Analysis'This is how things are done. First build then get approval'

Whose land is it anyway? The battle over a West Bank outpost offers some answers

Residents of Netiv Ha’avot, where 15 homes are slated for razing, argue that the land never belonged to anyone; a group of Palestinians from al-Khader petition to prove otherwise

Jacob Magid

Jacob Magid is The Times of Israel's US correspondent based in New York

Security forces evacuate Israeli settlers from the illegal Netiv Ha’avot outpost in the West Bank, November 29, 2017 (Hadas Parush/Flash90)
Security forces evacuate Israeli settlers from the illegal Netiv Ha’avot outpost in the West Bank, November 29, 2017 (Hadas Parush/Flash90)

It took four police officers to lug 16-year-old Yehuda out of the woodshop in the Netiv Ha’avot outpost as security forces prepped the illegally built structure for demolition last month.

“Why are you doing this?” he wailed as the officers dragged him from the building and gently placed him on the ground beyond a perimeter that had been set up a few hundred feet away. “This land never belonged to anyone before the neighborhood was built! This destruction is for nothing!”

Yehuda picked up the knitted kippah that had fallen from his head, dusted himself off and retreated into the crowd of several hundred protesters that had congregated behind him to watch — in misery — as security forces completed evacuating the woodshop of more than 50 other teenagers like Yehuda.

The November 29 demolition order was for just one of the 17 illegally built structures that were sanctioned for razing by the High Court of Justice in September 2016. A memorial for fallen IDF soldiers was removed over the summer, and 15 homes in the neighborhood of the Elazar settlement are slated to be bulldozed by March 6, 2018.

Yehuda’s impassioned appeal to the Border Police officers hauling him away was nearly identical to a central talking point of residents campaigning against the demolition. They do not dispute the illegal nature by which the Gush Etzion neighborhood was erected. However, they adamantly contend that the land does not belong to anyone and that their presence should be accepted post facto.

Israeli teens congregate in a woodshop in the Netiv Ha’avot outpost to prevent security forces from demolishing it on November 29, 2017. (Hadas Parush/Flash90)

Enter Ali Musa, a Palestinian auto mechanic from the nearby village of al-Khader. Musa is one of seven Palestinians who claim ownership of the land on which Netiv Ha’avot was established. It was on account of their petition that the High Court sanctioned the razing of the 17 structures.

Speaking to The Times of Israel from his small shop just three miles north of Netiv Ha’avot, Musa shared how his great-grandfather had purchased a plot of land at the turn of the 20th century that has since remained in the family.

The mechanic said that for decades, grapes, dates and almonds were grown on the agricultural fields that had historically been part of al-Khader.

“During the second intifada, it became very difficult to leave the village and access our lands,” Musa explained. “In the winter of 2000, I rode my mule down to check-in on the fields when I saw, for the first time, that settlers had flattened the area and placed caravans on my property.”

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The 50-year-old admitted that he subsequently lost his cool and began throwing the children’s toys that were lying in front of one of the caravans as he shouted for the owners of the makeshift homes to identify themselves.

Musa detailed how the Elazar settlement security coordinator, who he named as Shlomi, arrived shortly thereafter, violently apprehending with kicks and punches him before calling the army to have him taken away.

He was eventually transferred to a nearby police station where he found Shlomi waiting for him. “He told me I deserved what had happened to me because I didn’t want to be a good man and behave,” Musa recounted.

The Elazar security coordinator did not respond to The Times of Israel’s repeated requests for comment.

The al-Khader resident was promptly released when officers realized that he had not caused any damage to the property he had attacked.

Ali Musa poses next to a vehicle at his auto repair shop in al-Khader on November 29, 2017. (Jacob Magid/Times of Israel)

Musa went on to file a complaint against the placement of the caravans, handing over documents, which he said proved his ownership of the land adjacent to the Elazar settlement.

“I hired a lawyer and gathered all the necessary papers including maps, aerial photos and a document showing I had been paying taxes for use of the land issued by the Civil Administration (the Defense ministry body that authorizes West Bank land usage).”

When no measures were taken against the caravans, Musa and six Palestinian landowners petitioned the High Court of Justice to stop the construction on what they argued was their land.

“I decided then that I was going to pursue this until the end and that even if I die, I wouldn’t give up,” said Musa, citing the threats he received from Netiv Ha’avot residents when they learned of his efforts.

Gush Etzion settlers launched a boycott against Musa’s repair shop, which he said cost him half his clients. Yet, the majority of his customers remain Israeli. “Some treat me as a hero because I’m carrying out my fight through legal measures.”

Yosef Cohen is one of those loyalists. “They picked a fight with the wrong man,” said the Alon Shvut resident as he waited to get his car repaired. “Nobody is more honest than Ali.”

It took over 15 years and eight petitions for Musa and the six other al-Khader residents to receive the September 2016 victory in the form of a High Court ruling requiring the 17 structures be demolished.

However, in that decision, the panel of judges did not delve into the question of ownership, rather citing the illegal nature by which the structures were built.

One of the homes set to be demolished in the Netiv Ha’avot outpost in Gush Etzion, September 2, 2016. (Gerhson Elinson/Flash90)

“The current procedure deals with structures for which there is no dispute that they were built contrary to the law. As a result… stop-work and demolition orders were issued against them,” Chief Justice Miriam Naor wrote.

But the Palestinian petitioners claim that all 35 homes in Netiv Ha’avot sit on land that belongs to them. So why did the High Court rule that only half of them needed to be razed? Additionally, if the decision acknowledged that the settlers were not the rightful landowners, why did Naor avoid naming the Palestinians as the true proprietors?

The answer to both of those questions lies in a land survey conducted in 2014 to determine which parcels could be declared as belonging to the state.

Land surveys are carried out by a Civil Administration official who uses aerial photos of the land spanning the past several decades. The parcels of land that do not appear to have been cultivated or those that have gone for an extended period of time without being worked can be seized and declared “state land.”

The Jordanians had been conducting a similar measure prior to the 1967 Six Day War when the Hashemite Kingdom was still in control of the West Bank. However, they were unable to complete the process by the time the war broke out. When Israel took over the territory, it decided that any land that Jordan had already declared as belonging to the (ruling) state — roughly a sixth of the West Bank — would remain as such.

Five of the seven Palestinian residents of al-Khader petitioning the High Court against the establishment of the Netiv Ha’avot outpost on what they claim to be their private property. (Courtesy: Peace Now)

That one-sixth of the territory did not include the lands of the al-Khader petitioners, which was why the land survey was deemed necessary in the first place.

In the survey results published in April 2014, the majority of the Netiv Ha’avot neighborhood was deemed to sit on state land save for several long slivers that snaked through the 17 structures of the Elazar settlement. According to the Civil Administration, the remainder of the land had not been cultivated continuously during the decades that were reviewed as part of the survey.

The Peace Now settlement watchdog has disputed the survey results, providing aerial photos from 2002 showing that the caravans were placed in the middle of land which was cultivated at the time. The NGO also argues that judging ownership by land cultivation is outdated and not done in Israel proper.

The al-Khader residents have since petitioned the results of the survey, arguing that the draconian methods used by the Civil Administration are discriminatory. A ruling on the appeal is expected in the coming months.

Michael Sfard, an attorney representing the Palestinians in the case said he wouldn’t be surprised if the court ruled in favor of the al-Khader residents, determining that the entire outpost sits on private land and would therefore need to be razed completely.

Aerial footage from 2002 which shows the caravans installed in the Netiv Ha’avot outpost were placed on land that had been cultivated. (Courtesy: Peace Now)

He pointed out that land can only have two statuses. “It can be either public (i.e. state-owned) or private,” he said. “The fact that the Civil Administration was unable to deem part of the outpost as having been built on state land means that it had rightful owners. Nobody else — including the settlers — is claiming ownership other than my clients!”

But while it was proven that at least a portion of the Netiv Ha’avot land does not belong to the state, Musa and the other six al-Khader residents were unable to be fully recognized as the rightful owners in the eyes of the High Court.

Israel ceased the registration process in 1967, arguing at the time, that its control over the West Bank would be temporary and that it did not want to make any dramatic changes to the land.

“Ambiguity is a wonderful thing,” said Peace Now’s Shabtay Bendet sarcastically. The director of the left-wing NGO’s settlement watch team explained that “by ceasing the registration process, the state avoided having to make decisions on land ownership that would anger the settlers.

While the al-Khader residents have been unable to complete the registration process, they do hold several pieces of material evidence that support their ownership claims. The first is a document from the Civil Administration authorizing that they had paid taxes for use of the land.

The second is a form featuring the Civil Administration’s approval on a 1999 UN-sponsored development project on the land, which the document states belongs to the al-Khader residents.

Additionally, while the Jordanians may not have completed the process to determine the status of the petitioners’ land, the Hashemite Kingdom had reached a final stage in which the plots belonging to the petitioners were recorded on a detailed bulletin pinpointing the owners and locations of the parcels.

An aerial photograph of the Netiv Ha’avot outpost. The areas colored in blue were deemed by the High Court to be state land. The 17 structures that stand on the non-shaded areas have been sanctioned for demolition. (Courtesy: Peace Now)

“If the state trusts the results of the land registration process that the Jordanians managed to finish, why can’t it also rely on the documents proving registration for these al-Khader residents was imminent?” asked Peace Now’s Bendet.

However, the Netiv Ha’avot residents argue that none of these documents constitutes what is legally deemed as “conclusive proof” of ownership.

“All they (the al-Khader petitioners) were able to prove was that they had worked the land. This is not the same thing as ownership,” pointed out Netiv Ha’avot resident Liron Hyman.

She dismissed the notion that any land not declared as belonging to the state is consequently privately owned. “It’s not that black and white,” Hyman said. “Plus the High Court never said they were the rightful owners.”

However, Bendet pointed out that when High Court Justice Edmond Levy ordered the conducting of the land survey in September 2010, he wrote that the technique would help “determine what is state land and what is private land.”

“They didn’t provide any other options,” Bendet argued.

Liron Hyman, a resident of Netiv Ha’avot, speaks to media as security forces evacuate a woodshop at the outpost on Wednesday, November 29, 2017 (Jacob Magid/Times of Israel)

For her part, Hyman flatly denied Musa’s charge of mistreatment at the hands of the Netiv Ha’avot residents. “I don’t know where he gets the chutzpah to invent such a story when Gush Etzion residents are the ones that financially supported him for so many years.”

“We are normal people, not a bunch of crazy hilltop youth threatening others,” she insisted, referring to the young far-right activists who establish illegal West Bank outposts, resist soldiers’ attempts to evacuate them and have been known to carry out hate-crime attacks.

Hyman went on to explain the rationale behind the establishment of Netiv Ha’avot. “During the second intifada, there was constant rock throwing and gunfire coming from the exact spot where we chose to settle. We felt that we needed to stand up and act.”

Peace Now settlement watch director Shabtay Bendet (L) speaks with Netiv Ha’avot resident Ami Gvirtzman. (Screen capture/Hadashot news)

The 24-year-old who has lived in the Elazar neighborhood since its founding did not deny that demolition orders were issued by the state soon after they started building the homes. “It’s not a simple matter. There’s nothing I can say to dispute this.”

“However, the government acted with two hats. On the one hand, they handed out these demolition orders, but on the other hand, they indicated support by paving roads, collecting trash and connecting us to water and electricity,” Hyman pointed out.

“I remember how when I was a child, Ariel Sharon — who later become the prime minister — visited our neighborhood and praised what we were doing,” she said.

But Bendet argued that none of those claims are relevant. “The bottom line is that the state issued demolition orders the moment they started building. All we are asking is that it abide by its own orders.”

“The residents didn’t pay a shekel for the land they built on. This is about whether the State of Israel should allow such land theft,” he added.

Hyman again dismissed the charge. “There was nobody to pay in this case.”

“You have to understand that this is how things are done in Judea and Samaria. First you build and only after do you receive approval from the government.”

The Netiv Ha’avot native argued that further razing of the outpost causes unnecessary damage to the residents. “There are many children in this story that will be thrown to the street if the rest of this destruction is carried out.”

“When it has to do with moving the homes of Bedouin in the Negev or razing the homes of terrorists, the government takes every precaution to avoid harming innocent civilians. But when it has to do with Jews, there is no interest in finding a solution.”

Hyman also pointed out that for six of the homes slated for demolition, only several feet of the structures sit on land that was no declared to belong to the state. “Over a few problematic meters they’re going to destroy the entire house? There’s no other way to describe this than absurd.”

The residents had submitted a High Court petition asking to saw off the “problematic parts” of six of the homes — many of them sprawling villas — but their request was denied in October.

Netiv Ha’avot residents protest the High Court decision to demolish 17 structures of their outpost, demonstrating outside the Knesset on July 17, 2017. (Jacob Magid/Times of Israel)
 Hyman acknowledged that the 15 homes in her neighborhood would likely be demolished. However, she called on the government to construct suitable alternative houses for the families before the slated March razing.

“We will not accept being treated as class B citizens,” she asserted.

For his part, Musa still believes that he will one day be deemed the rightful landowner and be allowed to return to his fields.

The 50-year-old insisted that he harbors no ill will toward the settlers. “I don’t hate anyone. Only the actions of those that fell on my land like the angel of death. I still want to prove that we can live in peace.”

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