On Monday, June 7 at 9:00, the Supreme Court will hear a precedent-setting case filed by Peace Now and over a dozen Palestinian landowners against the allocation of about 1,200 dunams of a-Nahla land, in the Bethlehem area, to the Ministry of Housing for the preparation of a construction plan for a new settlement near Efrat, known as Givat Eitam.
The planned settlement is located 2 km north east of the settlement of Efrat, and is intended to double the size of the settlement, while damaging the only remaining area in the Bethlehem area that could enable sustainable Palestinian development.
The plan would seriously jeopardize the prospect of reaching a two-state agreement and would impede the territorial continuum between Bethlehem and the southern West Bank, and therefore the viability of a Palestinian state.
This is the first time the issue of land allocation in the Occupied Territories is being brought to trial. For over fifty years, virtually all public land that Israel has allocated in the West Bank has been for settlement purposes, and not for the benefit of the Palestinian public, despite consisting of more than 86% of the West Bank population. This discriminatory policy is one of the key building blocks of the separation and discrimination regime Israel operates in the Occupied Territories and is a blatant violation of international law and basic principles of fairness and equality.
Peace Now: “The decision to allocate a-Nahla land for a new settlement is illegal, immoral and un-Jewish. Implementing this plan will severely damage not only the Palestinian landowners and the development capacity of the Bethlehem area, but also the ability to reach a future peace agreement and territorial compromise for a future Palestinian state alongside a secure Israel. After 54 years of Israeli control in the West Bank, it is time that Israel start to allocate lands for Palestinian development, and not to settlements.”
In 2004, Israel declared approximately 1,300 dunams south of Bethlehem near the village of a-Nahla as state land. Nine Palestinian landowners filed appeals regarding the declaration. The appeals committee accepted their claim for approximately 100 dunams, yet for roughly 1,200 dunams it determined that the landowners did not prove that they had cultivated the land as consecutively and intensively as required. The landowners filed a petition to the High Court of Justice, claiming that whole purpose of the declaration of state land was meant to take land from them and give it to settlers. Their petition was rejected in January of 2016 (see more about “declaration of state land” here).
On December 26, 2018, the state announced its intention to allocate the land to the Ministry of Housing for settlement planning purposes and that the allocation contract would take effect within 30 days (the announcement came after Peace Now petitioned the High Court of Justice demanding that the state inform of its intention to allocate because land allocations in the West Bank are done secretly with no transparency).
On February 7, 2019, Peace Now, along over a dozen landowners, turned to the Civil Administration’s Custodian of Government and Abandoned Property demanding that the intention to allocate land to the Ministry of Housing be revoked and allocated to Palestinians instead.
On May 3, 2020, more than one year later, the letter of appeal was rejected by the Civil Administration, which then wrote to the Housing Ministry that it could begin designing a plan for the new Givat Eitam “settlement neighborhood,” reportedly for some 7,000 housing units.
With the rejection, Peace Now’s attorney Michael Sfard contacted the Civil Administration demanding that it refrain from giving the Housing Ministry the allocation for 30 days to allow Peace Now and the Palestinian landowners to challenge the decision in the High Court. Outgoing Defense Minister Naftali Bennett, in his last days in office, chose to dismiss our request and approved the allocation immediately and even issued a press release. Subsequently, we filed the petition.
Peace Now’s main arguments were threefold:
1. Allocation of land to settlements contravenes its duty to act as but an administrator and usufructuary, as set forth in Article 55 of the Hague Regulations.
2. In view of the fact that 99.8% of land allocated in the West Bank has been allotted to settlements, while only 0.2% was apportioned for Palestinian needs, the designation of additional land for settlement use is tainted by discrimination and inequality, and is thus prohibited.
3. The Palestinian need for this land in the heart of Bethlehem’s development area is immeasurably greater than that of the settlement of Efrat, which is peripheral to Israel and far from constituting a desirable area.
Since the 1979 Elon Moreh ruling, no petition has succeeded in undermining the legal infrastructure that enables the ongoing expansion of the settlement enterprise. This initiative and the surrounding public struggle aims to undermine the prevailing view that “state land” in the occupied territories effectively constitutes land available for Israeli use, and to obligate the Supreme Court and the Israeli public, to address this fundamental question.
It should be noted that since the petition was filed, an important ruling has been given in an expanded composition of the Supreme Court regarding the Regularization Law, which stipulates that Palestinians in the Occupied Territories have the right to equality. The unequal allocation of land is one of the most blatant violations of the right to equality, and it is even explicitly mentioned in the ruling on the Regularization Law.
Excerpt from the petition:
“For over fifty years of occupation, Israel has done all it can to take care of the establishment and expansion of the settlement enterprise in the West Bank, at the expense of and serious harm to the Palestinian protected residents. In recent decades, the main tool at its disposal for advancing its political-national goals has been the [state land] declaration mechanism and allocation policy. Through the cynical and massive exploitation of this mechanism, Israel has promised vast tracts of territory to expand the settlement enterprise in the Occupied Territories by pushing the needs of the Palestinian population to the bottom, utilizing its public resources, engaging in harsh and deliberate discrimination, and depriving Palestinian villagers. The time has come for the Israeli government to recognize its duty to ensure the welfare of the protected occupied population and to repeal its criminal allocation policy. The allocation of land in the a-Nahla area for the use and needs of the petitioners and the Bethlehem community will be a start toward fixing this [longstanding policy].”
- The area lies at the heart of Bethlehem’s development area and is only on the periphery of Israeli development
The area allocated to the Ministry of Housing, for planning a new settlement with thousands of housing units, lies in the heart of Bethlehem’s development area (see maps below). A spatial planning analysis of the intention to establish a new Israeli settlement, in contrast to the planning potential for Palestinian construction and development, leaves no doubt that the advantages of Palestinian development are immeasurably greater than those of Israel and that the area is vital for regional Palestinian development (see summary tables below).