It recently came to light that one of the West Bank's largest ongoing construction projects - indeed, one of the largest construction projects in Israel - is illegal.
There have been recent press reports about a large illegal construction project in a West Bank settlement. What is the story?
It recently came to light that one of the West Bank's largest ongoing construction projects - indeed, one of the largest construction projects in Israel - is illegal. The project is on the edge of Modi'in Illit, in an area the settlement calls "Matityahu East." The project has been underway for more than two years, and it has been reported that more than 500 units at the site have already been marketed (with an unknown number sold). However, the development plan on which the entire construction project is based was never approved and the entire project is therefore illegal.
Acting on these revelations, Peace Now filed a petition with the Israeli High Court of Justice. In response to the Peace Now petition, on January 12, 2006 the Israeli High Court issued a temporary order freezing construction at the Matityahu East site. The order also forbids any inhabitation of the already constructed apartments, and any delivery of ownership to buyers.
It would be difficult to overstate how revolutionary this temporary order is in terms of law enforcement in the West Bank. It is especially revolutionary (and unprecedented) in the context of the widespread violations that have occurred for years in the areas of settlement planning and construction. It remains to be seen of course whether the decision will be respected by contractors at the site, and if it is not respected, if Israeli law enforcement will take action. Peace Now's Settlement Watch team will follow this issue closely.
Why didn't the settlers get approval for a plan for the site?
In fact, they did. A development plan for the site was presented by the settlement and approved by the government. However, the people planning Matityahu East were apparently not content with the scope of the approved plan, which would have permitted only about one-half the amount of construction they have actually undertaken. Rather then go back and try to get the larger-scale plan approved, the developers apparently decided to ignore the approved plan and instead illegally implement an unapproved one.
So what plan are the developers implementing?
In scrapping the approved plan, the developers of Matityahu East apparently did not start from scratch. Rather, they appear to have reverted to Outline Plan 210/8/1 - the relevant portion of a pre-existing, unofficial plan for the area created in 1998, entitled "The Master Plan of the Modi'in Illit Area for the Year 2020." The Bimkom/B'Tselem study notes:
"The Modi'in Illit Master Plan, made in 1998...was initiated by the Ministry of Construction and Housing, with the cooperation of the Civil Administration's Planning Department, the Modi'in Illit Local Council, and the Mateh Binyamin Regional Council. A master plan does not have a statutory status and does not undergo any approval process. It is a guide for planning policy for a specific area, and forms the basis for the preparation of outline plans. One of the 'advantages' of a master plan, as far as the authorities are concerned, is that objections cannot be raised against it."
"One of the conspicuous features of the master plan is that it ignores the borders of the local authorities. Part of the plan applies to land lying outside its jurisdictional area, including some that is privately-owned Palestinian land. For example, attached to Outline Plan 210/8/1 (Matityahu East), discussed above, are 600 dunams of land that now lie outside Modi'in Illit's jurisdictional area, on which 1,200 housing units are to be built, in addition to the 3,000 units in the official plan. The 'attached' land, which contains many olive trees, is owned by Palestinian residents of the adjacent village Bil'in."
How long has the actual illegal construction been going on? Why has nobody protested until now?
Construction at this site began at the end of 2003. The illegality of the project did not come to light earlier mainly because there is, as noted above, an approved plan that permits construction at the site, so it was natural to assume that the construction that was taking was in accordance with this plan. Moreover, the scale of the illegal project is so enormous it seemed implausible that something like this could be undertaken without the proper legal authority - even in a settlement. Ironically, it was settlers' own voracious appetite for land that caused the scheme to be uncovered: a new road constructed on privately-owned Palestinian land located beyond Matityahu East, but still on the Israeli side of the barrier, led to complaints from Palestinians and a closer investigation of the situation in that area. For more details of the investigation (by the Israeli non-governmental organizations Bimkom and B'Tselem) see: http://www.Btselem.org/English/Settlements/20051228_Modiin_Ilit.asp
How many units and how much land are we talking about? How many new settlers will this site accommodate?
The area in question is about 900 dunams in size (about 225 acres). The (unapproved) plan provides for the construction of 3000 new settlement housing units. The new units would become an extension of Modi'in Illit, an entirely ultra-Orthodox settlement, where the average family has 6-7 children. Thus, these 3000 new units would provide housing to an estimated 20,000 new settlers (for more details about the ultra-Orthodox settlers, see Settlements in Focus Vol. 1, Issue 12, http://www.peacenow.org/briefs.asp?rid=&cid=1644)
Is this really a new neighborhood or is it a new outpost/settlement?
Matityahu East is a new neighborhood of Modi'in Illit. As is generally the rule with the construction of new neighborhoods in settlements, the new construction is not contiguous with the existing settlement, but rather is located at a distance from the original settlement. Thus the new construction is a means of expanding the overall "footprint" of the settlement by artificially expanding its perimeter, while leaving large gaps inside the settlement itself. Consistent with this practice, the construction in Matityahu East is disconnected from the existing areas of Modi'in Illit.
At the same time, Matityahu East is not an outpost in the traditional sense. The site does not include any of the infamous "containers" that settlers generally use to stake their claim, illegally, to new territory. Rather, the site has been prepared and construction has progressed in a manner similar to any regular, approved large-scale construction project (i.e., nothing surreptitious). Perhaps more importantly, a key characteristic of outposts is that they are constructed without any legal approval. In the case of Matityahu East, in contrast, there is a legally approved plan for construction - it is just not the plan that is being implemented.
Israeli government officials have reportedly claimed they did not know about the project. Is this plausible?
Correspondence obtained by Peace Now and published in the Israeli daily newspaper Ha'aretz makes clear the fact that some government agencies - including the Civil Administration and officials from the local administration of Modi'in Illit - knew that the project was illegal all along and did nothing to stop it.
The phenomenon of unauthorized (and therefore illegal) construction in West Bank settlements is an issue which has come up innumerable times in the past. However, this story is unique due both to the colossal dimensions of the violations (3000 illegally-constructed apartments), and to the fact that the violators were caught in the act. It seems possible that in the past similar illegal projects - where an approved plan is used as cover for a very different, much larger, illegal project - have been carried out without anyone discovering it.
It seems likely that the State would have preferred that this matter had not come to light. Now that it has, it is an awkward and embarrassing issue. During the January 12th hearing regarding the illegal construction at Matityahu East, this was made clear when the representative of the State of Israel was unable to tell the court what was the State's opinion regarding the proper steps that should be taken in order to prevent further violation of the law.
Who does the land belong to?
According to official information, the Matityahu East site is comprised of State land and land owned by the "Fund for the Salvation of the Land" - a settler-owned company which is involved in purchasing land in the West Bank. Very little is known about the Fund, but questions have been raised on a number of different occasions regard the "kosher-ness" of the company's dealings. With respect to this particular case, questions are being raised again. In particular, there is the fact that the land in question is known to have been declared State land sometime during 1991. Large tracts of this same land were subsequently registered in the Fund's name. Israeli authorities have thus far refused to release any documents regarding the sale of this land to the Fund.
For those who follow land issues in the West Bank, this all has a familiar ring, sounding a great deal like the "Revolving Transactions" which the State Comptroller has referred to in the past, in the context of land allocations to unauthorized outposts. This is what Bimkom and B'Tselem write on page 81 of their joint report:
"Clearly, the Custodian [i.e., the Israeli government agency charged with custody of non-privately owned land in the West Bank] should not be involved in the allocation and planning of land that is not state land, i.e., land that is purchased by private Israeli persons and entities. However, the Custodian is involved in 'revolving transactions' that aid in realizing the potential of the land purchased by these private parties. In Palestinian society, the sale of land to Israelis is a grave offense, so the Israelis promise the potential sellers that they will keep the seller's identity a secret. To maintain secrecy, they do not register the acquired land in the Land Registration Office. Rather, they transfer the land they purchased to the Custodian, who declares it state land. This enables the planning process to start. The Custodian allocates the land to the purchaser in the framework of the planning-authorization agreement, and then for development, for no consideration."
Regardless of the very grave suspicions about the circumstances and legality surrounding the purchase of the land (which Peace Now will now ask the courts to investigate), there is the underlying issue of how land becomes "State Land," and how it is then allocated. On this issue, the B'Tselem/Bimkom report notes on pp. 77-78:
"The declaration of land as state land and the registration of state land in the land registry has, since 1967, been the principal method used by Israel to take control of land to build settlements and create land reserves for their future expansion. Until then, the state relied on the claim of 'military need' to seize private land, which often required that it prove to the High Court of Justice that the taking indeed was a military necessity...
"A substantial portion of the land registered as state land and used to establish settlements and land reserves for their expansion was, even according to a strict reading of the Ottoman Land Law, privately owned by Palestinians. Israel's illegal seizure of private land was possible, in part, because of the nature of the bureaucratic process in which the taking of control was carried out. Often (primarily in the 1980s), information indicating that a declaration of a particular parcel as state land did not reach the Palestinians, and when it did, the time for filing an appeal had already passed. Also, for a variety of reasons, Palestinians were unable to successfully compete against the military authorities at the appeals hearing. Even worse, there have been many cases in which Israel related to survey lands (the land that had not been proven to be state land) as if they were registered state land, and allocated them to the settlements [as noted in the Sasson Report, pp. 81-82].
"It should be noted that, even if Israel had followed the strict letter of the Ottoman Land Law fairly and justly, and had not declared privately owned land as state land, the state has acted improperly because it administered the state land in a discriminatory and illegal manner. State land is public property, belonging to the lawful residents of the West Bank. The role of the occupying state, as the temporary substitute for the sovereign, is to administer the public land for the benefit of that public, or, in the alternative, to meet its military needs in the occupied territory. Rather than act in this way, since Israel began to take control of state land, it has completely denied the Palestinians their right to use these lands, and has allocated them only for the establishment and expansion of settlements."
Does this case really boil down to a technical matter of settlers failing to get certain approvals in time?
Even if we assume that the land was purchased legally by the Fund and that the state land had been legitimately allocated to the settlement, the fact that 3000 housing units are being built rather than 1500 cannot be viewed as merely a technical violation. Rather, this is an extreme example of the culture of lawlessness that pervades the settlements, abetted by the absence of any effective law enforcement by Israeli authorities. There have been a few official reports dedicated to this issue in the last twenty-five years, the most recent of which was the "Sasson Report" - a comprehensive report on illegal settlement outposts written by Attorney Talia Sasson, from the Attorney General's office, at the request of Prime Minister Sharon. In the report, Sasson catalogues the systematic and continuous violation of law by Israelis in the West Bank, noting that responsible agencies and officials know about the violations and ignore them, and that a number of key governmental bodies and agencies actively aid and abet the violations. In the section of her report entitled "Law Enforcement in Judea, Samaria and Gaza" (pp. 57-66), Sasson notes:
"As far as law enforcement is concerned, the political echelon sends a message of no enforcement, when it comes to the territories. Felons are not punished. The overall picture draws the conclusion that no one seriously wants to enforce the law: ...Therefore it seems that law violation became institutionalized. We face not a felon, or a group of felons, violating the law. The big picture is a bold violation of laws done by certain State authorities, public authorities, regional councils in Judea, Samaria and Gaza and settlers, while false presenting an organized legal system [sic]. This sends a message to IDF, its soldiers and commanders, the Israeli police and police officers, the settler community and the public. And the message is that settling in unauthorized outposts, although illegal, is a Zionist deed. Therefore the overlook, the 'wink' the double standard becomes it. This message has a very bad influence - both on the IDF and on the Israeli police."
For the official summary of the Sasson Report, see: http://www.peacenow.org/hot.asp?cid=390.
How does the location of the illegal construction correlate to the route of the barrier?
In what appears to be a clear case of abetting or even colluding with illegal actions by settlers, Ministry of Defense officials have confirmed that the route of the security barrier around the Modi'in Illit bloc was designed to accommodate the unapproved construction plans for Matityahu East, rather than the legal, approved plan.
In fact, the route of the barrier was clearly designed to accommodate all of the expansion envisioned under "Master Plan of the Modi'in Illit Area for the Year 2020," discussed earlier. Thus, in addition to effectively annexing the land on which the unapproved construction at Matityahu East is taking place, the route of the barrier extends even further into the West Bank, to include around 1000 dunams of Palestinian privately-owned, cultivated land on which the Modi'in Illit Master Plan foresees eventually expanding the settlement. A road linking this area to the Matityahu East site has reportedly already been cleared, requiring the uprooting of more than 100 olive trees from privately-owned land.
Regarding Matityahu East and the route of the barrier, the Bimkom/B'Tselem report notes on pp. 57-58:
"The aerial photo of the Modi'in Illit bloc shows that the outline plans...which will expand the Modi'in Illit bloc in all directions, was a primary consideration in setting the barrier's route. ... In the eastern section, the route follows the eastern borders of Outline Plan 210/8/1 (Matityahu East) [i.e., the unapproved plan which is now being illegally implemented] and Outline Plan 210/4/2 (Ohr Someyach), and the borders that were drawn in the master plan. In this section, the route runs 1,800 meters from the built-up area of Modi'in Illit (the Kiryat Sefer neighborhood), very close to the houses of the Palestinian villages Bil'in and Kharbata. The state admitted that these two plans were taken into account in setting the route...
"Consideration of these expansion plans compelled, in certain instances, the planners to choose an inferior route from a topographical and engineering perspective. ...A similar situation was created in the section west of Bil'in, where Israel wanted to run the barrier around the site of the Matityahu East and Naot Hapisga plans. The route descends to an altitude of 260 meters, to the bottom of a deep river bed (Wadi a-Ralb), which separates the planned neighborhoods. In the segment that crosses the wadi, the route is lower than Bil'in, thus requiring complex and expensive engineering work. Had the barrier's goal been to protect Modi'in Illit as it currently exists - in this area, only Kiryat Sefer - the barrier could run a few hundred meters to the west, 200 hundred meters from the built-up area, and avoid the descent to the wadi."
How have the settlers been able to proceed without permits? How can they sign contracts, bring in workers, etc? How have the settlers been able to market/sell homes that have been built without permits?
The settlers have been able to openly violate the law in all of these areas because of the lack of law enforcement in the West Bank, as described clearly in the Sasson Report. The State of Israel takes little responsibility for what is being done in the West Bank settlements, leaving the way open for settlers to pursue their own projects and interests, even if they do not comply with Israeli law. It seems certain that if the illegal nature of the construction had not been brought to light by the B'Tselem/Bimkon investigation, Matityahu East would have become yet another settler fait accompli - a fact on the ground of dubious origins but with post-facto legitimacy conferred by the Government.
Is the Government of Israel in any way helping the project?
Certainly. Most directly, Israel's Civil Administration - a part of the Defense Ministry which acts as the official arm of the Government of Israel in the West Bank - issued building permits for Matityahu East. Civil Administration officials have since admitted that those permits were issued illegally.
In addition, the State of Israel, through funds which are allocated to the local council of Modi'in Illit, is funding the costs of new infrastructure for the illegal construction at Matityahu East. These funds pay for roads, as well as infrastructure for electricity, water, and sewage. If and when the construction is allowed to be completed and new settlers move in, the State will also provide the usual menu of public services, such as education, public health and religious services.
It has been reported that Palestinians from a nearby village set up a protest "outpost." What is the story?
In this case Palestinians from the village of Bil'in - whose lands, as noted above, have been left on the Israeli side of the barrier to facilitate the expansion of Modi'in Illit - took a page from the settlers' playbook. They established an "outpost" on land they controlled (and owned), with the permission of the local government but without the permits needed from the Civil Administration. The contrast between how Israeli authorities reacted to this illegal Palestinian "outpost" versus how they have reacted to illegal construction by Israeli settlers is noteworthy. In a Peace Now petition entitled "Selective Enforcement According to a National Formula" Peace Now attorney Michel Sfard wrote:
"...we should like to briefly relate the story of the first Palestinian outpost established just a few meters from the illegal quarter of East Matityahu. This story demonstrates how the authorities can act when they are interested in enforcing the law. On December 12, 2005, a number of members of Peace Now [and Palestinians] from the village of Bilin...positioned a container on the private land of one of the village's residents, located on the border of Plan 210/8/1, approx. 100 meters beyond the last of the homes that have been, as stated above, illegally built.
"The Bilin council reached a decision approving the establishment of the 'Center for the Joint Battle For Peace' on the piece of land on which the container was placed. The next day, on December 23, 2005, a force of approx. 150 soldiers arrived and using a crane which had been rented especially for this purpose, removed the container from the site on the pretext that 'there is no permit to transport the container.' The reference here is to private land, whose owner agreed to the placement of the container, where the local council had made a decision to permit the placing of the container, but since there was no permit from the Civil Administration to transport the container - the reaction of the law enforcement elements was as swift and sharp as a razor!
"After another attempt to place a container - and after, for the second time, a rapid reaction on the part of the authorities, the residents of Bilin erected a small building on the plot of land, made of blocks. The building was constructed during the night between December 25 and 26, 2005. At 08:57 in the morning, on December 26, 2005, some three hours after the structure had been built, an inspector came on behalf of the Civil Administration and issued a stop work injunction for the building, where, among others, it was stated that a hearing on the request for a demolition order would take place in Beit El on January 5, 2006...
"Presto, once again, like magic, law enforcement was more efficient and more rapid than in the State of Israel itself! One hundred meters separate East Matityahu and the 'Center For the Joint Battle For Peace' in Bilin. But the difference is not in the distance, the difference is in the national origins of the violators of the law. Illegal construction has been carried on for many long years in massive scales in East Matityahu with the full knowledge of the authorities, and up to today, to the best of the Petitioners' knowledge, not even one stop work injunction has been issued. Even when the attention of the authorities was directed to the loophole, and even when they were required to carry out what is incumbent upon them as part of their responsibilities. However, the shed built by the residents of Bilin, the size of which is only 7 sq. m., received treatment usually reserved for families of organized crime - immediate enforcement within three hours.
"Selective enforcement is a plague that harms all aspects of the fabric of life. The words clearly stated by this Honorable Court in the past are very applicable to this issue:
'Selective enforcement is enforcement that harms equality in that it differentiates, for the sake of enforcement, between like people or between like situations in order to attain an invalid goal, or on the basis of alien consideration or from pure arbitrariness. A clear example of selective enforcement is, usually, a decision to enforce the law against someone, while not enforcing it against someone else, on the basis of considerations of religion, nationality or sex, or out of a feeling of personal enmity or political rivalry towards a person. It is enough that this consideration, even if it is not the only consideration, is the decisive (dominant) consideration in making the decision to enforce the law. Such enforcement is glaringly contrary to the principle of equality before the law in the basic sense of this principle. It is destructive to the rule of the law; it stirs up anger from the aspect of justice; it endangers the legal system. (HCJ 6396/96 Simona Zakin and two others vs. the Mayor of Beersheba, P.D. 53 (3), 289, pp. 306-307)'"
The full petition can be found at: http://peacenow.org.il/site/en/peace.asp?pi=66&docid=1654.
Produced by Dror Etkes, Settlements Watch Director, Peace Now (Israel), and Lara Friedman, Government Relations Director, Americans for Peace Now