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From the field

Retroactive “laundering” of Itamar, Shvut Rachel, Sansana and Yaqir part of government policy to annex Palestinian land to State of Israel

Several weeks ago, on 21 October 2015, Prime Minister Benjamin Netanyahu approved a retroactive urban building plan (UBP) for the settlement of Itamar. About a week later, on 29 October, Netanyahu approved retroactive UBPs for another three settlements: Shvut Rachel, Sansana, and Yaqir. Once again, in one fell swoop, Israeli authorities “laundered” construction even they deemed illegal for years. Contrary to attempts in media reports to represent this move as capitulation by Netanyahu to settler leaders, it is in fact a further example of the implementation of long-standing Israeli policy

The settlement of Itamar. Photo: Abed Omar Qusini, Reuters, 12 March 2011
The settlement of Itamar. Photo: Abed Omar Qusini, Reuters, 12 March 2011

While Israel employs the same planning and legal language to describe Israeli and Palestinian construction in the West Bank – e.g., planning and construction laws, UBPs, planning proceedings, unlawful construction – in practice, these procedures and regulations are implemented completely differently in settlements and in Palestinian communities. In the case of settlements, Israeli authorities provide assistance, turn a blind eye to violations, and retroactively approve unauthorized construction, all as part of their long-standing policy to facilitate the de facto annexation of West Bank land to the sovereign territory of the State of Israel. Palestinian communities on the other hand, face an exacting, by-the-book, bureaucratic approach, a freeze on planning, and extensively implemented demolition orders, all as part of an ongoing policy to prevent Palestinian development and dispossess Palestinians of their land.

In response to growing international pressure on Israel, including demands to freeze new construction in settlements, the Israeli government – particularly since 2011 – has adopted an overt policy of approving settlement outposts and existing illegal construction in settlements. As part of the present wave of laundering construction violations, approval has been granted to 187 illegal housing units in Itamar, 96 in Sansana, 305 in Yaqir, and 94 in Shvut Rachel. The state is currently preparing this type of laundering approval for an additional bloc of settlement outposts east of Shilo. According to reports, the bloc of settlement outposts established in the late 1990s covers a total area of 610.3 hectares and includes four large settlement outposts: Adei Ad, Kida, Esh Kodesh and Ahiya. Thus Israel will once again grant retroactive approval for hundreds of illegally-constructed Israeli buildings.

This laundering process has no legal validity. The establishment of settlements – with or without building permits –violated international humanitarian law (IHL) and the human rights of the Palestinian residents of the West Bank. Over the years, Israeli governments have all disregarded this prohibition and fabricated a sophisticated legal system designed to lend a guise of legality to the seizure of land in the West Bank. As part of this process, Israel has established some 137 settlements throughout the West Bank and on the land annexed to Jerusalem. Almost half a million Israelis now live in these settlements.

Much of this construction – in recognized and well-established settlements as well as in settlement outposts lacking official recognition – was carried out in violation of the provisions of Israeli law. In many settlements, the government itself has been responsible for illegal construction, particularly through the Ministry of Housing and Construction. A database prepared in 2009 by Brigadier-General (Ret.) Baruch Spiegel for the security establishment exposed the vast scale of illegal construction in the settlements. Analysis of the figures in the database shows that in the overwhelming majority of settlements in the West Bank (approximately 75 percent) construction – sometimes extensive construction – was carried out without the necessary permits or in breach of the permits granted. In more than 30 settlements, there was extensive construction of infrastructure and public buildings on privately owned land of Palestinian residents of the West Bank.

In response to these findings, the late Ron Nachman (then mayor of the settlement of Ariel) said that “all complaints should be directed at the government, not us. Regarding the small and community settlements, the planning was undertaken by the Rural Construction Authority in the Ministry of Housing. In large communities, it’s that ministry’s district [committees]. It’s all the government.” Also in 2009, Ministry of Housing and Construction Spokesperson Kobi Bleich stated that “all actions undertaken in the past were made solely in accordance with the decisions of the political official.” In 2005, the director general of the Settlement Division of the World Zionist Organization, which serves as the executive branch of the Israeli government for establishing and reinforcing rural settlements, testified that the Settlement Division expressly advocates the violation of the provisions of the planning and building laws applying in the West Bank. He said that the modus operandi is first to establish Israeli communities, then reinforce them, and only several years later to approve plans for the construction – "This is the mode of operation". The State of Israel has adopted a policy of extensive illegal construction and retroactive approval in the West Bank. This allows the state to maintain a semblance of the rule of law while actually violating the law on a daily basis.

Israeli government policy regarding planning and construction for Palestinians in the West Bank is the very reverse of the method of operation described above. In land classified as Area C, which accounts for 61 percent of the total area of the West Bank, Israel has retained full control of security as well as power over all civil areas with regard land, including planning, construction, infrastructure and development. At a UN conference in 2010, the Israeli government cynically explained: “In order to facilitate proper planning procedures, illegal construction is not tolerated. Such illegal construction harms the local population, given the fact that it does not take into consideration planning policies that will ensure a reasonable quality of life, and public needs.”

However, the government does not implement any such policy. In approximately 70 percent of Area C, Palestinian construction is completely prohibited, while in 29 percent of the area stringent restrictions are imposed on construction. In the remaining one percent of Area C – some 1,824.3 hectares – there are approved master plans that enable Palestinian development. However, most of this area is already built up.

The Israeli prohibition on Palestinian development in Area C – the area that contains the potential for urban, agricultural, and economic development in the West Bank – has an extremely negative impact on the residents of the hundreds of Palestinian communities situated (fully or in part) in areas defined as Area A or B. While construction density in Areas A and B is high, Area C has mostly rural communities, and is relatively sparsely populated. Area C also includes most of the natural resources of the West Bank. Realization of the economic potential of this area – in such fields as agriculture, mineral mining, quarrying stones for construction, tourism and the development of communities – is vital for the economic development of the West Bank as a whole for creating employment and reducing poverty. Area C utilization is also vital for proper regional planning for all communities in the West Bank, including laying infrastructure and proper links between communities.

Of the 180 Palestinian communities located entirely in Area C, the Civil Administration has prepared and approved plans for just 16, whose total area equals the above-mentioned one percent of Area C. Yet these plans do not meet any accepted planning criteria. In addition, their boundaries are adjacent to the built-up areas of the villages, leaveing no farmland, grazing areas, or land reserves for future development.

Recognizing the importance of master plans, in 2011 donor bodies began supporting the drafting of such plans for Palestinian villages in Area C and filing them for approval by the Civil Administration. In recent years, the Palestinian Authority has prepared master plans for 116 communities, and 67 plans have already been submitted to the planning bodies in the Civil Administration for approval. However, these efforts have been to no avail. Just three plans have been approved, and they cover a total area of 57 hectares (0.02 percent of Area C). This outcome is hardly surprising, given that Palestinians are completely excluded from the decision-making process with regard to planning in Area C.

In the absence of approved local plans, Palestinian residents are forced to develop their communities and build their homes in an unregulated manner. Many of them even prefer to forgo applying for a permit, due to the high fees involved and the negligible chance that their application will be approved. Nevertheless, Civil Administration figures show that between 2010 and 2014, Palestinians submitted 2,020 applications for building permits. Just 33 of these – 1.5 percent – were approved. This restrictive planning and building regime is the main factor motivating Palestinians to build without authorization, or alternatively – to abandon their place of residence.

Israel has surrounded the Palestinian residents of the West Bank in a planning stranglehold, while at the same time approving master plans for settlements that already cover a total area of 28,217.4 hectares, equal to 8.5 percent of Area C. In addition, Israel has allocated extensive areas to the municipal authorities of the settlements to block any Palestinian use of the land and ensure that it remains available as a reserve for settlement expansion. Given the relative size of the two populations, the planned area for each settler is at least 13 times greater than that for each Palestinian. In this manner Israel expropriates West Bank land for itself at the expense of the Palestinian residents.