{Originally posted to the JNS website}
Due to Israel’s outdated policy, the Palestinians have mounted a systematic campaign to undermine Israeli governance in Area C of Judea and Samaria, with an eye to inflicting strategic damage on Israel and causing immeasurable harm to the region and its residents. It’s time for a new policy.
The settlements in Judea and Samaria are a subject of extensive and spirited debate in Israel. The topic is politically charged and frequently features on the public agenda. But focusing on the future of the settlement project and its horizons of growth obfuscates the bigger picture. The Israeli communities in Judea and Samaria take up only a tiny proportion of Area C, and the events occurring in the rest of the area impact the settlements and other Israeli interests far more than the approval of this or that local construction plan.
The Palestinians never entirely relinquished their commitment to the violent struggle against Israel, but their defeat in “Operation Defensive Shield” in 2002 led their leadership to strategically adopt “non-violent” measures, and these include a focus on seizing parts of Area C. In the absence of negotiations (a situation for which the Palestinians themselves are responsible), they defined Area C as an area of interest for the establishment of a Palestinian state in Judea and Samaria, and are acting accordingly.
In the past few years, the Palestinians have been systematically violating the the Oslo II Accords with respect to Area C. More on their methods in a moment.
Many Israelis are unaware of this. Others know, but treat it as unimportant. However, in strategic terms, what the Palestinians are doing is undermining long-term Israeli interests in areas whose future is as-yet undecided. This of course negates the possibility that these areas will become, in whole or in part, part of the State of Israel in the future, and at the same time precludes the possibility of using them as a powerful bargaining chip with the P.A. and the international community in any future negotiations.
Facts on the ground
In 2008, Regavim, an NGO devoted to ensuring the responsible, legal, accountable and environmentally friendly use of Israel’s national lands, petitioned the Supreme Court against the illegal construction being carried out in a Bedouin encampment along Highway 1, the Jerusalem-Dead Sea road. These Bedouins arrived in the area in the 1970s and have since increasingly entrenched themselves.
Soon after the submission of the petition (the first of four), European organizations and especially the government of Italy began to openly support this illegal Bedouin encampment, including by moving the residents from tents to new structures, installing solar panels, water tanks and the like. Furthermore, a school was also built on this particular site for all the Bedouins of the Jahalin (Abu Dahuk) tribe in the vicinity. The school, built from tires, clay and panels, is called the “Italian Eco-School.”
The requests for support and a permanent presence at this specific site, which became known as Khan al-Ahmar, were led by the Palestinians, based on an awareness of its strategic importance: The site is located right next to Highway 1, a strategic traffic artery of the first order, as well as adjacent to an area known as E1, which was long ago established as a land reserve to connect Ma’aleh Adumim to Jerusalem.
The Palestinian struggle under the cover of the Bedouins at this precise location, and the flat rejection of any alternative offered to the Bedouins in the context of long and drawn-out negotiations, shines a powerful spotlight on the involvement of the Palestinians in seizing territory of vital strategic importance to Israel, right in the heart of Area C.
This is only one, well-known example. The Palestinians have been employing diverse tactics and strategies in an effort to take over parts of Area C and have established a designated government ministry to oversee these efforts. They have reestablished the project to register lands according to the Jordanian system, which Israel discontinued in 1967 when just one-third of the land was formally registered in the Jordanian land registry. They are encouraging Bedouins to settle in permanent housing in the area, and employ a wide range of incentives to encourage Palestinians to settle in Area C, including tax exemptions, discounts for vehicle registration, jobs for those who settle and so on.
They systematically impede the sale of land to Israelis, and use violence to prevent such sales when necessary. They engage in large-scale road building and paving projects, launch large-scale agricultural projects with the aim of taking over state land and lands that have the potential to become state land (“survey lands”), initiate construction projects aimed at occupying lands and have undertaken a large-scale public diplomacy campaign aimed at cementing the idea that Israeli control over Area C is illegitimate.
This is an organized, systematic initiative aimed at creating contiguous settled territory between areas under P.A. control, undermining Israeli governance in Area C and denying Israel its bargaining chip in future negotiations.
The process is simple: First, they build illegal structures in an area in which they have a particular interest, challenging the Israeli enforcement authorities. This is followed by extensive use of legal means to prevent or delay demolition, as they employ the media and public opinion to portray the demolition efforts as a violation of human rights. Finally, the illegal construction is legitimized by means of civic planning processes.
It is enough to consider Palestinian construction in previously unsettled areas of interest, such as the Judean Desert and the Jordan Valley, to gain an insight into the extent of the Palestinians’ determination to create a presence in the area and disrupt Israel’s connection to these places.
These Palestinian efforts are bearing fruit: Area C is currently populated by tens of thousands of illegal Palestinian structures, a large proportion of which are designated as housing for residences. With an average enforcement rate of about 40% according to figures from the Civil Administration, it would be an understatement to say that Israeli enforcement in this matter is inadequate. Unsurprisingly, the number of illegal buildings in Area C increases by about 10,000 units every decade, a trend capable of establishing irreversible facts on the ground.
All these efforts are accompanied by legal action and international aid. The Palestinians are pursuing a legal campaign of attrition that exploits Israel’s democracy as a means of obstructing the mechanisms of inspection and enforcement (which ultimately seeks to serve the meta-goal of restricting and undermining Israeli settlement). This “lawfare” campaign is led by international entities and NGOs, and is supported by a great deal of money—hundreds of millions—flowing in from these sources. A case in point is the Society of St. Yves—Catholic Center for Human Rights, which has underwritten 125 Palestinian petitions to Israel’s High Court of Justice.
Various international entities, in cooperation with Palestinian institutions, are intensively involved in “regional planning” for the Palestinians in Area C. These entities include the E.U. and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the U.N. Community Resilience and Development Program (CRDP), the British Department for International Development (DFID), the government of France, as well as many other governments and organizations.
Strangely, these international development efforts are aimed at developing frontier areas and rural expanses rather than—as we normally see in current global trends—at developing sustainable urban economies.
A different policy
There is a reason for Israel’s weakness and the lack of awareness among the Israeli public of the Palestinians’ expansionist moves: Among the main agencies in charge of the staff work in Israel’s governmental, legal and security systems, the conception has taken root that Area C will sooner or later be handed over to the Palestinians and that Israel consequently bears only temporary responsibility for administering it. This in itself is proof of the Palestinian victory in the war for hearts and minds regarding Area C.
However, the idea that we do not have to make a real effort to protect our interests in the territory even if we are no more than temporary caretakers is a grave conceptual error. As long as the territory is under Israel’s effective sovereignty, it must be administered at a high level of governance, even more so given that the “temporary situation” has been going on for decades, and no one knows when it will end.
The erosion of Israel’s status in the territory undermines the very feasibility of a future political settlement, along with Israel’s ability to use control of these areas as a factor that can impact negotiations. Furthermore, there is always a possibility that some or all of Area C will become part of the State of Israel, whether as part of a negotiated settlement or a unilateral move.
It has been 20 years since the Oslo II Accords. The temporary arrangement has been repeatedly extended and no partner to an agreement can be seen on the horizon. The dream of a utopian peace with the Palestinians has long since dissipated in the eyes of most Israelis, and that is a good thing. However, leaving the option open means that Israel must strictly safeguard its interests on the ground and the prevent creeping Palestinian annexation.
Israeli policy must therefore transition from passive acceptance to proactive initiative and enforcement. This does not necessarily mean Israeli annexation. Although annexation sounds capable of guaranteeing proper governance and the protection of Israeli interests, it is not feasible given current conditions on the ground. Since it is impossible to build a geographical barrier between Areas C and B, any move on Israel’s part to annex Area C would cause Palestinians to flock from Areas A and B to Area C. Israel would find it difficult to prevent this. Bolstering Israel’s governance in the territory without altering its legal or international status will better serve Israel’s interests.
Israeli control of Area C is important for numerous reasons, security being one of the most important.
The creeping takeover of Area C poses a danger to Israeli freedom of movement. As shown above, Area C contains the main road networks and all the roads that lead to Israeli communities in Judea and Samaria. Keeping the area around these traffic arteries free of unregulated construction is vital for the freedom of movement of people along the roads in the area as well as for the free movement of Israeli security forces. Additionally, the Arab seizure of key areas in Area C threatens Israel’s hold on the Jordan Valley as a buffer zone between it and Jordan.
Another vital aspect is the strategic-diplomatic dimension. As noted, a Palestinian takeover of Area C could lead to the creation of Palestinian territorial contiguity and thus deny us our most powerful bargaining chip in any future negotiations.
Unlike the systematic Palestinian efforts, the Israeli response has not consolidated thus far into a holistic, coherent strategy. On the contrary, for some of the Israeli officials working in the area, the illegal Palestinian construction is not perceived as a national threat, and is dealt with as no more than a local issue to be addressed through the existing bureaucratic channels. This local response is ineffective in preventing the Palestinian efforts to take over Area C.
It’s time Israel established a clear, unambiguous alternative to safeguard Area C, as our national interests demand. We have to throw a wrench into the illegal Palestinian construction machine and stop making do with sporadic and targeted enforcement.
What Israel needs to do
First, Israel must define the strategic importance of Area C for Israel’s national security and act accordingly. It must make clear that there is no guarantee that these areas will in the future fall under Palestinian control. It must be understood that Israel is committed to the Oslo Accords, which determine that the fate of Area C will be decided exclusively in direct negotiations between the parties, the results of which cannot be foreseen in advance. Accordingly, Israel must declare that it will thwart any Palestinian attempt to establish facts on the ground—meaning that it will act vigorously against any Palestinian attempts at de facto annexation.
In this context, the crucial change, the one that can completely transform the situation, is a renewal of the land registry, which was discontinued (or rather suspended) in 1967 when IDF forces entered the area. After the State of Israel proactively resumes the judicious administration of the land registry, most of the lands currently considered open territory will be officially registered as state lands in the land registry. This is a final and irreversible registration of rights, contrary to the reversible “declaration” method in use today.
Doing this will put an end to the situation whereby ownership rights can be acquired following cultivation of the land for 10 years (Section 78 of the Ottoman Law). Even if this process takes a few years and requires resources, it can fundamentally alter the situation on the ground. The illegal unilateral actions taken by the Palestinians to register land serve as a clear justification for this change in the Israeli position.
Second, Israel must formulate a comprehensive regional plan for all of Judea and Samaria that properly addresses the needs of the Palestinian population, especially in terms of master plans for Palestinian cities and large towns. This would pull the rug out from under the stock Palestinian claim that the illegal construction is a legitimate response to the population’s housing needs.
Further to this, Israel should determine an agreed upon order of priorities for Israel’s areas of interest in the region. It must distinguish between key areas vital for security and settlement and areas that do not meet these criteria. In those areas defined as Israeli areas of interest, Israel must step up enforcement and take any steps necessary to prevent illegal construction and agricultural takeover, whereas in the areas where Israel’s interest is less crucial, existing illegal construction may be formalized and future plans approved.
The importance of this point cannot be understated, because when everything is forbidden, the result is that everything is permitted. Israel needs to address the population’s legitimate needs, and enforce the law uncompromisingly against irregularities that overreach these needs.
Accordingly, it is important to distinguish between areas of illegal construction whose formalization can be weighed and those areas that cannot be formalized. Based on a rough estimate and taking into account various data such as proximity to Area A and B and the status of the land on which the construction is located, it appears that close to one-third of the illegal Palestinian construction can be formalized. On the other hand, when state land is involved or when the construction clusters are situated next to major traffic arteries and Israeli settlements, or when they are located in areas that dominate the topography, strategic areas, nature reserves, archaeological sites and certainly in firing zones, they must not be formalized.
The primary aim must be the prudent advancement of Palestinian construction plans in a manner that complies with both Israel’s national interest and the needs of the population. To that end, a clear legal basis for formalization and enforcement must be set down that will for the first time establish clearly defined criteria to designate illegal construction—both Israeli and Palestinian—making it clear in which cases the construction may be formalized and in which cases it should be slated for demolition.
Legal-administrative changes are also needed: We need to create effective legal tools to enable quick enforcement and prevent the legal war of attrition being waged on Israel’s legal system. In the absence of such tools, governance is ineffective. It is beyond the scope of this article to specify all the changes required in this area.
Further to this, we need to bring forward orders to demarcate problematic Palestinian sites, because the drawing of a clear line defining the reality on the ground will make an important contribution to moving from statistical enforcement to effective enforcement—and as noted, to define enforcement in open areas as more important than enforcement in built-up areas. An important step, which has already started, is the rerouting of petitions related to construction in Judea and Samaria to the Jerusalem District Court rather than to the High Court of Justice, which will reduce the existing burden on the Supreme Court, and what is most important, will handle Palestinian petitions more effectively than the High Court of Justice, given that these petitions have become a weapon in the war against Israel’s ability to govern in Area C.
In addition to all of the above, we must decrease international involvement in the service of the Palestinian cause. The legitimacy of these efforts must be compromised, the efforts delayed and restricted, for example by means of levying fines, denying visas and imposing sanctions on international bodies. At the same time, we need to conduct an extensive diplomatic campaign in the E.U. and European countries to explain the illegitimacy of the Palestinians’ unilateral moves and send the message that support for these actions will prevent those countries from serving as honest brokers in future negotiations.
No less important than all of the above, which are essentially reactive responses to Palestinian activity: Israel must encourage the presence of Israeli citizens in those areas that have been defined as areas of national interest.
This can be done by means of massive development of civil infrastructure (roads, water, sewage, energy, etc.), the encouragement and development of industrial and commercial zones, tourism, the preservation of natural resources, allocation of lands for agricultural initiatives including grazing, etc. All of this is important—but the emphasis should be placed on the development of infrastructure, which is a crucial part of Israeli governance, including a significant upgrading of the major roads and crossings in the area.
Israel must reshape Area C in a manner that will provide security and appropriately address the needs of both the Jewish and Palestinian populations. It must act systematically and systemically to thwart Palestinian efforts to undermine the status granted these areas in the Oslo Accords. We, as the government of Israel, must wake up and use all the tools at our disposal to turn the tide in Area C. The term of the current American administration is an opportunity we must not waste.
(Yaakov Eliraz served as adviser on settlement affairs under defense ministers Moshe Ya’alon, Avigdor Lieberman and Benjamin Netanyahu)