IDF legal adviser insists outposts must be treated as illegal entities

A 2005 Attorney-General Directive stated that the outposts must be treated as illegal, which is still in effect, including with regard to security matters.

By TOVAH LAZAROFF
Jewish settlers dismantle parts of a structure during the eviction of buildings that an Israeli court deemed to have been built illegally in the Tapuach West outpost, in the West Bank, June 17, 2018. (photo credit: RONEN ZVULUN/ REURERS)
Jewish settlers dismantle parts of a structure during the eviction of buildings that an Israeli court deemed to have been built illegally in the Tapuach West outpost, in the West Bank, June 17, 2018.
(photo credit: RONEN ZVULUN/ REURERS)
A government declaration authorizing the West Bank outposts is necessary to change their status, otherwise they must be treated as illegal, the Defense Ministry’s legal adviser on settlements, Moshe Frucht, told parliamentarians on Monday.
“We came from a situation where the outposts were designated for evacuation,” Frucht told the Constitution, Justice and Law Committee.
“The government until now has not ordered the authorization of the outposts,” Frucht said. “There are some places that the government has clarified that it wants outposts authorized,” he explained. This includes statements to this effect regarding outposts on state land, he added.
“At the moment there is a decision to authorize, it is much easier to find interim solutions,” Frucht said.
Right wing politicians and settler leaders have campaigned to ensure that essential services are provided to the outposts, declaring that these communities have already receive de facto approval.
They have based their argument in part on a 2017 security cabinet decision to create a committee to regulate the outposts, which they have interpreted as a decision to legalize the outposts.
Politicians have argued that since there is a broad understanding that the communities will be authorized, they should be afforded an interim status that allows them to receive the same services as settlements, which Israel recognizes as legal.
Frucht said that their argument had no basis in law. He referenced the 2005 opinion, written by then attorney-general Menachem Mazuz, that tax funds could not be used for illegal activity such as outposts. This included the provision of security equipment and it has also been applied against setting up infrastructure for electricity and water.
On Monday, Frucht said that indeed such a government decision would be necessary but the policy change from evacuation to authorization has allowed for interim solutions, Frucht said.
Without a government decision “it is still not possible” to reverse a past attorney-general decision that they are illegal and as such funds cannot be spent on them, he said.
“It is hard to find interim decisions for a community, when no one knows if it will be authorized,” he said.
The Defense Ministry is in talks with the Justice Ministry over what options are available, he said.
Constitution, Law and Justice Committee Chairman Yaakov Asher said the outposts must be able to receive basic services.
“They are not getting a gift,” they are simply receiving the ability to exist, Asher said, adding that providing services doesn’t exclude evacuation later, it simply implies that the state knows people live there.
“You are saying that you don’t have the legal justification to allow people to receive water … that is unacceptable to me,” he added.
“Either the state evacuates or it authorizes, but for now, people live there,” Asher said.
There is a basic list of services, including security, that these people must receive, particularly given that it doesn’t prejudice outcome, he added.
“When one day children will be electrocuted by a pirate electricity line, who will take responsibility for that?” Asher asked.


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