The Supreme Court issued a Decree Nisi in a precedent-setting petition against the allocation of lands to settlements

The Supreme Court issued this week an Decree Nisi in a petition filed by Peace Now together with Palestinians from the Bethlehem area, and ruled that the state must give reason why it would not consider allocating to the Palestinian petitioners land that the state seeks to allocate to expand the Efrat settlement.

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. In the petition, the petitioners claim that the land in the a-Nahla area, also known as E2 or Givat Eitam, is an essential land reserve for the development of the Bethlehem area, and that it should be allocated to the Palestinians and to settlers.

Peace Now: “For more than 50 years, Israel has allocated the precious resource of land in the West Bank to Israelis only. This policy confirms the claims of those who accuse Israel of applying an Apartheid regime in the Occupied Territories. The allocation of the land in E2 for a settlement is immoral, illegal and disproportionate in a way that cries to heaven. Although the order given by the court does not cover the entire area of ​​the petition, the court signals that this discrimination must not continue.”

The meaning of an Order Nisi in petitions to the High Court against the conduct of the government and its institutions

In these kind of petitions, there is a preliminary hearing in which the government is given the benefit of the doubt. After the preliminary stage, if the Court finds truth to the petition, it issues an order that the government must explain why they have not accepted the petition. The process will then pass to the next stage of discussion where the burden of proof lies with the state. At this stage, the Court signals that they accept the petition in principle and allows the state to respond and defend their stance.

The Decree Nisi given in the petition

The wording of the conditional order issued by the Supreme Court is relatively limited. The petition demanded the cancellation of the allocation of the land to the settlement and its allocation to Palestinians. The order issued by the court does not deal with the cancellation of the allocation to the settlement and only dealing with the issue of allocation of parts of the land to the specific petitioners.

The wording of the conditional order: On the basis of this petition brought before this court, the court orders that an order nisi be issued directed to respondents 1-5 and instructing them to appear and give a reason why not consider allocating land to petitioners 1-13 for personal or family use.

The petition was filed by Peace Now together with 14 Palestinians. Thirteen of them own lands in the area, part of whose lands has been declared “state land” by Israel and allocated for the expansion of the Efrat settlement. They demand that parts of the land be allocated to them and not to the settlement. The 14th petitioner is the head of the municipal council of the nearby village of Wad Rahal, who requests that some of the land be allocated for the village development.

The petitioners presented in the petition their long-standing personal connection to the land, as well as the importance of the area for the development needs of the entire Palestinian public in the Bethlehem area.

Following a hearing held in the petition on 7/6/21, the judges asked the State to update the court whether it agrees to consider allocating portions of the land to the 13 petitioners. In this way, it seems, the judges sought to avoid a decision in the principal question of the entire land – whether it should be allocated to the settlement or to the Palestinians – and instead they opt to find a specific solution to the specific petitioners.

In its reply, the State argued that since the petitioner hasn’t requested specific plots of land, there was no room for allocation. The petitioners claimed in response that they had already submitted a request for allocation when they approached the Custodian of Government Property in the Civil Administration before the petition was filed.

The judges are apparently trying to walk between the drops. On the one hand, they cannot ignore the blatant and ongoing discrimination in Israel’s land allocation policy and therefore they issue an Order Nisi. On the other hand, they are apparently trying not to get into the fundamental question of the legality of the allocation of the land to the settlement.

The Background of the Petition

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 of its priorities, 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].”

For the full petition (in Hebrew) see here.

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.

For more on the legal arguments of the appeal, read here.

The political significance of the establishment of a settlement in E2:

The area of ​​a-Nahla, located south of Bethlehem is one of the most important and strategic areas for the development of Bethlehem. The development of the city of Bethlehem was blocked to the north by Jerusalem and the Gilo and Har Homa neighborhoods built after 1967.  It was blocked to the west by the Separation Barrier and the Tunnels Road paved by Israel for the purpose of connecting the settlements of Gush Etzion to Jerusalem. In the Bethlehem metropolitan area, where three refugee camps are crowded, there is a significant shortage of land for development and construction, and many Palestinians have purchased land in the a-Nahla area for future construction, but their lands have been declared “state lands” by Israel. In other words, the area lies at the heart of Bethlehem’s development area and is only on the periphery of Israeli development.

To read the full article on the planning-spatial analysis of a-Nahle [Hebrew] – click here

The following table summarizes the importance of the land to the development for Palestinians vs. its importance to the development of Israel.

Politically, the area where the new settlement is planned is an area that Israel will undoubtedly have to vacate in order to allow a two-state solution. Like the E1 plan east of Jerusalem, which was intended to create a corridor west-east that would cut the Palestinian continuum in the heart of the West Bank, so the a-Nahla plan is intended to create a corridor west-east (from the Gush Etzion settlements, through the Efrat settlement, east to the Tekoa that will cut the Palestinian continuum South of Bethlehem in the direction of Hebron. The only main road that connects Hebron and the southern West Bank with Bethlehem and the northern West Bank (Route 60) is also located west of the Efrat settlement and the a-Nahala plan. This means that if Israel seeks to annex Efrat and the area of ​​the plan, the road will be cut off and it will not be possible to connect the southern West Bank and the north. This plan is therefore considered particularly lethal in terms of the prospect of a two-state solution.

Read more here.