Al Walaja – UPDATE on court case challenging the route of the Wall
By Dalia Aranki From NRC
On Sunday, 25 July 2010 there was a hearing at the High Court of Justice regarding the planned route of the Wall in and around Al Walaja.
NRC, UNRWA, ICAHD and others were present at the hearing. President Benisch was hearing the cases along with Justice Fogilman and Justice Miltzer.
The High Court gave a positive judgment finding that the State of Israel had to provide evidence to show that (a) the 2006 land seizure order (for the Al Walaja land on which the Wall is planned and where initial works have begun) is still valid; and (b) there is no reason for the planned route of the Wall in Al Walaja to be re-examined. In addition, the Society for the Protection of Nature in Israel, whose expert opinion on the negative environmental impact of the Wall was accepted by the High Court, may submit its arguments regarding the petition challenging the planned route of the Wall in Al Walaja.
No specific injunction was given to stop the initial works and construction of the Wall pending a decision by the High Court. However the High Court effectively asked the State of Israel to prove that it was legally entitled to continue with the construction of the Wall along the planned route. NRC will continue to work with other DWG members to monitor any developments in Al Walaja.
Please find below a background to the cases and a summary of the hearing.
——————————————————————————–
Background to the cases
– The following four petitions were heard by the High Court:
a) the Al Walaja village Council challenging the route of the Wall;
b) the Bargouth family challenging the planned route of the Wall to pass over family graves;
c) the Beit Jala Municipality challenging the route of the Wall from the Beit Jala side of Al Walaja; and
d) the Givat Yael company (which is planning to build a settlement in the area) challenging the route of the Wall.
– In each petition, the petitioner was challenging the Ministry of Defence, the West Bank Military Commander; and the State of Israel.
– In 2006, the Ministry of Defense issued a land seizure order sanctioning land to be seized for the construction of the Wall in and around Al Walaja. The Al Walaja Village Council submitted a petition to the Magistrates Court to challenge this order. This petition was not successful and the Court approved the route of the Wall and the land seizure order.
– In 2010, construction work on the Wall in Al Walaja began.
– The Village Council, represented by Adv. Ghiath Nasser, requested the Magistrates Court to issue an injunction stopping this construction on the basis that the original 2006 land seizure order had expired and had neither been executed within three years (as required by Israeli law) nor renewed. The Israeli State argued that the order does not start from the date it is issued but from the date that work starts on the land.
– The Magistrates Court refused to give an injunction ruling that a decision regarding the planned route and construction of the Wall in Al Walaja had already been made in 2006. Only a temporary injunction was given until 8 April 2010 allowing time for the submission of a petition to the Israeli High Court of Justice.
– Representing the Village Council, Adv. Nasser challenged this decision to the High Court and requested an injunction to stop construction pending a High Court decision. Since then the High Court has not upheld this injunction and construction on the Wall has continued.
– Adv. Nasser submitted another application for an injunction in June 2010 or for the High Court to make a ruling, which it did on 25 July 2010.
Summary of the hearing on 25 July 2010
The hearing was unusually long and the arguments were heard from each of the relevant lawyers, who used detailed maps when submitting their positions. The High Court made the decisions set out below about each petition. Mote detail is given about the case of Al Walaja case as this had the most significant decision.
a) The Bargouth family challenging the route of the Wall because it disturbs family graves – this case was withdrawn pending a decision from the Appeals Committee in Tel Aviv (which has not yet ruled on the case).
b) The Beit Jala Village Council v the Ministry of Defence, Military Commander and the State of Israel – this case was withdrawn pending a decision from the Appeals Committee in Tel Aviv (which is still hearing aspects of this case).
c) The Givat Yael Company v the Ministry of Defence, Military Commander and the State of Israel – this case was withdrawn mainly due to a technical discrepancy between the petition submitted and the arguments made.
d) Al Walaja Village Council v the Ministry of Defence, Military Commander and the State of Israel (High Court 2556/10).
Main arguments of Al Walaja Village Council as the Petitioner
– Adv. Nasser submitted Al Walaja Village Council’s position that the land seizure order had expired because it was issued in 2006 and construction works did not start until 2010. During this period, no further legal challenges were made as the people of Al Walaja assumed the Wall would not be built along the route because no work occurred for over three years and, in that time, environmental and archaeological works were ongoing in Al Walaja.
– Adv Nasser also submitted an expert security opinion from a retired Colonel explaining that the planned route of the Wall (which, as planned, would completely encircle Al Walaja) was not necessary to meet any stated security aims. There was no security reason for the Wall to be built so close to the homes of people in Al Walaja, including the two homes which would be completely encircled by the Wall.
– Although a previous challenge to the route of the Wall was rejected by the Magistrates’ Court in 2006, there were new facts to consider in relation to the route of the Wall and its initial construction in 2010.
SPNI as Amicus Curiae
– The Society for the Protection of Nature in Israel (SPNI), a leading Israeli environmental organization was accepted by the High Court as amicus curiae to the case and its expert opinion was submitted.
– SPNI’s opinion set out the damaging impact of the Wall on the environment in and around Al Walaja. It also stressed that the reality had changed since the 2006 land seizure order was issued. New facts, including the involvement of UNESCO and environmental projects funded by the Israeli Government, should now be taken into consideration when deciding on the route of the Wall.
Main arguments of the State of Israel as the Respondent
– The State’s lawyer submitted that the construction of the Wall followed due legal proceedings which entitled the State of Israel to build the Wall along the planned route.
– The 2006 land seizure order was valid when initial construction of the Wall started and it continued to be valid.
– In 2006, a previous court decision had agreed that the Wall could be built along the planned route and this had not been challenged.
– It was too late for discussions to commence at this stage, particularly as the State of Israel had already spend over USD20 million on the Wall in Al Walaja.
DECISION
The High Court decided the following:
1. The State of Israel has 45 days to submit evidence to show that (a) the 2006 land seizure order is still valid and had not expired; and (b) the planned route of the Wall should not be re-examined again.
2. SPNI’s expert opinion regarding the damaging environmental effects of the planned route of the Wall in Al Walaja could be admitted and their arguments could be submitted.
For any further information, please do not hesitate to contact NRC.
Kind regards,
NRC
