After Two Decades, Israel's Top Court to Decide on Fate of Palestinian Hamlets of Masafer Yatta

Throughout the tenure of five prime ministers, Israel's top court hasn't managed to reach a ruling on a cluster of Palestinian villages in the arid South Hebron Hills to make way for IDF training grounds

Amira Hass
Amira Hass
A shepherd walks with his herd as Israeli army vehicles take part in a military exercise in the South Hebron Hills on Wednesday.
A shepherd walks with his herd as Israeli army vehicles take part in a military exercise in the South Hebron Hills on Wednesday.Credit: Eliyahu Hershkovitz
Amira Hass
Amira Hass

The High Court of Justice will hold another hearing on Tuesday for the two petitions against the permanent eviction of the residents of Masafer Yatta from their homes, part of a bid by the state to declare part of the southeastern West Bank a "firing zone" for regular Israeli military exercises.

After putting off a decision on the petitions for two decades, the High Court is expected to hand down its final ruling soon. Following through with the state's demands for a total evacuation would spell the end for eight Palestinian villages in Masafer Yatta – also known as the South Hebron Hills – and the erasure of their distinct way of life, developed over many generations.

The state claims that the Palestinian residents are trespassers who only resided in the area seasonally with their flocks before the area was officially designated as Firing Zone 918 in the early 1980s.

Beyond the legal opinion that the forced displacement of a protected population living under occupation violates international law, the petitioners argue that their families have lived in these cave villages in the area since before Israel was even established. They also posit that Masafer Yatta constitutes a unique fabric of communities, with ties of family and livelihood among themselves and with the main city of the region, Yatta.

A perfect pretext

The residents of the hamlets make their living from sheep herding and unirrigated agriculture, while Yatta supplies them with educational, medical and commercial services, as well as a place to live during the intense heat of the summer months.

Although Israel claims that their "real" home is Yatta in a bid to nullify their claim to their land, nobody from Masafer Yatta denies its close, even symbiotic connection with the city, because that is exactly the way in which many Palestinian communities developed for hundreds of years.

As populations of both people and livestock multiplied, the residents wandered further afield to find new sources of water and more lands to pasture and farm. Caves served as their primary dwellings in these new extensions. With time, more people moved to the edge lands, and with them new homes and sheep pens emerged, as well as public buildings and connecting roads.

After the 1967 war, Israel acted to stop this natural and well-known process of development throughout the occupied West Bank, and the designation of a firing zone was one of its means to achieve this goal.

In July 2020, the court was presented with a document unearthed by the Akevot Institute for Israeli-Palestinian Conflict Research, which revealed the express purpose behind the firing zone. In a joint committee meeting for settler affairs on July 12, 1981, attended by Israeli government and World Zionist Organization representatives, the committee's chairman and then-Agriculture Minister Ariel Sharon told the IDF representative that "Additional training areas must be closed in at the border, [between] the bottom of the Hebron Hills and the Judean Desert" – in other words, Masafer Yatta – in order to stop "the spreading of the Arab villagers on the mountainside toward the desert.”

Soon after his proclamation, Firing Zone 918 was born.

The residents, however, remained in place with minimal disturbances until November 16, 1999, when the army and the civil administration forcibly expelled more than 700 people from their homes. This was the era of Israeli-Palestinian peace negotiations, based on the Oslo Accords; Labor's Ehud Barak served as the prime minister and defense minister. At the head of the bodies that carried out the mass eviction were Shaul Mofaz, the IDF chief of staff, Yaakov Or, the Coordinator of Government Activities in the Territories, and Dov Zedaka, the head of the Civil Administration.

Five prime ministers, nine defense ministers, seven IDF chiefs of staff and eight coordinators of government activities in the territories have been in office since the first petitions were filed in the beginning of 2000 against the evictions.

In an interim order, the justices ordered the government to allow the expelled residents to return until a ruling was issued. But the interim order did not mention buildings used as residences, the caves, water cisterns and sheep pens already demolished by the army, nor did it order their reconstruction. This allowed the Civil Administration to deem everything built in Masafer Yatta as illegal construction. Since then, the hamlets face regular demolitions, as well as the confiscation of vehicles and portable structures. The Civil Administration also bars the villages from connecting to water and the electricity grid.

For years, the State Prosecutor’s Office and the IDF asked to postpone their responses to the petitions. The state's response finally came in April 2012, which stated that the army carried out a few changes in the original plan of the firing zone, and instead demanded the demolition and evacuation of eight of the 12 villages. The response stated that Barak, who was then-defense minister, supported the military's position. As a result, the High Court of Justice ordered the withdrawal of the petitions. The two new petitions filed in 2013 are the ones that will be discussed on Tuesday.

Twelve judges, two failed mediations

In a bid to resolve the dispute, the justices proposed two mediation processes. The first mediator, in 2004, was none other than Dov Zedaka, the former Civil Administration head. The second mediator, in 2013, was former attorney general and retired Supreme Court justice Yitzhak Zamir. The first proposal would have seen the residents moved to a different area, while the second stipulated that they leave their houses and graze their flocks in coordination with the IDF's exercise timetable. Masafer Yatta opposed both proposals.

Twelve Supreme Court justices, in various panels, have heard the petitions since 2000. The first were former Supreme Court president Aharon Barak, and justices Dalia Dorner and Ayala Procaccia, who ordered those people who were evicted to be allowed to return. Isaac Amit, Esther Hayut and Uzi Vogelman ruled in 2012 to withdraw the original petitions.

In August 2020, justices Amit, Menachem Mazuz and Hanan Melcer – the latter two nearing their retirement from the bench – discussed the new petitions. The three-justice panel made it clear that it preferred for the parties to reach a compromise. With the residents of the villages refusing to leave their homes, and the government insisting there is no alternative to this firing zone – the lawyers' assumption was that the justices were close to issuing a ruling.

Seven attorneys from the State Prosecutor’s Office represented the official position that the Palestinians who live in the region are trespassers and they must be removed in order to fully activate the firing zone: Mike Blass, Orit Koren, Eran Ettinger, Hila Gorni, Ilil Amir Kasif, Aner Helman and Itzchak Bart. In comparison, the attorneys for the residents of Masafer Yatta remained the same: Dan Yakir and Roni Pelli from the Association for Civil Rights in Israel and Shlomo Lecker.

Another lawyer, Netta Amar-Shiff, who worked for the ACRI when the first petition was submitted, has in recent years represented the Masafer Yatta council, which includes 14 villages, including the eight earmarked for demolition. In February 2021, Amar-Shiff submitted a request to include the local council as an amicus curiae, a “friend of the court.” She appended the opinion of several experts, including an archaeologist and historian, as well as testimonies and affidavits describing the depth of the villagers' attachment to the region and their lands, and attesting to their continuous presence there over time.

At Tuesday’s hearing, justices David Mintz, Ofer Grosskopf and Isaac Amit are expected to decide whether to accept the request of the council, headed by Nidal Younis of the village of Jinba, to join as an amicus curiae. The government opposes the request, though it believes the documents actually support the position that the Palestinian presence in the area of the firing zone before the 1980s was only seasonal. As two of the justices on the present panel – Grosskopf and Mintz – have never heard the case before, the High Court has agreed to a request by ACRI that the hearing would also address anew the substance of the petitions, and not only the amicus curiae request.

Prof. Rassem Khamaisi, a city planner and urban geographer at the Technion – Israel Institute of Technology in Haifa, prepared a master plan for the villages. In his opinion, which is included in the request to join as an amicus curiae, he wrote: “In spite of the declaration of closed military zone 918, de jure, de facto on the ground villages and communities continue to exist without any alternative location that would serve and be appropriate for their unique needs and ways of life. [The residents of the villages] were born and grew up in them, built houses, worked their lands, found their livelihoods, married off their children, and bequeathed their cultural heritage to their children.”

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