SETTLEMENT MONITOR

EDITED BY GEOFFREY ARONSON

This section covers items—reprinted articles, statistics, and maps—pertaining to activities in the , including East , and the Golan Heights. Unless otherwise stated, the items have been written by Geoffrey Aronson for this section or drawn from material written by him for Report on Israeli Settlement in the Occupied Territories (hereinafter Settlement Report), a Washington-based bimonthly newsletter published by the Foundation for Middle East Peace. JPS is grateful to the foundation for permission to draw on its material.

Undiplomatic Settlement Expansion “Settlement Thrives as Diplomacy Stalls” ...... 146 Judaizing Beit Hanina with American Backing, by Jeff Halper ...... 147 Israeli Government Approves the Establishment of New Settlements for the First Time since 1990, by Peace Now (excerpts) ...... 149

The Settlers and the IDF “Don’t Shoot, We’re Settlers” ...... 150

“Legalizing” Settlement Outposts “As the Illegal Outpost of Migron Goes, So Goes All of ” by Lara Friedman ...... 152 “Under the Guise of Legality: Israel’s Declarations of State Land in the West Bank,” by B’Tselem (excerpts) ...... 154

UNDIPLOMATIC SETTLEMENT administration’s initial demand for a EXPANSION settle ment freeze has long passed. Re- cent !gures published by Israel’s Central “SETTLEMENT THRIVES AS DIPLOMACY Bureau of Statistics show a complete STALLS” recovery from the limited and short- lived effects of the U.S. policy. The Jew- From Settlement Report, March–April ish population in the West Bank soared 2012 to 342,414 last year, representing an annual increase of 4.3 percent. Not in- “There is no need to look any fur- cluded in this !gure are more than ther,” crows a newspaper advertisement 200,000 Israelis living in . jointly published by Israel’s Land Au- Prime Minister Benjamin Netan- thority and the Ministry of Housing and yahu has succeeded in setting a dip- Construction. “More land, More apart- lomatic agenda that de"ects effective ments, More possibilities.” Permits for diplomacy aimed at curb ing Israel’s 6,000 dwelling units are listed, includ- settlement drive and continuing occu- ing 500 in the settlements of Har Homa pation. Months before the Arab Spring (East Jerusalem), 180 in Givat Ze’ev, and and the U.S. election season presented 351 in Betar Illit. a ready explanation for U.S. inac tion, The threat to Israeli settlement ex- the White House was out of ideas about pansion posed by the Barack Obama how to proceed in the aftermath of the

Journal of Palestine Studies Vol. XLI, No. 4 (Summer 2012), pp. 146–157, ISSN: 0377-919X; electronic ISSN: 1533-8614. © 2012 by the Institute for Palestine Studies. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, at http://www.ucpressjournals.com/reprintInfo.asp. DOI: jps.2012.XLI.4.146.

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settlement freeze !asco. Today, concern building in that they claim to about Iran has pushed everything else have purchased legally from a Palestin- from senior-level U.S.-Israeli bilateral ian owner. The area where the building discussions. is located has been all but emptied of Netanyahu’s ability to stymie nego- Palestinian residents, and owner ship of tiations and continuing Pal estinian divi- building itself is mired in a Palestinian sion have convinced many in Israel and family dispute. the international community, if not the “Four-thousand years after Abraham, Palestinians themselves, that there is no our forefather, bought the Tomb of the point today in trying to resolve the con- Patriarchs, we are coming to continue "ict. The Israeli public is overwhelm- in his path and are building the city of ingly complacent about continuing our forefa thers,” said Shlomo Levinger, occupation. In the absence of interna- who moved into the building in Hebron tional leadership, incrementalism domi- along with his wife and seven children. nates. The diplomatic course pursued Levinger’s parents were among the by the Quartet and the European Union founders of the settle ment movement focuses on self-limited, tactical !xes to in Hebron and almost !ve the occupation—for example, trying to decades ago. Their Passover Seder at curb Israel’s pow ers over Palestinian the Park Hotel in 1968 marked the be- development in Area C, comprising 60 ginning of the Jewish re-settlement of percent of the West Bank. Even if suc- Hebron. cessful, such advances amount only to Levinger told Walla! News that “the tinkering with the status quo. police have received all of the neces- Settlers have their own response to sary documents, and we have no doubt such half-measures. As Ha’Aretz reports, that once they have examined them, “Naftali Bennett, the former head of the they will authorize our continued pres- Yesha Council of settlers, is proposing ence here. We hope that, just as we did a temporary diplomatic plan for manag- last night, the Israeli government will ing the con"ict. Bennett’s idea sounds continue to buy and build houses here logical: Since it’s impossible to solve the in the city of our forefathers and will con"ict or annex the West Bank as it is, continue to populate all parts of Hebron Israel must unilaterally annex Area C and the .” and give the 55,000 Palestinians living In a display of uncharacteristic de- there full Israeli citizenship.” termination, the Netan yahu government Reuters, quoting a Palestinian source, peacefully removed the settlers on 4 reported that in informal discussions April 2012. earlier this year in Jordan, the Israeli “We are determined to make sure team had suggested that any solution that the rule of law and the author- creating a Palestinian state needs to ity of the state of Israel over all its citi- “preserve the social and economic fab- zens will be assured. When there is a ric of all com munities, Jewish or Pal- violation, it will be put back to track,” estinian.” In other words, Israel wants Defense Minister Ehud Barak told re- settlement interests to be acknowledged porters shortly after the operation, ex- and preserved as part of a !nal status plaining that “the house was taken over agreement. by citizens against the law.” “The only negotiations that Netan- yahu implemented was the Hebron JUDAIZING BEIT HANINA WITH AMERICAN agreement [of 1996],” explained Pal- BACKING estinian negotiator Nabil Sha’ath. “He didn’t do anything after this. I don’t The following report by Jeff Halper believe that Netanyahu is ideologically was originally posted on Mondoweiss a radical. He is pragmatic. He believes on 31 March 2012 with the title “‘Juda- that one day he will need to return to izing’ Beit Hanina in East Jerusalem, the peace process, but until then he will with Backing from Americans.” The take as much land as possible in order original text can be obtained at http:// to establish facts on the ground.” mondoweiss.net/2012/03/judaizing-beit- On 28 March 2012, more than hanina-in-east-jerusalem-with-backing- 100 settlers moved into a three-story from-americans.html.

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Driving Palestinians out of their Hotel and Sheikh Jarrah, now renamed homes in “east” Jerusalem is, as you can Shimon Hatzadik; a plot in the vil- imagine, a dirty business. But it’s not lage of Anata to the east of the Hebrew terribly dif!cult. The Palestinians are a university; and now the homes in Beit vulnerable population, poor (70% sub- Hanina. sist on less than $2 a day), completely While King, Moskowitz and other unprotected by the law or Israeli courts, organized settler groups frame their and targeted by determined Jewish set- taking of Palestinian homes as “reclaim- tlers with all the money and political ing” Jewish properties from before backing in the world—much of its com- 1948, Palestinians are legally prevented ing, of course, from the United States, from even approaching the courts to mainly from orthodox Jews and Chris- reclaim their lost properties in “west” tian Zionists. Jerusalem—the homes, businesses and Over the past few days settlers led by lands that once comprised 40% of the Arieh King have been harassing Pales- now all-Jewish part of the city. King tinian residents of Beit Hanina where, works through a company called The according to King, settlers will “very Israel Land Fund [ILF] that, according to soon” take over four houses, plus an ad- its website, “is dedicated to enable all ditional two houses in the Palestinian Jews (Israeli and non-Israeli citizens) to neighborhood of Sheikh Jarrah, where own a part of Israel. It strives to ensure violent nighttime evictions aided by the that Jewish land is once again reclaimed Israeli police have become common- and in Jewish hands. House by house, place. The immediate target of window- lot by lot, the Israel Land Fund is ensur- breaking, curses, violent encounters and ing the land of Israel stays in the hands now a police search of the home “for of the Jewish people forever.” weapons” is the Natche family of Beit Just how sleazy the settlement racket Hanina. is can be gleaned from The Israel Land King is the front-man for Irving Mos- Fund’s website. It employs, we learn, kowitz, a wealthy owner of bingo casi- three full-time employees who “are well nos in Hawaiian Gardens, a poor Latino versed in Arabic, and all served as of!- community near Los Angeles, who is cers in the Israel Defense Force.” It adds bankrolling some 17 settlements around menacingly and tellingly: “These skills East Jerusalem to “buffer” the Old City are frequently called into play in their and “Judaize” East Jerusalem (see the dealings with Arab sellers and with the StopMoskowitz website). A friend and local population in areas that the Fund benefactor of Netanyahu, Moskovitch is active.” The Fund’s employees are was behind the opening of the tunnels pro!cient in English, we are told, “since under the Muslim Quarter of Jerusalem the Fund’s main proponents are from in 1996 that resulted in the deaths of 80 the English speaking public.” Palestinian protesters. The “process” of acquiring an Arab The Moskowitz/King strategy is to property, described on the website, establish settlements in the heart of also offers insights into King’s meth- Palestinian neighborhoods, often in ods. First, “the buyers [i.e., Jews] will be houses acquired by dubious and vio- shown properties or land they may be lent means. Among the settlements es- interested in purchasing, without di- tablished or on the way are the City of rectly identifying the property. This is David (Silwan), just below the al-Aqsa to prevent the possibility of over-expo- mosque; Ma’ale Zeitim and Ma’ale Da- sure of the property [read: the neigh- vid in the Ras-el-Amud quarter on the bors, or even the people living in the southern side of the ; home who think they own it, might !nd Beit Hoshen on the Mount of Olives, out] which may result in the cancella- where several Palestinian families were tion or withdrawal of the property by violently evicted from their homes and the seller [not necessarily the owners which "ies an enormous Israeli "ag; nor the people who believe the home Beit Orot, on the northern part of the belongs to them] or cause damage to the Mount of Olives, where last year Mike deal.” Only when “the buyers” are suf- Huckabee laid the foundations for an !ciently committed will The Fund then expanded settlement; the Shepherds conduct negotiations on their behalf. “It

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is only at this stage, once the ILF is con- 1990 the Government Is to Approve vinced of the seriousness and authentic- the Establishment of New Settlements.” ity of the buyers, that the ILF will reveal The full text can be obtained at http:// the seller and enable the buyer to visit peacenow.org.il/eng/rechelim-bruchin- the property.” /. The Israeli cabinet decision The “settlement business” cannot to legalize the three outposts mentioned function, of course, without extensive was made 22 April. of!cial support. Settler groups and their lawyers are able to keep even According to reports, Prime Minis- weak or non-existent cases in court for ter Netanyahu stated this week that the years with the help of their deep pock- Government will approve the establish- ets and compliant judges. Palestinians, ment of three settlements (Bruchin, even those with strong cases, simply Sansana and Rechalim), in the upcom- cannot afford the expenses of litiga- ing cabinet meeting on Sunday, 22 tion. If a Palestinian or his children run April. This decision is required in order afoul with the law, especially in cases to legalize the illegal outposts. Eventu- of alleged stone-throwing, the settlers, ally, the government made a trick, and through their lawyers and sympathetic nominated four ministers to take the police, can extricate the person—for a decision in the name of the government, price, often his home. The municipal- and two days later, the new settlements ity is enlisted either to threaten families were approved. . . . who are targeted for various building Sansana is an outpost with some 240 violations with !nes or to issue demo- settlers, 21 houses and 58 mobile homes. lition orders against their homes, and Bruchin is an outpost with some building permits elsewhere are used as 350 settlers, 52 houses and 53 mobile inducement to get Palestinians to leave homes. targeted areas, such as Silwan. Rechelim is an outpost with some 240 Deals are also struck. Rumors are settlers, 24 houses and 41 mobile homes. that the Natche home in Beit Hanina will be offered to a poor Palestinian The Need for an Of!cial Decision family in the Old City whose home is by the Plenary of the Government small and cramped but is strategically On 2 August 1996, the !rst Netan- located for purposes of judaization. yahu Government decided that because Poor and vulnerable families are en- Israel is obliged to peace and to the ticed to sell for exorbitant sums (hence Oslo Process, no new settlements will we don’t want to “over-expose” a poten- be established unless there is an explicit tial property), or houses are “bought” decision by the plenary of the Govern- from an absentee relative in some far- ment. . . . off country and the family evicted in the Since 1996, Israeli Governments middle of the night without even know- have allowed the establishment of some ing their home was sold. (Good lawyers 100 new settlements which were called can solve any legal complications.) “Outposts” or “Unauthorized Outposts.” So from the Natche family to the ju- All of those outposts were by de!nition daization of Jerusalem, compliments of illegal because they lacked government a California bingo parlor-cum-casino authorization. In addition, they lacked operated on the backs of low-income proper planning, and some of them Latinos and English-speaking Jewish were established on private Palestinian “buyers.” lands or on lands that were never allo- cated for settlements. All Israeli governments have prom- ISRAELI GOVERNMENT APPROVES THE ised to evacuate the illegal outposts. Ac- ESTABLISHMENT OF NEW SETTLEMENTS FOR cording to the Roadmap, for example, THE FIRST TIME SINCE 1990 [EXCERPTS] Israel is obliged to immediately remove The following Peace Now report, in- all of the outposts that were built after cluding maps and aerial photographs March 2001. However, until now, no real not reproduced here, was published on outpost has been ever removed. the Peace Now website on 19 April 2012 Unlike previous governments, which with the title “For the First Time since promised to remove the outposts, the

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Netanyahu government declared in court This decision unmasked the subter- on March 2011 that it intends to legalize fuge of establishing new settlements outposts that were built on State Land, by claiming “only” the expansion of and to evacuate the outposts that are on existing settlements, and forced the private Palestinian lands. . . . government to of!cially declare the es- According to Peace Now’s count tablishment of new settlements when there are 17 outposts under court hear- trying to legalize outposts. . . . ings. The Netanyahu government had promised to remove 4 of them (Migron, THE SETTLERS AND THE IDF Givat Assaf, Amona, Jabel Artis (the Ul- pena Hill)), and to seek to legalize the “DON’T SHOOT, WE’RE SETTLERS” others. From Settlement Report, March–April The Trick That Failed: Legalization 2012 as a Neighborhood of an Existing Settlement “During the next decade, our goal is In order to avoid the need for an of- for the religious Zionist population to !cial decision by the Government to be able to feel comfortable serving in establish the outposts as new settle- the police forces,” explained Nachi Ayal, ments (which would likely generate a top of!cial in the right-wing National internal and international condemna- Home Party and leader of an organiza- tion), the government tried to approve tion working to increase the presence the outposts as neighborhoods of exist- of Israel’s religious and ultra-orthodox ing settlements. Expanding an existing communities in the country’s national settlement needs only approval of the police forces. “So that those serving will plans. However, according to a ruling of know what it means to send forces in the Higher Planning Council of the Civil order to evacuate settlers. Who decided Administration in the Sansana case, this that the police belong to only one sector subterfuge no longer works. of the nation and not another? I am part . . . On 20 January 2009, a plan for of the state and it is incumbent upon the approval of the illegal outpost of me to also be part of the police. Sansana (south of Hebron) was de- “My goal is that in another ten to posited for public review. The plan twenty years, the police commander in suggested approving Sansana as a Judea and Samaria will be a religious neighborhood of the existing settle- person, a resident of Judea and Samaria, ment of Eshkolot. Three objections were and in the higher ranks there will be !led: by Peace Now, by Bimkom, and by four or !ve kippot-wearing [religious] the attorney Kais Nasser in the name of commanders representing us.” Palestinians from the area. Peace Now’s For the time being, these new re- main argument was that Sansana is ac- cruits are not being posted in the West tually a new independent settlement Bank, explicitly because of concerns and cannot be called “a neighborhood” not to force a potential confrontation of Eshkolot: (1) Sansana is 3 km from centering on their religious convic- Eshkolot without any territorial conti- tions support ing settlement. This effort nuity or road connecting them; (2) both is emblem atic of increasing numbers the Separation Barrier and the Palestin- of Israelis, drawn primarily from the ian village of Ar-Ramadin physically di- growing settler community and its al- vide the two settlements; (3) Sansana is lies in the ruling right-wing coalition, a religious community while Eshkolot is who hope to harden today’s political a community of secular families. consensus fa voring settlement in key On 30 January 2012, the Higher Israeli security institutions. Their objec- Planning Council accepted the objec- tive is to increase the numbers of reli- tions, and rejected the plan, ruling that: gious settlers and like-minded Israelis “There is no room to approve a plan for in the of!cer corps of the police and se- additional development in an area non- curity forces, and to swell the ranks of adjacent (that is, not in direct continu- religious conscripts prepared to follow ation) to the area that is to be developed the rulings of their rather than or built.” their commanders on issues related to

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settlement evacua tion, and more re- within the ranks, abetted by political cently, the presence of women in their leaders and prominent rabbis, to execut- ranks. ing military orders considered to repre- sent a repudiation of the political and Likud Succeeds Labor religious dictates of Greater Israel. Four decades ago, Menachem Be- While a large majority of Israel’s gin declared his intention to assure the Jew ish citizens favors Israel retaining preeminence of the Likud Party, long a Jew ish majority, many Israelis do not a perennial parliamentary outcast, by accept the view that Israel’s control of establishing a natural and permanent the occupied territories poses a threat electoral majority based on settlement to this objective. The West Bank, includ- throughout the occupied territories. He ing East Jerusalem, has been occupied aimed at repeating the success of Is- by Israel for almost half a century. It is rael’s Labor establishment, which be- viewed by many Israeli Jews as an un- fore 1967 rose to political prominence remarkable part of the fabric of Israel’s by creat ing an electoral majority rooted communal and national existence. Is- in the country’s rural settlement move- rael’s security establishment and the ments. The goal of today’s two-pronged young male conscripts serving manda- effort is to broaden the front committed tory, three-year terms of national mili- to settlement expansion throughout the tary service are a critical element of this West Bank by increasing the representa- national consensus. tion of national religious of!cers in the “Military service in the West Bank,” military’s top ranks so that settlers and wrote David Zonshein in Ha’Aretz on 1 their interests are treated even more be- February 2012, “is the central political nevolently than is now the case, and to tool legitimizing for all Israelis, includ- raise the specter of wide-scale refusal ing those in the left, accep tance of the by conscripts and lower-ranking of!- logic of Greater Israel.” cers to implement orders to constrain Israel’s security forces mirror the or evacuate settlements. A recent study signi!cant if evolution ary changes in revealed that while only 13.7 percent Israeli society supporting extensive set- of all soldiers graduated from state re- tlement throughout the occupied terri- ligious schools, almost one-third of in- tories. Settlers and their support ers can fantry of!cers are religious, with the be found throughout Israel’s governing proportion jumping from only 2.5 per- institutions. Both the Labor and Likud cent in 1990 to 31.4 percent in 2007. parties seek the support of obser vant An effective military force is built Jews. Labor hopes to reestablish a polit- upon discipline. An army without dis- ical alliance that collapsed in the 1970s. cipline and the willingness to execute “For a long amount of time, the La- commands and to ful!ll a mission is an bor Party made light of religion and tra- institution in crisis. The Israel Defense dition, and Labor Party leaders treated Forces [IDF] and civilian police have, this public disrespectfully,” explained when called upon, obeyed decisions by MK Avishai Braverman, an ally of Labor Israel’s political leadership to evacu- leader Shelly Yachimovich. “We should ate settlers and settlements, beginning continue in the footsteps of Ben-Gurion, with the evacuation of the Sinai and the who advocated the path of the Bible, 2,500 settlers from in 1982. More Jewish sources, and the prophets Isaiah recently, however, the effective imple- and Amos.” mentation of two politically controver- The Likud not only welcomes lead- sial decisions—that of the government ers of the conventional settlement move- of Prime Minister Ariel Sharon in 2005 ment, but also boasts a young leader of to evacuate 17 Gaza settlements and the “outpost youth,” now under house their population of 7,000 and another arrest, and another who heads the set- by the government of Prime Minis ter tlement outpost of Migron. Ehud Olmert to demolish a few perma- The newest member of Israel’s High nent homes (but not the settle ment) at Court, along with Foreign Minister Avig- the unauthorized outpost of Amona in dor Lieberman, lives in a West Bank set- 2006—was accompanied by politically tlement—that is, outside the boundaries potent indications of isolated opposition of the state itself. Not surprising then

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are the growing numbers of of!cers which river they are talking about. If this is the drawn from the national religious com- message being sent by the munity and from the settle ment sector, at this very moment, how can we complain which now numbers more than 500,000. about the hilltop youth? There are not only of!cers who live in settlements, but also others who live It’s Zionism in the unauthorized “outposts” that the Veteran settlement leader Israel Harel army, when it is not protecting and en- argues, however, that such exhorta- abling them, implements pro forma or- tions are as old as the Zionist movement ders to evacuate. Recent studies report itself. that settler youth enlist in combat units David Ben-Gurion—and not [Gush Emmunim in larger percentages than their peers, leader] Hanan Porat—declared “the supreme aim reprising an honored military role once of the State of Israel is the redemption of Israel claimed by the kibbutz movement. [meaning the Jewish people].” He also said that the right to the Land of Israel is “the nation’s A Changing Israel right across the generations, a right that can not “There can be no doubt,” wrote Na- be appropriated under any condition.” The roots of the ideology, which still drives hum Barnea in Yediot Aharonot on 20 the state, albeit less so, lie in [the Israeli kib- December 2011, “the religious-settler butzim of ] Ein Harod and Nahalal, not [the West sector is taking an increasingly large Bank settlements of ] Elon Moreh and Kedumim. role in manning top positions in serving Gush Emmunim adopted these roots and tried, the state—in the army, the intelligence with its own additions, to proceed in their light. branches and the legal establishment. As we know, its success was only partial. Israel’s The fact that the coalition and the Likud governments established settlements in Judea as a part of it are identi!ed with this and Samaria due to these roots—not because of sector has con tributed to that change, Gush Emmunim’s magical power. And it was not in order to realize Gush Emmunim’s religious but that isn’t the main reason. There are ideology that the Supreme Court validated the processes that are far deeper and more settlement enterprise. It did so because the jus- signi!cant under way before us. The de- tices still have Zionist feelings in their hearts. mographic make-up of Israeli society is changing; the elites are being replaced: There are those who fear, and others settlers and Haredim now have more in- who hope, that when and if Israel’s po- "uence than in the past. There is noth- litical establishment decides to remove ing more natural than that.” settle ments, the security forces will ei- While the in"uence of religion is an ther rebel or simply refuse a politically indelible part of the very fabric of Is- or religiously untenable command. The rael’s political life, there are noteworthy record, however, suggests that when instances of the growing in"uence of the state’s leadership makes a de cision, extremist religious views affecting not however controversial, the army imple- only the conduct of military operations ments it. When it hesitates, it cedes the in the West Bank but also the role of initiative to others. women in the military. It should be of less concern that the At a recent ceremony marking the army will not follow an order to evacu- end of basic train ing somewhere in Is- ate settlements than that such an order rael, the keynote speaker quoted bib- will never be given by a political estab- lical verses, reported Avner Shalev, in lishment wedded to settle ment and the Ha’Aretz: marginalization of Palestinian national aspira tions. The verses he chose did not come from the prophets’ visions of peace and morality. Nor “LEGALIZING” SETTLEMENT did he speak about our right to the land in the narrow sense of the term. Instead, he cited max- OUTPOSTS imalist verses from the Book of Joshua: “Every place that the sole of your foot shall tread upon, “AS THE ILLEGAL OUTPOST OF MIGRON to you have I given it, as I spoke unto Moses. . . . GOES, SO GOES ALL OF ISRAEL” From the wilderness, and this Lebanon, even unto the great river, the river Euphrates.” Lara Friedman, director of policy Suddenly, when they speak about one state and government relations of Americans from the sea to the river, it is no longer clear for Peace Now, published the following

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commentary in the Huf!ngton Post on They are trying to !nd a “compromise” 14 February 2012 (http://www.huff- to appease settler law-breakers (not the ingtonpost.com/lara-friedman/israeli- !rst such effort), or to come up with a settlements-migron_b_1273726.html). It way to twist Israeli law to kosher the concerns the continued debate over the settlers’ criminal acts. This response Migron outpost; for further details, see to the Court points to an increasingly “What’s All the Fuss over Migron” in the alarming problem in Israel: sacri!cing Settlement Monitor of JPS 163. rule of law to further a far right-wing, anti-democratic ideology. It highlights The fate of Migron, an illegal outpost a longstanding reality that few have in the heart of the West Bank, is about wanted to admit: the Israeli political to be decided. The implications of this system has to a great degree been hi- decision are about far more than the fu- jacked by the settlers and their support- ture of a handful of settlers in a single ers, in the service of an agenda that outpost. This decision will be a litmus openly seeks to keep all or most of the test of Israeli rule of law and, ultimately, West Bank in Israeli hands in perpetu- of Israel’s capacity to make peace with ity, at the cost of any chance for Israeli- the Palestinians. Palestinian peace. How can one outpost be so Any future Israeli-Palestinian peace important? agreement will require the establish- Outposts are settlements that have ment of a viable, contiguous state of been built in the West Bank without Is- Palestine alongside Israel. Land swaps raeli government authorization, in viola- may allow most Israeli settlers to re- tion of Israeli law. Migron is the "agship main in their homes, but even the best of the settlers’ illegal outpost enterprise, agreement (from an Israeli perspective) one of the largest and most developed will necessitate the evacuation of set- outposts and the shining symbol of the tlements located deep inside the West settlers’ determination to overcome the Bank. Migron is located deep inside the Israeli government’s longstanding policy West Bank, in an area that cannot pos- against establishing new settlements. sibly remain under Israeli sovereignty in Migron is an open-and-shut case of any future agreement. theft, the physical embodiment of the If the government refuses to remove settlers’ contempt for Israeli law. Migron Migron, even with law and the rulings is built entirely on land that Israel rec- of the court requiring it to do so, it will ognizes as privately-owned by Palestin- send an unmistakable message: Israel ians. Its establishment and expansion today prefers settlements to peace. If over the past decade epitomizes the cor- Netanyahu claims he can’t remove Mi- ruption that is endemic in Israel’s rule gron, because taking on the settlers in the West Bank, since neither could will bring down his government, it will have taken place without Israeli govern- send another message: Israel is today ment of!cials aiding and abetting set- so deeply in thrall to the settlers that it tlers’ law-breaking. is incapable of making peace, even if it And the persistence of Migron’s wanted to. existence—despite its blatant illegality Finally, should the Israeli govern- and despite repeated Israeli government ment !nd a way to “kosher” the settlers’ promises to dismantle it imminently— land theft in Migron, it will give a green discloses the settlers’ and the Israeli light for the settlers to build illegally government’s "agrant disregard for Is- everywhere in the West Bank, knowing raeli law and the Israeli High Court. that no one, not even the High Court, Last August, after more than 5 years can or will stop them. In such a case, of Israeli government foot-dragging in even if a future Israeli government is various legal proceedings, that Court more serious about peace than the cur- !nally laid down a deadline for disman- rent one, settler actions on the ground tling Migron: 31 March 2012. With that will undoubtedly seek to block any date fast approaching, the Netanyahu agreement. government and the are now The case of Migron is thus not sim- scrambling to !nd a way to circumvent ply about the fate of one outpost. It is Israeli law and the Court’s decision. a test whose results will reveal whether

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Israel can continue to uphold even the classi!cation of these lands as govern- pretense of being a nation of laws, in ment property was made in accordance which the rule of law reigns supreme, with the local land laws, or whether or if it will instead openly embrace some of them were taken from their pri- “rule by law”—an ugly characteristic of vate owners in breach of these laws. . . . a totalitarian state. Likewise, the fate of . . . The main mechanism Israel used Migron will disclose whether settler in- to gain control of most of the land on "uence has so deeply penetrated Israeli which settlements were built was dec- policy and governance that Israel is no larations of state land (hereafter: “the longer capable of upholding even the declarations policy”). . . . pretense of a commitment to the two- [T]he main objective of the declara- state solution for the Israeli-Palestinian tions of state land was to gain control con"ict. of land to build or expand settlements. For this reason, Israel included the vast majority of declared state land within “UNDER THE GUISE OF LEGALITY: ISRAEL’S the jurisdiction areas of the settlement DECLARATIONS OF STATE LAND IN THE municipal bodies—the regional and lo- WEST BANK” [EXCERPTS] cal councils. Since the settlements them- B’Tselem published the report ex- selves are illegal under international cerpted below in March 2012, focusing law, this objective is not legitimate. In- on the compatibility of the Israeli policy deed, to the best of our knowledge, the of declaring West Bank property as “state Custodian [for Government and Aban- land.” It expands on earlier B’Tselem re- doned Property in Judea and Samaria] ports on the mechanisms by which Israel has rarely allocated state land for use of takes Palestinian land for settlements is- Palestinians. Therefore, the policy was sued in 2002 (see Settlement Monitor in applied in a way that constituted unlaw- JPS 124) and 2010 (JPS 157, Settlement ful racial discrimination. . . . Monitor and Document C4). The com- [T]his report will analyze the declara- plete report is available at http://www. tions policy from the perspective of the btselem.org/download/201203_under_ local Law, with only limited reference to the_guise_of_legality_eng.pdf international law. The primary question we seek to examine is whether Israel’s Introduction declarations of state land are consistent, . . . . in whole or in part, with local Law in The claim that the land allocated general, and with the [Ottoman] Land to settlements is mostly state land has Code [of 1858] in particular. . . . been made by successive Israeli gov- ernments to counter criticism of their Summary and Conclusions settlement policy. Since settlements are A few months after release of the rul- built for the most part on state land, it ing in the Elon Moreh case [which pro- is argued, they have not infringed the hibits taking private Palestinian lands property rights of Palestinians, and, for settlement—Ed.], Attorney Elyakim therefore, have not harmed Palestinians Haetzni, a resident of Kiryat Arba and at all. This claim is simplistic. . . . one of the leaders of the settlers at the What are those state lands, on which time, wrote an article titled “The Land most of the settlements have been built, Impasse: The Legal Status.” In the ar- and what are the procedures that led to ticle, he called on the government to their classi!cation as government prop- expropriate private Palestinian land erty? . . . State land in the West Bank for settlement purposes, while paying is of two principal kinds: !rst, land the landowners for their land. Haetzni that belonged to the Jordanian govern- concluded that the government’s plan ment and was transferred to the Israeli to build settlements on state land only authorities when Israel conquered the cannot be realized: area in 1967; and second, land that Is- Again and again, we repeat and emphasize: on rael classi!es as state land, even though the central mountain ridge (which covers some it did not have this status under Jorda- 4.8 million dunams [1 acre = 4 dunams]) of Judea nian rule. This report focuses on the and Samaria—excluding the Jordan Valley and second type and examines whether the the Judean Desert—there is no state land.

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These comments of one of the set- on state land. . . . On the merits of the tlers’ leaders accurately re"ect land case, the HCJ . . . substantially deviated ownership on the ground in the early from the meaning and interpretation . . . 1980s: The central mountain ridge and the Land Code was given in the Man- its slopes, which the government des- datory court ruling (which was cited in ignated for the establishment of Israeli the Israeli court judgment), and from settlements, contained almost no state the practice during the Mandatory pe- land. To build settlements there, an ap- riod and under Jordanian rule. In ruling paratus was needed to produce addi- as it did, the Israeli court gave the ap- tional state land. pearance of continuity in the case law, In his article, Haetzni also discussed while, in fact, dramatically deviating the possibility, raised by some govern- from the case law established by Man- ment of!cials, of classifying unculti- datory courts. vated land that was not registered in the The HCJ ended its judgment of the land registry as state property. Haetzni Beit Ijza case with reference to the pur- dismissed this option, noting that “The pose for which the declaration of state settlement enterprise . . . if its legality land had been made: the establishment is to be based solely on this claim (on of the settlement of Givon Ha-hadasha. which the Ministry of Justice relies) will On this issue the court ruled that “there face great danger.” is no need for us to discuss this issue In retrospect, one may conclude that here, since this question does not relate Haetzni underestimated the govern- at all to the issue before us, and in any ment’s improvisation abilities in the case, the petitioner has no standing on West Bank and the readiness of the HCJ this question.” In making these state- [High Court of Justice] to grant it free- ments, the court ignored the substantive dom of action. Since its ruling in the aspects of local Law and the limitations Elon Moreh case, the High Court has placed on the occupying power under in- not intervened in the steps taken by ternational law with respect to the use of the government to gain control of West public land in the occupied territory. . . . Bank land, and has refrained from rul- Professedly, Israel acknowledges that ing on the legality of most of the sub- the West Bank is under belligerent oc- stantive components of the declarations cupation and is not part of its sovereign policy. Petitions !led with the HCJ have territory. This admission implies ac- generally dealt with the procedural and ceptance of the obligation to act in ac- administrative aspects of the declaration cordance with international law, which procedure, and were all rejected. forbids the occupying power to change Already in 1981, the HCJ rejected a the local Law in force in the occupied petition of Palestinians from Tarqumiya area on the eve of its occupation, unless against a declaration of state land. The necessary for security needs or for the court ruled that “when a dispute arises bene!t of the local population. The ob- over the question of whether a given ligation to respect the local Law refers parcel of land is public property or pri- not only to local legislation, but also to vate property, the accepted rule is that the rulings made by the courts of the the property should be considered pub- states that ruled the area prior to its lic property, until the question of own- occupation. ership is !nally decided.” The court also Israel’s declarations policy does not rejected the claims of the petitioners meet these requirements. It contradicts against granting military appeals com- the Law as interpreted and applied by mittees the authority to hear appeals the British Mandate and the Kingdom of against declarations of state land. In ref- Jordan. This contradiction is evident in erence to these claims, the court ruled three principal aspects: that, had the military appeals commit- tees not been founded, the residents of 1. The type of cultivation that allows the West Bank would have no ability to a private person to acquire owner- object to the Custodian’s decisions. ship rights in land. The Mandate In another judgment, given in 1986, authorities and the Jordanian the HCJ denied a petition of a resi- government considered patch cul- dent of Beit Ijza against a declaration tivation of rocky land to meet the

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requirements of article 78 of the of settlements. These statutory Ottoman Land Code. Both con- provisions did not prevent Israeli cluded that such patch cultivation authorities from declaring des- grants the farmer ownership of ignated grazing lands as govern- the entire parcel. . . . By chang- ment property, thereby revoking ing the interpretation of article the public rights of residents of 78 of the Land Code, which had Palestinian communities that had been customary in the West Bank used these lands for long periods before 1967, Israel justi!ed its of time. decision to declare large areas of rocky mountain land that were Since the beginning of its rule in the under patch cultivation as govern- West Bank and until the present, Israel ment property, despite the posi- has declared hundreds of thousands of tion of the states who ruled the dunams as state land. We do not claim West Bank prior to 1967 who con- that all these lands were private Pales- sidered these lands to be private tinian property. Clearly, declarations of Palestinian property. In this case, state land also included land that ac- Israel’s interpretation deviated cording to the Law was government so much from that applied in the property. . . . In contrast, in the central area prior to its occupation, that it mountain ridge, where most of the land constitutes a change in the statute is miri, it is to be assumed that only a itself. small portion would have been regis- 2. Cessation of cultivation after tered as government property; indeed, continuous cultivation for the this was the result in those villages prescriptive period. Israel also whose lands underwent land settlement disregarded the judgments of the during Jordanian rule. . . . Mandatory Supreme Court and [T]he percentage of land de!ned as of Israel’s High Court, whereby state land in declarations made by Is- a person who cultivated unreg- rael was dozens of times greater than istered miri land for 10 years the percentage of area registered as acquired ownership rights in the government property in Jordanian land land. . . . By an amendment to the settlements. This fact alone suggests law . . . Israel created a legal situa- that Israel applied the Law very differ- tion in which cessation of cultiva- ently from the way the Jordanians had tion for several years completely applied it. And yet, this report does not nulli!ed the person’s rights in the profess to specify the amount of state land, even if he or his family had land that was improperly and illegally cultivated it for decades before. declared as government property, but 3. Classi!cation of designated only points out fundamental problems matruka land as government prop- in the declarations policy and empha- erty. With respect to designated sizes its aspects that contradict local matruka land—primarily grazing land laws. land used by residents of a spe- The declarations policy has therefore ci!c village for many years—Israeli three fundamental defects: it contradicts declarations policy deviated from fundamental relevant provisions of sub- the way the states that previously stantive Law; it con"icts with the way ruled the West Bank had applied the states that previously ruled the area the law, and disregarded the bind- applied the Law; and it is incompat- ing court judgments. Unlike the ible with the rulings of the authorized situation with miri land, in which courts that interpreted the Law. In many private persons can acquire rights, cases, declarations made by the Custo- designated matruka is by de!ni- dian were not merely technical actions tion public land assigned for the of taking possession of land that was speci!c use of members of a anyway government property. Rather, particular community and is not they involved change in ownership sta- government property. Certainly, tus of the land, from Palestinian private it cannot be declared state land or designated public property to state and allocated for the development land.

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The situation is aggravated by the also illegal: to prevent Palestinian use fact that these declarations were made of the land and to transfer it to the sole in order to enable Israel to establish use of Israeli citizens. Even had all the settlements in the occupied territory, an declared state land been government action prohibited under international property under the substantive Law, the law. Thus, not only were the declara- Custodian was not authorized to allo- tions unlawful, but their motive was cate it for Israeli settlements.

Jewish settlers walk past homes in the unauthorized outpost of Ulpana, built on private Palestinian land near Ramallah, 22 April 2012. On 8 May, Israel’s High Court reaf!rmed an order to demolish Ulpana by 1 July, despite a per- sonal appeal by Israeli PM Benjamin Netanyahu to legalize it. (Uriel Sinai/ Getty Images)

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