Settlements in Focus - Vol. 2, Issue 2: West Bank Outposts in 2006 - Same Song, Different Tune?

To review, what exactly is an "outpost"?

An outpost is a new Jewish settlement - or a proto-settlement - built in the occupied territories without prior legal approval from the Israeli government. For years settlers have used the establishment of outposts as a mechanism to stake out new territory, expand settlement boundaries, create contiguity between veteran settlements, and establish facts on the ground that will make it more difficult to reach a peace agreement between Israel and the Palestinians. Many outposts have eventually received retroactive permission from the Israeli government to become legal settlements under Israeli law. The U.S.-backed "Road Map" to Middle East peace, which Israel endorsed, required Israel to immediately dismantle outposts that were established since March 2001. Prime Minister Sharon and other senior Israeli officials have repeatedly promised President Bush that they will fulfill this obligation.

The outposts phenomenon is linked to a commitment undertaken in 1996 by the Israeli government, then led by Prime Minister Binyamin Netanyahu, that no new settlements would be established in the West Bank. Since that time, successive Israeli governments have promised to honor this commitment. However, throughout this period, and continuing to the present day, this official commitment has been circumvented with policies that have permitted, encouraged, facilitated, and even financed the establishment of dozens of illegal outposts - in effect allowing the creations of dozens of new settlements all over the West Bank.

What conclusions can you draw about the intentions/strategy of the settlers from their outposts activity?

The purpose of the settlements has always been the same: to prevent contiguity between Palestinians towns and villages in the West Bank, while establishing a permanent Jewish presence on and claim to the land. Outposts are simply another tactic for achieving this goal. If permitted to remain in place and expand, the outposts will succeed in creating additional new settlement "blocs" deep inside the West Bank. In this way, settlers and their supporters hope to create a critical population mass to enhance the demand that these blocs - like the Etzion Bloc, the Modi'in Illit Bloc, and the Ariel bloc - be kept under Israeli sovereignty forever, thereby further complicating (if not rendering impossible) a negotiated agreement with the Palestinians and the establishment of a viable Palestinian state.

How many outposts are there as of Jan. 1, 2006? Where are they?

Today there are over 100 outposts scattered throughout the West Bank, most of which are located east of the route of Israeli's West Bank security barrier. The majority of these are dispersed around and among the religious and ideological settlements located in the heart of the central West Bank ridge.

When were they established?

Over 50 outposts were established since Ariel Sharon became Prime Minister in March 2001. The remaining 40+ outposts were established earlier, mostly under the government of Prime Minister Ehud Barak. For information about all of the outposts, including when they were established, see: http://peacenow.org.il/site/en/peace.asp?pi=58

In addition, at various times the settlers have mounted organized campaigns to create many new outposts, including in June 2003 and December 2005. In these cases, the purpose of the campaign has apparently been to mobilize settlers and their supporters, draw the maximum amount of attention from the media, and make a political statement that outposts will not be dismantled easily. In general the outposts established during these campaigns have been "dummy" outposts that have lasted only the duration of the campaigns themselves.

Are some outposts thriving and others withering on the vine?

Every outpost that is not being dismantled is growing and become more entrenched. In some cases this can mean nothing as little as a new dirt access road, water tower, or a couple of new families living in caravans (mobile homes); in others it can be the construction of permanent infrastructure and houses (as in the case of Amona).

The outposts that are "thriving" - in the sense of attracting relatively large numbers of residents and financial investment - are the ones that are linked to the mainstream settlement leadership, known as the Yesha Council. In general, these outposts are located around veteran settlements like Ofra, Eli, Shilo, Ariel, or settlements in the Etzion Bloc. Of the remaining outposts, many have been established by second generation settlers who reject the middle class lifestyle of the veteran settlements and want to regain the "pioneer" lifestyle and spirit of the original settlers. Those living in such outposts are thus not seeking to build permanent, middle class houses, apparently preferring to "rough it." While such outposts may thus appear less rooted than outposts like Amona, or less supported by the mainstream settler leadership, this appearance is probably more reflective of the preferences of the outpost's inhabitants, rather than some failure to attract residents or funds.

What happened in 2005 regarding the removal of outposts?

Good news:

In 2005, the overall number of outposts remained stable at around 100, with no major new outposts established.

2005 was the year that, for the first time, the Israeli government acknowledged the scope of the outpost issue and received the report and recommendations of an official investigation into the phenomenon, led by Israeli attorney Talia Sasson. Sasson produced a devastating indictment of the outposts phenomenon and specific recommendations for dealing with it (discussed below), confirming information that Peace Now had been publicizing for the years.

Peace Now filed two high-profile petitions before the High Court against outposts, forcing the State to deal with the reality of the outposts and bringing much-needed attention to the blatant illegality of the settlers' actions.

Bad news:

In 2005, the overall number of outposts remained stable at around 100, with no major outposts evacuated.

2005 witnessed substantial growth and entrenchment of many of the existing outposts, including the construction of permanent houses and infrastructure at some sites (like the controversial settlement of Amona - see Settlements in Focus, Vol. 1, Issue 6, for details).

As of year-end 2005, the recommendations of the Sasson Report were being ignored by the Government of Israel.

Despite High Court rulings in support of Peace Now's positions, no actions had been taken by year-end 2005 by the Government of Israel to demolish any significant outpost structures or dismantle the outposts involved.

What is the Sasson Report?

In July 2004, Prime Minister Ariel Sharon asked Talia Sasson, an attorney from the office of the Israeli Attorney General, to prepare a report on the issue of Israeli settlement outposts in the West Bank. Sasson was asked to reveal the size, location, characteristics, and date of establishment of existing outposts; the method of establishment of the outposts; and the role of government bodies in permitting and/or aiding the establishment of the outposts.

She was also asked to make recommendations for changes to legislation and administrative or law-enforcement policies to prevent the establishment and continued activity of outposts and to assist in their evacuation.

Delivered in March 2005, Sasson's over 340-page report presented a scathing indictment of the conduct of all Israeli governmental bodies active in the West Bank - including the Israeli Police, the Israeli Defense Forces (IDF), the Civil Administration, and the Ministry of Defense, the Ministry of Housing, and the World Zionist Organization's Settlements Division - and their systematic abrogation of their responsibilities to abide by or enforce the law. The report also confirmed the active collusion and collaboration of some elements of these agencies in the illegal actions of the settlers, with Sasson noting that "it seems that the lawbreaking has become institutionalized and institutional." Her report stated:

"The 'engine' behind a decision to establish outposts are regional councils in Judea, Samaria and Gaza, settlers and activists, imbued with ideology and motivation to increase Israeli settlement in the Judea, Samaria and Gaza territories. Some of the officials working in the Settlement Division of the World Zionist Organization, and in the Ministry of Construction & Housing, cooperated with them to promote the unauthorized outposts phenomenon. These actions were apparently inspired by different Ministers of Housing in the relevant times, either by overlooking or by actual encouragement and support, with additional support from other Ministries, initiated either by officials or by the political echelon of each Ministry.

"The result was that the executive echelon, so to speak, became the deciding echelon, with no authorization, in contrary to government resolutions, bearing no political or public responsibility, which by nature of things rests upon the political echelon. All of this with massive financing by the State of Israel, with no appropriate transparency, no criteria.

"The establishment of unauthorized outposts violates standard procedure, good governing rules, and especially (constitutes) an ongoing bold law violation. Furthermore, the State authorities speak two voices. Sometimes grant, and sometimes prevent. Rules have become flexible. One hand builds outposts, the other invests money and force to evacuate them. These actions were not done by individuals only. The problem is (that) State and public authorities took part in breaking the law. They are the ones who financed construction without a resolution by the political echelon, in contrary to government resolutions, with no legal planning status, sometimes not on State owned land, sometimes on private Palestinian property or on survey land. State authorities and public authorities broke the laws, regulations and rules made by the State."

The official summary of the Sasson Report is available here.

What were the recommendations of the Sasson Report and were they implemented?

Sasson concluded her report with recommendations she categorized into several classes:

1. Budgetary and organizational considerations,
2. Reform of Israeli Government orders,
3. Administrative decisions to be adopted by state agencies,
4. Amendment to existing legislation to clarify the government's authority to punish law breakers associated with the establishment of outposts,
5. Reform of martial law (since the West Bank is classified as an occupied area, the law Israel applies there derives from military orders), and
6. Recommendation to the state persecutor.

Included in Sasson's report was a recommended that all outposts built on Palestinian-owned land (she identified at least 15 such outposts) be dismantled immediately. In addition, she called for (among other things): terminating the activities of the WZO's Settlement Division under its present mandate; prohibiting the Housing Ministry from planning the establishment of a settlement or neighborhood in existing settlements without prior political approval; reconsidering the position of the Defense Minister's Assistant for Settlement Affairs; and prohibiting the defense minister from connecting outposts to electricity and water supplies. In making these recommendations, Sasson noted:

"The government must take into its hands responsibility for what is happening in the outposts in the territories and not sit on the sidelines watching as the settlers do whatever they want, without anyone stopping them. They are all illegal. It is important to emphasize that it's not merely to evacuate the outposts but to cease the entire procedure of budgeting and transferring state funds to the outposts. The very heart of the report is about the enforcement of the law, which is not a political issue, but a legal one, of tremendous importance for a democratic state."

On March 13th, 2005, in the context of its weekly meeting, the Israeli Cabinet dealt with the recommendations of the Sasson Report. The Cabinet subsequently nominated a committee of nine ministers, headed by Minister of Justice Tzipi Livni, to consider ways to implement some of the recommendations. This ministerial committee was tasked with presenting its own recommendations 90 days after it was created (i.e., June 2005). The Cabinet decision regarding the Sasson Report is available here.

As of January 2006, the committee has failed to present any recommendations. To the best of our knowledge, none of the recommendations which Sasson offered have yet been adopted. As a result, on the ground settlers still enjoy the same ability to act with almost total impunity which they have enjoyed for decades. Speaking at Ben Gurion University on June 5, 2005, Ms. Sasson noted:

"Since the report was submitted, nothing has happened. It was well publicized, and that's good, but everything is continuing. Perhaps the Housing Ministry has closed a few taps, but there has been no operative decision and construction continues in the outposts. The goal of the report was to end the illegal construction.This is not a matter of political outlook; we are talking about the state violating its own laws, and when a state's own authorities break the law, this is a severe blow to the rule of law. When such things happen, the democratic system is liable to be undermined."

Given Israeli domestic politics, is it reasonable to expect evacuation/demolition of any outposts in the near future?

The recent High Court willingness to hear cases related to outposts has forced the issue into the spotlight and increased pressure on the Government of Israel to take action against the clear infringements of Israeli law that these outposts represents. It has also deepened the crisis between the State and the settlers, making it clear that this is a significant difference between state policy and national interests, as defined by the Government, and the actions of the settlers. This crisis will likely deepen as Israel is forced to deal with the issue of illegal settlements.

In the context of this crisis, which has been driven both the focus on outposts and the August 2005 disengagement, settler zealots have begun to push the envelope in terms of publicly defying the Government of Israel and hooliganism, including the mistreatment of Israeli soldiers in the West Bank. The most recent example of this is the January 2006 events in Hebron, when some Hebron settlers and their supporters ran amok, attacking soldiers and Palestinians, destroying private property, and refusing to accept legal, written orders from the Israeli Government to vacate illegally-occupied buildings. Taken together, pressure from the Court and egregious misbehavior by the settlers could move Acting Prime Minister Olmert or his successor to finally act against the settlements.

At the same time, the settler leadership appears to be trying to wear the High Court down with a strategy of seemingly endless delaying tactics: redundant appeals and seeking to make every interaction with the military authorities appear to be a major story of massive political importance. Their goal in doing this seems clear: to convince the High Court that the question of outposts is a political issue, rather than a legal one, and thus the Court should refuse to hear outpost-related cases on principle, leaving the issue to be decided by the political echelons. For more details of this original decision, see Settlements in Focus, Vol. 1, Issue 10.

This distinction between "legal" and "political" issues is key, since it is this distinction - established by the Court in the early years of the settlement movement, in response to petitions filed by Peace Now - that has been the basis of the Court's longstanding position that it will not deal with questions related to settlements and settlement policy. Ironically, the actions of the settlers are breaking through the reluctance of the Court to deal with settlement-related issues. This is because the Court's position is based on the premise that settlement activities do not involve the confiscation of privately-owned land. In the case of the outpost of Amona, however, it has been clearly established that the settlers are operating on Palestinian privately-owned land. Thus, the Court recognized this case as different and agreed to hear the Peace Now petition. It is for this reason that Peace Now - and the settlers - view Amona as a key test case, and it is for this reason that the settlers can be expected to continue to draw out the fight over the evacuation and demolition of Amona for as long as possible.

While the Peace Now petition regarding Amona is based on the clear-cut illegality of the actions of the settlers, it is also clear that there is a political dimension to the issue. Amona and the other outposts are unquestionably the result of actions by elements of the Israeli Government to aid and abet the settlers, and the apparent unwillingness of successive Israeli Governments to enforce the law and dismantle the outposts is linked to both Israeli domestic politics and the broader questions of land and borders in the context of the Israeli-Palestinian conflict. It remains to be seen if the Court will continue to deal with issues like Amona - where the settlers have crossed the line established by the Court with regards to settlement activities - as strictly legal issues, or if they will eventually be worn down by the settlers and decide that even these cases should be dealt with as political issues, rather than legal ones.

Are there any other pending Peace Now petitions with the High Court regarding outposts?

Yes. In addition to the petition regarding Amona, there is a petition pending in the High Court regarding illegal construction in the outposts of Haresh (west of Ramallah) and Hayovel (north of Ramallah). In this case, as in the case of Amona, Peace Now has filed a petition against the Minister of Defense and the Head of the Israeli Defense Forces' Central Command. The petition charges them with failing to carry out demolition orders issued by the Civil Administration for the illegal construction in these outposts. A hearing on this petition was held on November 7th, 2005; on November 23rd, the Court gave the State three months to provide an explanation for why the demolition orders are not being executed.

According to the Sasson Report, this is not an unusual practice, wherein the Civil Administration goes through the motions of issuing demolition orders against illegal construction in outposts, but does not expect them to be implemented, and the implementing authorities act, or fail to act, accordingly. The Sasson report notes:

"Establishing unauthorized outposts involves criminal offences... The criminal procedure comes up against many problems...[one] difficulty is the involvement of State and public authorities in breaking the law by establishing the unauthorized outposts. The administrative procedure requires instructions from the political echelon. No destruction order will be executed without instruction from the Minister of Defense; no unauthorized outpost will be evacuated without a direction from the Prime Minister and the Minister of Defense, etc. It has been years since Defense Ministers have instructed to execute destruction orders. Thousands of destruction orders are lying still."

Peace Now is continuing to follow this case and will, if necessary, file additional petitions.

To see the court decision in Hebrew go to:
http://elyon1.court.gov.il/files/05/510/090/a05/05090510.a05.HTM

To read more about this appeal and background on the case, go to:
http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=1616


Produced by Dror Etkes, Settlements Watch Director, Peace Now (Israel), and
Lara Friedman, Government Relations Director, Americans for Peace Now


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