The Ministerial Committee on Settlements: A Story of Destructive Ambiguity

Last Sunday (16/6/12) the government decided to establish a “ministerial committee on settlement in Judea and Samaria”. The wording of the decision is an instructive example of the art of ambiguous wording. Every sentence is open to multiple and conflicting interpretations. This enables the Prime Minister to fairly easily pursue one policy while professing another.

The decision says the following: (for the full Hebrew text click here)

The members of the committee: The Prime Minister (chairman), The Minister of Defense, The Minister of Foreign Affairs, Min. Daniel Hershkovitz, Min. Shaul Mofaz, Min. Eli Yishai, Min. Moshe Ya’alon, Min. Benni Begin, Min. Yuli Edelstien, Min. Gideon Sa’ar, Min. Gilad Erdan.

The powers of the committee: The committee shall discuss and formulate government policy concerning unregulated construction that took place on land in Judea and Samaria (henceforth: “the area”). Among other things, the committee will discuss government policy concerning fundamental issues that arise from court petitions concerning affairs of the area.

First of all, the role of the committee is to discuss policy. As opposed to power to decide on concrete incidents, policy means general provisions, principles and direction. The Defense Minister, who according to previous government decisions has the power to decide on most concrete instances concerning the settlements, seemingly continues to be the deciding party, but he will have to act according to the policy decided by the committee.

Secondly, the committee’s purview is defined as “unregulated construction” and “fundamental issues that arise from court petitions.” The rest of the powers concerning construction in the settlements such as approval of building plans, approval of marketing and allocation of land seemingly remain with the Defense Minister.

But the decision goes on to say:

The committee will discuss time-sensitive settlement issues and any matter the prime minister sees fit to bring to the committee concerning settlement in the area.

This is a very general article that allows the Prime Minister to decide what the committee will discuss and what it will not. It provides an opening to bypass the defense minister’s authority if the prime minister wants to do so. In this way the Prime Minister is inviting pressures. Presumably if the settlers are not happy with a decision by the defense minister they will pressure the Prime Minister to bring the matter to the committee in order to bypass the Defense Minister.

And finally, the decision says the following:

The powers of the ministerial committee to recognize as settlements places in Judea and Samaria where houses were built years ago on state land with the assistance of state authorities according to cabinet decision 4560 from April 22, 2012 will be transferred to the committee.

This article references a cabinet decision from April 22, 2012 that authorized a special ministerial committee to decide on behalf of the government to recognize illegal outposts as actual settlement. Until that day, the binding government decision was decision 150 from 1996 that only the government plenum was allowed to decide to build new settlements. This means that a decision by the government plenum was needed in order to build a new settlement or legalize an outpost. Because of decision 150, all of the governments to date have refrained from legalizing outposts in order not to expose the fact that they are actually new settlements (after all, all of the governments of Israel have declared that we are pursuing peace and have no intention to build new settlements, etc.).

The decision from April 22, 2012 was perceived at the time it was made as a concrete decision meant to allow the government to decide to build three settlements: Bruchin, Rechelim and Sansana, without admitting the government was actually deciding to build new settlements. Last Sunday’s decision removes the doubts and makes that decision permanent: from now on, when it comes to legalizing outposts, decision 150 is defunct and it suffices for the ministerial committee on settlement affairs to make such a decision, not the government plenum. As for building new settlements that were not built years ago and were not assisted by the authorities, there is apparently still a need for a government plenum decision.

And at the end of the decision, as befits a vague decision, comes the following ambiguous sentence:

The committee’s decisions will be “on behalf of the government” [the quotation marks are in the original].

It could be surmised that all of the committee’s decisions will be subject to government plenum decisions. But according to the government bylaws it actually means the opposite: a decision by a ministerial committee “on behalf of the government” is equal to a decision by the government plenum and cannot be contested by the plenum.

A History of Ambiguous Decisions in Settlements

It is clear that the formulators of the decision wanted to project ambiguity, in keeping with the government’s general policy on the settlements, allowing every person to read what they want into the decision and to appear to be complying with all the pressures. But the policy of ambiguity on the settlements is a dangerous policy.

What is happening in the territories is complete anarchy. Under the cover of the ambiguity of mysterious verbal permits that were or were not given, of budgets given to various projects without permits and against the law, tens of thousands of illegal housing units were built in the settlements, some in outposts, some on private Palestinian land and most inside the actual settlements (see for instance the Spiegel report, an official Defense Ministry report exposing the extent of illegality in the settlements).

Many settlers continue to insist that the government sent them, that there was a building permit that lacked only a signature by the Defense Minister, that the government contributed to funding the construction and so on. But the truth is that a small minority of settlers, usually the local councils and the Amana movement, decided themselves where to build, when and how much, and under the cover of that ambiguity set Israel’s policy on one of the most critical issues on the country’s public agenda.

Whenever there was any public protest against that construction, the government, under the cover of ambiguity, could deny and say: “Those are not settlements, they are outposts. That construction is illegal and we promise to evacuate it.” Then it could reiterate that Israel is pursuing peace. When the policy is ambiguous, the public debate is silenced and the only way to maintain it is by turning to the court and asking it to force the government to follow the democratic rules: if the policy is to build settlements, it ought to be done openly and legally. And if the policy is not to build new settlements, and not to allow hundreds of new housing units to be built in isolated settlements, the government must prevent the settlers from doing so.

When Peace Now started the Settlement Watch project in the early 1990s, one of the main reasons was that the Israeli governments were trying to hide from the public what was happening in the territories, how much was actually being built and where. Over the years, the methods of the campaign have been perfected. It is harder today to hide the facts taking place on the ground. The public pressure and Peace Now’s efforts have exposed not only the construction but also the mechanism behind it, the mechanism that has allowed the settlers to set Israel’s policy contrary to Israel’s laws and democratic decisions.

The fight against the mechanism of ambiguity, which has used petitions to the Supreme Court as one of its tools, has managed to reduce the ambiguity somewhat. Since Peace Now began petitioning against the outposts in 2005, no new outposts were built. Since Peace Now began petitioning against construction on private Palestinian land in 2006, there has hardly been any construction on private land. The government decision this week is a result of the ongoing public campaign against the anarchy in the territories. The Israeli government is forced to make explicit decisions about its real policy in the territories but it is still trying to obfuscate them.