Government panel looks to legalize thousands of ‘wildcat’ settlement homes
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Government panel looks to legalize thousands of ‘wildcat’ settlement homes

Acknowledging state's tacit legitimization of past illegal Israeli building in West Bank, Zandberg Report says government should work to regulate such construction

Jacob Magid is the settlements correspondent for The Times of Israel.

View of the West Bank outpost of Havat Gilad, January 10, 2018 (Miriam Alster/Flash90)
View of the West Bank outpost of Havat Gilad, January 10, 2018 (Miriam Alster/Flash90)

A government-appointed committee published a report Friday which provides the tools that could be used to legalize thousands of wildcat settlement homes in the West Bank.

The report mapped out the legal obstacles that arise in any attempt to legalize unlawful building over the Green Line and offered a number of solutions that can be carried out in order to avoid the demolition of those homes.

In the past the courts have ordered the demolition of a number of settlement outposts and homes that were built without Israel government approval, particularly those that were built on private Palestinian land. Many of the demolitions have led to clashes between settlers and Israeli security forces.

The committee based its authority for such recommendations on an October High Court decision in which Justice Salim Joubran ruled that “the Israeli residents of the area (West Bank)… are also among the civilian population in the area,” and that therefore the ruling body “is obligated to act for their welfare… even by violating the property rights” of the original Palestinian land owners.

New prefabricated homes are seen under construction in the West Bank between the now-evacuated illegal outpost of Amona (background) and the Israeli settlement of Ofra, north of Ramallah, on January 31, 2017. (AFP/ Thomas Coex)

Attorney General Avichai Mandelblit has already announced that he intends on adopting Joubran’s ruling — which was given in response to a petition regarding a particular illegal outpost — to other relevant cases.

Known as the Zandberg Committee for the newly appointed Jerusalem District Court judge Haya Zandberg who chairs it, the panel was established as part of a coalition agreement between the right-wing Likud and Jewish Home parties.

Joining Zandberg on the committee were legal experts from the ministries of defense, justice and agriculture along with representatives from the Prime Minister’s Office.

Jerusalem District Court judge Haya Zandberg. (Justice Ministry)

The publication of the report comes as the so-called Regulation Law — passed by the Knesset in February 2017 to tackle the same goal — remains stuck in a mire of legal impediments.

The legislation would have allowed the Israeli government to expropriate private Palestinian land where illegal outpost homes were built ex post facto, provided that the outposts were built in good faith or had government support.

But even before it was passed, Mandelblit announced that he would not support the legislation, saying it ignored the rights of Palestinian residents of the West Bank. It has since been frozen by the High Court pending a ruling on the petitions that have been filed against it by Palestinian landowners and Israeli rights groups.

The High Court has ordered the state to explain why the expropriation law should not be struck down on constitutional grounds.

The government hopes that through this committee, it can achieve the same objectives for Israeli settlers in the West Bank that it had hoped the  “Regulation Law” would be able to achieve.

The committee is also addressing the role of the Defense Ministry’s “Blue Line team” which is tasked with marking which land in the West Bank belongs to the Israeli state.

Supreme Court Justice Salim Joubran, December 16, 2014. (Isaac Harari/Flash90)

As part of its responsibilities, it will also be reviewing old seizures of land by the state to confirm that property was not mistakenly appropriated from rightful Palestinian landowners. If such errors are uncovered, the status of the land will be corrected and the newer Israeli occupants could subsequently find their own legal state in limbo.

The Zandberg Report recommends that these homes — roughly 4,000 according to planning experts — be de facto legalized though “market regulation,” which trusts that wildcat Israeli homes were built in good faith by unbeknownst settlers.

The government-appointed body also addressed the issue of “dependent islands” — settlement neighborhoods that were built on land belonging to the state in the middle of areas belonging to Palestinians.

Recognizing concern from settlers regarding their inability to expand such communities or build access roads linking them to main West Bank highways, the Zandberg Report recommended that tunnels and bridges be built for such communities, connecting them to land belonging to the state.

Justifying such measures, the report’s authors write that “ownership of the subsoil belongs to the state.”

The report also suggests that the unlawful expansion of a settlement neighborhood onto land not belonging to the state can be retroactively legalized because “these are typically structures that were built more than a decade ago, without any protest, and with the support of the state.”

While the Defense Ministry’s Civil Administration has filed thousands of demolition orders against wildcat building in the West Bank, a very small percentage of these directives are enforced. All the while, many of these communities are hooked up to water and electricity and enjoy IDF protection

Defense Ministry dismantling Amona outpost in the central West Bank on February 6, 2017. (Courtesy/Amona council)

Acknowledging the state’s tacit legitimization of past illegal Israeli building in the West Bank — and within the Green Line as well — the Zandberg Report says the government should work to regulate such construction.

Welcoming the publication of the report, Justice Minister Ayelet Shaked called on the committee’s recommendations to be immediately implemented.

“When we entered the government, we placed the issue of legalizing communities in Judea and Samaria at the top of our priorities,” said Shaked, referring to the West Bank by its biblical names.

The justice minister, who lobbied aggressively last year for Zandberg’s appointment, said the committee had made “the High Court petitions of left-wing organizations (against illegal building) the stimulus for the legalization of settlement.”

Defense Minister Avigdor Liberman offered similar praise Friday, calling “the strengthening of settlement in Judea and Samaria a primary security interest of the State of Israel.

Justice Minister Ayelet Shaked speaks at a conference hosted by the Makor Rishon newspaper and the Israel Democracy Institute in Jerusalem, March 11, 2018. (Yonatan Sindel/Flash90)

“We act responsibly and creatively and within a few weeks we will present a comprehensive and systematic plan of action for the legalization of outposts in Judea and Samaria,” he added.

For its part, the Peace Now settlement watchdog blasted the report, saying that “the implementation of its recommendations would lead to apartheid in practice.”

The NGO argued that the committee was calling on the state to “blatantly violate international law and trample on the protected needs and rights of the occupied Palestinian population.”

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