A new government-initiated report on West Bank outposts criticized the actions
of past administrations that led to the creation of the illegal West Bank Jewish
communities, even as it recommended transforming them where possible into new
settlements.
“We wish to stress that the picture that has been displayed
before us regarding Israeli settlement activity in Judea and Samaria does not
befit the behavior of a state that prides itself on, and is committed to, the
rule of law,” said the report, which was authored by three legal
experts.
The experts are former Supreme Court justice Edmund Levy, former
Foreign Ministry legal adviser Alan Baker and former deputy president of the Tel
Aviv District Court Tchia Shapira.
In late January, Prime Minister
Binyamin Netanyahu appointed the trio – nicknamed the “outpost committee” – to
investigate the legal status of unauthorized West Bank Jewish
building.
On Sunday, the 89-page document they penned was given to
members of the Ministerial Committee on Settlements.
The Jerusalem Post
has received a copy of that document, which provides an in-depth legal analysis
of the matter.
The report has yet to be approved by the Ministerial
Committee on Settlements or the government. Its statements, at this stage, are
only recommendations.
The report did not overly focus on Israel’s
diplomatic considerations with respect to the peace process or past pledges to
the international community not to create new West Bank
settlements.
Instead it looked at Israel’s obligation under international
and domestic law.
The United Nations often states that Israeli
settlements are illegal under international law. It bases this on its
understanding that Israel “occupies” the West Bank.
But the outpost
report concluded that the classical laws of occupation “as set out in the
relevant international conventions cannot be considered applicable to the unique
and sui generis historic and legal circumstances of Israel’s presence in Judea
and Samaria spanning over decades.”
Similarly, it said, the 1949 Fourth
Geneva Convention against the transfer of populations is not applicable to the
Israeli settlement activity in Judea and Samaria.
“Israelis have the
legal right to settle in Judea and Samaria and the establishment of settlements
cannot, in and of itself, be considered illegal,” according to the
report.
Still, the report noted that unauthorized Jewish building,
including some 100 outposts built from 1991 to 2005, had occurred with the help
of government offices and ministries.
According to the report,
unauthorized Jewish building in Judea and Samaria was “carried out with the
knowledge, encouragement and tactic agreement of the most senior political level
– government ministers and the prime minister.”
This building moved
forward even though it lacked the proper permits and authorizations, the report
said.
But, it added, the involvement of government offices and ministries
in such activity means that “such conduct is to be seen as implied agreement.”
It concluded that this “implied agreement” opened the door for Netanyahu’s
government to legalize this construction if it so chooses.
The committee
urged the government to clean house with regard to settlement activity by
clarifying its policy on West Bank Jewish building and ensuring that all future
settlement construction had the proper authorizations and permits.
Israel
is no longer in a formative state, and construction must happen according to
rules and procedures, the committee’s report said, adding that “all actions on
this matter can only be in accordance with the law.”
It then issued a
series of recommendations to retroactively legalize construction and to stop any
further unauthorized building.
The committee called on the government to
allow planning and zoning authorities to complete the authorization process for
outposts and unauthorized settler building on state land. This should be done
without any further need for additional political approval, the committee
said.
“Pending completion of these proceedings and examination of the
possibility of granting building permits, the state is advised to avoid carrying
out demolition orders, since it brought about the present situation by itself,”
the report said. It suggested that settlements built on land whose status is
unclear should be considered “settlements whose legal status is
pending.”
The committee recommended the establishment of a new court to
adjudicate land disputes in Judea and Samaria. Barring that, it suggested that
the jurisdiction of district court judges be expanded to allow them to handle
these disputes.
These new judicial tribunal should settle the land
disputes, including issues of Jewish construction on private Palestinian
property, before petitions for eviction and demolitions are determined, the
report said.
“Pending such determination, state authorities should be
instructed to avoid taking any positions in land conflicts and carrying out
irreversible measures, such as eviction or demolition of buildings on the
property.” the report staid.
It also issued other guidelines for
settlement construction, including: • Only the government or an empowered
ministerial committee should establish new settlements in Judea and
Samaria.
• A settlement can only be extended beyond its boundary or
jurisdiction with the defense minister’s approval, and the prime minister must
be notified in such instances.
• Planning and construction for such an
extension can only occur after such approval is granted.
• Construction
within the bounds of an existing or future settlement does not need government
or ministerial approval. It does, however, need the proper authorization from
the planning and zoning authorities.
• There should be no prohibition on
settler construction within the bounds of a settlement built on land seized by a
military order. Such requests should be dealt with at the planning
stages.
• The public should have the right to see data with regard to
land rights in Judea and Samaria.
• Israelis should be able to directly
purchase land in Judea and Samaria, and the procedures to register that land
should be accelerated and completed within a reasonable time period.