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25.11.2020

HaMoked to the HCJ: the state failed to provide data to justify its increasingly harsh restrictions on access to farmlands trapped beyond the Separation Barrier

For over 16 years now, the Israeli military has been enforcing a draconian permit regime in parts of the West Bank it dubs the “Seam Zone”. These are the lands that are trapped between the Green Line and the Separation Barrier, built inside the West Bank, contrary to international law. Palestinians who live in these areas or wish to go there, must obtain in advance a permit for this purpose – whereas Israelis and tourists can access these areas freely. The barrier was justified on security grounds, and it was on this basis that in 2011 the High Court of Justice (HCJ) approved the permit regime, noting that the legality of the permit regime depended on the state fulfilling its commitment to ensure farmers’ continued access to their trapped lands. However, requests for permits to enter and stay in the Seam Zone are submitted and processed according to the “Seam Zone Regulations”, a convoluted document that sets out numerous restrictive conditions and criteria, mostly unconnected to security. In recent years, the military established two new regulations, which effectively mean that virtually all Seam Zone farmers receive highly restricted entry permits – either short term or limited to a set number of entries per year.

In October 2018, HaMoked petitioned the HCJ against the first of these two regulations drastically limiting agricultural permits: the denial of permits on the perplexing claim of a “tiny plot”, i.e. under 330 m², which allegedly does not require cultivation. In its petition HaMoked argued this regulation constituted a blatant breach of the state’s promise to enable farmers to access their lands, and that as a result of the artificial way plot size is calculated – subdividing large plots that are jointly owned by extended family – most farmers no longer receive permits, or only short term permits for “personal needs”.

Almost a year later, in September 2019, the military established the second drastic regulation, the “punch card permit”, whereby landowners can reach their plots only a limited number of times per year (in most cases 40 days per year), ostensibly according to the type of crops they grow. In February 2020, HaMoked filed an amended petition to challenge this restriction as well, arguing, among other things, that the combination of both restrictions means that “Seam Zone” farmers cannot access their trapped lands most of the year.

In July 2020, the Court held a hearing on the amended petition, in which the justices criticized the state’s change of policy and challenged the factual foundation it presented to substantiate its claims. The Court required the state to produce additional data to substantiate its claim that these new policies were necessary.

The state submitted its updating notice on October 25, 2020. In this notice the state announced its intention to cancel the “punch card permit”, stating that this restriction will be removed from the next update of the Seam Zone Regulations.

However, as HaMoked explained in depth in its response of November 23, 2020, the state failed to comply with the court’s demand for concrete data on misuse of Seam Zone permits to gain illegal entry into Israel to seek work. On the contrary, the data it provided supports – once again – HaMoked’s claim of a drastic decline in the number of permits issued to farmers over the years, in comparison to the early years of the permits regime.

HaMoked reiterated its position that given that in 2011 the HCJ approved the permit regime solely based on security grounds, specifically the mass-casualty bomb attacks of the second intifada, and as the security situation has significantly improved since then, there was no justification to establish even harsher restrictions on farmers’ access to their lands. In establishing such sweeping restrictions, the state breached its own promise to guarantee access except where there was an individual security ban against a specific farmer. The state’s attempt to justify the restrictions on an alleged rise in the scope of infiltration into Israel by people seeking work was perplexing, to say the least, as this matter is unrelated to security and therefore cannot serve to justify further, tougher restrictions on access to the Seam Zone.

HaMoked clarified that the deterioration in Seam Zone access stemmed entirely from a change in the state’s position: a decade ago, the state committed that security concerns were the only reason to restrict landowners’ access to their lands; now the state claims that only those who can prove an “agricultural need” have a right to access their lands. Israel no longer tries to mask its disregard for farmers’ rights to their property in their own country, and at the slightest excuse, violates this right. And so now, the state argues that the restrictions which were found to be effective and successful for coping at a time of mass-casualty suicide bombings are now insufficient for coping with the alleged phenomenon of permit holders entering Israel to seek employment.

Given all of the above, HaMoked argued there was no reason to deviate from the 2011 High Court judgment whereby people with ties to land in the Seam Zone are entitled to access this area so long as there is no individual security preclusion; the “tiny plot” restriction must therefore be cancelled.
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