The Migron Mess

The government has been handed a hot potato by the Supreme Court, which has ordered the illegal settlement Migron removed.

Migron outpost aerial_311 (photo credit: Baz Ratner / Reuters)
Migron outpost aerial_311
(photo credit: Baz Ratner / Reuters)
STANDING AT THE EDGE OF the hilltop outpost of Migron in the West Bank, a few kilometers east of the Palestinian Authority capital Ramallah, Itai Harel points out the neighboring Jewish settlements and the Palestinian villages that dot the barren mid-August landscape.
“From our point of view this is the land of Israel waiting for her sons to return,” Harel says with quiet determination.
“When we came here it was all rocks and boulders like this,” Harel says, his green eyes squinting in the sun. Harel, 37, an ex-paratrooper still in the army reserves, founded the settlement in 1999 with two other men who have since left, naming it after the village of Migron, which is mentioned twice in the Bible.
Harel is broad shouldered and wears a wide-brimmed hat to protect him from the sun while he works outdoors, providing therapeutic horseback riding lessons to troubled youth. Under his cowboy hat he wears a yarmulka. Dressed in a fuchsia shirt advertising his riding business and a pair of shorts, Harel, who has a master’s degree in social work, tells The Report that most of the residents of Migron work in service professions, such as social work, nursing and teaching, and that most of the men serve in IDF combat units and do reserve duty.
The settlement is perched high above Highway 60, five kilometers north of Jerusalem between Ofra and the Shaar Binyamin Industrial Park. To get there one must get off Highway 60 and climb a long, winding paved road that cuts through fields of desiccated wild wheat, thorns and thistles, and scattered boulders the color of bones.
Migron is well-known in Israel as the largest of the wildcat settlement outposts in the West Bank, established without prior government approval and without reference to the government’s plans for settlement in the region. Yet, despite its illegal status and the forbidding terrain, since its founding, Migron has grown to a population of some 50 families living in mobile trailers, comprising some 250 residents, many of them sons and daughters of the first generation of settlers in the West Bank, who grew up steeped in Biblical imperatives and a passionate love for the land.
Harel has impeccable settler credentials. He is the son of Judea and Samaria Council founder Yisrael Harel and grew up in nearby Ofra, the flagship of the settlement movement. Migron residents have made some feeble, almost futile, efforts to make the settlement pleasing to the eye – beds of flowers at the guard post, sapling trees around the settlement that have not yet had time to put down deep roots or grow tall enough to provide shade in the blistering heat. But not much can disguise the ugliness of the elongated rectangle caravan homes set up in a circle on the hill top, the hanging wires that surround and crisscross the settlement and the bare, barren look accented by ubiquitous large boulders.
Children’s bicycles and abandoned trash are strewn in front of the trailers. Every house flies an Israeli flag as if Independence Day comes in August instead of May. Harel points out the kindergarten, playground, and synagogue. “Every tree that you see here, we planted,” he says, plucking a ripe fig from a tree near his house. His six children were born here.
But in about seven months the trees might be the only thing that will remain here. In early August, in a precedent-setting ruling, a three-judge panel of the High Court of Justice ordered the government to remove the settlement. And while the courts have issued similar rulings before, this time the court set a clear deadline – March 31, 2012.
The settlement of Migron has thus been thrust into the public limelight as a symbol, a test case and a lightning rod.
TO DATE NO ISRAELI government has mustered the will to dismantle a West Bank settlement of this size. Violent clashes erupted in January 2006 when the army moved in to dislodge a few families in a small outpost called Amona. The settlers were reinforced by a crowd of about 3,000 supporters and the confrontation degenerated into violence that left 200 soldiers and settlers injured. It is likely that radical “hilltop youths,” as these youths who set up these illegal settlements are called, will mobilize again to help the Migron settlers resist the eviction.
Both sides of the deep ideological divide will be watching to see what the government will do in the Migron case.
“Migron is a symbol. It’s the largest, the most famous of the outposts,” Attorney Talia Sasson, former head of the special task division in the State Attorney’s office, who authored a seminal report on the legal status of settlement outposts in 2005, tells The Report. “The Americans have conclusively rejected its existence. This place is entirely illegal, even from the point of view of Israel, and not just from the point of view of international law, and Israel has done nothing to dismantle it.
“Everybody is watching to see what the government will do in March,” Sasson continues. “I see great difficulty for the prime minister to do it, I doubt he will, and the implication is that our very democracy is at stake.”
Shlomy Zachary, one of the attorneys who represented the anti-settlement group, Peace Now, and the Palestinian landowners in the case, echoes her words.
“This is a final judgment and if we are a democratic state, the authorities must comply,” he tells The Report. “If not, it’s the end of democracy. This is a unique and unprecedented judgment and it is also quite a brave judgment. It signals to the Palestinians, who are not part of the political process inside Israel, that the only body that can defend their rights is the court. This gives a lot of hope to weak people who are deprived of the political process under a military regime. It’s a light at the end of the tunnel.
“There is no doubt that this judgment is a turning point in the relations between the state, the court and the settlers. The state will have to choose if it is going to back the outlaws, or if it is going to do the right thing as a democratic sovereign state,” Zachary states.
Israel Harel, Itai’s father, sees things from the polar opposite viewpoint. He is founder and former chairman of the Council of Settlers in Judea, Samaria and Gaza, the settlers’ umbrella coordinating group, and one of the founders of Gush Emunim, the original settler movement.
“This will not destroy the settler movement, but it does create bad blood against the High Court, which is like an arrow shot against us by the extreme Left,” he says. Referring to Peace Now, he adds, “what they cannot accomplish on the political level, they are doing through the High Court of Justice.”
THE COURT’S DECISION CAME in response to a 2006 petition by Palestinian landowners in two neighboring Arab villages and Peace Now, who sought the removal of Migron on the grounds that it was built illegally on private land.
Nobody disputes that the land was barren and uncultivated, but that does not prove that the land was legally available. Itai Harel says that when he founded the settlement, the land was listed as “state owned” on official Housing Ministry documents. It is the state that paved the road leading to Migron and hooked it up to water and electricity, investing about four million shekels (approximately $1.16 million) in its infrastructure, according to Peace Now.
He further contends that for the first seven years of Migron’s existence, the Arab owners did not complain about the settlement on the barren, rocky hill. According to Harel, Peace Now singled out Migron as a test case and searched out the Arab owners, or their descendents, and convinced them to sue.
“Nobody knows why the Jordanian clerk registered the land in the name of some villagers as it was never developed or lived on,” says Harel. “It was empty and rocky the entire time. According to Ottoman law, land can be claimed as private, if it is developed for a period of ten years, and the land in Migron was never developed until we came.”
Dorit Beinisch, President of Supreme Court, thinks otherwise.
“There is no doubt that according to the law a settlement cannot be built on land privately owned by Palestinians,” she wrote in her ruling calling the settlers of Migron “lawbreakers.”
Noting that efforts to negotiate a voluntary move by the 250 settlers at Migron to a neighboring settlement had dragged on for nearly three years, the court set the March 31 deadline and called on the state “not to drag its feet in enforcing the law.” The three-judge panel said that after five hearings and much delay there was no justification for further violation of the law and of the landowners’ rights to their property.
“This was about an outpost illegally constructed on private land, which the state too agreed should be evacuated,” Beinisch wrote. “There is no dispute between the petitioners and the state that the outpost sits on private and recognized Palestinian land, and that the outpost was built without permission. Moreover, the work for establishing the outpost and expanding it was done with disregard to the orders to raze it.”
The residents of Migron complain that the issue of land ownership was never adjudicated by the High Court and that their side was never heard. They say the case should have been sent to the District Court in order to decide the ownership issue.
“The people in Migron feel that this is political and that it is a part of the agenda of the High Court. For me as a lawyer, it’s difficult to convince them that they are wrong,” says Itzchak Miron, the lawyer who represented Migron. “The High Court decided against them without checking the ownership question, or referring to any of their claims, ignoring them completely,” Miron tells The Report.
THE PETITION HAS ALREADY made a significant impact, according to Hagit Ofran, director of the Settlement Watch Project at Peace Now.
“Since we have filed our petition, we see that there are no new outposts being built and there is almost no construction on private Palestinian land,” she tells The Report. “They realize that if they do it, we will go to court and they will not be able to defend it. This is something that we can see as an achievement of our petition.”
If past attempts to dismantle outposts are an indication, the evacuation of Migron will most likely be violent causing a further rift between settlers and the rest of Israeli society.
“I can’t control what will happen here and I’m not saying this as a threat,” says Itai Harel, who still holds fast to the belief that a solution will be found that will make the evacuation unnecessary.
“I am aware of the gravity of the situation, but I believe we will still be here years from now,” he says, with the knowledge that settlements such as Migron have outlasted previous attempts to dislodge them.
Both sides of the dispute hold fast to hopes.
Says Ofran, “I hope that they [the settlers] will be wise and accept the rule of law, and not drag Israel into another painful and violent upheaval.”
Israel Harel says: “I hope that in the seven months that they have, the government will make a move that will convince the High Court that the land is owned by the government or else acquired in one way or another by paying a higher price. The government can even confiscate it.”
The implications of the case are thus wide-ranging. Will Migron be the first domino to fall, encouraging anti-settler activists to bypass the political process by going straight to the High Court? Or will the government circumvent, in one way or another, the court ruling?
Over the years, the government has established legal guidelines for approving settlements, subsequently refined according to Supreme Court decisions, the most significant of which was handed down in October 1979 in the Elon Moreh case. In that case, the court ruled that the state could not seize private Palestinian land for building settlements. After the court’s decision, the government established rules for new settlements, including the need for full Cabinet approval, a municipal building plan and approval by the local IDF commander of the settlement’s municipal boundaries. Another important criterion is that a settlement could be established only on state land.
The term “state land” includes uncultivated rural land not registered in anyone’s name and land owned by absentee owners, which were both categories of public land under Jordanian and Ottoman law. This excludes land registered in the name of someone other than an absentee owner, land to which a title deed exists, and land held by prescriptive use for a period of 10 years.
Thus, while all settlements in the West Bank may be considered illegal according to most interpretations of international law, when Israelis refer to “illegal settlements,” they are referring to outposts such as Migron, which were set up without any government approval. According to Peace Now, there are approximately 100 such illegal outposts.
“You see that hill just beyond?” asks Itai Harel and points to a nearby barren hill. “It is listed as state-owned land and I could have founded Migron there. I didn’t know that there were Palestinians claiming ownership here. But I’m not sorry. I believe it’s all for the best despite the difficulties. We’re convinced we’re doing the right thing and we’re willing to pay the price.”
Just a few meters from Harel’s home is a mound of more than 50 cardboard boxes piled at the side of one of the trailer homes. Less than two weeks after the High Court rendered its decision ordering Migron’s demise, a new family is moving in.
Tzvi Gilo, 29, a full-time yeshiva student, comes out of the house and, it being mid- August, stands with a reporter in the shade of a fig tree. Speaking softly and confidently, he explains why he has just moved from Jerusalem with his wife and three small children, the oldest 4.5 years old and the youngest 3 months old, to a community whose days are numbered.
“We have known this community for several years and these are good people united, with a variety of professions, teachers, nurses, social workers, a healthy place to raise children,” he tells The Report. “I’m not worried. If, God forbid, worse comes to worst, we will have to rely on God’s help. But I believe one day my children will build their homes here, and maybe their children as well.”