Supreme Court Issues Order Nisi and Injunction against Spraying of Crops Cultivated by Arab Bedouin in the Naqab

On 19 October 2004, the Supreme Court of Israel issued an order nisi (an order to show cause) on a petition filed by Adalah on 22 March 2004, instructing the state to provide an explanation within two months for the crop spraying operations carried out by the respondents - The Israel Lands Administration (ILA), the Ministry of Industry and Trade, and the Ministry of Agriculture - in unrecognized Arab villages in the Naqab (Negev). The Court also extended an injunction it had previously issued on 23 March 2004, prohibiting the respondents or any other entity appointed by them from aerially spraying the crops in question. The ILA had used a chemical called ROUNDUP for spraying crops from the air in the Naqab, destroying thousands of dunams of land over a period of almost two years. The ILA issued no warnings, either before or after the spraying.

Supreme Court Justices Dorit Beinisch, Edmond Levy, and Jonathan Adiel issued these orders after a hearing held the same day on the petition. The petition was submitted by Adalah Attorney Marwan Dalal on behalf of four Arab Bedouin individuals, one of whom was injured by the spraying and three of whom had crops destroyed by the ILA; Physicians for Human Rights-Israel; the Association of Forty; the Forum for Co-Existence in the Negev; the Negev Company for Land & Man, Ltd.; Bustan for Peace; the Association for Support and Defense of Bedouin Rights in Israel; the Arab Association for Human Rights (HRA); the Galilee Society; and Adalah. The petitioners sought an order from the Court to stop the ILA from spraying the crops, as these acts constitute a danger to the life and health of human beings and animals, as well as to the environment and the crops, which are the Palestinian Bedouins' only source of livelihood.

The Attorney General's (AG) legal representative argued in her written response to the petition that the ILA's crop spraying operations using ROUNDUP posed no health risks. She based this claim on an expert opinion submitted to the Court by the Chief Toxicologist of the Ministry of Health (MOH), Mr. Gary Winston.

Countering the state's contentions at the hearing, Adalah argued that the MOH's Chief Toxicologist had copied the main parts of his expert opinion word for word from a public relations statement posted on the website of Monsanto, a company that produces ROUNDUP, and thus, it should be deemed inadmissible by the Court. Adalah also emphasized before the Court that ROUNDUP is in fact a very dangerous substance. The label affixed to the bottle of ROUNDUP warns that all physical contact with the chemical must be avoided. It also states, “Do Not Apply This Product Using Aerial Spray Equipment”, and that the “level of toxicity is 4 – dangerous.” Expert opinions provided by the petitioners to the Court and the AG also verify the extent of the dangers involved, Adalah argued. For example, Dr. Elihu Richter, Head of the Unit of Occupational and Environmental Medicine and Center for Injury Prevention, Hebrew University, stated in his expert opinion that exposure to ROUNDUP carries reproductive and carcinogenic risks. Dr. Ahmad Yazbek, who holds a Ph.D. in Chemistry from the Technion, Haifa and is a senior researcher with the Regional Research and Development Center - The Galilee Society, warned in his expert opinion against using these materials, since they may induce eye and skin irritations, miscarriages, nausea and breathing difficulties. The Court stated that it would not determine the toxicity of ROUNDUP at this hearing, and asked the petitioners to submit their arguments in writing within 14 days regarding the MOH Chief Toxicologist's expert opinion.

The AG's legal representative also contended in her response to the petition that spraying the crops is legal, and a useful and cost-effective means for solving the problem of Arab Bedouin “trespassers,” who are allegedly “creeping” onto state-owned lands in the Naqab. She claimed that in the past, the ILA used to come to the fields with tractors and police in order to destroy the crops. However, they were met with resistance – both protests and physical confrontations – by the Arab Bedouin farmers, and therefore decided to spray the fields from the air. Justice Levy stated at the hearing that the central issue appears to be a dispute over land. He suggested that the Arab Bedouin farmers pay the ILA to lease the land, without relating to the issue of title or ownership.

Adalah rejected both the state's arguments and Justice Levy's suggestion. As Adalah emphasized in the petition, these lands are the ancestral lands of the Palestinian Bedouin in the Naqab, who have suffered from both historical and contemporary injustices. Before the establishment of Israel in 1948, the Arab Bedouin in Palestine numbered approximately 60,000. During the 1948 war, Israeli forces expelled many Arab Bedouin from the Naqab, and forced others to flee; only about 9,000 remained by the end of the war. During the subsequent military regime imposed on all Palestinians in Israel (1948-1966), many of the remaining Arab Bedouin had their lands confiscated, were displaced from their homes, and were re-located by the state. The state's attempts to assert claims of ownership of the land are vehemently disputed.

Adalah stressed at the hearing that even if the respondents, hypothetically, have a court decision determining title to the land, the petition still stands, and the argument remains that ROUNDUP constitutes a danger to life and health. The state cannot shift the major health risk to citizens associated with its aerial spraying operations.

The petitioners further argued that the ILA's spraying of the crops violates the right to life, the right to health, and the right to dignity under both domestic and international law. The ILA has no authority to destroy the crops, regardless of the legal status of the land in question, Adalah emphasized. The Law for the Protection of Plants - 1956 governs the issue of crop spraying. The purpose of the law is to protect health and the environment; it grants sole authority to the Minister of Agriculture to further this purpose. If the Minister grants a permit to another entity regarding these matters, it may only be given for this purpose; the ILA's purpose - to enforce the state's claimed right to land - and its actions in spraying and destroying the crops do not further this purpose. Moreover, Adalah contended that the ILA is also violating regulations made pursuant to this law, which prohibit the spraying of chemicals from the air if nearby plants could be damaged. They also mandate that if poisonous chemicals are sprayed, it must be done in accordance with the instructions and the warnings on the material. Adalah further argued that the ILA's spraying of the crops constitutes criminal offenses. These actions violate the Penal Law - 1977, specifically, Article 336 (Use of a dangerous toxin) and Article 452 (Malicious damage).

H.C. 2887/04, Saleem Abu Medeghem, et. al. v. Israel Lands Administration, et. al. (case pending).