“The entire situation is bad,” Minister Ze'ev Binyamin (Benny) Begin told a Knesset committee meeting which convened to discuss the five homes in the Ulpana neighborhood that are slated for demolition. “So we have been forced to choose between the lesser of all evils.” Within the next few weeks, Begin and Prime Minister Benjamin Netanyahu, who worked in concert to defeat the outpost arrangement bill, a parliamentary measure that would have allowed the Ulpana neighborhood to remain intact, are liable to discover that their decision could spell big trouble, since the eviction of 30 families will likely be a difficult, traumatic ordeal.
“As the person who was responsible for the recent petitions, I can say that we undertook systematic actions that were very calculated and that were clearly designed to expose the grave injustice that has been spawned by the construction of the outposts and settlements,” Dror Etkes of Peace Now and Yesh Din told Israel Hayom.
“Whoever is fearful over the possibility that we will continue to petition, even against hundreds of homes built within the settlements themselves and which were built on privately owned Palestinian land, certainly has reason to be. The recent string of petitions has been precedent-setting, and the next stage will be petitions against large neighborhoods within the settlements that were built on private Palestinian land,” he said.
Netanyahu, who emerged victorious in his political battle over the proposed arrangement law, submitted two key questions to the attorney general, both of which are related to Etkes’ stated plans.
The first question was whether the High Court of Justice’s ruling on the Ulpana neighborhood serves as a precedent. The attorney-general, Yehuda Weinstein, replied that it was not. He explained that the High Court did not delve into the question of the Ulpana neighborhood, or the question of who owns the property on which the land is built. Weinstein said that the court simply adopted the government’s own declared policy of “removal” of structures that were found to have been built on privately-owned land.
The second question that Netanyahu posed to Weinstein centered on the conduct of the State Prosecutor’s Office. At the request of the Knesset’s State Control Committee, the state comptroller will conduct a probe into the prosecutors’ response to the High Court during the hearings on the Ulpana neighborhood. The comptroller will try to determine whether the state will be able to provide different responses to the High Court in the event of future petitions against outposts or settlement neighborhoods in Judea and Samaria that are alleged to have been built on private property. The ombudsman will also seek to determine whether these responses pass legal muster with the attorney general and can be properly represented in court by the state prosecutors.
Here, Weinstein’s response was vague. He wrote to the premier that the state’s position “is dependent on the circumstances of each individual case,” and he emphasized that while there are a variety of considerations to be taken into account when mulling the removal of structures built on privately owned land, all means need to be employed in order to halt this phenomenon.”
It is doubtful as to whether this noncommittal response rises to the level of a “fortified wall,” a turn of phrase which Education Minister Gideon Sa’ar used this week in describing what he expects of the state prosecutors and the attorney general to become when faced with future petitions of this kind.
Sa’ar and Netanyahu know that the technocrats in the State Prosecutor's Office are in favor of employing the policy of evacuation at every point of settlement and outpost construction that has dotted the landscape in the three years since the Netanyahu government assumed power. This position is at odds with that of the premier and the ministers of the Likud.
In most instances, the prime minister and the Likud ministers lined up behind the legal officials and technocrats, while the same cannot be said of the technocrats lining up the other way around. Weinstein is fully aware of this state of affairs, as is Netanyahu. This is what transpired in Migron, Amona, Givat Asaf, and Ulpana.
In all of these instances, including the case of Beit Ezra in Hebron, the nonelected legal officials in the Justice Ministry were in favor of eviction. The political echelon, save for Defense Minister Ehud Barak, sought to leave these structures intact. In nearly all of these cases (the state has yet to submit its reply to the court in the Beit Ezra case), the High Court heard the state express support in principle for the petitioners’ (left-wing nongovernmental organizations) position.
The concern over future petitions, which are likely to be more extensive and damaging in scope, is well-founded. Over 1,000 permanent residential units as well as hundreds of caravans have been built on privately owned land. Earlier this week, there were reports that the real number was 9,000, though these reports are wrong. According to the Civil Administration, the largest number of homes built on privately owned land can be found in Beit El and Ofra, in addition to other settlements like Beit Horon, Alon Moreh, Kochav Hashahar, Kochav Yaakov, Maon, Maaleh Mikhmas, Psagot, and Karnei Shomron.
Netanyahu’s “goodies” that he handed out to the right wing and the settlers as a consolation prize after voting down the arrangement law does bear value, particularly given the fact that Barak, who has consistently been opposed to expanding the settlement enterprise in Judea and Samaria, will no longer have sole jurisdiction over these matters, not after the formation of a new ministerial committee on settlements that will be headed by Netanyahu.
Still, the key dilemma over which way the technocrats in the State Prosecutor's Office will sway will continue to cast a pall.
This week, the bad blood that has been brewing between the state prosecutors and the right wing bubbled to the surface during arguments over passage of the arrangement law. The settlers were in no mood to mince words, and they unleashed their wrath at the prosecutors, accusing them of implementing an “independent” policy which was “anti-government” and “confrontational.”
Orit Struk, the chairwoman of the Council for Human Rights in Judea and Samaria, spoke of the prosecutors’ “legal disengagement” from the territories of Judea and Samaria. Yehuda Yifrah, a resident of Amona who is now leading the settler hunger strike, explicitly accused the prosecutors of adopting legal positions that correspond with the political leanings of the office’s senior administrators.
The names that have been whispered from ear to mouth for months are now being uttered out loud: Deputy Attorney-General Mike Blass; Deputy State Prosecutor Shai Nitzan; and Osnat Mandel, who heads the Justice Ministry’s High Court division. These three individuals have been portrayed as enemies of the settlement enterprise, and as extreme leftists. At the last minute, right-wingers succeeded in torpedoing Nitzan’s appointment to succeed Blass as deputy attorney-general.
The verbal blows intensified to the point where they became personal in nature. National Union MK Yaakov (Katzeleh) Katz, who was there at the inception of the Ulpana neighborhood, told Begin, “You’re no longer my friend.” Katz took umbrage with Begin’s “genteelness and latitude” which he displayed toward illegal construction by Bedouin in the Negev, while accusing Begin of lacking any sympathy in the way that he has dealt with the settlers.
Vice Prime Minister Moshe Ya’alon, who once said that the report authored by Talia Sasson on the settlement outposts “was deposited into the dustbin of history,” eventually lined up behind Netanyahu and voted against the arrangement law. Nonetheless, Ya’alon launched his own assault against the state prosecutors, accusing them of “an improper procedure” that put the government “in a problematic situation.”
Lawmakers and senior legal officials also offered their own criticisms. They wonder why the petitions submitted by left-wing groups against the fence in Bil’in, the construction of homes in Kiryat Sefer, and the illegally built homes in the settlement of Ofra ended with a decision not to raze the homes out of “careful consideration” either by the prosecutors or the High Court, while prosecutors discussing the Ulpana case were hell-bent on going all the way even though the neighborhood’s construction was long approved by the state and its inhabitants were the recipients of generous, government loans and mortgages.
Begin, who in recent months has devoted hundreds of man hours to the issue of outposts and settlements, was determined to have the last word. He stated his view that the state prosecutors and the High Court actually aided in the establishment of the settlement enterprise in Judea and Samaria, granting legal legitimacy to the construction of towns that are now home to 360,000 Jews. “Without their help, it would not have been possible to populate this area with 360,000 Jews,” he said. The minister rejected accusations that the legal establishment was guilty of a double standard in relation to its conduct in the Bil’in, Ofra, and Barkan controversies (In Barkan, a Jewish landowner was financially compensated after it was determined that a neighborhood had been built on his property) and the arguments it put forth in the Ulpana petition.
“As unfortunate as it is, the Ulpana neighborhood was built outside of the planned contours of Beit El and the legally permissible boundaries of the military zone,” he said. “It even lies outside of the expanded municipal boundaries, which makes it a unique case.”
“We have a problem on our hands,” Begin said, “and sometimes you have to make a bad choice among many bad choices and to choose between the lesser of all evils.”
“Only four buyers”
Ahaz Ben Ari, the top legal advisor to the defense establishment, also insists on focusing on the facts. He, too, notes that the Ulpana neighborhood was “knowingly” built on land that lies outside of the military’s jurisdictional boundaries that include Beit El (2,450 dunams), a fact which precludes any possibility of “establishing any kind of legitimacy for such construction.”
Ben Ari recalled that when ground was broken on the Ulpana neighborhood in 1999, “those who built there ignored the work stoppage orders and the demolition orders that were issued at the time."
“Most of the residents of Ulpana said that they were just renting apartments,” he said. “There were only four who bought homes.” He said that the belated interest of both the Palestinians who claim ownership of the land as well as the delayed reaction of the residents themselves to the legal challenge that was waged against them “is a difficult, insufferable thing.”
Now the countdown to eviction has begun, though there is a chance it could be averted at the last minute if an agreement can be reached. In any event, the IDF is preparing for the worst case scenario: a clash on the scale of the Amona incident, with active resistance, or stubborn passive resistance, by thousands of settlers and their supporters. Such an event can spin out of control.
The IDF will not take up positions at the front of this eviction. Rather, it will safeguard the exterior circles.
Nonetheless, military officials anticipate that refusal to follow orders – or the avoidance of carrying out orders – will once again reappear. The actual task of evicting the residents will be assigned to the police and the Border Police. The manpower required for the operation approaches 10,000 policemen and soldiers. The settlers, for their part, are also preparing for “a seminal event.” Many of them are even reconciled to this simple axiom: “Love will not lead us to victory.”
It is not just residents and their supporters who will be on the ground witnessing the events unfold, but rabbis, members of Knesset, and other public leaders. If history is an indicator, then mediation efforts, negotiations, dialogue, and a bid to strike a compromise will continue until the last minute. One should also not discount the possibility of both sides returning to the courts.
A bereaved family
In 2006, not far from Beit El, after the demolition of nine structures in Amona was completed, Magen David Adom released the official statistics: Over 350 injured, most of them settlers and settler supporters, at the hands of vicious violence perpetrated by the police.
This time, police will try to apply more sophisticated tactics instead of clashing head-on with those slated for eviction, which in this case will be a much more complicated task. These are multi-story apartment buildings in which families purchased or rented homes legally. One of the residing families is that of Didi Dickstein, who lost both of his parents and his younger brother in a terrorist attack just a few years ago.
Yoel Tzur was also there. With the blessing of Prime Minister Binyamin Netanyahu (in his first term in office), he founded the neighborhood after his wife, Ita, and their son, Ephraim, were murdered by terrorists in 1996.
The settlers will try to expedite the legal proceedings in hopes of ascertaining who the real owner of the property is, an issue that the High Court did not delve into. Tzur acknowledged this week that in all likelihood the property was purchased from an individual who had misled others into believing he was the real owner. Still, he believes that the Palestinians who claim ownership will not be able to prove it, while the Jews will be able to prove ownership.
Even if he is right, it is doubtful as to whether the Jerusalem District Court will conclude its hearings on the matter before the July 1 eviction deadline that was set forth by the High Court.
How did this “mishap,” as Begin described it, come to pass? In order to understand the details of this case, one needs to go back 100 years. In 1918, the British authorities began drawing the jurisdictional lines of all property in the country, mostly in built-up and populated areas. In 1948, when the Jordanians conquered the territories of Judea and Samaria, they continued what the British had started, including the mapping of lines in unpopulated areas. By the time Israel had defeated them in 1967, the Jordanians had managed to “delineate” just 30 percent of the land, most of it concentrated in two areas: Jenin and Tulkarm (with a tiny piece of land protruding toward Elon Moreh) and the Ramallah area, which today lies in the Binyamin regional council.
Understanding this history is critical to getting to the bottom of Ulpana impasse as well as the legal status of structures built in Migron, Givat Asaf, Amona, and many other settlements, all of which are in the Binyamin regional council and where over 1,000 permanent structures and hundreds of caravans have been built on “districted” land, some of which is privately owned.
On the other hand, most other Jewish towns in the rest of Judea and Samaria were built on lands that the Jordanians had yet to legally delineate. These lands were relatively easy to convert to state property, thus allowing for the construction of settlements.
In Binyamin, a problem arose. How does one build on delineated land? The state relied on two solutions. Some of the settlements were built on state land, or on lands which were later declared state lands. Other settlements were built on lands that were declared military zones.
In 1978, the High Court in principle accepted making civilian use of property that was deemed military zones, in effect recognizing state policy that made settlement creation an inseparable aspect of defense policy. In practice, however, after the Elon Moreh case, the legal establishment no longer accepted the usage of military jurisdiction for civilian purposes.
This meant that communities like Beit El, which were built by dint of state edicts that declared the land a military zone, or parts of Ofra, which were built on lands that were expropriated by the state, could not continue to develop and grow. Now Weinstein is seemingly changing tack, using the High Court’s position from 1978 as a life raft to rescue Netanyahu from this dilemma. He is permitting the relocation of “civilian” homes in Ulpana to open areas within the military zone.
The residents in Beit El and Ofra had no intention of waiting for Weinstein. As time went by, whole neighborhoods which lay outside of the municipal boundaries were built. The state cooperated with this effort. Not only did it implicitly approve them, but it also actively encouraged this endeavor by subsidizing construction.
That is how entire neighborhoods were built in Beit El and Ofra. That is how the outposts of Migron, Givat Asaf, and Amona were built. That is how the Ullpana neighborhood was built. The state believed that in the future it would be able to legalize them and declare them state land. In some instances, it was right. But in other cases, like in Ulpana, it erred.
As the state either willfully ignored or cooperated with efforts to build in these areas, it also had to deal with the reality that in the run-up to 1967, lands that for years were not worked by their original owners were also legally categorized as privately owned. These lands were registered under the names of individuals whom the Jordanian authorities sought to curry favor with, particularly the heads of clans. Nobody purchased these lands, nor did anybody work them. At times, the beneficiaries did not even know that the lands belonged to them until Israeli left-wing organizations enlisted them in their battle against the settlement enterprise.
The settlers came to these abandoned lands motivated by a sense of history and purpose. In most instances, they came under the impression that these were state lands or lands that would eventually become state lands. Even the authorities were also convinced of this. The settlers enjoyed the backing of key individuals in government, most prominent of which was Ariel Sharon. Moshe Ya’alon was also a partner.
The story of Harsha, the settlement in western Samaria, is a perfect illustration. Ya’alon, who was deputy chief of staff at the time, wanted to capture this strategically vital hill which overlooked the coastline. The settlers felt the same way, since they envisioned the land would be an ideal link between Talmon and south Nahliel.
This was during Sharon’s tenure as infrastructure minister. One day, Sharon took a tour of the area. As he approached a reservoir in Talmonim, he stopped, pointed to the unpopulated hill nearby, and said: “This is a place of supreme strategic importance. We need to capture this hill. We will build a reservoir there.”
Water experts from the Mekorot water company tried to explain to the minister that there was an altitude and air pressure issue that precluded this, but Sharon insisted nonetheless. He then turned to the settlers and said: “Put a guard near the reservoir. The guard will certainly feel lonely. He will then get married and have a family. The children will need company. More families will come. Then there will be enough for a minyan (the minimum number of worshippers needed to hold a prayer service). The minyan will need a synagogue. The women will need a mikve [for ritual bathing]. The children will need a kindergarten and nursery. This is how we will turn this hill into a settlement.”
Within a few years, Sharon and the settlers turned this vision into a reality. As prime minister, Ehud Barak froze construction there, but Binyamin (Fouad) Ben-Eliezer, who served as defense minister in the first Sharon government, allowed development plans to go ahead.
A year ago, Netanyahu bowed to pressure from left-wing groups and the High Court and opted for a new policy. The state informed the High Court that “illegal construction on privately owned land would be removed, and at the same time the planning classification of structures on state land would be legalized.”
This policy led to the legalization of neighborhoods in Harsha, Givat Hayovel, and parts of Ramat Gilad. On the other hand, places like Migron, Amona, Givat Asaf, and Ulpana, which are not on state lands nor are they located on lands that can be turned into state lands, encountered a problem.
Senior officials in the State Prosecutor's Office refused to adopt the legal position submitted by leading jurists and supported by the settlers, one which allowed the legalization of construction.
The High Court and the state prosecutors have adopted the removal policy to an extreme degree. Former Supreme Court president, Dorit Beinisch asked state prosecutor Hila Gorani what would be done about gray-area cases like the home of Eliraz Peretz, the fallen soldier who died on the Gaza front and whose home is shown by aerial photos to have been built on land that includes two trees. Gorani did not take up Beinisch’s repeated offers to examine the possibility of legalizing the home. Instead, she kept insisting that the land on which the home was built was worked in this past, and that it could not be declared state land.
Now, after the controversy over the arrangement law and just before the firestorm that will certainly accompany the eviction of the homes in Ulpana, the state prosecutors will once again be asked to reiterate their position and to adjust it to the liking of the political echelon.