High Court to Rule Whether Palestinians Are Denied Building Rights

Villagers and human rights groups say the Civil Administration discriminates against local residents but approves plans to expand settlements.

Amira Hass
Amira Hass
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A new building being constructed in the West Bank settlement Alei Zahav.
A new building being constructed in the West Bank settlement Alei Zahav.Credit: Moti Milrod
Amira Hass
Amira Hass

Palestinians in Area C of the West Bank are not discriminated against regarding planning and building rights and the Civil Administration promotes various plans for them, the State Prosecutor’s Office will inform the High Court of Justice Monday.

The prosecution will be responding to a High Court petition to restore powers of planning and building in Palestinian communities in some 60 percent of the West Bank designated Area C − under Israeli civil and military control. The state will also tell the court that any change to military law (which has taken away the Palestinians’ planning powers) changes the status quo in place since the signing of the interim agreements in 1995. Such changes, according to the state prosecutor who wrote the opinion, Tadmor Etzion, are a diplomatic issue and therefore should only be decided in diplomatic talks between Israel and the Palestinian Authority.

The state will therefore ask the court to reject a petition, submitted in July 2011, against the 1971 military law annulling local and district planning and building committees that had existed under Jordanian law. In the place of these committees, the military law placed planning and building powers in the hands of what eventually became the Civil Administration. At the same time, special planning and building committees were established by military order for settlements only. There are currently 16 such committees.

According to the petitioners, these committees received the powers and rights that had been taken from Palestinian communities. The petitioners state that the military legislation harms the Palestinians’ housing conditions and development rights, and creates intolerable conditions in existing communities and a dearth of land in Area A, the area under full Palestinian control, and B, the area under Palestinian civil control and Israeli military control. This legislation also contravenes regulations in the Hague Convention, which require the occupier to see to the needs of the local population, the petition states.

The petitioners are from the village of Dirat-Rafa’aya in the southern Hebron Hills and another eight villages that sought to join the petition later. They are joined by two Palestinian human rights groups (the Jerusalem Legal Aid and Human Rights Center and the Society of St. Yves Catholic Center for Human Rights) and two Israeli groups (Rabbis for Human Rights and the Israeli Committee Against House Demolitions).

Netta Amar-Schiff, the attorney representing the petitioners, presented the following arguments:

1. According to Bimkom − Planners for Planning Rights, currently only 10 percent of the 180 Palestinian communities located entirely in Area C have approved master plans.

2. In recent years, due to the pressure of the petition and European protests, the Civil Administration has prepared 11 more master plans for Palestinian communities in Area C and is, very slowly, approving some of the plans it has prepared with Palestinian Authority assistance. The state presents this fact ostensibly to show that claims of discrimination in planning are baseless. However, according to Bimkom, the area allocated for Palestinian development plans will be no more than 1 percent of Area C. In contrast, the percentage of area within master plans for Jewish settlements is about 26 percent of Area C.

3. The area the state has left for Palestinian communities is much smaller than that allocated for settlements, without reference to numbers of residents. For example, a plan was recently approved for 708 dunams (about 175 acres) for the outpost of Bruchin, and 1,476 dunams (365 acres) for the settlement of Itamar. However, the largest plan approved for the Palestinians was for 364 dunams (90 acres), of which only 177 dunams (44 acres) were an addition to an existing plan. A plan for 191 dunams (about 47 acres) was approved for the Palestinian village of Amanzil.

4. A letter from the head of the Civil Administration to Rabbis for Human Rights in September 2012 stated that between 2000 and 2012, the Palestinians submitted 3,565 requests for building permits, out of which only 210 were granted.

5. According to calculations by the independent researcher Dror Etkes, based on Civil Administration figures, 2009 saw a spike in the number of Palestinian structures deemed “illegal.” As of April 2013, that figure was 12,570, compared to 6,309 illegal structures in settlements.

6. According to Bimkom architect Alon Cohen-Lipshitz, an analysis of Civil Administration figures reveals that between 1988 and 2013, 20 percent of demolition orders against of illegal Palestinian structures were implemented, as opposed to 8 percent in settlements and illegal outposts.

7. According to the United Nations Office for the Coordination of Humanitarian Affairs, Israel has demolished a total of 2,224 Palestinian structures, adversely affecting 23,477 people.

Thus, Amar-Schiff will tell the High Court Monday, in Area C Israel has created two separate and unequal planning systems in which the Palestinians are discriminated against both in terms of bureaucracy and policy, violating their rights as protected civilians in occupied territory.

The High Court has yet to rule on claims in principle of inherent discrimination against Palestinians in Area C.

In response, State Prosecutor Etzion said that transferring planning powers to the military commander strikes a balance between military and humanitarian claims, and that the military commander “serves as a substitute for the sovereign in the area and his function is, among other things, to maintain public order …” And while the military commander must indeed see to the good of the population, the military commander must retain decision-making power in this realm “as a substitute for the sovereign in the area,” Etzion wrote.

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