'You Don’t Know What’s Going On?' | Top Court Takes Israel to Task Over Settlers' Use of Palestinian Land

The High Court hears a petition to rescind decades-old military expropriation order on West Bank land in the Jordan Valley where settlers are now growing dates

הגר שיזף
Hagar Shezaf
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A date grove near the West Bank settlement of Hamra.
A date grove near the West Bank settlement of Hamra.Credit: Moti Milrod
הגר שיזף
Hagar Shezaf

The High Court of Justice was highly critical of the Israeli government on Monday for not explaining the conditions under which it had allowed privately owned Palestinian land in the West Bank to be used by Israeli settlers.

The court’s comments came in a hearing on a petition seeking the rescission of a 1969 military order declaring the parcel of land in the Jordan Valley a closed military zone. The petitioners are also seeking the removal of the settlers now cultivating it.

The petitioners, 20 Palestinians who are heirs to the land in question and who are represented by lawyer Wissam George Asmar, have in addition asked the court to issue an interim order that would halt the settlers’ use of the land until a final ruling is issued.

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Prior to the hearing, the court asked to see the written agreement allocating the land to the settlers, but the respondents in the case – the Israeli government,the World Zionist Organization, turned the land over to the settlers, and Ayala Smith, who is raising date palms there – did not provide the court with one.

“You don’t know what’s going on? When the people were given permission? Based on which agreements and for how long?” High Court President Esther Hayut asked Roi Shweika, the lawyer for the state. “How can it be that the state gives land to a person and there are no agreements and they don’t know for how long, especially when it’s not state land? Whoever heard of such a thing?” Hayut remarked.

Hayut and Justice Daphne Barak-Erez said they wondered why the state had not asked the residents of the settlement of Hamra who are cultivating the land to produce any such documents. “Either you obtain these agreements or there are no such agreements,” Barak-Erez told Shweika. The government, she said, cannot tell the court it doesn’t have agreements to show.

“What efforts have you made to ask the people to produce the agreements that they have? If they don’t have agreements to produce, that raises a suspicion that there are no agreements,” she added.

According to the state, the area was “in all probability” allocated to the Israeli settlers as a result of a security need, but Shweika told the court, “We aren’t saying that there’s a security justification today for the land to be worked by the Israelis holding the land.”

World Zionist Organization lawyer Gilad Chen said there was an agreement relating to the land at Hamra and date groves, but the justices noted that it does not include the land in question. Chen conceded that the land was allocated without a written agreement, but claimed that it was done based on a cabinet decision.

Ayala Smith, who owns Zorganica, the company that cultivates the date groves on the land in question, told the court: “To the best of my knowledge, the land has been worked since 1982, and more than 30 years went by before [the Palestinian owner] opened his mouth for the first time. I’m there every day, raising the best dates in the world, not him.”

Hayut replied: “They weren’t given access to the land. They told him he couldn’t enter. Instead, they let you come in and you raised the best dates in the world. It borders on provocation to argue that.”

Ayala Smith in a date grove near Hamra, 2012.Credit: Moti Milrod

The circumstances under which the use of the land was given were first reported by Haaretz in 2013. Palestinian access to the land, which is between the security fence and the Jordanian border, was restricted by a military order and 5,000 dunams (1,235 acres) of it were allocated to settlers. About 20 years after the land was expropriated, the land was provided to the World Zionist Organization, in a move backed at the time by the state prosecutor’s office and approved by the head of the Israeli army’s Central Command, Maj. Gen. Amram Mitzna. The World Zionist Organization allocated it in turn to Israeli farmers.

Following the Haaretz article, the Palestinians petitioned the High Court for the first time, asking that the settlers be removed from the area and that they be allowed to cultivate it. The petition was denied in 2017, and the court asked the Palestinians to make do with compensation.

In their ruling, the justices hinted that as long as the petitioners do not appeal the order under which the land was expropriated, the court could not reverse the expropriation. The Palestinians are therefore now asking to have the expropriation order rescinded.

“It’s inconceivable that the military order, which is outdated, is only enforced against the legal owners, to permit residents with no legal right to the land to continue making millions at their expense,” Asmar said.

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