A new petition against the path of the separation fence on the land of Bil’in was submitted to the High Court of Justice last week. The petition asks the court to issue a conditional order, directing the state to appear and explain why it is not stopping the construction of the fence on the lands of Bil’in, and also why it will not restore the previous status and reverse the work that has already been carried out. The court is also requested to issue a temporary order halting work on the path of the fence on the lands of Bil’in. The petition has been submitted on behalf of the head of the village council by attorney Michael Sfarad.
A long and convoluted legal history
This is not the first time that the residents of Bil’in, who have been protesting the separation fence for the past seven months, have gone to the court. However, as brought out in the most recent petition, although the matter of the fence’s path through the village’s lands reached the supreme court three times before, until today the subject has not been given a single substantive hearing before the judges. All of the previous petitions were rejected, primarily due to some crucial legal errors in the handling of the first petition, which was submitted last year. For the benefit of those interested in the complex legal history of the route of the fence in Bil’in, here is a summary of the main events:
The first petition was submitted on 14 December, 2004, by the Palestinian attorney Nahla Atiye (from Haifa), who was hired by the residents of Bil’in to represent them in the proceedings against the fence – a petition to the high court of Justice against the route of the fence on the lands of Bil’in and Tzafa. However, two days later, on the day of the discussion in court, Attorney Atiye (on behalf of the plaintiffs) and attorney Helman (on behalf of the state) issued an “announcement and mutual request” in which attorney Atiye stated her agreement to most of the route of the fence through the lands of Bil’in (from the Tzafa-Bil’in boundary to “the lone house”), subject to investigating the possibility of a slight change at the northern part of the route (from the lone house to the Bil’in-Harbata line).
Based on the declaration of the head of the Bil’in village council, which is attached to the current petition, it is clear that despite the fact that attorney Atiye appeared in court on his behalf, the agreement that she reached with the state was reached without his knowledge or consent.
For the discussion in the High Court of Justice on the question of the remaining route of the fence that was yet to be agreed on, on the 15 of February, 2005, attorney Atiye did not appear, and asked attorney Fathi Shabeita to appear in her place and to ask the court to cancel the petition. Of course the court agreed to this request.
Five days later, on the 21st of February, 2005, attorney Atiye submitted an additional petition-this time on behalf of five residents of Bil’in on whose land the work on the fence had already begun. In this petition there was hardly any argument against the route itself; the central argument was that the residents had been denied their right to appeal, since they had not received a land seizure order for purposes of constructing the fence. This was in spite the fact that the first petition, which was cancelled at the request of Atiye, was mostly or entirely based on the seizure order on the basis of which the lands in the fence’s route were taken.
If that were not enough, in the second petition, Atiye “forgot” to mention that the residents of Bil’in had previously submitted a petition that had been withdrawn at their representative’s request. On 3 March 2005 the HCJ also rejected the second petition due to grave improprieties (failure to mention the previous petition) and due to the fact that the previous petition had dealt with the seizure order authorizing the initiation of work on the fence’s route. Therefore, the court decided that the residents’ right of appeal had not been denied, and that Atiye had even carried on in their name extensive contacts with the government before submitting the first petition.
In the third petition, submitted on 26 April 2005, another effort was made to bring the issue of the people of Bil’in to discussion in the Supreme Court. Attorney Fathi Shabeita submitted to the HCJ a request to attach the petition of the Bil’in residents, on whose land the fence is to be built, to the petition of the residents of Harbata, that was submitted by Atiye. On 14 June 2005 the court rejected the request to amend the peitition and add the residents of Bil’in.
The new facts
The fourth attempt to bring the route of the fence in Bil’in to the High Court is based primarily on two new facts that have been uncovered since the end of the previous proceedings.
The first fact has to do with the defective legal representation of the first petition. Only in May of 2005, after the state submitted its response to Shbeita’s request to add some of the Bil’in residents to the Harbata petition, did the people of Bil’in find out about the agreements that Atiye had reached with the state. As mentioned, in those agreements Atiye declared that she had no objection to most of the fence’s route through the lands of Bil’in – a declaration that was given contrary to the position of the head of the Bil’in village council, and without attorney Atiye having bothered to notify him.
The second fact concerns the construction plans on the lands of Bil’in to the west of the proposed fence. On 29 March 2005 the Association for Civil Rights and the Bimkom Association (Planners for Planning Rights) in an administrative petition to the Jerusalem district court requested that the court direct the civil administration to allow them to examine the new development plan for the settlement of Modi’in Ilit, which affects, among other things, the territory between the fence in Bil’in and the boundary of the built of area of the settlement. The administrative petition was submitted according to the freedom of information law. In the last few weeks, in the course of the proceedings around the administrative petition, the civil administration agreed to allow the plaintiffs to examine the plan.
Thus the two associations found that on 900 dunams of the lands of Bil’in that remain on the Western side of the planned route of the fence, a new neighborhood of the Modi’in Ilit settlement is planned, to be called “Matitiahu East” (or Nachalat Hafetzhiba or Green Park; most of the neighborhoods in Modi’in Ilit have more than one name). They also found that the new neighborhood, that touches the southeastern part of the fence, is not yet approved, and that despite of this construction had already begun, in violation of the Jordanian planning law, which applies to the West Bank.
A few more facts came to light upon examination of the plan for the Matitiahu East neighborhood: within the area of the plan are lands (enclaves, as they are called in the plan) that are privately owned by residents of Bil’in. According to the plan, 3,008 housing units are to be built in Matitiahu East. The civil administration itself has issued orders to cease work on the neighborhood’s construction, since the overall plan has not yet been approved.
The purpose of the fence: expansion of Modi’in Ilit
In all the previous proceedings in the High Court of Justice, the state repeatedly declared that the chosen path of the fence is intended to serve only security goals, and has no political objective. However, the plans that were recently exposed show the real purpose of the fence’s route: expansion of the settlement of Modi’in Ilit, for which the housing ministry projects a population of 150,000 by the year 2020.
It is important to emphasize that most of the already built-up land of Modi’in Ilit are not on the lands of Bil’in, but on the lands of the neighboring villages, that were confiscated over the years and declared to be state lands. Besides the western reaches of 300 meters of land of Bil’in, on which the Modi’in Ilit neighborhood of Kiryat Sefer stands today, the remaing land of Bil’in that has been declared part of the jurisdiction of Modi’in Ilit, remains unbuilt.
The current boundary of the built-up area of Modi’in Ilit is road 455, which was closed to traffic with the outbreak of the Al Aksa Intifada. Road 455 connects to road 443 next to Maccabim and continues northward, until it turns in a northeasterly direction next to Harbata. The majority of the land of Bil’in lies to the east of road 455, along which stands the current fence surrounding Modi’in Ilit. All of the built-up neighborhoods of Modi’in Ilit – Kiryat Sefer, Achuzat Brachfeld, and Ganei Modi’in – lie to the West of road 455. The chosen path of the fence is intended to allow Modi’in Ilit to expand to the east, beyond the current fence of the settlement, and without it there would in effect be no possibility of building the new neighborhood of Matathiahu East and “Neot Hapisga” (most of which stands on the lands of Harbata, and part on the lands of Bil’in).
In the past the state has announced a further petition to the High Court of Justice that in determining the fence’s path the court should not take the planning document into account, since it has not received final approval. In total contradiction of this official position, the fence’s path through Bil’in follows the outline of the planned neighborhoods of Matatiahu East and Neot Hapisga. In doing so, it deals a severe and irreversible blow to the basic rights of the residents of Bil’in, to commerce, freedom of movement, and livelihood.