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BTselem Report Not All It Seems - Preventing Palestinians Access

By Diane Cole,2014-11-13 13:27
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BTselem Report Not All It Seems - Preventing Palestinians Access

     ).ר.ע( םיחטשב םדאה תויוכזל ילארשיה עדימה זכרמ

     B‟Tselem – The Israeli Information Center for Human Rights in the Occupied Territories

    Not all it Seems

    Preventing Palestinians Access to their Lands

    West of the Separation Barrier in the Tulkarm-Qalqiliya Area

    June 2004

Written and researched by Shlomi Suissa

    Edited by Yehezkel Lein and Ofir Feuerstein

    Fieldwork by „Abd al-Karim S‟adi

    Data coordination by Antigona Ashkar

    Map prepared by Ofir Feuerstein

    Translated by Zvi Shulman

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     8 Hata‟asiya St. (4th Floor),Talpiot, Jerusalem 93420, Tel. (02) 6735599, Fax (02) 6749111

     e-mail: mail@btselem.org http://www.btselem.org

Introduction

    In August 2003, Israel completed construction of Stage 1 of the separation barrier. This section runs for 125 kilometers from Sallem, a village in Israel, south to the Elqana settlement, southeast of Qalqiliya. The barrier is composed of an electronic fence, with roads, trenches, and barbed-wire fences on each side. The width of the barrier ranges from fifty to one hundred meters. In a few locations (a total of 7-8 kilometers), Israel has built an eight-foot-high concrete wall. More than eighty percent of the barrier along this 125-kilometer stretch is located east of the Green Line and isolates Palestinian villages and agricultural areas from the rest of the West Bank.

    In September 2002, B‟Tselem published a position paper in which it warned that construction of the barrier along this route would result in human rights violations and

    1breaches of international law. Now, ten months after the completion of Stage 1, it is

    clear that the fears were well founded.

    The present report examines one result of constructing the barrier on land within the West Bank: the denial of access of Palestinians to their lands located on the western side of the barrier. The report focuses on the strip of land between Tulkarm and Qalqiliya. This strip covers an area of 27,000 dunams [4 dunams = 1 acre]. Three thousand dunams lie within the jurisdictional area of the settlements Sal‟it and Zufin. This strip also includes the Palestinian village of Khirbet Jubara, which extends over 300-400 dunams. The rest of the area more than 23,000 dunams is mostly composed of cultivated

    farmland and grazing areas belonging to residents of Palestinian villages situated east of the barrier. The villages whose residents own the most land west of the barrier are Far‟un (3,000 residents), a-Ras (500 residents), Kafr Sur (1,100), Kafr Jammal (2,300

    residents), Falamya (500 residents), and Jayyus (2,800 residents). Also, a number of

    2individuals who own land in this strip live in Qalqiliya.

    The report describes the implementation of a permit system and the operation of crossing gates, which are the two main tools through which Israel restricts the entry of farmers from these villages to their lands lying west of the barrier. The report also examines the legality of these means in international law.

     1 B‟Tselem, Position Paper: The Separation Barrier, September 2002. A more comprehensive position

    paper was subsequently published in April 2003 under the title Behind the Barrier: Human Rights

    Violations as a Result of Israel’s Separation Barrier. 2 The population figures relate to early 2004, and are extrapolated from the 1997 census taken by the Palestinian Authority. See www.pcbs.org.

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The barrier‟s route: The primary cause of human rights violations

    These human rights violations result from Israel‟s choice of a route that deviates sharply

    from the Green Line and separates farmers from their land. State officials repeatedly state that the route has been set solely for security reasons, and that routes that would cause lesser harm to Palestinians do not meet the military-security needs for which the barrier is being built: prevention of terrorist attacks inside Israel.

    However, a study of the route set by the government, and particularly the route of the area discussed in this report, shows that other considerations unrelated to legitimate

    military-security necessity were taken into account. According to international law,

    these extraneous reasons cannot justify the infringement of human rights. First, in setting the route, the government wanted the route to run east of certain settlements. In the area discussed in this report, there are two such settlements: Sal‟it and Zufin. Israel considers protection of the settlements part of its legitimate military needs. However, under international humanitarian law, the settlements are illegal and

    3must be evacuated. This fact does not eliminate the right of settlers to life and does not render attacks on them less grievous. However, it requires that Israel protect them, until their evacuation,, in ways that do not infringe the human rights of Palestinians. Justifying the route on the basis of the need to defend the settlements simply aggravates the breach.

    Second, study of the route near certain settlements indicates that West Bank land west of the barrier includes land that is not part of the settlements‟ jurisdictional area, but is

    intended for future expansion of the settlements. In Zufin for example, the route was set two kilometers east of the settlement‟s built-up area with the purpose of encompassing

    non-contiguous land that is included in the community‟s jurisdictional area (see the map). As a result, residents of Jayyus are separated from their vineyards. Furthermore, in a visit to the area, B‟Tselem researchers found that part of the route runs along a dry river bed at the foot of Jayyus. In other words, not only is the route in this area based on illegitimate considerations, it is even contrary to military needs, which dictate that the route run along high areas to the greatest extent possible.

     3 For extensive discussion on the issue of the human rights violations resulting from establishment of the settlements, see B‟Tselem, Land Grab.

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    Third, defense officials and politicians have recently expressed a willingness to make significant changes in the route. In one area Baqa a-Sharqiya the route was changed

    and the barrier was torn down. In the area discussed in this report, the state informed the High Court of Justice that it intended to move the route in the Khirbet Jubara area to run

    4west of the village. This willingness to make changes, which resulted from the sharp

    worldwide criticism relating to the barrier, undermines Israel‟s official position that no less harmful routes exist that would meet security needs.

     4 Faiz Salim, cited above, response of the State Attorney‟s Office.

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The Permit System

Establishing the system

    On 2 October 2003, about one month after the construction work was completed, the commander of Central Command forces, Maj. Gen. Moshe Kaplinsky, declared the area between the first section of the barrier to be constructed and the Green Line a closed

    5military area. The declaration refers to this area as the “seam area,” and states that “No person shall enter or stay in the seam area” and that “A person found in the seam area

    6shall be obligated to leave it immediately.”

    The declaration specifies that the prohibition on entry and staying in the seam area does not apply to Israeli citizens and residents, including settlers living in the West Bank, or persons entitled to immigrate to Israel pursuant to the Law of Return, even if they are not

    7Israeli citizens (i.e. Jews from elsewhere in the world).

    Since the military commander issued this declaration, Palestinian residents of the West Bank have been subject to a permit system in order to reach their land west of the barrier. The new permit arrangement is set forth in two compilations of directives published on 7 October 2003 and signed by the head of the Civil Administration, Brig. Gen. Ilan Paz, pursuant to the authority given him by the OC Central Command‟s

    declaration. One of the compilations deals with the permit that residents residing in the villages will have to obtain to enable them to continue to live in their homes. This permit

    8is referred to as a ”permanent resident permit.”

    The second book regulates the entry and stay of Palestinians living outside the closed

    9military area. The directives require every Palestinian over the age of 12 who wants to enter the seam area for whatever purpose, to submit a request for an entry permit at the

    10District Coordination Office, which is operated by the Civil Administration. The applicant

     5 Order Regarding Defense Regulations (Judea and Samaria) (No. 378) 5730 1970, Declaration

    Regarding Closure of Area No. 3ס/03 (Seam Area). 6 Sections 3(a) and (b) of the declaration, respectively. 7 See Sections 1 and 4(1) of the declaration. 8 Order Regarding Defense Regulations (Judea and Samaria) (No. 378) 5730 1970, Directives Regarding

    Permit of Permanent Resident for the Seam Area. For details and illustrations of the permit system on Palestinian life in closed military areas, see www.btselem.org/english/separation_barrier/index.asp. 9 Order Regarding Defense Regulations (Judea and Samaria) (No. 378) 5730 1970. Directives Regarding

    Permit to Enter and Stay in the Seam Area. 10 Ibid., Section 3(a).

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    must comply with numerous demands, as will be explained below, but the directives contain no criteria for approving or rejecting the requests. Nor do the directives mention

    11how long the permit will remain in effect in the event it is approved. The Civil

    Administration is given total discretion in making its decision on each and every request. When a request has been denied, the resident may appeal to a committee established

    12by the Civil Administration. However, the committee hearing the appeal is the same

    body that rejected the original application (the Civil Administration). Thus, it appears that appeal is not a genuine option for remedying an injustice, but is offered solely for appearance‟s sake.

    An annex to the book of directives contains twelve categories of persons entitled to request an entry permit. These classifications are based on the purpose for which the person wishes to enter the area. Each category has its own application form and requirements regarding the specific documents that have to be provided. The two types of permits relevant to this report are those for individuals who own farmland and those

    13for individuals employed in agriculture. The policy regarding entry of vehicles into the

    seam area varies. In the Tulkarm area, a regular entry permit entitles the holder to bring in farm vehicles. In the Qalqiliya area, on the other hand, a separate permit is required

    14for each vehicle. The permits generally allow the holder to stay in the seam area only during the daytime. Special permission, noted in a separate section of the permit, is required to stay overnight. Also, the permit is valid only for entry through the particular gate stated on the permit.

Distribution of permits at Israel‟s initiative

    In October 2003, after the permit system took effect, the Civil Administration began to distribute permits to landowners in the seam area. The list of recipients showed that the Population Registry maintained by the Civil Administration contained many errors. Permits were issued to infants, deceased individuals, and individuals residing abroad. On the other hand, many farmers owning land in the seam area and residents employed

     11 Ibid., Section 2(b), which states: “The permit shall be issued for a period of time that the competent

    authority shall set, in accordance with procedures that will be established.” 12 Ibid., Section 4(b). 13 Ibid., Parts 5 and 4, respectively. 14 Letter from the Civil Administration to B‟Tselem, 22 March 2004. Also, HCJ 11344/03, Faiz et al. v.

    Commander of IDF Forces in Judea and Samaria, response by the State Attorney‟s Office, Section 39(3).

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    in farming were not on the list. The permits were valid for a period ranging from one month to three months.

    This active distribution of permits by the DCO was only a one-time event. Individuals who did not receive a permit and persons who wanted to renew permits had to go to the local DCO and apply for a permit. The DCO responsible for the area discussed in this report is located near the Qedumim settlement, which is situated around thirty kilometers from Qalqiliya.

Certification of land registration

    A Palestinian owning land west of the barrier who seeks a permit must file a request at the DCO. The applicant must provide a photo of himself, a photocopy of his identity card,

    15and a document testifying to his rights in the land. According to the Civil

    Administration‟s directives, the relevant document proving ownership is the Certification

     16of Land Registration, which is issued by the Israeli DCOs. To obtain the document, in

    addition to paying a fee of NIS 38, the applicant must provide the old certificate of

    17registration, and the following documents, as appropriate:

    1. identity card of the landowner;

    2. photocopy of the Order of Inheritance, if the registered owner is

    deceased;

    3. affidavit made before a Palestinian Magistrate‟ Court stating that the

    plot has not been sold to, or attached by, any third person, and is in

    the complete possession of the purchasers or heirs;

    4. if the name of the purchaser or heir in the identity card is different

    than the name on the document certifying ownership of the land, the

    applicant must submit a sworn affidavit explaining the difference;

     15 Persons employed in agriculture who seek a permit must provide a personal photo and a photocopy of their identity card, and confirmation from his employer. The Civil Administration directives refer to landowners as “farmers.” Individuals employed in agriculture are classified as “Persons Employed in the Seam Area.” 16 Land was registered for tax purposes during the time of Jordanian rule in the West Bank. The registration serves in legal matters, as proof of possession of the land, but not ownership. For further discussion on this matter, see B‟Tselem, Land Grab: Israel’s Settlement Policy in the West Bank, May

    2002. 17 The documents required to obtain each of the various types of permits are posted at the DCO.

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     certification by the local council or municipality verifying the above-5.

    mentioned documents.

    According to the Civil Administration‟s directives, a current certification of land registration is required. Thus, requests that do not contain current certification are returned to the applicants, and they are told that they must provide certification from 2004.

    Until February 2004, DCO officials in Qedumim conditioned issuance of the certification of land registration on payment of all outstanding real estate taxes that had accrued from 1967 to the present. Palestinians who did not have the financial resources to pay the back taxes were not entitled to a permit. Israel subsequently eliminated this requirement, and Palestinians are now able to obtain certification of registration regardless of whether they paid their taxes.

Length of validity of permits

    The permits are valid for varying lengths of time, depending on the kind of crop grown by the applicant. For example, olive growers receive permits for October-November, the picking season, while owners of hothouses, which require care throughout the year, are issued permits for a longer period of time.

    Testimonies given to B‟Tselem by farmers in the area indicate that the authorities have

    constantly ignored the kind of crop being grown on the land. Some farmers, among them olive growers, received permits for periods ranging from three to six months, while farmers who grew crops requiring care throughout the year received permits for shorter periods. In some cases, the permits were issued for only two weeks.

    The Civil Administration‟s assumption that olive groves require access to the orchards only during the olive-picking season is inaccurate. Cultivation of the orchards throughout the year, such as plowing, pruning, and weeding, greatly affect the yield and quality of the olives and the oil.

    Farmers‟ testimonies indicate that the Civil Administration clearly seeks to shorten the period of validity of permits on renewal. In many instances, farmers who were given three-month permits when the authorities initiated the system, received permits for one month, or in some cases only two weeks, when they renewed them.

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Twenty-five percent of requests are rejected

    According to figures of the Civil Administration, as of March 2004, 2,240 Palestinian residents of Far‟un, a-Ras, Kafr Sur, Falamya, and Jayyus held permits to enter the

    18seam area. In 708 cases, the residents‟ requests for a permit were rejected. Thus,

    about twenty-five percent of the requests for permits to enter the seam area were denied. Although the figures provided by the Civil Administration do not break down the permits that were granted and denied by type, we can assume from the nature of the area that most requests relate to agriculture. We can also assume that a small portion of the permits were issued to enable the applicants to visit relatives living in Khirbet Jubara. The Civil Administration has not issued fixed instructions regarding the permits, nor have they established criteria for approval. The Civil Administration contends that there are three reasons that requests for permits are rejected: 1) failure to prove ownership of the land, 2) failure to prove that the applicant works in agriculture, and 3) security

    19considerations. B‟Tselem‟s research indicates that most of the rejections were based on “security reasons.” The applicant is given the response verbally or by means of a stamp of denial on the original request. The Civil Administration provides no reason or proof of any kind for its denial.

    Refusing to allow a substantial portion of the farmers in the area to earn a livelihood is especially grave in light of the harsh economic situation in the Occupied Territories since the beginning of the intifada, in September 2000. As a result, many Palestinians in the Occupied Territories have become dependent on international aid organizations. In December 2003, the poverty rate in the West Bank (defined as income of less than $2.00 a day per person) was 31 percent, whereas the poverty rare in the rural sector was even higher, 38.5 percent. In 2003, the average rate of unemployment in the West Bank stood at 33 percent. More than 15 percent of those who were employed worked in

    20agriculture.

     18 Letter from the Civil Administration to B‟Tselem, 22 March 2004. 19 Ibid. 20 The figures are taken from press releases of the Palestinian Central Bureau of Statistics. See www.pcbs.org.

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