Will settlement lawsuit set legal precedent?

A Palestinian farmer inspects his property after it was set on fire by Israeli settlers in Aqraba village in July 2014.-Nedal EshtayahAPA images

Charlotte Silver-25 January 2017

A lawsuit filed with Israel’s high court might open a new legal course for scores of Palestinians in the occupied West Bank who have had their land seized by the military over the last 50 years.

Though Israel’s high court has a history of ruling favorably on expanding settlements, Dror Etkes, a longtime Israeli settlement researcher, promises the new lawsuit is a first of its kind that could trigger dozens more like it.

When Israel occupied the West Bank in 1967, its military proceeded to seize huge swathes of land under various pretexts. By 1987, the military had seized 40 percent of the land in the West Bank, along with its major water resources.

To confiscate such vast tracts of Palestinian farmland, Israel frequently invoked temporary “military” or “security” reasons. The Hague Regulations, the set of international laws that pertain to war and occupation, allow an occupying power to take temporary possession of land for military use.

And once taken, access to the land was blocked to its Palestinian owners.

How that land was ultimately used varied, but it frequently passed through the military’s hands and became an Israeli civilian settlement.

That is what happened just outside Hebron, where Israel founded Kiryat Arba, one of its first settlements in the West Bank, on a military base in 1968, and further north in al-Bireh and Dura al-Qar, where the military seized Palestinian land for military purposes only to use it to establish the Bet El settlement.

And that is the case of Aqraba, a village in the north of the occupied West Bank, near Nablus. Now the village is suing the Israeli state in what some hope could be a precedent-setting lawsuit.

In 1972, Israel expropriated about 90 percent of Aqraba’s farmland, or 50 square miles, said Etkes, who has researched the history of the village. The huge expropriation left dozens of families who once cultivated the fertile valley with no source of livelihoods.

An aerial photograph from 1970 shows cultivated plots of land in the area of Aqraba seized by Israel. (Courtesy of Dror Etkes)

Aerial photographs taken on the eve of the seizure show the area was filled with cultivated plots of land.

Focusing on just one parcel of the seized land – 3,200 dunums or about 790 acres – Etkes has helped organize the lawsuit against the Israeli state, settlers and quarry companies, to give the land back to the original owners.

This land was originally taken under the auspices of temporary military necessity, Etkes said, but it eventually formed the cornerstone of the civilian settlement of Gitit.

The petition, filed on behalf of the Aqraba municipality and the families of the original owners of the land in October last year, calls on the Israeli government to cancel the seizure order made in 1972, Etkes said, because there is no longer any security or military grounds to justify the confiscation.

As of now, the government has not fully replied to the petition.

“They are biding their time,” Etkes told The Electronic Intifada. “They understand this could be the beginning of other similar claims: they [the Israeli military] could find themselves under a flood of similar petitions.”

In the first 12 years of the occupation, Israel seized around 47,000 dunums, or 12,000 acres, for temporary military use.

Nearly a half-century later, the “essential and urgent military needs” for the land once argued by Israel have been clearly exposed as a means to settle Jews in the occupied territories.

The Geneva Conventions, which regulate humanitarian conduct and obligations in conflict, prohibit an occupying power from transferring its civilian population to the occupied territory.

According to Etkes, after 1975, settlers took over cultivating the land that once belonged to Palestinian families. At the outbreak of the Palestinian uprising in 2000, the land fell into disuse, before settlers began subletting it to Palestinians. Etkes noted the irony in Palestinians paying settlers to access their historic land.

Over time, Etkes said, large-scale farms run by settlers have pushed out smaller Palestinian farms, and today, Aqraba’s land is mostly cultivated by a few Israeli settler operations.

A new quarry

In the process of researching how the land has been used, Etkes discovered that a portion of the 3,200 dunum parcel was given over to open an Israeli quarry in 2001. It operated for just a few months, Etkes said, and was shut down by 2002.

“You can see a scar in the mountain today,” Etkes said. “But no operation.”

The Shafir corporation plans to resume mining on the location, as was revealed in the course of the petition.

The village’s petition argues that this violates the state’s promise that it would not open any new Israeli quarries in the West Bank per the high court recommendation in 2011.

At the time of the ruling, there were some 10 Israeli quarries operating in the West Bank. These deliver almost all their material over the 1949 Armistice Line separating the occupied West Bank from present-day Israel, violating international laws of occupation and human rights law.

The high court ruled that those quarries may still operate – stating Israel had “the right to utilize natural resources in a reasonable manner” – but recommended no new sites be opened.

The Shafir company and the Civil Administration, Israel’s occupying authority, say the 2011 ruling does not apply to the quarry in Aqraba because it was licensed before the ruling.

Furthermore, Shafir claims it intends to sell most of what is mined there to Palestinians, according to Etkes.

Last year, Human Rights Watch reported that Israeli quarries sell 94 percent of the materials they produce to Israel or Israeli settlements and pay fees to settlement municipalities and the Civil Administration, “which cannot be said to benefit the Palestinian people.”

The Hague Regulations prohibit an occupying power from using the resources of the occupied territory for domestic purposes.

Legal precedent

The Aqraba petition is not the first time Israel’s high court will review the military’s “security” 

rationalization for settlements in the occupied territories. Over the decades, the high court has avoided issuing rulings that have far-reaching implications for the government’s settler-colonial project in the West Bank, in effect greenlighting it.

In 1979, for example, the high court agreed with the military that a civilian settlement – this in Beit El – built on land requisitioned for “military needs” can in fact serve a military purpose.

However, shortly after, the court mitigated this ruling with a new decision on the Elon Moreh settlement. In this case, the military had tried to argue the Elon Moreh settlement served a military purpose after settlers had established an unauthorized colony on private Palestinian land.

The high court ruled this settlement did not clearly serve military purposes, leading the Israeli government to focus on seizing and declaring Palestinian land as “state land” for its settlements.

The high court has maintained that its decisions will be made on a case by case basis.

“This case will be important in terms of the legal strategy which we will be able to use in the coming years regarding similar cases,” said Etkes, who expects a reply from the government before the next court session, scheduled for March. “And there are many of them.”

Charlotte Silver is Associate Editor for The Electronic Intifada.