They have been living in houses, in settlement outposts, and neighborhoods throughout Judea and Samaria for almost 20 years. They send their children to high school and the army, see them get married, and serve in the reserves. Most of them are professionals, farmers or educators.
Many of them are career military or members of other security services and contribute much more to the country than is usual. They also lose loved ones at a higher rate, but their homes, communities and neighborhoods – at least officially – still exist without any legal status. In professional argot, these settlements and outposts are known as "unrecognized."
At worst, the residents live under the threat of being evacuated and having their homes demolished. At best, they are at a standstill and ineligible for the basic budgets, benefits and services enjoyed by residents of recognized towns and councils. They have jerry-rigged electrical and water lines, which often break down. Egged buses, the phone company and the Israel Post do not service these communities.
Until a week ago, the Samaria outpost Havat Gilad, founded almost 17 years ago, was one of the "unrecognized." Now it might become the exception that does not prove the rule. The price the community paid for recognition as a settlement, a move that Defense Minister Avigdor Lieberman intends to present to the cabinet this coming Sunday, is a heavy one: the life of Havat Gilad resident Rabbi Raziel Shevach, who was murdered in a terrorist shooting last week and buried there.
This week, the Forum for the Recognition of Settlement Outposts became active again. The group wants the government to recognize 70 settlements and neighborhoods of the same status as Havat Gilad, but not in such terrible circumstances.
The various governments of Israel have been almost entirely on board with this project, started by the established settlements. The Housing and Construction Ministry invested hundreds of millions of shekels in it. The Religious Affairs Ministry built two synagogues and mikvehs (ritual baths) there. The World Zionist Organization's Settlement Division paved roads and highways.
The current government and a special legal committee have made a series of decisions designed to recognize these places. They expressly wanted to avoid a repeat of the Migron or Amona cases. Attorney General Avichai Mendelblit approved many of the outpost recognition solutions that have been proposed, but they have yet to be implemented.
The "unrecognized" outposts fall into a number of categories. According to unofficial estimates, they are home to some 7,000 structures, thousands of which were constructed as part of outposts or new "neighborhoods" that are too far away from existing settlements to be considered "adjacent," a parameter for retroactive legalization of such construction.
Another category, which is ever harder to find a solution for, includes 3,455 unrecognized structures built on privately owned Palestinian land.
According to a document from the IDF's Civil Administration obtained by Israel Hayom, 1,048 of these structures were built on land that was formerly declared to be state-owned, but which later – following re-examinations of cases in recent years – has turned out to be owned by Palestinian individuals. When the buildings were constructed, they fell within what was delineated as state-owned land. But the line was redrawn, and some of the construction was left on the wrong side. But in the meantime, families built their homes and children were born.
The document says that another 1,285 residential or public structures were built on privately owned Palestinian land that lies within or near one the 74 legally recognized settlements. These weren't built on state-owned land, but the government did not know that the land belonged to Palestinian individuals, and like the residents, assumed that they would be declared state land.
An additional 1,122 structures were built on Palestinian-owned land over 20 years ago, with or without the knowledge that the land was privately owned. No orders to stop construction on them or demolish them were ever issued, but now it turns out that they aren't recognized, either. No building permits can be issued to make renovations, they cannot be sold or transferred to new owners. This is the situation of entire neighborhoods in the established settlement of Ofra.
Murky planning
One example of how the blue line has moved is the case of Esh Kodesh. The outpost was founded 17 years ago, some 9 km (5.5 miles) from the settlement Shilo, and named after Esh Kodesh Gilmor, a security guard at the Jerusalem Branch of the National Insurance Institute who was murdered at the start of the First Intifada.
Officially, Esh Kodesh was and remains a subdivision of Shilo. That is the residence that appears on residents' ID cards. Today, 60 families live on 450 dunams (110 acres). They are surrounded by vineyards, orchards and fields that were approved by the Civil Administration's "blue line team" as state-owned land that was leased to the settlers. Petitions from left-wing organizations sparked a new examination into the validity of that approval, which has been ongoing for years and not reached any conclusions. It has, however, had a serious impact on the lives of the people who live there.
Yehuda Handler, director general of the Emmanuel Local Council, his wife, Maayan – a lecturer on Jewish studies at Bar-Ilan University – and their five children live in a home that is under a standing demolition order. Not far away lives the family of Yael Sarel, the sister of Maj. Benaya Sarel, who was killed in Operation Protective Edge in the summer of 2014. Yossi and Etta Leibovitch, the parents of Elazar Leibowitz – a soldier who was killed in a terrorist attack in the southern Hebron Hills in 2002 – also live in Esh Kodesh, as do the two older brothers of Ami Meshulami, who was killed in the 2006 Second Lebanon War, and Meshulami's widow, Yonat, who has since remarried.
Handler tells Israel Hayom that because of the murkiness of the planning process, the institutions that assisted the outpost when it was first founded have stopped investing.
"The electricity goes out two or three times a week. The quality of the water that reaches us via a very long pipe from Shilo is low. The government doesn't fund infrastructure or roads, and when we try to widen roads on our own, the Civil Administration, which is dawdling over recognizing a settlement that the government supposedly wants to recognize – along with a lot of other hold-ups – hurries in to stop the work," he says.
"Convenient for the government"
The settlement outpost Mevo Yericho, founded in 1999, lies some 4 km (2.5 miles) from its "mother settlement" Kibbutz Yitav in the southern Jordan Valley. It was built with government assent and encouragement. The IDF, which evacuated three camps in the area after the Oslo Accords, supported the establishment of a civilian community there. The Housing and Construction Ministry, the Settlement Division, and the local council all welcomed it.
Plans were prepared, money was invested to pave an access road and install water, electricity and sewage services, but in 2003 everything was frozen following a report by attorney Talia Sasson, then head of the Special Tasks Division in the Attorney General's Office and now head of the New Israel Fund. The contract for the land between the Civil Administration and the Settlement Division, based on which the plans were drawn up, expired and since then everything has limped along.
Mevo Yericho resident Eliyahu Attia says, "In terms of planning, we're back at the starting point. There are no legal grounds to not recognize the settlement. What is needed is a political decision, and the government is sitting on the fence after it already spent money on an access road, infrastructure, and public buildings. There is a settlement there, but officially and legally – we don't even appear on the map. We've been erased.
"The ramifications are that all the big investments made here until 2003 have stopped. We are living off past investment here. It's a problem to continue developing infrastructure or putting in security measures in communities like ours. The settlement isn't recognized, so there's no mail, no Egged [buses], no Bezeq [the phone company] or health clinics. We are trapped," Attia says.
The trap Attia is talking about is home to about 40 families, including Doron and Meirav Elush, whose date farm, worked entirely by Israelis, developed the biggest medjoul date variety in the world; high-tech employees who commute to Jerusalem; and Nir and Nava Efrati, who started a project there to help girls who have dropped out of or been dropped from other educational institutions.
"This situation is very convenient for the government. They want this place to exist. They don't interfere. They don't evacuate us, but they also aren't finishing what they started, and won't declare that we are a recognized settlement in Israel, with everything that means," Attia says.
A revolutionary ruling
The window of Ronel Barak's café, situated on the edge of a cliff in Mitzpe Yair in the southern Hebron Hills, looks out over the sharp topographical drop from the hilltop to the Arad Valley and the Judean Desert. Mitzpe Yair was founded 20 years ago and named after Yair Har Sinai, a resident of Susya who was murdered by a Palestinian terrorist in 2001. Located 1.5 km (1 mile) from Susya as the crow flies, it is now home to 26 families. The settlement is built on recognized state land, but the status of the road that leads to it from Susya is under review. Because the government has not decided the fate of the road, Mitzpe Yair is not yet recognized.
Neither is the neighboring outpost Avigail, which is home to both religious and secular families. Like Mitzpe Yair, Avigail was built on state-owned land, but it is served by an unrecognized road. The road to Avigail was the first one the current government informed the High Court of Justice it wanted recognized, but nothing has happened.
The situation in Mitzpe Yair and Avigail exists in about 25 additional unrecognized settlement outposts whose access roads cross land whose status is in question. The results are the same: improvised electricity service with frequent blackouts, causing appliances – sometimes expensive ones – to short out; problems with the water pipeline; no telephone or internet service; and no security measures or any budget for a security coordinator, which given the reality in Judea and Samaria are hardly luxuries.
Legally, the problem is a solvable one. Mendelblit recently issued a groundbreaking opinion that privately owned Palestinian land can be confiscated for public use in settlements. Mendelblit wrote his opinion in response to a no less revolutionary – and surprising – ruling by Supreme Court Justice (ret.) Salim Jubran, who determined that Jewish settlers in Judea and Samaria were considered "part of the original population," and therefore were also applicable to have land confiscated for their benefit.
Mendelblit was asked to provide an opinion when it turned out that the road leading to the outpost Harsha had been partly built on land owned by Palestinian individuals.
Jubran, followed by Mendelblit, caused residents of unrecognized Jewish settlements throughout Judea and Samaria to hope that the delay in granting their communities legal status had to do with the lack of legally recognized roads leading to them – as is the case in Havat Gilad. But despite Mendelblit's opinion, the Civil Administration is not using his proposal to solve the legal problem.
"Unwitting criminals"
The different problems, and possible solutions, faced by dozens of unrecognized neighborhoods, settlements and outposts in Judea and Samaria were brought to Mendelblit by the Zandberg Committee, which was established as part of the coalition agreement between the Likud and Habayit Hayehudi. Committee members include representatives of the Prime Minister's Office, the Defense Ministry, and the Agriculture Ministry.
The stated purpose of the committee is to legalize the status of unrecognized settlement outposts. For the most part, the facts are not in dispute. Two resounding reports comprise the major sources of data on the factors delaying recognition of the communities in question: the Sasson report, issued under the late Prime Minister Ariel Sharon, and a report from a committee headed by the late Supreme Court Justice Edmond Levy. Sasson was a leftist thinker. Levy tended toward the other direction.
The committee is working in the spirit of Levy, not Sasson. While Sasson thought in terms of justice "though the heavens may fall," Levy took into account that the settlers in almost all the unrecognized outposts were acting with the approval and assistance of the government. Levy called the "unrecognized" settlers "unwitting criminals" and ruled that the government must take steps to legalize their settlements. The Zandberg Committee has made it its mission to approve what has existed for many years.
Mendelblit approved solutions for at least four categories of unrecognized settlements. One – confiscating land for public use – has been made feasible thanks to Jubran's ruling, which sees Jewish settlers in Judea and Samaria as part of the civilian population whose needs must be addressed. This means that outposts like Harsha could be legalized.
Unrecognized settlements of another type are the ones established in the 1980s based on seizure orders issued for security reasons. Today, after the High Court's famous Alon Moreh ruling, these orders are no longer in use. However, not all the land for which such orders were issued has been settled. One example is Maaleh Ephraim in the Jordan Valley, where development has ground to a halt because the orders it was issued were not carried out for several years. Mendelblit allowed the settlement to act on the option, but nothing has happened.
Another "unrecognized" category includes the neighborhoods and outposts adjacent to existing settlements. The committee proposed two possibilities for these settlements: recognizing distant neighborhoods as new settlements, as Lieberman recommended in the case of Havat Gilad, or approving distant neighborhoods as legal subdivisions of the existing settlement despite the distance. Mendelblit has approved the idea, but it is complicated to execute.
Mendelblit has also found a possible answer in the existing statute on government property in Judea and Samaria that could work for the settlements that were built inside the recognized borders of government-owned land but found themselves in a predicament after the line was redrawn. There is a clause that allows the Civil Administration to permit the land to be used despite the mistake.
Eight months ago, the cabinet decided to appoint a team to use Mendelblit's solutions to implement the process of recognizing settlements, but there still isn't any such team in place. Dozens of neighborhoods and outposts and could be legalized are left hanging in the air.
Absurdly, it is frequently the High Court of Justice, often denigrated by the Right, that presses the government to recognize settlements. The High Court, which often wields its sword against the government when left-wing organizations petition on behalf of the Palestinians, often compels the state to hurry up and complete the recognition process for one settlement or another, like it did for Kerem Re'im in Gush Talmonim.
Still, the government frequently drags its feet. In 2011 the state informed the High Court that it intended to recognize the established settlement of Harsha. But is hasn't, and is now threatening to demolish a new boarding school constructed for the Harsha yeshiva intended to replace crumbling, dangerous shacks. It's a vicious circle – the state announces that it intends to legalize neighborhoods and outposts, while at the same time carrying out demolitions in them while dawdling over the recognition process. The buildings were built without permits, but permits cannot be issued for an unrecognized community.
Deputy Defense Minister Eli Ben-Dahan says that his ministry is working on a detailed project that covers 70 outposts and neighborhoods.
"We are ranking and categorizing them, writing down all the relevant details about each place and suggesting ways in which it could be recognized. When the team charged with getting recognition for settlements is formed, as the government decided, we will be happy to pass on our work," Ben-Dahan says.
