Israel's High Court: No Proof of Discrimination Against Palestinians in Area C

Court rejects petition that claimed it was illegal and discriminatory for settlers to have planning authority for Palestinian towns and villages in West Bank.

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Village in the South Hebron Hills: Polish Humanitarian Action is rehabilitating their water supply.
A Palestinian village in the South Hebron Hills. Credit: Sarit Michaeli / B'Tselem
Amira Hass
Amira Hass

Israel’s High Court of Justice rejected a petition earlier this week that sought to reinstate planning authority in Area C of the West Bank to local Palestinians, a power which was revoked in 1971. Justices Elyakim Rubinstein, Neal Hendel and Noam Sohlberg ruled on Tuesday that the petition did not prove that Palestinians in Area C [which is under full Israeli civil and security control] are discriminated against in comparison to the “Israeli population” there, just because the Civil Administration’s planning council is planning both for Israeli settlers and Palestinians.

The justices based their ruling on the Oslo Accords, and their unwillingness to disrupt the reality that the Israeli government has created between itself and the Palestinian Authority.

In August 2011, representatives of the village of Dirat-Rafiah in the South Hebron Hills, along with four other Israeli and Palestinian organizations, filed a petition seeking to reinstate local and district planning councils in villages and municipalities in Area C. These councils, based on Jordanian law, were cancelled in 1971 by military order 418, which subsequently became the basis for creating two separate, and unequal, planning systems for Jews and Palestinians, under the mandate of the Israel Defense Forces' Civil Administration. The order delegated all authority for planning in Palestinian areas to the Supreme Planning Council, which is comprised only of Israelis (including some settlers). At the same time, order 418 also created special planning councils, both local and district, for the settlements only. The petitioners claim that aside from the settlements being illegal under the Geneva Conventions, planning authority was illegally taken away from the Palestinian communities and given to the special settlers' committees.

The Civil Administration created a master plan for expansion in the village of Dirat-Rafiah without consulting any village residents, and rejected claims that the plan does not meet the residents' needs. The plan, however, would place 82 percent of the existing structures in the village, roughly 100 in total, outside of the village's borders.

The petition was initiated in the wake of the publication in 2008 of a comprehensive report entitled “The Prohibited Zone” released by the organization “Bimkom – Planners for Planning Rights.” The report reveals the planning methods implemented by the government in the West Bank, which are meant both to create settlements and to restrict Palestinian population growth as much as possible in the “empty” areas, which under the Oslo Accords, became Area C (an administrative, not a planning category, which was due to expire in 1999).

According to the report, one of the tools used by the Israeli government is Order 418. According to the petitioners, the military legislation has led to poor living conditions, hinders Palestinians’ ability to exercise rights of development, and creates an unbearable situation in the existing villages while also creating a land shortage in Areas A and B [defined as being under full and partial Palestinian control]. For these reasons the petitioners claim that the order is in violation of The Hague Convention, which obligates an occupying power to provide for the local population.

Both in the petition and in hearings, attorney Netta Amar-Shiff provided numerous examples of discrimination in planning evidenced in building and demolition permits. For example, as of April 2014, only 10 percent of the 180 Palestinian villages whose entire area is in Area C had approved plans. Due to the petition and European pressure regarding policy in Area C, the Civil Administration created plans for 11 more Palestinian villages, although according to Bimkom, the area covered by existing or future plans is no more than one percent of all Area C. On the other hand, the territory covered by existing or future plans for Israeli settlements is 240,000 acres, which is roughly 26 percent of Area C.

During the petition hearings, it was also pointed out that the government allocates far less land for Palestinian communities than it does for Israeli settlements, regardless of their respective populations. For example, the outpost of Bruchin was allocated 174 acres and the Itamar settlement, 364 acres. However, the largest plan approved for a Palestinian community is for the village of Taanakh, at 89 acres, though only 43 of those acres are additions to existing plans. The result is much more dense construction in Palestinian villages, with agricultural fields often left off the plans, and the setting of borders that do not allow for even minimal expansion. Following a 1987 Planning Council decision, expansion plans for Palestinian villages are limited to privately owned land, and are not granted any allocation of state land, yet Rubinstein wrote in the ruling that “despite the extensive materials added to the petition, no data was provided that indicated discrimination.”

Another reason that Rubinstein cited for rejecting the petition was the ramifications that accepting it would have on the “sensitive relations between Israel and the Palestinian Authority.” Basing the decision on the Oslo Accords, which created Areas A, B and C, Rubinstein quoted another ruling (pertaining to Israeli quarries in the West Bank) which decided that the Supreme Court should not rule on petitions for which “diplomatic-security-national issues are a primary consideration,” and that making the changes called for by the petition in question is a “diplomatic-security” concern. Rubinstein wrote “in the current situation, it’s clear that questions of planning, borders and zoning, which are usually handled by district councils, should be consolidated under the authority of the Civil Administration and military officials, due to the importance of planning and zoning in areas that are held by force.”

As stated earlier, the planning authority of the Civil Administration and military officials has been the basis for creating and expanding settlements since Order 418 did away with Palestinians’ local and district planning councils. In the hearings, the petitioners claimed that just as planning councils for the Israeli settlements do not hinge on a permanent arrangement with the Palestinians, neither should Palestinian planning councils — meaning they should not be a bargaining chip in negotiations between the two sides.

The justices said that they have faith in the new guidelines, published by the Civil Administration last September, for including the Palestinian population in planning. The justices rejected petitioners’ claims that those guidelines, in the form of a new procedure, were meant to deceive the court, as they include no innovations, have not been functioning since 2011, and don’t include any provisions to allow Palestinians to construct or plan according to their needs. The guidelines were presented during earier hearings on the petition. The justices also suggested creating “an honorable forum for village leaders to discuss relevant problems with the Civil Administration.” During the court hearing, Amar-Shiff said that the petitioners were not looking for honor in the Oriental sense of the word, but rather respect in the institutional sense.

Earlier this month, Rubinstein and Hendel approved a government plan to demolish the Bedouin village Umm El Hiran in the Negev, and relocate its residents in order to erect a Jewish settlement called Hiran. Justice Sohlberg last month rejected a request to delay demolition of homes in Susia, a village in the South Hebron Hills, while hearings are ongoing with the Civil Administration, after it rejected an expansion plan put forward by the village.

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