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Settlements in Focus: What's All the Fuss over Migron?

Migron_File_Collage320x265.jpg Q: There is a lot of talk in the Israeli media these days about the outpost of Migron, and Peace Now has launched a major campaign around the issue, with the publication of its document "The Migron File."
  Why all the fuss?  Why is one outpost such a big deal?

A:  Migron is not just an outpost.  Migron is a litmus test of Israeli rule of law and ultimately of Israel's capacity to make peace with the Palestinians.  

•    Migron is the flagship of the settlers' illegal outpost enterprise.  It is one of the largest and most developed outposts in the West Bank and the symbol of the settlers' determination to overcome the Israeli government's longstanding official policy that no new settlements will be established.

•    Migron embodies the settlers' contempt for Israeli rule of law, since it is built entirely on land recognized by Israel as privately-owned by Palestinians.  Migron is, under Israeli law, an open-and-shut case of theft.

•    Migron epitomizes the corruption that is endemic in Israel's rule in the West Bank, since it could not have been built without Israeli government officials turning a blind eye to settlers' law-breaking and aiding and abetting this law-breaking.

•    Migron discloses the flagrant disregard of the settlers and the Israeli government for Israel's High Court of Justice, which has repeatedly and for years ruled that Migron must be removed.

•    Israeli government and Knesset efforts today to find a way to "legalize" Migron are emblematic of a troubling phenomenon in Israel: the growing readiness to sacrifice democracy and rule of law to further a far right-wing, anti-democratic ideology.  They are indicative of a longstanding, ugly reality:  the Israeli political system has to a great degree been hijacked by the settlers and their supporters, in the service of an agenda that openly seeks to keep all or most of the West Bank in Israeli hands in perpetuity, at the cost of any chance for Israeli-Palestinian peace.  

•    The case of Migron is thus not simply about the fate of one outpost.  It is a test whose results will reveal whether Israel can continue to uphold even the pretense of being a nation that respects the rule of law, or if it will instead openly embrace "rule by law" - an ugly characteristic of a totalitarian state.    Likewise, the fate of Migron will disclose whether settler influence has so deeply penetrated Israeli policy and governance that Israel is no longer capable of upholding even the pretense of a commitment to the two-state solution for the Israeli-Palestinian conflict - a solution that is the only option that can secure Israel's future as a Jewish state and a democracy.

•    And finally, if Migron is not removed, despite the Supreme Court ruling, it will give a green light for all settlement activity, illegal and without government approval.  It will open the door for the settlers to establish many more settlements, knowing that no one, not even the Supreme Court, will stop them.

Q: Let's dissect that a little.  First, what are the basic facts about Migron and why is it considered illegal?

A:  Here are the basic facts about Migron:

Location:  Migron is located about 3.5 miles east of the Palestinian city of Ramallah, deep inside the West Bank.  It is located far to the east of Israel's "separation barrier" and cannot be viewed, by any definition, as part of any "settlement bloc."  Migron overlooks Route 60, the main road used by settlers driving between Jerusalem and the settlements located to its north and northeast. Migron is in an area where, prior to the establishment of the outpost, there was no settlement activity. Migron thus achieves several key goals of the settlers: to establish domination over a main transportation route, to create Israeli "contiguity" between isolated settlements in the heart of the West Bank; and to block any two-state solution based on Israel retaining only "settlement blocs".

How it Began:  Migron began its life in 2001 as the site of a communications antenna.  This antenna was erected by one of Israel's major cellular phone companies after Israeli settlers complained that they could not get cellular phone reception in part of the West Bank. Since this was deemed necessary for security reasons, Israeli authorities issued a permit for the installation of the antenna at the site.  This antenna was the embryo that has grown into the outpost Migron.

Transformation into a full outpost:  In 2002, settlers placed mobile homes on the hill adjacent to the antenna, without any legal permission to do so.  A few months later, they began building a few permanent homes. Since then the outpost has been enlarging and expanding continuously and in all respects, including a number of roads, connection to the electricity and water supplies, and the erecting of a large fence surrounding the outpost, enclosing huge areas of surrounding land for "security purposes."  

Why it is illegal:  The establishment and expansion of Migron has taken place contrary to Israeli law.  The settlers' have not received permits for any of their actions, and under law such permits cannot under any circumstances be issued, since all the land is recognized by the Israeli government as privately owned by Palestinians.   The Israeli government early on recognized this reality and issued demolition orders against all of the structure in the outpost.  Notwithstanding these demolition orders, notwithstanding repeated commitments by Israeli authorities to remove the illegal outpost, Migron has remained in place and continued to grow.  

Current population:  Today Migron is home to forty-five families, making it one of the largest outposts in the West Bank.  Like most other outposts, Migron consists mainly of trailers and containers.  Migron also contains five permanent homes constructed by the settlers.   The various buildings at the site provide housing as well as a kindergarten, synagogue and other community resources.

Q:  What was the legal procedure regarding Migron?

A:  On October 2006, Peace Now, together with the owners of the land on which Migron has been established, filed a petition against Migron with the Israeli High Court of Justice, seeking to force the State of Israel to implement the demolition orders it had previously issued against the illegal outpost.  In December 2006, the Israeli government's response to that petition recognized that Migron was entirely illegal and could not be legalized, since the land is privately owned by Palestinians.  The State agreed that that Migron must be evacuated; the only question in dispute was when. The State promised the Court that it would seek an agreement with the settlers to evacuate voluntarily.  It stated that if such an agreement could not be reached, "the Minister of Defense intends to evacuate Migron within a few months, after having exhausted all other options" and asked the court for an additional 4-5 months to resolve the matter.

Since then, the State of Israel has dragged its feet for more than 5 years, repeatedly promising the Supreme Court that it will take action and asking for additional time.  In August 2008, the State declared that it reached an agreement with the settlers to transfer the outpost to a new neighborhood, to be established by the Ministry of Housing in another settlement (Adam). In response, the Court allowed the State to put off the eviction of Migron, consistent with that agreement; however, after three years - during which the only thing that was achieved was, finally, the approval of the plan for the promised new neighborhood - the settlers of Migron declared that they had never agreed to the compromise.

Apparently fed up with the Government's foot dragging, in August 2, 2011 the High Court gave the State a firm deadline of March 31, 2012 by which to evacuate Migron.  Now, with that date fast approaching, the government of Israel and settler supporters in the Knesset are scrambling to find some way to circumvent the High Court's ruling and enable the Migron settlers to stay.

Details of the long legal battle against Migron - and the undeniable efforts of the Israeli government to avoid taking action against Migron for as long as possible - are available here (including links to the official court documents).

Q:  You say the State of Israel declared that Migron was built on private Palestinian land, but the settlers have offered a range of arguments against this, including arguing that the land was abandoned and is thus State land and that the Palestinians can't prove their ownership.  Who is right?  

A:  The owners of the Migron land are Palestinian residents of the villages of Deir Dibwan and Burka. The land on which the outpost was built was registered in the land registry in the name of the Palestinian owners from before 1967 (two of the land owners who originally petitioned the High Court to stop Migron have since died, with the case now passed on to their heirs). The Civil Administration's land registration division has in its possession all of the relevant ownership papers.  Indeed, in response to Peace Now's petition, the state submitted an aerial photo confirming the claims of the landowner map.  (Scanned versions of the relevant ownership documents and the aerial photo are available here, page 6).  Peace Now recently released a video introducing the world to these owners.

Israeli officials have repeatedly confirmed, formally and on the record, that the land on which the outpost of Migron is built is legally owned by Palestinians.  

"Nature of land rights: Private Palestinian land (agricultural lands of 'Ein Yabrud and Burka). Body which allocated the land: None."  (March 2005 Sasson Report, comments regarding Migron - English translation)

"The land on which the buildings of the outpost were built is registered Palestinian land within the boundaries of the villages of Burka and Deir Dibwan." (Civil Administration declaration, December 2006, made by Brig. Gen. Kamil Abu Rukon, Head of the Civil Administration in the West Bank)

"The land upon which the buildings of the outpost were constructed is registered
privately owned Palestinian land, part of the agricultural terrain within the boundaries of Burka and Dir Debwan...."
( December 2006, statement of the State of Israel to the High Court of Justice in response to Peace Now petition against Migron)

"The State asks to update the honorable court, that the Prime Minister and the Minster of Defense decided that the outpost of Migron, that is located entirely on Palestinian residence private lands, will be evacuated within six months". (State Attorney declaration, January 2008, made by Attorney Aner Helman, responsible for petitions to the High Court at the State Attorney)

"The claimant's [the Migron settlers Association] claims to purchasing rights to the land are not grounded in legal documents ... The land on which the buildings of the outpost were built is registered private Palestinian land within the boundaries of the villages of Burka and Deir Dibwan."  (In July 2008 response of the State to the settlers claim in the Jerusalem Magistrate's Court (C.F. 18405/08) that they had rights to the land that Migron is on.  The settlers subsequently retracted the claim).

"Due to the fact that as for all the aforesaid purchase claims (of the settlers), the required documents were not presented they certainly are not equal to the fact that the land in the outpost is registered land owned by Palestinian residents." (Ministry of Defense declaration, February 2009, made by Eitan Broshi, Assistant to the Minister of Defense for settlement, infrastructure and development areas)

Q: The settlers claim that the Israeli government has, from the start, supported Migron.  Is this true?

A:  The establishment and expansion of Migron could not have taken place without the tacit and often active support of elements within the Israeli government, in particular the Ministry of Housing and Construction, which over the years has provided financial support for the Migron settlers, notwithstanding the illegal nature of their actions.  In 2005, the Israeli government-commissioned Sasson Report concluded that more than 4 million NIS of public funds had (at that point) been invested illegally in the outpost.  In the years since, settlers continue to expand the outpost with the assistance of the Mate Binyamin Regional Council (which is funded by the State of Israel), in defiance of the law and of the Israeli High Court of Justice.  In addition, Migron settlers have long enjoyed security provided by the IDF, at taxpayer expense.  

Nonetheless, the State has stated explicitly and on the record that Migron is illegal and that no government official, at any time, had the authority to in any way approve the outpost:   

"...since the land on which the outpost is situated is not considered to be 'State property', but rather privately owned Palestinian land, no approval was issued for proceeding with any planning procedure whatsoever that might make it possible to establish the outpost and construct structures without the agreement of the registered owners.  ...there is no legal way which permits the acceptance of its existence for any period of time. It should also be clarified that the circumstances of the Migron case, no one, regardless of how senior his/her position, was authorized to approve the construction of the outpost on the site upon which it was constructed at the time and under the circumstances under which it was built, nor was he/she authorized to accept the existence of the outpost for any length of time or guarantee that it would not be evacuated..."  (December 2006, statement of the State of Israel to the High Court of Justice in response to Peace Now petition against Migron

Q:  You mentioned efforts to "legalize" Migron or make a deal with settlers.  What are these efforts?  And why do you put the word "legalize" inside quotation marks?

A:  As noted above, the State has repeatedly and consistently recognized that under Israel's own laws, the land on which Migron is located is privately owned by Palestinians.  Under Israel's own laws, there is no possible way to argue that it is "legal" for settlers (or anyone else) to steal land privately owned by another person, even a Palestinian.  There is thus no way to "legalize" this land theft - unless the word "legalize" is used to mean "change Israeli law to post-facto authorize certain cases of theft, contrary to all other laws of the land."  This is, of course, the very definition of rule by law - a feature of totalitarian regimes - as compared to rule of law, which is a considered a central characteristic of civilized, democratic nations.

The government of Israel has for years been trying to come up with some kind of "deal" that will enable it to avoid a fight with the settlers over Migron.  The most notable effort (until recently) was in 2008, when the government offered a "compromise" to solve the problem of Migron: it offered to build the Migron settlers a new neighborhood in the settlement of Adam.   Writing about that deal in November 2008 in Haaretz, we noted:

"...the government of Israel has announced a 'compromise' on the illegal West Bank outpost of Migron. The deal makes a mockery of government pledges to deal seriously with illegal settler activity. It also challenges the seriousness of Israel's commitment to achieving peace with the Palestinians...The core of the issue: Migron is illegal, by any standards. Under Israeli law, it should be eliminated - not relocated to another site in the West Bank, and certainly not to Adam, where it would become a new obstacle to the two-state solution. Relocating Migron would only reward settlers' illegal acts and encourage further law-breaking. Migron's residents are law-breakers, and any inconvenience their eviction causes them is of their own making."

Regardless of the fact that this "compromise" represented a huge victory for the settlers and that the Yesha Council supported the offer, the Migron settlers rejected it.  Since then the settlers have dug-in, literally and figuratively, over Migron, rejecting even the possibility of a compromise.  

Now, with the March 2012 deadline drawing near, the government of Israel is scrambling to find a way to appease the settlers.  One approach, offered by the Netanyahu government in early 2012, offered the settlers a new and even better "compromise":  the government would build the Migron settlers a new settlement to move to, nearby.  In the meantime, the settlers could stay in Migron and continue to try to find a way to "legally" take the land from its Palestinian owners (an effort that has been ongoing and thus far unsuccessful).  And, to sweeten the pot, the government of Israel promised the settlers that if and when they have to move from Migron to the new settlement, the site of Migron will be turned confiscated by Israel (under Israeli law, Israel can seize private Palestinian land for official uses, like a military post).  Commenting on this proposed "compromise," veteran Israeli journalist Zvi Bar'el recently noted:

"The proposal whereby we, the taxpayers, will fund a new infrastructure for the trespassers at a site a few hundred meters away from the scene of the crime and only then, two, three or five years from now will the settlers examine the option of moving to the new site - is not a compromise proposal to the settlers. It is a negotiation with the High Court of Justice. A kind of honorable way out for the highest institution of justice in the State of Israel, which will forego its dignity and acknowledge that it is incapable of continuing to fulfill its mandate: of being the High Court of Justice not only for the State of Israel, but also for the inhabitants of the territories, both Jews and Arabs alike.
"Ostensibly the compromise contains a threat to the settlers. If they reject it, the houses at Migron will be demolished by March 31, as the High Court of Justice has ordered. However, taking into account the state's behavior until now, that is an empty threat and in any case the settlers and their emissaries in the Knesset are posing a much more meaningful threat: legislation that will legitimize the criminal outpost, with the added fillip of political revenge on Netanyahu..."

This compromise, under which the settlers would, in effect, win not once but three times, does not appear to actually satisfy the decision of the Israeli High Court of Justice, but the point is moot, since the settlers once again rejected any compromise.

Q:  Why do the settlers keep rejecting these offers?  What is their bottom line?

A.  The settlers' refusal to entertain even the most far-reaching "compromise" on Migron reflects their recognition of the fact that Migron is a test case for the entire outpost enterprise.  If they accept a "compromise," they are accepting the fact that Israeli law applies to their actions in the West Bank, and are thus undermining the "legitimacy" of all their illegal actions with respect to settlement expansion and outpost construction.  

With this in mind, the settlers and their supporters are now going a different route, seeking to change Israeli law in order to legalize the theft of Palestinian private land by Israeli citizens in the West Bank.  This law, entitled the "Outposts Draft Law," is a dangerous initiative with no precedent in Israel or the world.  As of this writing, Prime Minister Netanyahu appears to oppose the Outposts Law, but it has strong support from much of the Likud and parties to Likud's right.  In an effort to appease the settlers and his right, on January 30, 2012, Netanyahu appointed a committee whose mission appears to be to find a way to legalize Migron (and other outposts); notably, one member of that committee is a lawyer who lives in a settlement and who was being paid by a settler organization working to legalize the outposts until just days before being appointed to the committee.

Q:  Why is Migron a test of the viability of the two-state solution?  

A:  Any future peace agreement will require the establishment of a viable, contiguous state of Palestine alongside Israel.  A peace agreement that includes land swaps will likely make it possible for the majority of Israeli settlers to remain in their homes.  However, even the most optimal agreement (optimal from an Israeli perspective) it will still be necessary for Israel to evacuate a large number of settlements located deep inside the West Bank.  The fate of Migron will tell Israelis, Palestinians, and the world whether the Israeli government has the political will and the ability to carry out its side of such an agreement.

This is because, at the most basic level, Migron is located in a place that cannot possibly remain under Israeli sovereignty in any future agreement.  If the government won't remove an outpost in such a location, and instead is ready to subvert Israel's character as a nation governed by the rule of law in order to protect Migron, it sends a message.  This message is unmistakable: the government isn't serious about getting to any realistic a peace agreement that will, be definition, require the evacuation of not only Migron but many more settlements and outposts.

Some will argue that Netanyahu can't take on the Migron settlers even if he wants to, because doing so will bring down his government.  Assuming this is accurate, caving to the settlers over Migron signals that this (and other) Israeli governments are incapable of standing up to the settlers, even in the case of the most egregious violation of the law.  Such an argument supports the conclusion that even if the government's intentions were honest about a peace agreement, Israel would be unable to implement any future peace agreement with the Palestinians under which it would be required to remove any West Bank settlements.  

And finally, even if one could argue that a future Israeli government might be more serious about peace than the current one, if Israel finds a way to "kosher" the settlers' land theft in Migron - through a new law, through some new High Court decision -- or through some other machination of the occupation - it will signal an end to even the pretense that Israeli settlers are bound by Israeli law. It will give a green light for the settlers to build illegally everywhere in the West Bank, establishing even more obstacles to peace, with the tacit and active approval of the Israeli government.

Co-authored by Lara Friedman, Americans for Peace Now, and Hagit Ofran, Peace Now (Israel).