From: Ruth 0523993946
UN Legal Status Report in the end
In recent weeks, there have been significant legal developments concerning the Al Walajeh residents’ legal efforts to challenge the route of the Wall, which, as currently planned, could effectively encircle Al Walajeh and confiscate more privately-owned Palestinian land. al Walajeh, with a population of approximately 2,000 residents, is located north-west of Bethlehem and south-west of Jerusalem. It is made up of areas within the Jerusalem municipal boundaries (the ‘Jerusalem’ side) and Areas B and C (the ‘West Bank’ side). A serious concern is that what is written on paper is in fact not what is happening on the ground in and around the village. Due to this and other reasons we have been invited to join al Walajeh residents as they oppose and fight the continued development of the illegal Separation Wall.
This Friday the 11th of November we will join the residents at 1230 at the Mosque in the village and proceed to where the wall is being built.
The plan is to go down to the valley where the wall is being built. If there is rain before or on the day please wear suitable clothing. We could do with the numbers so if you can join or have any questions call:
Ruth – 0523993946 (no texts in Hebrew)
Below is a brief outline of the legal proceedings. It is important to note that there are significant contradictions not only between the States decelerations and what is happening on the ground but also between the parties involved on the State side regarding the `security` concern surrounding al Walajeh.
Main legal concerns
While there have been several challenges to the route of the Wall in and around Al Walajeh, the recent legal developments below highlight the following key issues.
No response to expert security opinion submitted by the Village Council
Construction of the Wall continues although legal procedures are not exhausted
Land expropriated and entered without the necessary court orders
Road built on expropriated land with no security reasons established
One home in Al Walajeh will be completely encircled
The Wall will separate residents from their land
Continued expansion of the Israeli settlement on the edge of Al Walajeh - While the legal proceedings to challenge the route of the Wall in and around Al Walajeh have been ongoing, the Har Gilo settlement has continued to expand, with a number of new houses being built close to the outskirts of Al Walajeh, along the planned route of the Wall.
High Court cancelled the interim injunction stopping construction of the Wall that was issued on 28 December 2010.
The High Court specified that the average width of the Wall’s route would be reduced to 20-25 metres and that, for construction of the Wall, 43 olive trees and 34 oak trees would be uprooted.
Regarding the residents’ farmlands, the High Court decided that the planned route, leaving that land on the ‘Jerusalem’ side of the Wall was proportional.
The High Court reiterated the State’s declaration that access roads to Al Walajeh will not be changed by the route of the Wall.
From here: UN Legal Status Report on Al Walajeh
Legal Update on the Situation in Al Walaja
Summary
In recent weeks, there have been significant legal developments concerning the Al Walaja residents’ legal efforts to challenge the route of the Wall, which, as currently planned, could effectively encircle Al Walaja and confiscate more privately-owned Palestinian land. Al Walaja, with a population of approximately 2,000 residents, is located north-west of Bethlehem and south-west of Jerusalem. It is made up of areas within the Jerusalem municipal boundaries (the ‘Jerusalem’ side) and Areas B and C (the ‘West Bank’ side). In a series of cases, on behalf of its residents, the Al Walaja Village Council (the Village Council), represented by Advocate Ghiath Nasser, has petitioned the Israeli High Court of Justice to change the route of the Wall to build it along the Green Line and not within the West Bank. In a recent decision regarding the western section of the Wall, (on the ‘West Bank’ side), the High Court lifted an interim injunction that had managed to stop work on the Wall in that area since 28 December 2010. On a positive note, the judgment confirmed a partial change in the route of the Wall, keeping an ancient water spring and a cemetery within the ‘West Bank’ side of the Wall. However, the decision also rejected another proposed change to the Wall’s path, which means that a large area of agricultural land owned by residents of Al Walaja will remain on the ‘Jerusalem’ side of the Wall, accessible only by agricultural gates and a permit system.
In addition, on 20 July 2011, in response to a new petition from the Village Council challenging the legality of the route of the Wall, the High Court refused to grant an interim injunction to stop work on the northern part of the Wall, within the Jerusalem municipal boundaries, while proceedings are ongoing for the Village Council’s objections to the expropriation of privately-owned land. On 27 September 2011, a hearing on these arguments was held at the High Court, which ruled that it would wait until the Minister of Finance had issued his decision about whether to continue with the expropriation order; the Minister is responsible for advising on expropriation of land for ‘public purposes’. On 30 September 2011, the Minister upheld the expropriation order, in accordance with the recommendation from his Advisory Committee, who previously heard objections to the expropriation from the Village Council and others. On 2 October 2011, the High Court dismissed the petition relying on the Minister of Finance’s decision to expropriate the relevant land. The Village Council intends to challenge this decision and find other ways of continuing to challenge the planned route of the Wall through their land.
Meanwhile, despite these ongoing legal proceedings, the State of Israel (the State) continues to construct the Wall in Al Walaja.
Main legal concerns
While there have been several challenges to the route of the Wall in and around Al Walaja, the recent legal developments below highlight the following key issues.
 No response to expert security opinion submitted by the Village Council - The High Court has accepted the State’s arguments that the route of the Wall is proportionate and reasonable for security purposes. However, the reasons given by the State to support these arguments have not been examined in great depth in any decision. In addition, the High Court, Jerusalem District Court and the Advisory Committee to the Minister of Finance have each had a limited review of Colonel Yuval Dvir’s expert opinion that the planned route of the Wall is not necessary for security purposes (contrary to the State’s position) and this requires a detailed response from the State, as highlighted by the dissenting opinion from a member of the Advisory Committee.
 Construction of the Wall continues although legal procedures are not exhausted - The Israeli courts continue to be reluctant to give any interim injunction to stop work on construction of the Wall, including uprooting of trees; levelling of land; and digging around houses, while the procedures to challenge the legality of the expropriation order of residents’ land on which the Wall will be built is ongoing. Consequently, the Wall is being built, with its existence then used as an argument by the State that it is too late to change the route because of the work and huge cost already undertaken.
 Land expropriated and entered without the necessary court orders – according to Israeli law , if there are objections to a declared expropriation of land, the Ministry of Finance (which orders the expropriations) has to obtain a court order from the relevant District Court before the land may be entered. In practice, however, land in Al Walaja subjected to expropriation orders that are being challenged has been entered, trees uprooted and construction started without such a court order being obtained.
 Road built on expropriated land with no security reasons established - While these court proceedings have been underway, construction of the Wall has continued in various parts in and around Al Walaja; trees have been uprooted and a road has been built between Cremisan and Al Walaja on land expropriated from Al Walaja residents. The State has not shown that this road is needed for security reasons and neither the High Court nor the Advisory Committee addressed the request from the Village Council for an explanation for this road, which, similarly to the Wall, is being built although the procedures to challenge the land expropriation are still ongoing.
 One home in Al Walaja will be completely encircled - In one part of the planned route of the Wall in Al Walaja, a house will be completely encircled. According to Colonel Yuval Dvir’s expert opinion, this extreme situation is not required for security purposes. Moreover, the severe harm this will cause to the family living in this house has not been fully considered by the High Court although it has been presented by the Village Council.
 The Wall will separate residents from their land - The High Court has given specific instructions about agricultural gates and opening times in the Wall to be built from the Battir side of Al Walaja. This is despite the fact that the Village Council provided an expert security opinion that the route of the Wall could be changed without affecting any security considerations.
 Continued expansion of the Israeli settlement on the edge of Al Walaja - While the legal proceedings to challenge the route of the Wall in and around Al Walaja have been ongoing, the Har Gilo settlement has continued to expand, with a number of new houses being built close to the outskirts of Al Walaja, along the planned route of the Wall.
Details of recent legal proceedings
Case 9516/10 – Challenging route of the Wall from the Battir side of Al Walaja
On 22 August 2011, the High Court issued its decision in case HCJ 9516/10 regarding the challenge brought by the Village Council to the planned route of the Wall along the Battir side of Al Walaja, within the West Bank. In the decision, the High Court lifted an injunction it issued in December 2010, which had temporarily halted construction of that part of the Wall.
In October 2010, the Village Council lodged a petition challenging this part of the planned route of the Wall. The petition was based on the arguments that (a) the 2005 land seizure order, seizing the privately-owned Palestinian land on which the Wall would be built, had expired and had not been lawfully renewed and should, therefore, be revoked; and (b) the planned route of the Wall should be changed as the current plan was not reasonably required for security reasons and was not proportionate in relation to the harm done to the residents. The Village Council also sought an injunction barring construction of the Wall in this area pending a final decision on their petition.
On 28 December 2010, after no response from the Israeli authorities to this application for an injunction, the High Court (under Justice Grunis) issued an interim injunction, valid until another High Court decision in the case. As respondents, the Israeli authorities then requested that the case be dismissed and the interim injunction lifted. The High Court refused to dismiss the case and set a hearing on the Village Council’s petition for June 2011. Eventually, the Israeli authorities responded to the Court that (a) the order had been retroactively renewed and was, therefore, valid; and (b) the route of the Wall was required for security reasons, which were reasonable and, on balance, proportionate to the harm done to the residents. In return, the Village Council argued that seizure orders could not be retroactively renewed as they denied the owner of the land in question the right to object, as per Israeli law.
There were two hearings in which the arguments of both parties were heard – on 8 February 2011 and 29 June 2011. In the hearing on 29 June 2011, both parties presented arguments about the harm that would be done to the residents by the planned route of the Wall. This included discussions about the ancient water spring; the cemetery and the farm land owned by villagers that would end up largely inaccessible to residents, on the ‘Jerusalem’ side of the Wall.
In its decision issued on 22 August 2011, the High Court (Chief Justice Beinisch sitting with Justice Grunis and Justice Fogelman) denied the Village Council’s petition to (a) revoke the retroactive renewal of the land seizure order; and (b) stop the construction of the Wall along the planned route, and included the points below.
 The High Court cancelled the interim injunction stopping construction of the Wall that was issued on 28 December 2010.
 The High Court accepted the State’s submission that the 2005 seizure order had not been renewed initially because of a technical failure and accepted the retroactive renewal of the seizure order. The High Court also accepted the argument that the landowners involved had sufficient opportunity to object to the initial seizure order with delivery of the order to the residents and a tour of the land affected, conducted by a surveyor. The High Court mentioned that, as a result of this technical failure, the Military Commander had subsequently instigated a computerized system to avoid such failure to renew seizure orders in the future.
 The High Court considered the route of the Wall using the proportionality test (the Beit Sourik test), balancing security needs met by the proposed route of the Wall against the harm that would be done to those affected by the route of the Wall. The High Court accepted the State’s security argument that the Wall is required to prevent the ‘infiltration of terrorists’ into Jerusalem and agreed this was proportionate to any harm to the residents, stating that the State had made sufficient efforts to reduce harm to the residents.
 The High Court also considered the issues of the ancient spring, the cemetery and access to privately-owned farmlands using the Beit Sourik test. As agreed by the State (at the hearing), the route of the Wall was changed so that the ancient water spring remained on the ‘West Bank’ side of the Wall and the cemetery could be reached without crossing the Wall.
 The High Court specified that the average width of the Wall’s route would be reduced to 20-25 metres and that, for construction of the Wall, 43 olive trees and 34 oak trees would be uprooted.
 Regarding the residents’ farmlands, the High Court decided that the planned route, leaving that land on the ‘Jerusalem’ side of the Wall was proportional. The High Court reiterated the State’s specification that two agricultural gates would be established along the route of the Wall and repeated the words of Colonel Ofer Hindi, who said on behalf of the Military Commander that the agricultural gates would be opened for several hours, three times a day. The High Court requested that the State decide the location of the gates to ensure easy access to the villagers, including the use of agricultural vehicles and to minimise the damage to current daily agricultural work.
 The High Court reiterated the State’s declaration that access roads to Al Walaja will not be changed by the route of the Wall.
 The High Court mentioned the ongoing proceedings concerning the eastern part of the planned route, located in the parts of Al Walaja that fall within the Jerusalem municipal boundaries (HCJ 2556/10). The Village Council withdrew this case from the High Court, maintaining the parties’ arguments, and submitted a challenge to the expropriation of land by the Ministry of Finance (details of this case are set out below).
Case 2556/10 – Challenging the route of the Wall through the western, ‘Jerusalem’ side of Al Walaja
In this case, the Village Council challenged the route of the Wall in the part of Al Walaja that falls within the Jerusalem municipal boundaries. While the High Court was hearing this case, it never issued an interim injunction to stop construction of the Wall and, therefore, construction continued throughout the legal proceedings. The Village Council’s main argument in the petition involved challenging the validity of the 2006 land seizure order (for the land on which the Wall was to be constructed), claiming it had expired (after three years) by the time work on the relevant land commenced in 2010.
Two hearings in this case, on 25 July and 8 November 2010, were held. The State was unable to respond adequately to the High Court’s request to prove that the 2006 land seizure order was still valid. However, the State then issued a land expropriation order for the land in question. Such expropriation of land is undertaken by the Israeli Ministry of Finance pursuant to the Land Ordinance (Acquisition for Public Purposes) 1943 (the Land Ordinance). The State declared that the land concerned had been expropriated (on 13 January 2011) according to the Land Ordinance. At this point, the Village Council withdrew its petition to the High Court, without prejudice to the parties’ arguments, and maintained its rights to object to the expropriation order.
The Village Council then challenged the State’s expropriation of land belonging to residents of Al Walaja for the purpose of building the Wall. Subsequently, the Village Council requested an interim injunction from the Jerusalem District Court to stop construction of the Wall on the land until the legal procedures challenging the expropriation had been exhausted. The District Court refused to issue an injunction, but the State agreed not to conduct any work on the Wall in this area for three months while archaeological work was underway – this ended on 17 June 2011. The Village Council then submitted objections to the expropriation of the land to the Ministry of Finance’s Advisory Committee, asking it to advise the Minister of Finance to cancel the expropriation order. In addition, the Village Council submitted a petition (see summary below for Case 5330/11) to the High Court for an interim injunction barring construction of the Wall in the Jerusalem municipal area, pending the hearing and any subsequent procedures of the Advisory Committee – this was rejected and a hearing was held on 27 September 2011.
The Advisory Committee, which does not have the power to issue an injunction, heard the parties’ arguments on 23 June 2011. The State presented similar arguments about security reasons necessitating the planned route of the Wall and, therefore, the expropriation of the land in question. Interestingly, the Givat Yael Company , in a separate session, also submitted objections to the Advisory Committee. In August 2011, the Committee issued its decision, in which it refused the Village Council’s (and Givat Yael’s) application and advised the Minister of Finance to approve the expropriation. A dissenting opinion was given by a Committee member who stated that the Village Council’s expert opinion from Colonel Yuval Dir, which opined that the route of the Wall was not needed from a security perspective, required a detailed response from the State. On 30 September 2011, three days after the Committee hearing, the Minister of Finance followed the recommendation of the Advisory Committee to expropriate the land in Al Walaja for the purpose of constructing the Wall. The Village Council intends to appeal this decision.
Case 5330/11 - Challenging the legality of work on the Wall during the expropriation proceedings
In July 2011, the Village Council submitted a new petition, requesting an interim injunction to halt the construction of the Wall on land being expropriated in the ‘Jerusalem’ side of Al Walaja while the expropriation objection proceedings were underway. This petition deals with the legality of the expropriation procedures, with a focus on Article 8 of the Land Ordinance. According to Article 8, if the owner of the land subject to an expropriation order does not agree to the expropriation and does not give permission for the State to enter his land, the State cannot enter it without a court order (from the District Court). In Al Walaja, despite objections to the expropriation order by the landowners and lack of permission from them to enter, the State entered the land and continued to construct the Wall on it without obtaining any court order.
The High Court refused to grant an interim injunction and, instead, decided to hear the arguments on 27 September 2011. At the hearing, the High Court refused a further application for an interim injunction to stop work on the land until all legal proceedings had been exhausted. In its decision, the High Court did not decide on the arguments raised by the Village Council, including the issue about the violation of Article 8 procedures and the lack of court order permitting the State to enter the land in question. Instead, the High Court decided to wait until the Minister of Finance had issued his decision, which he did a few days later. The Minister of Finance’s decision to expropriate the land in Al Walaja for the purpose of constructing the Wall was issued on 30 September 2011, a few days after the hearing. On 2 October 2011, the High Court dismissed the petition saying that is was no longer necessary to make a decision because the Minister of Finance had decided to expropriate the land in question.
The Village Council intends to appeal the decision of the Ministry of Finance and consider other action it might take in relation to challenging the route of the Wall and confiscation of land in Al Walaja.
[*] The Givat Yael Company has plans to build the Givat Yael settlement in and around Al Walaja. To date, the Givat Yael Company’s efforts to challenge the planned route of the Wall, which is contrary to their plans, have failed. |
