A Year After Court Ruling, a Worsening Situation
The permit system needlessly prevents Palestinians from working their own farmlands. Israel’s highest court upheld a system that applies a broad brush to isolate Palestinians from their lands without a narrowly tailored security rationale as should be legally required.
(Jerusalem) – A court ruling upholding a military permit system has had the result that a year later West Bank Palestinians in one affected area are virtually unable to work on their farmlands, Human Rights Watch said today, on the anniversary of the High Court of Justice ruling.
The system, which requires Palestinians to obtain special military permits to access their lands on the “Israeli” side of the separation barrier in the West Bank, in effect treats all Palestinians living in or seeking to access farmlands in these areas as though they were security threats, and imposes unnecessarily severe restrictions on their access, harming their livelihoods, Human Rights Watch said. Such a system violates the requirement under international law that security measures must be narrowly tailored to the threat that they aim to meet.
“The permit system needlessly prevents Palestinians from working their own farmlands,” said Joe Stork, deputy Middle East director at Human Rights Watch. “Israel’s highest court upheld a system that applies a broad brush to isolate Palestinians from their lands without a narrowly tailored security rationale as should be legally required.”
Israel claims that the permit regime is necessary to prevent Palestinians from attacking Israeli civilians. However, Israel uses a different, less restrictive system to grant permits to Palestinians who work in Israeli settlements, often as construction workers. It has rejected applications by Palestinians for permits to access land on the basis of restrictive bureaucratic criteria rather than for specified security reasons.
Israeli citizens, including settlers, and non-Israeli nationals visiting Israel, are exempt from the requirement to obtain military permits.
The permit regime affects all Palestinians living in or seeking to access land on the side of the separation barrier that the Israeli military has marked as “seam zones,” which cover more than 18,400 hectares. Even in areas not declared seam zones, Israel requires Palestinians to obtain advance permission from the military, called coordination, to access their lands. In practice, Israel has rarely allowed Palestinians to access their farmlands on the other side of the barrier, and then only for brief periods on days chosen by the Israeli military regardless of weather conditions or agricultural needs.
On April 5, 2011, the court rejected a consolidated petition against the permit regime filed in 2003 by HaMoked: Center for the Defence of the Individual, and in 2004 by the Association for Civil Rights in Israel. The petitions argued that it severely and unlawfully harmed Palestinians’ rights and amounted to discrimination. The court ruled that the military’s system of controlling Palestinians’ movement across the barrier on the basis of special permits “preserve[s] as much as possible the fabric of life Palestinians enjoyed [before] the area’s closure,” and that the harm it caused was proportionate to its security benefits of preventing potential Palestinian attacks against Israelis.
Human Rights Watch investigated one of the areas affected by both the permit and coordination systems, a group of eight villages with around 30,000 residents known as the Biddu enclave, which the barrier surrounds on three sides. The barrier has cut off Palestinian farmers there from 50 percent of their farmlands and 70 percent of their grazing lands, on which their livelihood depends, according to residents and United Nations reports. According to UN monitors, Palestinian farmers from the enclave were unable to access their lands on the other side of the separation barrier for 268 days in 2009, 282 days in 2010, 328 days in 2011, and 84 days in 2012 as of April 3.
In response to other petitions about the route of the barrier in the Biddu area, in 2004 the High Court ordered the military to ensure passage “that will reduce as much as possible the injury to the farmers.” Israel built five gates for Palestinians in the barrier around the enclave, which it completed in 2007.
In 2009, the military designated the area behind one of the gates as a seam zone, and required Palestinians seeking to cross through it to apply for special permits. The other four gates require advance coordination.
The difficulty the farmers have reaching their land contrasts with a simpler system for the Palestinians working in Israeli settlements. For example, about 150 Palestinians from one of the towns in the Biddu enclave, Beit Iksa, work in the settlement of Har Adar as cleaners, shop workers, and in other service industry jobs, according to the Beit Iksa village council. They obtain work permits that are typically valid for three months and allow access five days a week.
The employers, settlers from the settlement, collect ID documents from the workers and give them to the Har Adar municipality, which sends them to the Israeli military for security checks.
By contrast, Israel imposes much greater restrictions on farmers. The farmers are eligible to apply for permits to pass through the same gate as Palestinians who work in the Har Adar settlement only if they meet a series of stricter bureaucratic requirements than the latter. In November 2010, Israel granted 70 permits, which were valid for three weeks, to the farmers. After the permits expired, the 70 permit holders reapplied, but in March 2011 the military approved only 15 applications, according to the village council. The gate also controls access to about one-third of the farmland of another village, Beit Surik, directly affecting around 200 people, according to the village council.
Even farmers who have permits must also obtain advance “coordination” permission. According to a list of the permits compiled by UN monitors, farmers between 20 to 50 years of age received permits valid for as little as three weeks, but the military often delays “coordination” for longer periods, making such permits useless. While the “Har Adar” gate is open daily, except Saturdays, for Palestinians working in the settlement, the same gate has been open only 10 days so far in 2012 for agricultural workers. On those days, the gate opened only twice, for around 20 minutes each time.
“Palestinians working for Israel settlers are promptly vetted for security concerns and allowed to cross, while Palestinians trying to access their own lands are held up while their crops rot in the fields,” Stork said.
In the court case that resulted in the April 2011 ruling, the petitioners argued that security needs could be met with a much less restrictive system, since soldiers could check farmers for weapons before allowing them to cross the barrier. The petitioners noted that in areas of the West Bank that have been declared seam zones, the number of permits granted by Israeli military from 2006 to 2009 declined by 90 percent, and that applications were rejected on the basis that Palestinian applicants could not, as required, meet a burdensome test of proving a “connection to the land” rather than for specific security concerns.
The court deferred to the “security expertise” of the Israeli military and accepted the state’s claim that the alternative of physical checks would not offer “equivalent” protection to the permit regime because Palestinians who crossed the barrier could pose threats beyond that of carrying weapons. The court noted a “significant decline” in the number of permits issued, but said it did “not know the reason” and that the Israeli military seemed to be “flexible in its willingness to issue these permits.” The court also said that Israel was making improvements to the permit system, including lifting a rule that allowed each Palestinian permit holder to use only one of the gates in the barrier.
But despite evidence that the permit regime was unnecessarily restrictive and harmful, including the existence of alternatives that would meet Israel’s security needs, the court failed to address adequately the petitioners’ arguments that the system amounted to unjustified discrimination, saying only that it was “far from concluding that the distinction in the implementation of the policy in the seam zone is based on wrongful elements of religion and nationality” rather than security reasons. International human rights law, which is applicable in the West Bank, requires that any difference in treatment on the grounds of ethnicity, race, or nationality must be strictly justified. The court did not require such a strict justification from the Israeli authorities for the permit regime despite the evidence presented that it applied only to Palestinian farmers, was unnecessarily restrictive and had highly damaging consequences for the farmers.
Israel began building the separation barrier – in some places a fence, in others an eight-meter-high concrete wall with guard towers – in 2002 for the stated purpose of preventing Palestinian suicide bombers from attacking Israeli civilians. However, unlike a similar barrier between Israel and Gaza, it does not follow the 1949 armistice line, also called the “Green Line” and the “1967 border,” between Israel and the West Bank. Instead, 85 percent of the barrier's route lies inside the West Bank and will cut off Palestinian access to 9.4 percent of the territory when complete, according to the UN. The barrier currently separates thousands of Palestinian residents from their lands, restricts their movement, and in many places effectively appropriates occupied territory.
Israeli citizens, including Palestinian citizens of Israel and residents of the 71 settlements between the barrier and the Green Line, as well as foreign citizens visiting Israel, may enter any areas to the west of the barrier from Israel with no obstacles. To enter the area when traveling west from the West Bank, they do not pass through the same gates in the barrier as West Bank Palestinians do. They drive through checkpoints where they do not need special permits or advance coordination, and that are open to them at all times. Israel restricts West Bank Palestinians from crossing at these checkpoints.
The International Court of Justice ruled in 2004 that the route of the barrier is illegal where it crosses into and encroaches on the occupied Palestinian territories, including in and around East Jerusalem. It said the barrier route was not justified by security concerns and contributed to violations of international human rights and humanitarian law by impeding Palestinians' freedom of movement, destroying property, and contributing to unlawful Israeli settlement practices.
Evidence From Biddu Residents
Abu Manzar, the head of a farmers’ association in the area, told Human Rights Watch that 60 families from Biddu village, one of the eight villages in the Biddu enclave, depend for their livelihoods on 50 hectares of land to which Israel does not give them adequate access. Last year, the village council had received nectarine seeds and 6,000 olive and almond tree seedlings from the Palestinian Agriculture Ministry, but the season was largely lost because Israel did not allow the villagers to plant them on time, Abu Manzar said.
Faruq Radad, a farmer from the village of Biddu, told Human Rights Watch that he owns two hectares of grape vines beyond the barrier, but that he has not been able to reach them during harvest season for the past two years.
“My father and grandfather used to spend their days on the land, pruning and plowing it, keeping it fresh,” Radad said. “They plowed the land five times a year. I get to do it once. I feel like I’m choked.”
His inability to work the land adequately had reduced his harvests, and closures also reduced the value of the crops he was still able to grow: “I normally sell grapes for 6 shekels per kilogram (US $1.75), but if I had access now they would get 1 shekel (US $0.29) a kilo at best, because they’ve mostly rotted.”
Abu Rami, the head of the farmers’ association in another village in the enclave, Beit Surik, told Human Rights Watch that in the three years since the Israeli military began to control farmers’ access to their lands, Beit Surik residents have lost their entire agricultural production from the land on the other side of the gate and have not been able to produce enough olive oil even for their own families. Abu Rami said that each Beit Surik family whose land lies on the other side of the gate used to make between 40 and 50 tanks of olive oil a year, worth 600 shekels each.
“Our lands need constant maintenance, and you have to respect the seasons of pruning, harvesting and so on,” Abu Rami said. “If you prune an olive tree at the wrong time, you lose it. After two years of lost access [because of the permit system], my land is not fertile anymore.”