In the last few weeks, the Israeli government has announced plans for a significant expansion of settlements in the occupied West Bank, alongside a parallel initiative to develop further new legislation as a means to enable the legalisation of illegal ‘outposts’. This blog highlights these troubling developments which contravene clear obligations set by international law.
On 25-26 December 2018, Israel’s Higher Planning Committee approved plans: to construct a further 2,191 housing units in existing settlements; to regulate and give legal status to the illegal outposts of Ibei Hanahal and Gvaot; and to establish a new settlement consisting of boarding schools and residential units next to the Mitzpeh Danny outpost. ‘Outposts’ are distinct from settlements in that their construction took place without official authorisation and on an ad hoc basis, such that they are presently illegal even under Israeli domestic law, in contrast to settlements which are viewed as lawful (contrary to the international law position, which is elaborated below).
Ibei Hanahal is an outpost located south-east of Bethlehem, which was established in 1999 without permission or building permits. The recent Israeli government plan provides for 98 housing units to be built there, defining it as a ‘neighbourhood’ of an existing settlement known as Ma’ale Amos. Gvaot was initially established without plans as a ‘neighbourhood’ of the Alon Shvut settlement, southwest of Jerusalem, despite being 2.5 kilometres away from it. The illegal outpost Mitzpeh Danny is located east of Ramallah. Plan 224/3/1 for the new educational institute in this area covers 140 dunams (just under 35 acres) and will lead to the presence of hundreds of Israeli students and teachers in the area.
In addition, the plans include the construction of as many as 2,500 new settlement units at the Givat Eitam outpost site near the Palestinian village Nahla, which is south of Bethlehem and east of the Efrat settlement. The proposed construction, which would cover around 1,700 dunams (around 425 acres) would cause ‘near encirclement of Bethlehem by Israeli settlements,’ separating Bethlehem from southern parts of the West Bank and thus preventing development in the one direction from Bethlehem not already blocked by settlements. Those opposed to the proposals refer to the outpost as ‘E-2’ based on its similarity to a settlement known as E-1, which threatens the creation of a continuous built-up area between the illegal Ma’ale Adumim settlement and Jerusalem.
Peace Now have warned that the plans for Givat Eitam / E-2 ‘would likely finalize the cutting off of Bethlehem city from the southern West Bank, delivering a crushing blow to the Two States solution.’ In her recent address to the UN Security Council debate on the Middle East, the UK Permanent Representative to the UN, Ambassador Karen Pierce, stated that the proposed construction at Givat Eitam / E-2 amounted to a ‘further threat to the territorial integrity of the future Palestinian state’ and condemned the plans for new settlement units in general. Likewise, the statement made on behalf of the EU at the same UN Security Council debate referred to the plans for settlement expansion as compounding the risk of further escalation of conflict.
Legal developments paving the way for legalisation of outposts and increased settlement construction
Construction at the Givat Eitam / E-2 site had previously been held back by the recognition of surrounding land as being the private property of Palestinians. However, recent domestic legal developments have decreased the influence of this and other obstacles to construction.
On 16 December 2018, the Israeli Cabinet gave its unanimous support to legislation known as ‘Regulation Law 2’ or the ‘Young Settlement Bill.’ As reported by the Foundation for Middle East Peace (FMEP), the Bill would mandate the designation of 66 illegal outposts as legal settlements, freeze any legal proceedings against them, require their connection to utilities provided by the state, allow the government two years to determine a method for their retrospective legalisation, and even permit the finance minister to guarantee mortgages for settlers who wish to buy in these outposts. Following Cabinet approval, the Bill will now be introduced in the Knesset (legislative body).
The Bill continues the trajectory of the ‘Expropriation Law’ (also described as the ‘Regulation Law’, ‘Regularisation Law’ or ‘Theft Law’) passed by the Knesset in February 2017, which permits the retrospective legalisation of illegal housing built on expropriated private Palestinian land in the occupied Palestinian territory, discussed in detail in our earlier blog. The Expropriation Law has been suspended while the High Court of Justice considers its constitutionality. The Israeli Attorney General Avichai Mandelblit has intervened in the challenge to indicate his opposition to the law, describing it as ‘sweeping and harmful’ since it prioritises settlers’ needs over ‘the property rights of the owners of the land in the area,’ as further discussed in our December 2017 blog.
While this intervention was helpful in relation to particularly severe aspects of the legislation, Attorney General Mandelblit’s position fell far short of the necessary comprehensive opposition to settlements and their expansion. Furthermore, in a separate ruling shortly before this intervention, which concerned the expropriation of privately owned Palestinian land for a road accessing an outpost in the West Bank, Mandeblit depicted settlers as local residents with the right to have their needs taken into account. By proposing alternative legal means to achieve similar objectives, his opposition to the Expropriation Law was therefore undermined.
The Attorney General’s office has also criticised Regulation Law 2. The Deputy Attorney General Raz Nizri has raised the point that even if the land in question is seen as belonging to the state, there is uncertainty as to whether the relevant outposts were lawfully obtained by the settlers. A statement released by the office following approval of the bill stated that it raised ‘significant legal problems, which may even lead to international repercussions and expose Israel to significant risks in this respect.’
However, just days before the Bill’s passing, Mandelblit held a discussion on 13 December 2018 about implementing a principle known as ‘market regulation.’ This doctrine assumes that it is legitimate to expropriate land where this is understood to have been taken in good faith. Although it is not clear what position Mandelblit has taken or will take on the ‘market regulation principle,’ (MRP) the holding of these discussions suggests that he is potentially open to accepting it. If so, this would be a contradictory position, since the MRP is similar to the ideas underlying the Expropriation Law; it has been described as ‘a more defensible means… to accomplish the same ends’ and raises the same pressing issues from an international law perspective as the Expropriation Law does.
Settlements and outposts as a violation of international law
UN Security Council Resolution 2334, passed in December 2016, referred to settlements as ‘a flagrant violation under international law’. Article 8(2)(b)(vii) of the Rome Statute of the International Criminal Court provides it is a war crime for an occupying power to directly or indirectly transfer parts of its own civilian population into the territory it occupies. Such action also violates Article 49 of the Fourth Geneva Convention on the protection of civilians, which provides that an Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Settlement expansion involves the transfer of Israeli citizens to occupied Palestinian territory. The government actively encourages Israeli citizens to relocate through subsidies and incentives, such as investment in public infrastructure and the categorisation of most settlements as ‘National Priority Areas.’ Such areas are entitled to various benefits including reduced land prices and taxes, indemnification against lost income as a result of EU custom duties, and preferential loans and grants. Active encouragement is also demonstrated by the provision of Regulation Law 2 which, as noted above, allows the finance minister to guarantee mortgages for settlers who wish to buy in these outposts. Described by FMEP as ‘a remarkable state-directed violation of normal practices in the mortgage industry,’ this is an example of direct financial backing for those who move to the outposts.
The settlements and surrounding infrastructure also lead to violations of numerous human rights obligations owed by Israel. This includes the right to self-determination, which is recognised as a ‘peremptory norm’ of international law – that is, one which imposes a separate and additional legal obligation on all states to ensure that the right is realised. As noted in a UN Human Rights Council report following an independent fact-finding mission in 2013, the increasing presence of settlers in the occupied Palestinian territory is a threat to Palestinian demographic and territorial presence. The further expansion of settlements since then can only serve to intensify the threat. The denial of self-determination is also exacerbated by the recent legislative moves to formalise outposts, since this legislation is passed by a body elected only by Israeli citizens, but affected Palestinians living under occupation have no vote in those elections.
Other human rights obligations breached by the settlements include social and economic rights such as access to natural resources and rights to education, water, housing and property, and civil and political rights including equality and non-discrimination, due process and freedom from arbitrary detention, liberty and security of person and freedom of expression. Again, the already documented violations will be further intensified by the proposed process of expansion and legalisation, particularly where – as in the case of Givat Eitam / E-2 – the plans threaten to further fragment Palestinian territory and obstruct access within it.
Implementation of the current Israeli government proposals for settlement expansion and outpost legalisation will inevitably compound an already stark situation. The urgency of the issue is underscored by the allocation of a large area of land to the construction of Givat Eitam / E-2 on 31 December, within days of the initial planning decision. In addition to the recent legislation being of the utmost concern, then, settlement expansion is already being increased even before it has been passed in the Knesset.
The full implementation of the earlier Expropriation Law had been hindered by legal challenges and the Attorney General’s decision not to support the law in response. While it is positive that the Attorney General’s office is opposing Regulation Law 2, this position risks being undermined if the ‘market regulation’ principle is not also clearly rejected.
The recent developments are likely to be of interest to the Prosecutor of the International Criminal Court, Fatou Bensouda in the context of her preliminary examination into the situation in Palestine. Bensouda’s latest annual report on Preliminary Examination activities published in December 2018 states: ‘The Office [of the Prosecutor] has focused its analysis on alleged war crimes committed in the West Bank, including East Jerusalem, since 13 June 2014. Namely, the Israeli authorities have allegedly been involved in the settlement of civilians onto the territory of the West Bank, including East Jerusalem.’
It remains the case that in order for Israel to comply with international humanitarian, criminal and human rights law obligations, a comprehensive renunciation of its policy of settlement construction and their expansion is essential. The recently announced plans strongly suggests, however, that Israel is seeking to fuel the expansion of its illegal settlement enterprise by relying on unjust legislative manoeuvres, rather than accepting the clear legal position that settlements are illegal under international law.