborhoods are now home to almost 200,000 Jews. As is also well known, settlement by citizens of an occupying power on occupied land is a violation of international law.[4] These neighborhoods are settlements like any other settlement in the West Bank and are prohibited under international law. Since under Knesset legislation, Israeli law applies to East Jerusalem, the very use of Israeli laws to expropriate land for public use was never challenged in court. The few attempts to challenge the expropriation on the grounds that it serves the Jewish public exclusively have been unsuccessful.[5]


Behind the Forest
But what do you do when some land that has been expropriated from its Palestinian owners is left unused after a neighborhood has been built? Can this land be used for something other than the original purpose of the expropriation years down the road?

This was the question at the heart of the petition in HCJ 704/85. In 1970, 2,240 dunums of Sur Bahir land were expropriated for the purpose of building East Talpiot. Some 500 dunums were not used and remained in the possession of their Sur Bahir owners, including the petitioners. This area is located in the Wadi Zeitoun valley, which is the border between East Talpiot and Sur Bahir. Over the years, the land was used for agriculture and farmed by residents of the village. They planted olive trees and seasonal crops such as wheat and barley. It all changed in 1985, when the Jewish National Fund (JNF) began working on turning Wadi Zeitoun and the surrounding area into a pine and cypress forest.

The petitioners, residents of the village, took to the High Court of Justice (HCJ). One of the arguments they made in their petition was that the original purpose of the expropriation was “building, developing and populating Jerusalem by building new residential districts”. They claimed that planting a forest on their land was a departure from the original purpose of the expropriation and therefore, the expropriation was null and void and the land should be returned to them. The petitioners also argued that the respondents were guided by extraneous considerations. In a very brief judgment, the HCJ rejected the petition and held:

[W]hen the area was expropriated for public purposes, these purposes included both the building of residential homes and the development of the entire area, which naturally includes roads, public buildings and public use areas for improving the quality of life and the environment in the area. Populating new districts in Jerusalem is not to be interpreted narrowly in the sense that it comes down to building residential homes for the residents, but also the development of the entire area in terms of wider public needs inside the neighborhoods and their close vicinity. Therefore it can be said that the original purpose of the expropriation did include the building of neighborhoods, but naturally also included planting and green spaces for public use. The planting of the forest… is part of the environmental development.[6]

The court, relying exclusively on the state’s pleadings, ruled that forestation was an inherent part of the development of East Talpiot. A more thorough examination of the circumstances of the case casts doubt on this finding. It turns out that the forest that was to be planted in the Sur Bahir area was part of a larger forestation project designed to create a “green belt” around the annexed part of East Jerusalem, and even farther inside West Bank territory. Among other things, this plan was meant to provide a solution for the issue of control over state land. In the Sur Bahir area, the forest was to be an interim solution until the area was cleared for construction.[7] It should be noted in this context that the state cannot simply hold on to expropriated land indefinitely. At some point, it must start the action for which the land was expropriated.[8] In other words, the state was looking for a way to keep the expropriated land out of reach of its former owners who might continue to use it and even, God forbid, demand to regain ownership.[9]

Encouraged by its legal victory, the JNF immediately set out to plant pine and cypress trees on the disputed land. The JNF also uprooted some sixty olive saplings that village residents had planted in the area. However, at this point, the plot took an unexpected turn. In 1987, a group of residents from Sur Bahir and from nearby Jewish neighborhoods organized and began loudly protesting the wrong that had been done to the Sur Bahir residents. The group suggested a compromise whereby the land would remain in the hands of the state, but instead of pine and cypress trees, the JNF would plant olive trees that would be used as a source of income for the residents of the village. The residents put together a special action committee for this issue, enlisted the help of public figures and held a demonstration in the area with hundreds in attendance.

The Israel Land Administration and the JNF opposed the compromise initially, using the HCJ ruling to support this position. Following the protest, they were compelled to accept it, but only partially. The JNF stopped planting pine and cypress trees and uprooting olive trees, but delayed the olive tree planting it had undertaken to do as part of the compromise, and the trees that were eventually planted did not survive their first year.[10] At the end of the day, most of the disputed land was not forested and a few groups of pine and cypress trees along with some ancient olive trees that had been planted in the past by village residents remained on the site. Some of the pine and cypress trees that were planted right next to the village homes were left to stand, serving as a wall that has prevented the village from developing.

It appears that once the petition was rejected and the expropriation was left intact, forestation was no longer needed. The mass land expropriation that took place in the 1970s for the purpose of building East Talpiot (and later the expropriation in the 1990s to build Har Homa) had deprived Sur Bahir residents of much of their agricultural land as well as their land reserves for construction. The ruling of the HCJ ensured that even the few crumbs that were left after this mass expropriation would not be returned to their owners. Though the petitioners did make the argument that the state had ulterior motives for the forestation, the HCJ refrained from looking beyond the trees to see the forest, or rather, the real purpose of the forest. It simply accepted the state’s position in an almost automatic fashion. Another oddity about the ruling is the fact that the HCJ expressed concern for the environment and for nature conservation, but found nothing wrong with a decision that translates into ancient olive trees being uprooted and village residents being denied the possibility of farming the land. It seems that planting a forest that has very specific types of trees was so important that even irreversibly depriving the village residents of what little land they had left, which is also a source of income for them, could not stop it.

The judgment, or at least its outcome, effectively legitimizes cynical use of expropriation laws by the state. In order to overcome the restrictions (which are not too many or too difficult) that these laws impose on the state, the state used the forest as a means of holding on to the land. In terms of the law of occupation, the issue is much more problematic, considering that it is quite clear who is deprived of the land and who is going to use it.


And After All This
Recently, about 25 years after the judgment was issued, work has begun again in Wadi Zeitoun. Close to the bottom of the valley, where olive trees still stand, a new residential project is underway – “Top Arnona”. The project is part of a broader plan that will see residences, a school, a community center, sports grounds and an open public space built on the land.[11] In the video advertising the project, which is available on the construction company’s website, the homes of the new neighborhood are shown rising from the ground right beside the pines and taking their due place in the valley. The website offers potential buyers – in Hebrew, English, Russian and French – a variety of luxury apartments with a view to the magical vista of the Judean Mountains. The houses of the village on the other side of the valley receive no mention, not even a whisper.

And so, forty years on, the purpose of the expropriation is finally being fulfilled. The judgment, born of the state’s contemptible attempt to conceal its true motives, is now quoted in judgments that uphold the practice of planting forests as part of “the environmental development” of land that was expropriated from Palestinians – this time inside the Green Line.[12]


Adv. Yotam Ben-Hillel
The author is a lawyer and legal researcher on human rights in the Occupied Palestinian Territories. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
See, e.g., UN Security Council, Resolution 252 (1968) and Resolution 478 (1980); International Court of Justice, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), para. 78.
[2] 
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. Commander of the IDF Forces in the Judea and Samaria Area (1983), judgment of December 28, 1983, paras. 13-15; see also commentary on this judgment.
[3] 
[4] 
[5] 
See with respect to Har Homa, HCJ 5601/94 Abu Tir v. Prime Minister (1994) judgment of December 22, 1994 (in Hebrew); HCJ 1459/97 Abu Tir v. Minister of Labor and Social Services (1998), judgment of June 16, 1998 (in Hebrew). See also HCJ 114/78 Bourqan v. Minister of Finance (1978), judgment of July 4, 1978; in Bourqan, the petitioners did not challenge the expropriation itself, but the fact that Palestinians could not buy homes in the Jewish Quarter, most of which was expropriated after 1967
[6] 
HCJ 704/85 ‘Attoun v. Ministry of Finance (1986), judgment of November 18, 1986, para. 6.
[7] 
See Shaul E. Cohen, The Politics of Planting: Israeli-Palestinian Competition for Control of Land in the Jerusalem Periphery (1993), pp. 109, 139.
[8] 
HCJ 2390/96 Karsik v. State of Israel (2001), judgment of February 13, 2001, para. 32 of the opinion of Justice Cheshin.
[9] 
In a meeting with residents of Sur Bahir and the nearby Jewish neighborhoods, a representative of the Israel Land Administration confirmed that this was indeed the plan behind planting a forest in the area; see Hillel Bardin, A Zionist among Palestinians (forthcoming), Chap. 4.
[10] 
See above note 7, p. 147.
[11] 
Jerusalem City Master Plan 7984 (in Hebrew), published in the official government gazette “Reshumot” on April 5, 2005.
[12] 
See HCJ 7579/07 Dahamsheh v. Israel Land Administration (2009), judgment of November 11, 2009 (in Hebrew); CA 4067/07 Jabarin v. State of Israel (2010), judgment of January 3, 2010.
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