The legal acrobatics to approve the new settlement of Eviatar

The outline planned for the establishment of the Eviatar settlement is becoming clearer as more pieces are being published. The legal question that was approved by the Attorney General last week was: A. to use a special planning order, and B. to do it before the completion of the appeals process on the land ownership.

The “legal” way to establish a settlement (“legal” according to the Israeli regulations, it is clearly not legal according to the international law) is first to have the rights to the land, and then to prepare and approve a plan. In Eviatar, the land was considered private Palestinian land and therefore, no settlement could be built on it. In order to make the land available for settlement, the Israeli authorities need to declare it as “State Land”, allow the owners to appeal and try to prove their private ownership, and only after the appeals are determined a plan can be promoted. What the Attorney General approved last week was to establish the settlement right after the declaration, before hearing the appeals, and to bypass the planning process with a special planning order.

The question of the legality of the declaration itself, which must be approved by the AG before it is submitted to the defense minister for approval, was apparently determined a few weeks ago.

The Declaration on State Land procedure

The process of declaring state lands is Israel’s method of taking over lands in the West Bank through a draconian interpretation of the Ottoman Land Law of 1958. According to the Israeli interpretation, if it finds land that has not been cultivated for a certain period, it becomes “state land” – that is, public land and not private land. In this way, Israel declared about one-sixth of the West Bank as state land, on which most of the settlements were established.

As part of the declaration procedure, those who claim ownership of the land are given an opportunity to appeal the declaration and prove ownership. The appeal procedure usually takes a year or two, and sometimes even longer. The decision of the Appeals Committee, can be appealed to the High Court, a procedure that takes at least a few months.

In Eviatar’s context, the settlers demand that the settlement be established immediately upon the declaration without waiting years for the results of the appeals. On January 30, 2022 the deputy Attorney General held a discussion on the matter, and concluded that the establishment of the settlement before completing the appeals process, and the use of a special planning order for Eviatar can be okayed. Attorney General Mendelblit approved this conclusion in his last days in office.

What is a special planning order

A special planning order, or in its full name: “Order regarding approval of construction and permit exemption for temporary residential sites of regional importance (temporary order) (Judea and Samaria)” is an order that actually bypasses the normal planning procedure. Instead of a full and detailed planning procedure that usually takes a year or two, the order allows for a very quick approval procedure within a few weeks.

The order was first legislated in order to establish an alternative site for the Migron settlers, after the Supreme Court ordered their evacuation. In August 2011, the Supreme Court ruled in a petition by landowners from Burqa and Deir Dibwan, along with Peace Now, against the Migron outpost established on their private land. The court gave the state and the settlers 8 months to organize for evacuation. But about two weeks before the evacuation, the state asked the court to postpone the eviction for another three and a half years in order to carry out the evacuation by consent. The state presented the court with an agreement signed with Migron settlers according to which the state would plan and build an alternative settlement, and the settlers would agree to evacuate without violence.

The court denied the request and gave the state four months to evacuate Migron. In order to suffice and plan an alternative site according to the wishes of the Migron settlers (they refused to move to another place where planning procedures had already been completed, not far from the original place in the Adam settlement area), a special planning order was enacted. The order actually allows for a “planning bypass” procedure, and allows a settlement to be built “legally” without a planning procedure that usually takes several years. See here the order enacted for the establishment of the Migron settlement (in Hebrew).

Since then, about three more special planning orders have been enacted, all in cases where the state was forced to evacuate settlers from houses built on private Palestinian land, following a court ruling. In all cases, the state sought to give settlers the option of alternative housing, not with rent assistance, or solutions in Israel or in existing settlements, but always took advantage of the evacuation to establish a new settlement point. In order to be able to establish a new settlement fast enough, a special planning order was issued. The justification for the order has always been presented as an attempt to evacuate the outpost peacefully without violence. That is, the settlers threaten to resort to violence during the evacuation, and the state seems to give them a reward for their consent not to use violence.

In the case of the evacuation of Amona, amendments to the original order were enacted and an attempt was made to apply it for the establishment of the outpost on the same hill where it existed using “absentees lands”. The landowners and Yesh Din petitioned against the declaration, and the court prevented the establishment of the outpost on their land. In the end, a new settlement was established for the settlers of Amona, a few kilometers from the original site (“Amichai”).

In the case of the evacuation of structures from the “Tapuach West” outpost that were built on private land, the court ordered their evacuation following the landowners’ petition with Yesh Din. In order to allow the settlers to stay in the non-private plots at the same hill, the government had to declare some lands as “state lands” in order to legalize the road to it. The landowners filed appeals to the declaration, but before they were decided, a special planning order was enacted for the road. The landowners, together with Yesh Din, filed a petition with the High Court against the special order (HCJ 890/20), and next week, on February 15, 2022, a hearing on the petition is expected.

The legal discussion at the Attorney General’s office regarding Eviatar

On 30/1/22, the Deputy Attorney General held a discussion on the question of whether it is legally possible to issue the special planning order to Eviatar, and whether it can be done before the appeals of the landowners against the state land declaration are heard. In the summary of the hearing, which was approved by AG Mendelblit, it was determined that although a special planning order is “a very unusual procedure”, and that the due process is to complete the declaration and appeal procedures and only then conduct a proper planning procedure, however in Eviatar’s circumstances it can be justified.

The justifications are that this is a very exceptional case, because of the evacuation of Eviater was made with the settlers’ consent, based on promises made by senior levels of government officials. These circumstances make the Eviatar case a “special and rare” case that will not be a precedent. Another justification is that the buildings will have to be “temporary”, and the fact that although the settlement will be established even before all proceedings are completed, the planning and appeal bodies will still discuss the potential appellants’ claims in a matter-of-fact and serious manner.

Some details of the course of the discussion, were published in the media.