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Settlements in Focus: Outposts, Post-Annapolis, (Vol. 4, Issue 2)

A comprehensive Q&A on the current Outposts situation

DURING U.S. SECRETARY OF STATE CONDOLEEZZA RICE'S VISIT TO ISRAEL LAST MONTH SHE REFERRED REPEATEDLY TO ISRAEL'S OBLIGATIONS REGARDING "ILLEGAL OUTPOSTS" WHAT ARE THOSE OBLIGATIONS?

In the mid-1990's the government of Israel declared that as a matter of policy, no new settlements would be established. Since this declaration, around 100 new settlements and proto-settlements have been established informally and in a manner inconsistent with Israeli law.  These settlements have become known as "illegal outposts."

 According to the first stage of the "Roadmap" (http://www.state.gov/r/pa/prs/ps/2003/20062.htm) -- the peace plan accepted in April 2003 by then-Prime Minister Ariel Sharon -- the government of Israel is obligated to evacuate all of the illegal outposts that were established after March 2001. In an April 18, 2004 letter (http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Letter+Weissglas-Rice+18-Apr-2004.htm) to then-National Security Advisor Condoleezza Rice, Dov Weissglas, then-Chief of the Prime Minister's Office, reiterated Israel's commitment to this obligation. He wrote: "the Prime Minister and the Minister of Defense, jointly, will prepare a list of unauthorized outposts with indicative dates of their removal; the Israeli Defense Forces and/or the Israeli Police will take continuous action to remove those outposts in the targeted dates. The said list will be presented to Ambassador Kurtzer within 30 days." Notably, the letter makes clear that these actions (and certain others) would be taken immediately, regardless of the status of Palestinian obligations under the Roadmap.

 Since that time, the Government of Israel has repeatedly declared its commitment to the Roadmap and to its obligations under the Roadmap regarding outposts, but has taken no significant actions on the ground to meet these commitments.

HOW MANY OUTPOSTS MUST BE EVACUATED UNDER THE ROADMAP?

 There are 100 inhabited outposts in the West Bank. All of them are illegal according to Israeli law and therefore all should, according to Israeli law, be evacuated. However, Israel's obligations under the Roadmap are more limited: in negotiating the Roadmap, then-Prime Minister Ariel Sharon argued to the Americans, successfully, that he should be required only to take responsibility for those outposts that were established during his term, which began in March 2001. Thus, only a fraction of the total number of outposts is slated for evacuation under the Roadmap.

 According to the Ministry of Defense, 26 outposts meet the criteria stipulated in the Roadmap and therefore must be evacuated. However, according to the data collected by Peace Now, there are in fact at least 44 inhabited outposts that meet the criteria, in addition to a handful of uninhabited outposts. Aerial photos showing that the outposts did not exist before March 2001, but did exist after, can be found at Peace Now's website.

 For details of outposts, including a list of all outposts, a list of all outposts that have been evacuated, and details about each outpost (location, size, number of inhabitants, etc), please see: http://peacenow.org.il/site/en/peace.asp?pi=58

IN THE WAKE OF THE ANNAPOLIS CONFERENCE, HAS THE OLMERT GOVERNMENT DONE ANYTHING TO MEET, OR BEGIN TO MEET, ISRAEL'S ROADMAP OBLIGATIONS REGARDING OUTPOSTS?

 No. No outposts have been evacuated since Annapolis. Worse yet, since Annapolis there has been further investment, development, and construction in a number of outposts that Israel is required to remove under the Roadmap (i.e., outposts established after March 2001). This includes: - New, permanent structures are being built in the outposts of Kida, Hill 725, and Gilad Farm; - New caravans have been added in 11 outposts (Givat Assaf, Mevo'ot Jericho, Mitzpe Yitzhar, Yair Farm, Migron, Neve Daniel North, Nofe Nehemia, Susiya North West, Asa'el, Kida, Ramat Gilad)

 In addition, since Annapolis there has been construction and development in outposts established before March 2001 (for details see Peace Now's latest report at http://www.peacenow.org.il/site/en/peace.asp?pi=61&docid=3186).  While some might argue that this construction is not relevant to Israel's Roadmap obligations (since, as explained earlier, under the Roadmap Israel is only required to remove outposts that were established after March 2001), they would be wrong: such construction conflicts with another Israeli obligation under Phase I of the Roadmap, under which Israel "freezes all settlement activity (including natural growth of settlements)."

 It should be noted that on March 17, 2008, Prime Minister Olmert declared (http://www.pmo.gov.il/PMOEng/Communication/EventsDiary/eventpress170308.htm) that two illegal outposts had been evacuated. He was referring, first, to "Ofra East" - which consisted of a single, damaged, vacant caravan placed near the settlement of Ofra, with another small caravan that was recently added next to it. This "outpost" - which was never counted by Peace Now as a real outpost, was indeed "evacuated," with the two empty caravans removed from the site. The second outpost he was referring to, "Yatir South West" is a different story.  This outpost consists of 4 caravans located adjacent to the settlement of Metzadot Yehuda. Notwithstanding Olmert's declaration, the reality on the ground is that these caravans were never removed - a fact confirmed by Peace Now's Settlement Watch Team, which visited the site on March 28, 2008 and found the four caravans still in place.

AROUND THETIME OF THE BUSH VISIT TO ISRAEL EARLIER THIS YEAR THERE WERE REPORTS OF SETTLER EFFORTS TO ESTABLISH NEW OUTPOSTS. WERE NEW OUTPOSTS ESTABLISHED AT THAT TIME OR SINCE?

 Establishing "new outposts" has become a favored political gimmick of settler activists, designed to embarrass and pressure the government of Israel, mobilize demonstrators, and attract media attention. In reality, the establishment of a new outpost has meant, in this context, a settler-organized event where demonstrators gather at a designated site and "settle" the place, and after few hours (and after the media has left) go back to their homes in other settlements or inside Israel.

 In some cases the settlers and activists, especially the youth, are playing a kind of "cat and mouse" game with Israeli police and the army, or perhaps it should more correctly be said that they are waging a war of attrition - trying to convince Israeli authorities that going after settlers is so much trouble that it is better to just leave them alone and let them do whatever they want. In this context, settlers and their supporters gather at a site, in defiance of the IDF, and then run away when the IDF and police arrive, only to return to the site again, over and over. In this manner they force the Israeli authorities to simultaneously protect them (the IDF's job) and chase them (the job of the police), until at last they are physically dragged away from the site, ideally with as many TV cameras as possible recording the event. Needless to say, these games divert significant Israeli security resources from other, arguably more important, functions.  For more about this particular facet of the settlers' strategy, see http://www.peacenow.org.il/site/en/peace.asp?pi=61&fld=495&docid=2467&pos=3.

IF OUTPOSTS ARE ILLEGAL UNDER ISRAELI LAW, WHY ISN'T ISRAEL EVACUATING THEM ON ITS OWN, IRRESPECTIVE OF ITS ROADMAP COMMITMENTS?

 First, it is hard to escape the conclusion that Israeli authorities are not eager to evacuate the outposts. Successive Israeli governments have had the legal tools necessary to deal with outposts, which are patently illegal under Israeli law (i.e., they were established, built, and expanded without the necessary official decision by the government and without the required legally-approved plans and permits, and in some cases they are built on land that Israel recognizes is privately-owned by Palestinians). But rather than stopping the problem in its tracks - e.g., removing existing outposts and sending a clear signal to settlers that the establishment of further outposts would not be tolerated - successive Israeli governments have refrained from taking any serious action. Worse still, successive Israeli governments have passively and actively supported outposts, providing protection to their inhabitants, connecting them to government-provided services and infrastructure, and turning a blind eye as settlers have gone about the business of cementing their illegal claims.

 Second, the reality today is that settlers and their supporters have succeeded in transforming the subject of outposts into a political matter, rather than simply a legal one. Thus, imposing the rule of law on settlers by evacuating outposts is not perceived by most Israelis as a straightforward Israeli government obligation, akin, for example, to removing squatters from a building where they have illegally taken up residence in Tel Aviv. Rather, in the minds of most Israelis outposts have become part of the body of issues that comprise the Israeli-Palestinian conflict, to be resolved through political agreement. And a corollary to this transformation is the Israeli perception that removal of outposts represents a "concession" to the Palestinians, leading to the perception that Israel should not remove outposts except in return for something from the Palestinians.

 Finally, as noted in a previous edition of Settlements in Focus (http://peacenow.org/policy.asp?rid=&cid=4355), in considering action against outposts (and other settlement-related issues), Olmert is taking into account a number of domestic political factors. As we wrote then, "Given his complicated coalition, it is likely that Olmert is tempted to adopt the logic of previous prime ministers, to the effect that it is better to refrain from upsetting the coalition over an interim step (like dismantling outposts) and instead focus his energy and stockpile his political capital for the 'full deal.' It should be recalled that this strategy was adopted by leaders before Olmert, including Rabin and Barak, without success - in each case, opponents of the peace process were not mollified and in fact redoubled their efforts to undermine the process, while failure to deliver changes on the ground eroded Palestinian confidence in the peace process. The situation today is no different. If Olmert doesn't deliver anything on the ground, the impact on the peace process will likely be devastating. Abbas' government is already very weak, and if Abbas can't show his people that his leadership can deliver changes and improvements on the ground, he will be further weakened, to the direct benefit of Hamas and others who oppose the negotiating process."

ARE OUTPOSTS REALLY A POLITICAL ISSUE?

 To be sure, the Israeli public perception that outposts are a political issue, rather than a straightforward legal one, is not unfounded or strictly a matter of successful settler "spin."

 As noted earlier, the government of Israel was directly involved in the establishment of outposts, by providing funds, infrastructure, electricity and water - all in violation of Israeli law. Some of these facts were exposed in detail in the report on outposts drafted at Prime Minister Ariel Sharon's request by Israeli attorney Talia Sasson, based on data obtained from the IDF and various government ministries. The Sasson report (http://www.peacenow.org.il/site/en/peace.asp?pi=61&fld=343&docid=2012) was officially adopted by the Cabinet, which established a government committee to study its recommendations (a committee whose members include, notably, Yisraeli Beiteinu's Avigdor Leiberman, a resident of a hardline settlement and a staunch advocate of both settlements and outposts). To this day, almost none of the recommendations of the report have been implemented. (Sasson commented recently on the work of the committee - for details see: http://www.jpost.com/servlet/Satellite?cid=1206632369907&pagename=JPost/JPArticle/ShowFull.)

 For its part, the Civil Administration - the organ of the IDF that is in charge of all day-to-day matters in the West Bank, including inspection and enforcement of planning and construction laws -  monitors and documents the settlers' infractions of Israeli law, writes reports, and sometimes issues demolition orders. But these demolition orders are almost never implemented (see more here).

 Finally, it is worth noting that while the Israeli government has shown little or no appetite for imposing the rule of law on settlers when it comes to the outposts, it has shown a great willingness to engage and negotiate with settlers to try to achieve a "compromise" on outposts that will defuse the issue and satisfy the settlers.  Negotiations between the Olmert government and the settlers have been ongoing for many months, and are currently led by Defense Minister Barak. It should be recalled that the precedent for such a "compromise" with the settlers over outposts was in fact set by Barak in October 1999, when as Prime Minister (and Defense Minister) he reached an agreement with the settlers over the fate of what was then around 42 outposts. As reported recently in Ha'aretz:

 "The Labor Party leader has been blessed with a long memory, and it is unlikely that he has forgotten the fate of his previous outpost agreement. In October 1999, when he was prime minister, he struck a deal with settler leaders under which 10 outposts would be evacuated voluntarily, and in exchange 32 others would receive legal status. 'The sites that will be evacuated will continue to remain under settlement control, and agricultural and other activities can be conducted there,' the Yesha Council of settlements informed its members in a letter. 'We have sanctified the building of the land, and not the government's victory.' The agricultural and 'other' activity became, as always, building projects. On the eve of the agreement, the settlers pulled a fast one on Barak, and hauled in four empty mobile homes that they subsequently removed with great to-do. The rest of the outposts gradually returned to where they had been. And what reason does Barak have to believe that this successful trick won't be repeated..." (http://www.haaretz.com/hasen/spages/944690.html)

WHAT HAS BEEN THE INVOLVEMENT OF ISRAELI COURTS IN THE OUTPOST ISSUE?

 A number of outpost-related cases have been brought to the Israeli High Court of Justice by Peace Now.

 In general, the Court has been reluctant to order the demolition or evacuation of outposts, at least in part because it recognizes that (as discussed above) in the eyes of the Israeli public this is a political matter, rather than a strictly legal one.  Rather than take direct action in these cases, the Court has shown a clear preference for putting pressure on the State to take action - e.g., offering the State the opportunity to deal with the problem before the Court makes any ruling in the case. In what has become a predictable pattern, the State then "buys time" by promising to study the matter and take action by a certain date. When action is not taken by that date, the State asks the Court for more time, and on, and on. As a result, those cases that do make it to the High Court do not proceed with any great speed, and some have taken years.

 The most famous example of this was the outpost of Amona (http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=1373&pos=10). In this case, Peace Now petitioned the High Court of Justice in July 2005, asking the Court to order the State to implement demolition orders that were issued by the Civil Administration in October 2004 against 9 houses in Amona. The demolitions orders were based on the fact that the houses were built on what Israel recognized to be privately-owned Palestinian land. The case dragged on in the Court, but after months of delays and postponements, including last minute efforts to buy more time, by late January 2006 it became clear that the government could not avoid taking action. On February 1, 2006, the homes were demolished. For full details of this case, please see: http://peacenow.org/policy.asp?rid=&cid=2237.

WHAT IS PEACE NOW DOING IN THE COURTS RIGHT NOW IN RELATION TO OUTPOSTS?

 There are currently three main cases pending before the High Court, brought by Peace Now, against illegal outposts.

 The most significant is the case of Migron (http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=2006&pos=0), a relatively large outpost that is built on what Israeli recognizes is privately-owned Palestinian land. In October 2006, Peace Now joined the land owners in a petition demanding the removal of the outpost. In its response to the Court, the State did not deny its obligation to dismantle the outpost, but asked for "more time" to prepare the evacuation. Since then, every few months the State has asked for another extension, promising the Court to move forward with implementation of the evacuation. At the last request for postponement, the Prime Minister and the Minister of Defense promised the court to evacuate Migron by August 2008. We can only wait and see if the State will seek a new postponement or will really remove the outpost sometime during the next 4 months.

 Another case is the "delimitation petition,"  (http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=2516&pos=1) in which Peace Now is asking the High Court to order the State to implement evacuation orders which were issued by Israeli authorities against six outposts. In the State's response, the government asked for another year to complete its efforts to negotiate with the settlers regarding the evacuation of these outposts. The Court will have a hearing on the subject on April 28th.

 The third petition (http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=1616&pos=9) relates to a number of houses built in the outposts of Haresha and Hayovel. The Civil Administration issued demolition orders for these houses, but the orders were never carried out. Peace Now brought this very straightforward case to the High Court before the houses were inhabited - i.e., at a point when implementing the orders would have been relatively easy. Thanks to the State's strategy of "buying time" with the court, the settlers have since moved inhabitants into the houses, making implementation of the still-valid orders much more complicated. The case is still pending.

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 For further reading on outposts, see:

- Outposts Backgrounder (1/9/08) http://peacenow.org/policy.asp?rid=&cid=4402

 - Why are Outposts Front Page News, Yet Again? (10/6/06) http://peacenow.org/policy.asp?rid=&cid=3066

 - Is Olmert Getting Serious About Outposts? (6/16/06) http://peacenow.org/policy.asp?rid=&cid=2673

 - Amona Redux (2/17/06) http://peacenow.org/policy.asp?rid=&cid=2237

 - West Bank Outposts in 2006 - Same Song, Different Tune? (1/27/06) http://peacenow.org/policy.asp?rid=&cid=2111

 - An Outpost's Day in Court (7/28/05) http://peacenow.org/policy.asp?rid=&cid=1169


Produced by Hagit Ofran, Peace Now (Israel) and Lara Friedman, Americans for Peace Now