Legal report on outposts recommends authorization

Three-person committee critiques actions of past governments for lack of commitment to rule of law, but argues Israel has legal right to build settlements.

July 9, 2012 06:08
4 minute read.
JEWISH ACTIVISTS in front of Ulpana

JEWISH ACTIVISTS in front of Ulpana 370. (photo credit: REUTERS)


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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.

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