The Palestinian Right of Return to E-1

The real illegality here is that which is displayed by Israel's land policies – not the Palestinian founders of the E-1 'outpost.'

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

On Friday, as part of the petition against the eviction order of the "outpost" established by Palestinians in the E-1 corridor between Jerusalem and Ma'aleh Adumim, High Court Justice Neal Hendel granted a temporary order prohibiting the evacuation or destruction of tents erected by Palestinians on the lands of A-Tur, unless there was "an urgent security need."

On Saturday night, the state submitted a notice to the High Court informing it of a planned evacuation that was required due to "urgent security needs and the prevention of serious disruption of public order." It was claimed that allowing the Palestinians to remain in the area would have created friction, and that according to past experience, activists from both the left and the right were expected to arrive in the area and cause severe, violent disturbances on a wide scale.

In addition to these claims of "concern for significant disruption to public order,” the notice was accompanied by a secret opinion, which was sealed in an envelope, for the consideration of the court, if it sees fit to read it, in which it claims that what is written in that letter indicates an urgent security need to evacuate the area. In the absence of information about the contents of the envelope, there is no way to know what additional reasons were given for the existence of an "urgent security need."

However, one could wonder, in light of the nature of the outpost, whether in fact there was an "urgent security need" that could not have waited until an additional discussion at the High Court had taken place, and whether the claims of concern for disruption to public order (and not an essential need for a combat operation) met the definition of an "urgent security need" that occurred between Friday and Saturday – and couldn't wait until Sunday morning.

The affair exposes the problematic nature of the land regime in the occupied territories. The notice given by the state claimed that the majority of tents were erected upon state land; with a minority on private land. On the other hand, in its petition to the High Court, the state argued that it was private land. This factual dispute still needs to be clarified, but it should be remembered that land in the occupied territories that is declared as "state land" is often land that was worked and used privately by Palestinians – and was declared to be state land in a variety of problematic legal ways.

Furthermore, state lands in the occupied territories are meant to serve the population of these territories, and the occupying country holds them in trust: It is forbidden for it to settle its own citizens there. In practice, Israel utilizes most of the land in favor of the settlers. According to reports from the non-profit organization Bimkom and the UN Office for the Coordination of Humanitarian Affairs, Israel ignores the planning needs of the Palestinian population, while the Civil Administration's policies makes it extremely difficult for Palestinians to receive planning permission, and the plans it outlines do not meet the needs of the Palestinian population.

For this reason, the Israel Defense Forces' claim that the Palestinian outpost is illegal and that it constitutes the invasion of state land falls apart when contrasted with the far more wide-ranging illegality of the way in which the Palestinian population is prevented from the possibility of using land designated for them, as a result of it being declared state land, and because of the discriminatory planning policies that dispossessed the Palestinians for the benefit of settlements which are illegal according to international law. Israel is the one that encroached on Palestinian land, not the opposite.

The Palestinians who established the outpost gave it the name Bab al-Shams, after the book by the Lebanese writer Elias Khoury – a collection of stories of hundreds of Palestinians who were displaced from their lands in 1948.

One is likely to miss the far wider context against which the Bab al-Shams outpost must be understood, if they focus only on the question of whether there was indeed an "urgent security need" on Saturday night ("security" in this case only pertaining to the Israeli perspective), or if they concentrate on addressing whether the land is state or private, while ignoring the question of planning discrimination.

The bigger picture reveals that the real illegality is of the land policies of the occupying regime, and not that of the founders of the outpost. In fact, when the organizers of the outpost wrote, "We, the sons and daughters of Palestine, announce the establishment of the village of Bab al-Shams (gate of the sun). We the people, without permission from the occupation, without permission from anyone, sit here today because this land is our land, and it is our right to inhabit it," they recaptured their right to the land, in an action that was more faithful to the substantive rule of law and to international law than Israel's actions with the land.

Palestinian activists in the tent city Bab al-Shams (Gate of the Sun) in area E-1, near Jerusalem, Jan. 12, 2013.Credit: Olivier Fitoussi

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