Settlement Report: December 21, 2018


Welcome to FMEP’s Weekly Settlement Report, covering everything you need to know about Israeli settlement activity this week.

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December 21, 2018

  1. Israel Nears Final Move to Carry Out Massive Land Theft to “Regulate” Illegal Outposts
  2. Ministers Back a Bill to Legalize 66 Outposts
  3. In New Legal Opinion, Israeli AG Outlines Strategy for Legalizing Outposts
  4. New Outpost #1 : Settlers & Government Officials Illegally Re-Build Amona Outpost
  5. New Outpost #2: Settlers Build Outpost Overlooking Hebron
  6. More Details on the Plan to Dig a Tunnel Road to the Haresha Outpost
  7. High Court Criticizes State Over Illegal Road on Palestinian Land
  8. New Report Documents Israel’s “Severe and Regular” Violation of International Law in Hebron
  9. High-Rise Settlement Housing Promoted As a Means to Achieve 2020 Settler Vision & As a Solution to Israel’s Affordable Housing Shortage
  10. Fourth Quarter Decline in 2018 Settlement Construction Starts Doesn’t Tell the Whole Story
  11. Bonus Reads

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Israel Nears Final Move to Carry Out Massive Land Theft to “Regulate” Illegal Outposts

As has become routine, Israeli settlers and their allies in government are exploiting the recent deaths of three Israelis (two soldiers and a baby) at the hands of Palestinian attackers as an opportunity to accelerate settlement-related activities. This includes advancing new legislation and  accelerating/expanding the application of new legal tools designed to entrench and expand the permanence of some of the most radical Israeli settlers living in isolated outposts across the West Bank.

If implemented, the plans and legislation detailed below (and in last week’s settlement report) will expropriate huge amounts of land that even Israel recognizes as privately owned by Palestinians, in order to retroactively legalize Israeli outposts scattered across the West Bank. Such a move will complete what has been a gradual but steady formal suspension of even the pretense of maintaining the rule of law with regard to Israeli settlers’ or the Israeli government’s’ actions in the West Bank (which comes on top of Israel’s official and open contempt for international law). As Haaretz columnist Zvi Bar’el writes:

“The legal criminality that the government invented in honor of the settlers… is an unbridled attack on the rule of law, the undermining of Palestinian landowners’ right to appeal at the High Court, and the destruction of the planning and building system. And mainly, it turns terror into a real estate perk for lawbreaking extortionists.”

Americans for Peace Now said:

“In reaction to murderous terrorist attacks targeting West Bank Jewish settlers and Israeli soldiers, the government of Israel has come under pressure from the settlers to exact retribution against Palestinians. Two of the measures adopted are bound to open the floodgates for the legalization of existing settlement-outposts and the establishment of new ones.”

Ministers Back a Bill to Legalize 66 Outposts

On December 16th, the Israeli Cabinet voted unanimously to give government backing to a bill (called “Regulation Law 2” or the “Young Settlement Bill”) that directs the government to treat 66 illegal outposts built on privately owned Palestinian land as legal settlements, while giving the government 2 years to find a way to retroactively legalize those outposts.

The bill, proposed by MK Bezalel Smotrich (Habayit Hayehudi) and MK Yoav Kisch (Likud), also freezes any/all legal proceedings against the outposts  and requires the government to connect the outposts to state infrastructure including water, electricity, provide garbage removal, and also approve budgets for them. The law also allows the finance minister to guarantee mortgages for settlers seeking to buy units in these outposts, even before the legal status of the land is resolved (a remarkable state-directed violation of normal practices in the mortgage industry). With government backing, the bill will now be introduced in the Knesset, where it must pass three readings before becoming law.

Though this bill has been ready for months, the Cabinet decided to advance the bill now in response to recent Palestinian terror attacks. MK Smotrich said: “This is the definitive answer to the murderous terrorism of the Arabs.” This sentiment was echoed widely across the settler movement.

The Cabinet voted to support the bill despite strong opposition from the Israeli Attorney General’s office. Deputy AG Ran Nizri told the Cabinet ahead of the vote that the bill has “significant legal problems,” represents a sweeping violation of the property rights of Palestinians in the West Bank, and will likely face a drawn out Court battle that might result in the High Court of Justice overturning the law. Notwithstanding these seemingly principled arguments opposing this tactic for legalizing outposts, it should be recalled that the Attorney General’s office has proposed what it believes is a more defensible means means to accomplish the same ends – called the Market Regulation principle (discussed below).

The Jerusalem Post speculates that passage of the “Regulation Law 2” in the Knesset may not be automatic, in light of past instances where international condemnation of such moves to legalize outposts led to hold-ups. The Times of Israel points out that the Trump Administration has failed to express any criticism about the new bill, which is unsurprising given Trump Administration officials’ statements and actions embracing and normalizing the settlements.

Israeli Justice Minister Shaked praised the bill, saying:

“[the bill is a] clear statement that will legalize young settlements [outposts] in Judea and Samaria. In the last three years, we changed the conversation from one of evacuation to one of legalization. There is no reason for the residents of Judea and Samaria to always have to live under the sword of evacuation.”

Peace Now said:

“Another populist and unconstitutional initiative is approved by the settler government, and only in such a state can an ‘illegal settlement’ be classified as a ‘young settlement.’  The settlers’ violence against Palestinian passerby that we witnessed during the weekend is a direct result of the government’s policy and of such bills that actually telling the settlers that they are above the law and whatever violation of the law the make, the government will legalize it.”

The bill is a follow-up to the first Regulation Law, which was passed by the Knesset in February 2017 but has since then been frozen by the High Court of Justice while it considers the law’s constitutionality. One month after passage of the Regulation Law, the Israeli Cabinet passed a resolution to enact the law expeditiously, at which point the cabinet created a committee – now headed by settler leader Pinchas Wallerstein – to build a list of outposts which the government can retroactively legalize and to complete the bureaucratic work required to do so. Wallerstein – who has a long history of ignoring Israeli law but is now responsible for massaging it to suit his needs – has been vocal about what the government can do immediately, telling the Knesset in October 2018 that there are at least 20 outposts which can be “easily” legalized as neighborhoods of existing settlements, and 50 more outposts that can be legalized but require more complex solutions.

The outposts slated to be legalized are scattered across the West Bank, many of which FMEP has reported on regularly, including: Haresha (the center of recent legal maneuvers aimed at legalizing an access road built on privately owned Palestinian land); Givat Assaf (where two Israeli soldiers were killed on December 13th); Havat Gilad (another outpost which gained political support following a Palestinian terror attack); Yitzhar South, Yitzhar East (satellites of the radical and violent Yitzhar settlement near Nablus; Ma’ale Rehavam (which was built on privately owned Palestinian land that the WZO illegally allotted to the settlers); Mitzpe Kramim (where once again  the WZO gave settlers land owned by Palestinians. A court recently ruled the WZO acted in “good faith” in the transaction despite evidence to the contrary); Netiv Ha’avot (FMEP extensively covered the saga of Netiv Ha’avot); and, Adei Ad (a violent outpost that has been approved to be added to the jurisdiction of the new Amichai settlement in the Shilo Valley).

FMEP tracks all developments related to Israeli legislative, cabinet, and judicial action that promotes the retroactive legalization of outposts built on privately owned Palestinian land as part of its documentation of creeping annexation – available here.

In New Legal Opinion, Israeli AG Outlines Strategy for Legalizing Outposts

On December 13th, Israeli Attorney General Avichai Mandleblit issued a new legal opinion outlining how the government can implement the “market regulation” principle (which he invented) as a new legal basis for retroactively legalizing outposts and settlement structures built on privately owned Palestinian land. According to this principle – which contradicts any notion of rule of law or the sanctity of private property rights – settlement structures and outposts built illegally on private Palestinian land, can be legalized, if the settlers acted “in good faith” when they took over and built on the land. His opinion and subsequent arguments to the Israeli High Court of Justice (below) confirm that in the view of the Israel’s top law official, Israel has the right to expropriate privately owned Palestinian land in the occupied West Bank and give it to Israeli settlers; the only disagreement he has with the Knesset is over the method of doing so.

Peace Now has a comprehensive breakdown of the new legal opinion, including the specific criteria outlining which outposts can qualify under the new scheme. AG Mandelblit estimates that 2,000 illegal settlement structures qualify for retroactive legalization using this principle,

The Israeli government has already used the “market regulation principle” in court twice, both in defending against lawsuits filed by Palestinians (first in response to petitions by Palestinian landowners against structures on their land near the Ofra settlement, second in response to petitions filed by Palestinian landowners against the Mitzpe Kramim outpost). This week’s move by the Attorney General allows the government to proactively initiate proceedings to retroactively legalize unauthorized outposts and settlement structures.

Reportedly, the Attorney General prepared this legal opinion a while back, but was stopped from publishing it by Prime Minister Netanyahu, who was concerned about the international and diplomatic repercussions. It seems likely that the recent string of Palestinian terror attacks prompted Netanyahu to give the AG the green light to go ahead, along with advancing a number of other punitive settlement plans.

Shortly after approving the implementation of the “market regulation principle,” Mandleblit called on the High Court of Justice to overturn the Regulation Law, which the Court has been considering for more than a year. In a letter to the High Court Justices, Mandleblit argued that implementing  the “market regulation principle” is “a more proportionate and balanced measure than the arrangement prescribed in the Regulation Law,” providing a more narrow legal basis by which Israel can strip Palestinian landowners of their rights (estimating that 2,000 structures can be legalized under the “market regulation principle,” compared to an estimated 4,000 under the Regulation Law). Of course, this argument overlooks the severe violation of Palestinian rights, the rule of law, and international law inherent in Israel’s decision to in effect erase Palestinian private property rights in the occupied territory to benefit the settlers.

Peace Now said:

“The attorney general is crossing yet another red line by laying the foundations for an institutionalized theft mechanism that will expropriate land from Palestinians and allocate it to settlers who stole it.This is part of a larger move led by AG Mandelblit to reduce the rights of Palestinians in the occupied territories and to expand the privileges of the settlers, thereby bringing us closer to an apartheid reality.”

FMEP tracks all developments related to Israeli legislative, cabinet, and judicial action that promotes the retroactive legalization of outposts built on privately owned Palestinian land as part of its documentation of creeping annexation – available here.

New Outpost #1 : Settlers & Government Officials Illegally Re-Build Amona Outpost

In recent days,  dozens of Israeli settlers moved two mobile homes placed on the hilltop where the illegal Amona outpost once stood, claiming to have purchased the land from its Palestinian owners. Prominent settler leaders and MK Bezalel Smotrich (Habayit Hayehudi) visited the site to celebrate the resurrection of the infamous outpost, an endeavor which was directly supported and facilitated by the Binyamin Regional Council (a settlement regional authority which draws its budget from Israeli taxpayer funds).

Settlers have reportedly submitted documents to the Israeli Civil Administration which they claim prove the land has been legally purchased (a claim which, even if true, does not justify the settlers’ illegal invasion of and construction in an area designated by Israel as a closed military zone). The Civil Administration – which is the sovereign power over the West Bank and responsible for enforcing the law there – has confirmed that it is aware of the new outpost and has received documents from the settlers, but has not yet reviewed the documents.

Yesh Din, an Israeli NGO representing the Palestinian landowners, immediately filed a petition to have the illegal structures removed. Yesh Din also filed a criminal complaint against the Israeli government officials who were involved with invading the hilltop. As of this writing they have not received a response on either front. Peace Now has also stated it will pursue legal action against the settlers.

Yesh Din explains key context in the Amona outpost saga:

“After the evacuation [of the Amona outpost] in 2017, the Israeli army declared the area a closed military zone, prohibiting entry of Israelis and Palestinians to the area where the outpost had been located. The closure, however, was not enforced for Israelis, who freely entered, while Palestinians – including the legal landowners – were forbidden to enter and cultivate the very land for which they had struggled for years. In addition to the audacity of blatantly defying the High Court of Justice ruling and trampling on the rights of the landowners, the placing of the new structures this weekend violates the closure order and constitutes a further infringement of the law as the establishment of a new settlement in Amona was never authorized – certainly no permits or outline plans exist. But in the ‘land of the settlers,’ the concept of rule of law has long since lost any meaning. Any Israeli can decide to build a settlement on a hill, merely because they feel like it. The buildings then remain regardless of their illegality, Israeli authorities not daring to challenge their imposing presence.”

Benyamin Regional Council Chairman Yisrael Gantz said in a statement:

After two years of this place being uninhabited, we are fortunate to resume Israeli life here. The plots upon which we erected the structures were legally purchased. Yesterday, I promised to establish a new settlement in Binyamin in response to the deadly attacks and today we are carrying it out.”

Yossi Dagan, head of the Samaria Regional Council said at the event:

“In these dark days, when terrorist attacks are so numerous and the honor of the people of Israel is harmed, we must get fired up and today’s ascent to Amona is an appropriate Zionist response.”

Peace Now said in a statement:

“There is no limit to the cynicism of the hilltop criminals who exploit the events of recent days to trample the law and ignite disturbances, all with public funds. These pyromaniacs are backed by Knesset members and local politicians… It is difficult to understand how an order has not yet been issued to evacuate them, and we ask whether the IDF and the police would have allowed this if they were Palestinians. This disgrace should be addressed today.”

Re-establishing the Amona outpost would hand a complete and total victory to the settlers who were forcibly evacuated from the site in 2017 – proving that not only does settler law-breaking go unpunished, but it is handsomely rewarded by the Israeli government, and that establishing illegal outposts is an effective route to establishing new settlements. Since being evacuated, the Amona outpost settlers have (so far) been “compensated” by the government with financial compensation and two new settlements:

  1. The first new government-backed settlement in 25 years, Amichai. The Israeli Civil Administration High Planning Council subsequently approved a plan to triple the size of the Amichai settlement to include the Adei Ad outpost and the lands between the two; and,
  2. The Shvut Rachel East settlement. This is an outpost that was granted authorization as a “neighborhood” of the Shilo settlement, but is properly understood as a new settlement unto itself. Teh Amona outpost settlers were first offered the Shvut Rachel East hilltop as a relocation site, but rejected it in favor of the nearby Amichai hilltop. Despite rejection, Shvut Rachel East received authorization anyways.

New Outpost #2: Settlers Build Outpost Overlooking Hebron

In recent days,  a group of settlers have moved back into the site of an evacuated outpost near the city of Hebron, just north of the Kiryat Arba settlement, which settlers are calling Givat Mevaser. At a celebration of the decision by settlers to reestablish the outpost, the chairman of the Kiryat Arba settlement local council,  Eliyahu Libman, said:

“We made a decision in light of the harsh news endured by the people of Israel last week to permanently move families into Givat Mevaser.”

The IDF was present at the celebratory event to protect the settlers, but an official at the Defense Ministry admitted that the settlers did not coordinate their actions with authorities. The site was previously approved to be developed into a settlement industrial zone, and according to a spokesperson for the new outpost, settlers are in the process of changing the building plan in order to get authorization for residential housing. Nonetheless, the settlers are at present violating Israeli law by taking up residence at the site.

More Details on the Plan to Dig a Tunnel Road to the Haresha Outpost

Kerem Navot has published a Justice Ministry opinion that provides further details on the government’s plan – approved on December 6th – to retroactively legalize the Haresha outpost by building a tunnel road underneath privately owned Palestinian land (an olive grove). The Justice Ministry document explains that while the Israeli government in principle has the right to permanently expropriate the land from its Palestinian owners, such an action would likely be challenged in the High Court of Justice, where it might be overturned. The Justice Ministry suggests instead that the government should “temporarily” expropriate the land while a tunnel is dug and road paved beneath the olive grove – with the plan being, ostensibly, to return the land to its Palestinian owners after construction is complete.

Kerem Navot comments:

“now, in order to legalize the outpost, shady legal advisers (of the type to whom Justice Minister Ayelet Shaked is drawn) write documents in which they lay down their doubts on whether to expropriate the grove ‘permanently,’ which will be cheaper and faster (but it is likely to be rejected by the High Court of Justice), or to ‘temporarily’ expropriate it solely for the construction of a tunnel through the ‘excavation and cover-up’ method.”

As a reminder, in November 2017 the Attorney General gave the Israeli government a green light to permanently expropriate the privately owned land based on a legal argument that holds Israeli settlers to be part of the “local population” of the West Bank, and therefore eligible to be the sole beneficiaries of state land expropriated for “public use.”

High Court Criticizes State Over Illegal Road on Palestinian Land

At a December 18th hearing, the High Court of Justice gave the government of Israel 60 days to explain why it should not be required to demolish a road and several buildings that were built on land that the state has admitted it believes is privately owned by Palestinians. The case is before the court on a petition by Palestinians who claim that a 200-meter (650-foot) stretch of the road is built on their land.

The Court also slammed the State for allowing the construction of the road and buildings to be completed after a stop-work order was issued against the construction, a stop-work order the State assured the Court would be implemented. At the December 18th hearing, an attorney from the State Prosecutor’s Office told the Court that the road in question was a dirt road, and argued that the state had not sanctioned or had a hand in its construction.

New Report Documents Israel’s “Severe and Regular” Violation of International Law in Hebron

Haaretz shares details from a leaked report written by the Temporary International Presence in Hebron (TIPH), which documents the totality of Israel’s policies in Hebron,  serve to aid and protect settler and which collectively impose severe human rights violations and restrictions on Palestinians.

The report accuses Israel of being in “severe and regular breach” of international law, highlighting the many ways in which the human rights of Palestinians are systematically trampled on – specifically as it relates to radical settlers, their increasing activities in Hebron’s Old City, and the role of nearby settlements.

The Temporary International Presence in Hebron (TIPH) was first established in 1997 as part of the Oslo Accords’ Hebron Protocol, which allowed the partial redeployment of Israeli military forces to the part of the city that remained under its control. Israel must renew the TIPH’s mandate every six months; some fear that the next renewal has been jeopardized by the leaked report’s publication.

High-Rise Settlement Housing Promoted As a Means to Achieve 2020 Settler Vision & As a Solution to Israel’s Affordable Housing Shortage

Haaretz reports that the Yesha Council – the umbrella group representing all settlements in the West Bank – has adopted a strategic goal to advance “high quality, high density” settlement schemes in order to reach their goal of having 1 million settlers living in the West Bank by 2020. The basic idea is to build high-rise apartment complexes in settlements close to major highways in the West Bank and aggressively market them to Israelis who are seeking cheap rent and a fast commute, two key complaints of Israelis living and working in sovereign Israeli territory.

The strategy marks a shift in how settlements have typically been marketed to the Israeli public; once sold as an answer for young Israeli families looking for a single family unit with land, housing in settlements is now being marketed as the answer for young professionals looking for affordability, convenience and accessibility. The Yesha Council has coupled the new strategy with pressure on the government (and a promise to potential purchasers) to expedite West Bank infrastructure projects that will ease traffic, including bypass roads and detours around Palestinian towns.

In a February 2018 article, the Chairman of the Yesha Council wrote:

“Looking ahead, the patterns of thinking and action in the settlement movement need to be changed in two main areas: high-rise construction and doing away with admission committees. The available land for building is not plentiful. Until now, we’ve been used to rural communities with a one-family home on a half-dunam plot, but the goal from now on should be to build as many housing units as possible on that same land. High-density construction — building up or in a terraced fashion, depending on topography — will change the balance in the area and also require a new approach to infrastructure development to suit the number of residents in the future.” [Note: the Haaretz article explains that “admission committees” are a function of settlements which have standards for who is permitted to live there, mostly in ultra-orthodox and ideological settlements]

Fourth Quarter Decline in 2018 Settlement Construction Starts Doesn’t Tell the Whole Story

by Peace Now

The Israeli Central Bureau of Statistics (CBS) released new data showing a 52% decrease in the number of settlement construction starts in the third quarter of 2018 compared to the second quarter of 2018. News about a “decline,” relative to the last quarter, obscures the clear and alarming settlement surge currently taking place. As Peace Now has reported, by August 2018 the total number of settlement tenders and plans that have been advanced (6,319) is more than double the total amount in 2016 (3,189).

In addition, it is important to bear in mind that the number of construction starts do not begin to depict or reveal the level of settlement activity happening in the West Bank. Israel’s settlement enterprise is not solely a matter of residential housing plans, but also the unceasing expansion of infrastructure and security measures that exclusively benefit Israeli settlers, the normalization and development of settlement industrial zones, and illegal settlement activity (outposts, which are now regularly legalized ex post facto) that does not register in numbers tracking the settlement planning process.

Bonus Reads

  1. “Israel Has Weaponized the Settlements” (Haaretz Editorial)
  2. December 2018 public opinion poll – Palestinian Center for Policy and Survey Research