May 2002, SummaryHistorical Background
Since 1967, each Israeli government has invested significant resources in establishing and expanding the settlements in the Occupied Territories, both in terms of the area of land they occupy and in terms of population. As a result of this policy, approximately 380,000 Israeli citizens now live on the settlements on the West Bank, including those established in East Jerusalem (this report does not relate to the settlements in the Gaza Strip).
During the first decade following the occupation, the Ma'arach governments operated on the basis of the Alon Plan, which advocated the establishment of settlements in areas perceived as having "security importance," and where the Palestinian population was sparse (the Jordan Valley, parts of the Hebron Mountains and Greater Jerusalem). After the Likud came to power in 1977, the government began to establish settlements throughout the West Bank, particularly in areas close to the main Palestinian population centers along the central mountain ridge and in western Samaria. This policy was based on both security and ideological considerations.
The political process between Israel and the Palestinians did not impede settlement activities, which continued under the Labor government of Yitzhak Rabin (1992-1996) and all subsequent governments. These governments built thousands of new housing units, claiming that this was necessary to meet the "natural growth" of the existing population. As a result, between 1993 and 2000 the number of settlers on the West Bank (excluding East Jerusalem) increased by almost 100 percent.
The establishment of settlements on the West Bank violates international humanitarian law, which establishes the principles applying during war and occupation. Moreover, the settlements lead to the infringement of international human rights law.
International humanitarian law prohibits the occupying power to transfer citizens from its own territory to the occupied territory (Fourth Geneva Convention, article 49). The Hague Regulations prohibit the occupying power to undertake permanent changes in the occupied area, unless these are due to military needs in the narrow sense of the term, or unless they are undertaken for the benefit of the local population.
The establishment of the settlements leads to the violation of the rights of the Palestinians as enshrined in international human rights law. Among other violations, the settlements infringe the right to self-determination, equality, property, an adequate standard of living, and freedom of movement.
The illegality of the settlements under international humanitarian law does not affect the status of the settlers. The settlers constitute a civilian population by any standard, and include children, who are entitled to special protection. Although some of the settlers are part of the security forces, this fact has absolutely no bearing on the status of the other residents of the settlements.
Taking Control of the Land
Israel has used a complex legal and bureaucratic mechanism to take control of more than fifty percent of the land in the West Bank. This land was used mainly to establish settlements and create reserves of land for the future expansion of the settlements.
The principal tool used to take control of land is to declare it "state land." This process began in 1979, and is based on a manipulative implementation of the Ottoman Lands Law of 1858, which applied in the area at the time of occupation. Other methods employed by Israel to take control of land include seizure for military needs, declaration of land as "abandoned assets," and the expropriation of land for public needs. Each of these are based on a different legal foundation. In addition, Israel has assisted private citizens purchasing land on the "free market."
The process employed in taking control of land breaches the basic principles of due procedure and natural justice. In many cases, Palestinian residents were unaware that their land was registered in the name of the state, and by the time they discovered this fact, it was too late to appeal. The burden of proof always rests with the Palestinian claiming ownership of the land. Even if he meets this burden, the land may still be registered in the name of the state on the grounds that it was transferred to the settlement "in good faith."
Despite the diverse methods used to take control of land, all the parties involved - the Israeli government, the settlers and the Palestinians - have always perceived these methods as part of a mechanism intended to serve a single purpose: the establishment of civilian settlements in the territories. Accordingly, the precise method used to transfer the control of land from Palestinians to Israel is of secondary importance. Moreover, since this purpose is prohibited under international law, the methods used to secure it are also unlawful.
Israel uses the seized lands to benefit the settlements, while prohibiting the Palestinian public from using them in any way. This use is forbidden and illegal in itself, even if the process by which the lands were taken were fair and in accordance with international and Jordanian law. As the occupier in the Occupied Territories, Israel is not permitted to ignore the needs of an entire population and to use land intended for public needs solely to benefit the settlers.
The High Court of Justice has generally sanctioned the mechanism used to take control of land. In so doing, the Court has contributed to imbuing these procedures with a mask of legality. The Court initially accepted the state's argument that the settlements met urgent military needs, and allowed the state to seize private land for this purpose. When the state began to declare land "state land," the Court refused to intervene to prevent this process.
The Policy of Annexation and Local Government
The Israeli administration has applied most aspects of Israeli law to the settlers and the settlements, thus effectively annexing them to the State of Israel. This has taken place although in formal terms the West Bank is not part of the State of Israel, and the law in effect there is Jordanian law and military legislation. This annexation has resulted in a regime of legalized separation and discrimination. This regime is based on the existence of two separate legal systems in the same territory, with the rights of individuals being determined by their nationality.
Local government in the settlements has been established on the basis of the usual model inside Israel and is managed in a similar manner, ignoring the relevant Jordanian legislation that should apply in the West Bank. Twenty-three Jewish local authorities operate on the West Bank: three municipalities, fourteen local councils and six regional councils, including 106 settlements recognized as distinct communities. In addition, twelve settlements have been established in the areas annexed to the Municipality of Jerusalem in 1967 - areas in which Israeli law has been officially imposed.
The areas of jurisdiction of the Jewish local authorities, most of which extend far beyond the built-up area, are defined as "closed military zones" in the military orders. Palestinians are forbidden to enter these areas without authorization from the Israeli military commander. Israeli citizens, Jews from throughout the world and tourists are all permitted to enter these areas without the need for special permits.
Encouragement of Migration to the Settlements
The Israeli governments have implemented a consistent and systematic policy intended to encourage Jewish citizens to migrate to the West Bank. One of the tools used to this end is to grant financial benefits and incentives to citizens - both directly and through the Jewish local authorities. The purpose of this support is to raise the standard of living of these citizens and to encourage migration to the West Bank.
Most of the settlements in the West Bank are defined as national priority areas (A class or B class). Accordingly, the settlers and other Israeli citizens working or investing in the settlements are entitled to significant financial benefits. These benefits are provided by six government ministries: the Ministry of Construction and Housing (generous loans for the purchase of apartments, part of which is converted to a grant); the Israel Lands Administration (significant price reductions in leasing land); the Ministry of Education (incentives for teachers, exemption from tuition fees in kindergartens, and free transportation to school); the Ministry of Industry and Trade (grants for investors, infrastructure for industrial zones, etc.); the Ministry of Labor and Social Affairs (incentives for social workers); and the Ministry of Finance (reductions in income tax for individuals and companies).
The Ministry of the Interior provides increased grants for the local authorities in the territories relative to those provided for communities within Israel. In the year 2000, the average per capita grant in the Jewish local councils in the West Bank was approximately sixty-five percent higher than the average per capita grant in local councils inside Israel. The discrepancy in the grants for the regional councils is even greater: the average per capita grant in 2000 in the regional councils on the West Bank was 165 percent of that for a resident of a regional council inside Israel.
One of the mechanisms used by the government to favor the Jewish local authorities in the West Bank, in comparison with local authorities inside Israel, is to channel funding through the Settlement Division of the World Zionist Organization. Although the entire budget of the Settlement Division comes from state funds, as a non-governmental body it is not subject to the rules applying to government ministries in Israel.
The Planning System
The planning system on the West Bank, implemented by the Civil Administration, is one of the most powerful mechanisms of the Israeli occupation. As with the other bureaucratic systems, the planning system operates on two distinct tracks: one for Jews and the other for Palestinians.
This system is responsible for transforming the map of the West Bank because it is the planning system that approves the outline plans for the settlements and issues building permits for the establishment and expansion of settlements and for the construction of by-pass roads. Israel changed the composition of the planning institutions on the West Bank and transferred numerous planning powers to the Jewish local authorities, while expropriating these powers from Palestinian planning institutions.
While facilitating Jewish settlement, the planning system works vigorously to restrict the development of Palestinian communities. The main tool used to this end is to reject requests for building permits filed by Palestinians. In most cases, the requests are rejected on the grounds that the regional outline plans - approved in the 1940s during the British Mandate - prohibit construction in the relevant area of land. These plans do not reflect the development needs of the Palestinian population, and the planning system deliberately refrains from preparing revised plans. Houses built by Palestinians without building permits are demolished by the Civil Administration, even in cases when the construction took place on private land.
After the signing of the interim accord in 1995, planning powers in areas A and B - which account for approximately forty percent of the area of the West Bank - were transferred to the Palestinian Authority. While the vast majority of the Palestinian population lives in these areas, the vacant land available for construction in dozens of villages and towns across the West Bank is situated on the margins of the communities and defined as area C. The Israeli planning authorities continue to control planning and construction in these areas.
Analysis of the Map of the West Bank
The analysis of the map in terms of the geographical dispersion of the settlements and their ramifications for the Palestinian population is based on a division of the West Bank into four areas: three longitudinal strips extending from north to south, and the Jerusalem area, which has its own unique characteristics. This typology is applied solely for the purpose of analyzing the map, and has no legal or administrative significance. Within each of these areas, a distinction must be made between three types of land: land actually occupied by the built-up area of the settlements; open land surrounding the settlements and included within the area of jurisdiction of a specific settlement; and land included within the area of jurisdiction of a regional council, but not attached to any particular settlement.
The Eastern Strip includes the Jordan Valley and the shore of the Dead Sea. Approximately 5,400 settlers live in this area, mainly in kibbutzim and moshavim. With the exception of the Jericho enclave, almost the entire area of the Eastern Strip is included within the areas of jurisdiction of two regional councils: Arvot Hayarden and Megillot, which jointly occupy over 1.2 million dunam. The injury to the Palestinian population caused by the settlements in this area relates mainly to the restriction of possibilities for economic development in general, and agriculture in particular, resulting from the denial of the two resources required for this purpose: land and water.
The Mountain Strip is situated along the central mountain ridge that crosses the West Bank from north to south. Most of the settlements in this area were initiated by Gush Emunim. The population of the settlements totals approximately 34,000. Some of the settlements are dispersed in a string formation along Road No. 60 - the main north-south traffic artery in the West Bank. With the goal of protecting the safety of settlers in this area, the IDF imposes severe restrictions on the freedom of movement of Palestinians along this road, making it impossible to maintain normal everyday life. In addition, these settlements block, to a lesser or greater extent, the potential for urban development in the major Palestinian cities situated along the mountain ridge (Hebron, Ramallah, Nablus and Jenin).
The Western Hills strip extends from north to south, and is ten to twenty kilometers wide. The proximity of this area to the Green Line and to the main urban centers of Israel has created great demand among Israelis for the settlements in this area. The total population of the settlements in this area is approximately 85,000. The seizure of land limits the potential for urban and economic development in the Palestinian communities. The transfer of powers to the Palestinian Authority under the Oslo Accords has led to the creation of over fifty enclaves of area B in this area, as well as a small number of enclaves defined as area A. These areas are completely surrounded by area C, which remains under full Israeli control. As a result, these settlements interrupt the territorial contiguity of the Palestinian villages and towns located out along this strip.
The Jerusalem metropolis includes the settlements established in the area annexed to the Municipality of Jerusalem (these settlements are referred to as "neighborhoods' in domestic Israeli discourse), as well as the settlements around the area of jurisdiction of the city that function as satellite communities. The settlements in this area include approximately 248,000 residents. The ramifications of these settlements in terms of the Palestinian population vary in the different parts of the metropolis. The establishment of the settlements in East Jerusalem entailed the expropriation of extensive areas of privately-owned Palestinian land; the area of jurisdiction of the settlements in the area east of the metropolis (Ma'ale Addumim and the adjacent community settlements) dissect the West Bank into two parts; the settlements in Gush Etzion, located south of the metropolis, block the urban development of Bethlehem and sever it from the adjacent Palestinian communities.
Almost two million dunam of land seized by Israel over the years, mainly by means of its declaration as "state land,' have been included within the areas of jurisdiction of six regional councils, but not attached to any particular settlement. Some of these areas, particularly in the Jordan Valley, are farmed by settlers or used by the IDF as training zones. The vast majority of this land, however, is empty, constituting reserves for the future expansion of the settlements and the establishment of new industrial and tourism zones.
Israel has created in the Occupied Territories a regime of separation based on discrimination, applying two separate systems of law in the same area and basing the rights of individuals on their nationality. This regime is the only one of its kind in the world, and is reminiscent of distasteful regimes from the past, such as the Apartheid regime in South Africa.
Under this regime, Israel has stolen hundreds of thousands of dunam of land from the Palestinians. Israel has used this land to establish dozens of settlements in the West Bank and to populate them with hundreds of thousands of Israeli citizens. Israel prohibits the Palestinians as a group from entering and using these lands, and uses the settlements to justify numerous violations of the Palestinians' human rights, such as the right to housing, to earn a livelihood, and the right to freedom of movement. The drastic change that Israel has made in the map of the West Bank prevents any real possibility for the establishment of an independent, viable Palestinian state as part of the Palestinians' right to self-determination.
The settlers, on the contrary, benefit from all the rights available to Israeli citizens living within the Green Line, and in some cases are even granted additional rights. The great effort that Israel has invested in the settlement enterprise - in financial, legal and bureaucratic terms - has turned the settlements into civilian enclaves in an area under military rule, with the settlers being given priority status. To perpetuate this situation, which is a priori illegal, Israel has continuously breached the rights of the Palestinians.
Particularly evident is Israel's manipulative use of legal tools in order to give the settlement enterprise an impression of legality. When Jordanian legislation served Israel's goals, Israel adhered to this legislation, arguing that international law obliges it to respect the legislation in effect prior to the occupation; in practice, this legislation was used in a cynical and biased manner. On the other hand, when this legislation interfered with Israel's plans, it was changed in a cavalier manner through military legislation and Israel established new rules to serve its interests. In so doing, Israel trampled on numerous restrictions and prohibitions established in the international conventions to which it is party, and which were intended to limit infringement of human rights and to protect populations under occupation.
The settlements are unlawful, and their presence leads to the violation of human rights. Accordingly, B'Tselem demands that the Israeli government act to vacate all the settlements. This process must take place while respecting the human rights of the settlers, including payment of compensation.
Vacating all the settlements is obviously a complex and protracted task. However, a number of interim steps can be taken to minimize the violation of human rights and international law. Among other steps, the Israeli government should:
- Cease all new construction in the settlements, either to build new settlements or to expand existing settlements;
- Freeze the planning and construction of new by-pass roads, and cease expropriation and seizure of land for this purpose;
- Return to the Palestinian communities all the non-built-up areas within the municipal boundaries of the settlements and the local councils;
- Abolish the special planning committees in the settlements, and hence the powers of the local authorities to prepare outline plans and issue building permits;
- Cease the policy of providing incentives that encourage Israeli citizens to move to the settlements, and direct the resources to encourage settlers to relocate to areas within the borders of the State of Israel