In the first week of March 2016 alone, 64 Palestinians were left homeless by Israeli demolitions in the West Bank.¹ According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the month of February 2016 saw the highest number of demolitions in the West Bank since it began documenting them in 2009, with 235 homes and structures destroyed, dismantled or confiscated.² This resulted in the displacement of 331 individuals, including 174 children in February.

Communities targeted for demolition are often some of the most vulnerable, thus creating even more dire living conditions for individuals. In contrast to the visibly dismal and harsh human rights situation is the very sterile, methodical legal system, which “necessitates” the demolitions. At the same time, demolitions, and the coercive environment they create as a whole, cannot be divorced from Israel’s settlement enterprise. Both are part of a broader policy, and are performed under the pretense of legitimate authority.

Under Article 43 of the Hague Regulations, Israel, as the Occupying Power, must “restore, and ensure, as far as possible, public order and safety” in the Occupied Palestinian Territory (OPT). In carrying out this duty, a planning regime should serve the interests of the protected Palestinian population, but instead, the planning regime itself, as part of a larger dual set of laws and practices, obstructs the most basic rights of Palestinians.³ As 2016 has already seen shocking rates of demolition of structures and resulting displacement, it is important to again highlight the planning regime, and ask broader questions regarding the role of third states in maintaining the status quo.

Background

The 1995 Oslo II Accord divided the West Bank, excluding East Jerusalem, into three sections — Areas A, B and C. Area C covers approximately 60% of the West Bank, and is rich in natural resources, including fertile land, water, and minerals. Because Areas A and B are non-contiguous communities, any natural growth should spillover into Area C. Given its size and resources, Area C is integral for an independent Palestinian state,⁴ however, it is under full Israeli control.

Since 1967, some 250 settlements and outposts have been established by Israel in the West Bank, including East Jerusalem.⁵ Approximately 300,000 Palestinians and 365,000 Israeli settlers currently reside in Area C,⁶ with an additional 200,000 settlers in East Jerusalem.⁷ What has brought us to this point of acute demographic “facts on the ground” is layer upon layer of military orders, laws, court decisions, and practices that create a comprehensive façade of legality and legitimacy. With everything entangled, an act that facilitates settlement growth becomes indistinguishable from an act that obstructs the rights of a Palestinian community.

Accordingly, before examining the planning and permit regime, two preceding “layers” of the system should be identified. First, the Israeli High Court of Justice (HCJ) has failed to rule on the legality of settlements. In Bargil v. Government of Israel, the court examined whether the settlement of Israeli civilians in occupied territory was illegal. While the court said it would rule on specific issues of land disputes in the Occupied Territory, it asserted that it could not rule on the petition under review, holding that it was a political issue and non-justiciable.⁸ Although Israel uses settlements politically in order to establish “facts on the ground,” the issue of transfer of civilians is clear-cut in international humanitarian law.⁹ The Bargil judgment, along with countless others, highlights the court’s readiness to defer to the Israeli government in general and to authorities, notably the Civil Administration, involved in the expansion of Israel’s settlement enterprise, in particular.

Another layer in the process is the system that supports land confiscation in the West Bank. Methods used for confiscating Palestinian land by the Israeli Civil Administration (ICA) include: requisition for military purposes, public needs (such as roads or nature reserves), and declarations of absentee land and state land. Each of these methods has some basis in the legal systems that were in force prior to the Israeli occupation —including Ottoman, British and Jordanian laws—and were then further amended by Israeli military orders.¹⁰

Following the 1979 Elon Moreh case, Israeli settlements could only “legally” be built on state land and not private Palestinian property. However, as with the broader system for land appropriation, the internal system of state land declarations was built to favor the state and may be disregarded entirely through retroactive legalizations of outposts. According to the Israeli Military Advocate General, the need to use state land declarations “stems from the fact that most lands in Judea & Samaria are not registered.”¹¹ However, immediately following its occupation, Israel ended the process of registering land in 1968.¹² While Palestinians have the right to appeal state land declarations, the process itself is deficient in fairness and independence.¹³ The 2012 Conclusions and Recommendations by the Commission to Examine the Status of Building in Judea and Samaria (the Levy Report) recommended “that the Appeals committee be composed of non-uniformed jurists, a factor which would contribute to the general perception of the Appeals Committee as an independent body, acting according to its own discretion.”¹⁴

Settlement Expansion and the Planning Regime in Area C

The Jordanian City, Village, and Building Planning Law (No. 79 of 1966) was in force in the West Bank prior to Israel’s occupation. The Jordanian planning law included a High Planning Council, as well as District and Local Planning Committees, and allowed for local Palestinian representation at each of these levels.¹⁵ In 1971, Israel significantly amended the planning law via Military Order 418, which annulled the District and Local Planning Committees (and with them, Palestinian representation at the planning level), and centralized decision-making under a High Planning Council whose members were appointed by the Israeli Military Commander.¹⁶

In total, the Civil Administration, a body within the Israeli Ministry of Defense, is responsible for implementing Israeli government policy in the West Bank, and has authority over zoning, construction, and infrastructure matters in Area C.17 Within this structure, the Central Planning Bureau is responsible for the High Planning Council, and for all planning in Area C, including Palestinian communities and Israeli settlements.18 While the High Planning Council has delegated some of its responsibilities to sub-committees, it must approve all plans in Area C.¹⁹ This inevitably creates a situation where one body is examining matters for two conflicting interests: one that is in line with government policy, and the other that is in line with international law.

In April 2015, the Israeli High Court reviewed a petition, which argued that Palestinians had no voice in the planning process and called for the restoration of district and local planning committees in Area C. While the court acknowledged that “the wishes of the population ought to be given expression today as well,”²⁰ it reaffirmed previous judgments regarding the validity of Order 418. The court held “that wider questions of policy, land boundaries and so on…ought to be concentrated in the hands of the Civil Administration and the military commander, due to the importance of the plan that applies to land in a territory subject to belligerent occupation.”²¹

Indeed, the “importance of the plan” and how it impacts Area C is stark. Only 1% of Area C is planned for Palestinian development, construction is heavily restricted in 29%, and the remaining 70% is completely “offlimits for Palestinian use and development.”²² Palestinians in Area C must submit building permit requests for all structures, but due to the limited area (1%) planned for development, a negligible amount of permit applications are granted. Between 2010-2015, only 1.5% of permit applications were approved.²³ Given the lack of a planning scheme in most Palestinian areas and the high rate of permit denials, Palestinians are essentially forced to build illegally and thus are exposed to demolitions.

There is a clear contrast between the treatment of Palestinian communities in Area C and that of Israeli settlements. While Palestinians were largely cut out of the planning process in the OPT via Order 418, and in violation of international law,²⁴ Israeli settlers were brought into “the legal framework.” In order to accommodate the settler population and “apply various special norms to the residents,”²⁵ the Israeli Civil Administration’s policy in Area C allows for settler participation in planning, zoning, and enforcement activities within settlement areas.²⁶ Accordingly, settlers, whose opinion may not be binding but is nonetheless “a yardstick by which an ultimate decision will be measured,”²⁷ wield sizable influence in the OPT, where 70% of Area C falls “within the boundaries of the regional councils of Israeli settlements.”²⁸

The ability of settlers to participate in the planning process in Area C should be not only be compared to Palestinian involvement, but more importantly, be examined at the baseline of settlement illegality under international law. Therefore, while Israel feigns distinguishing between “legal” settlements and “illegal” outposts, they are one and the same in terms of their aim to colonize Palestinian land and their unlawful status under international law.²⁹ The distinction between outposts and settlements only becomes important when comparing how Israel exercises its enforcement powers across Area C.

Illegal Structures in Area C

While planning and building activities may be carried out which are consistent with Israeli law (but remain in contravention to international law), it is important to note that settlers and regional councils also drive Israeli policy in violation of its own procedures. As noted in the Summary of the Opinion Concerning Unauthorized Outposts— Talia Sasson, Adv. (Sasson Report), commissioned by then-Israeli Prime Minister Ariel Sharon, “The ‘engine’ behind a decision to establish outposts are probably regional councils in Judea, Samaria and Gaza, settlers and activists, imbued with ideology and motivation to increase Israeli settlement in the…territories.”³⁰ Alongside efforts by settlers and regional councils, the Sasson Report underscored the role of various state authorities in the establishment of outposts “in harsh violation of the law.” Over ten years after the report’s publication, outposts continue to be established and legalized. Israeli authorities undertook actions to formalize 25 outposts in 2014 alone, and continued such practices throughout 2015.³¹ In July 2015 acommittee was established in order to plan the retroactive legalization of outposts.³² While commenting on the committee, Israeli Minister of Justice Ayelet Shaked reaffirmed that most of the outposts were “set up by various Israeli governments.”³³

Another case revealing the position of Israeli officials in regard to illegal settlement activity also occurred in July 2015. Following the demolition of two illegally built Israeli structures on private Palestinian land in the settlement of Beit El, Netanyahu quickly announced the approval of hundreds of new units in the same settlement.³⁴ Three Israeli government ministers released a statement supporting the “residents of Beit El, their desire to build up their community, and their protest against the unnecessary demolition.”³⁵ Netanyahu’s announcement of new construction in order to appease settlers was not unusual; illegal structures built by settlers are frequently demolished only after arrangements are made with Israeli authorities that may include relocation or compensation.³⁶

These statements and actions by Israeli officials are in stark contrast to the treatment of “illegal” Palestinian structures and communities in Area C. There, the planning regime itself facilitates the destruction and confiscation of Palestinian property.³⁷ Palestinians, including those with court decisions regarding title to their land, face an added difficulty in having positive judgments enforced.³⁸ Since 1998, approximately 77% of demolition orders were for structures located on land recognized by the ICA as privately owned by Palestinians, with the remainder of orders on state land.³⁹ Moreover, in comparison to the retroactive legalization of outposts, long-established Palestinian Bedouin communities in Area C are under constant threat of transfer due to Israel’s E1 plan.

Moving Forward

It is more than evident from the conditions on the ground that there is a system in place that promotes growth and stability for one community and conditions ripe for transfer for another.⁴⁰ In assuming that Israel’s dual system will not change on its own, human rights organizations continually call for the international community to uphold their obligations in regard to the situation in the OPT.

The planning regime, which facilitates both settlement expansion and the destruction and confiscation of Palestinian property, is fundamentally illegal and violates peremptory norms of international law, including the right to self-determination, and perpetuates grave breaches of international humanitarian law.⁴¹ Accordingly, states must not recognize or engage with such a regime. More specifically, as State Parties to the Geneva Conventions, states must respect and ensure respect for the Convention. This includes prohibitions against the transfer of civilians and the destruction of property, among others, implicated by Israeli settlements.⁴² Further, state responsibility arises in the commission of internationally wrongful acts, including serious breaches of peremptory norms of international law.⁴³ Israel’s settlement enterprise obstructs the Palestinian right to self-determination and, accordingly, imposes an obligation on third states to act. Israel’s own stance towards settlements does not preclude responsibility.⁴⁴

While third states may continue to lack the political will to take bold action against Israel, through sanctions or other means, states may also look internally to ensure that they are not rendering aid or assistance.⁴⁵ For example, a recent investigation found that between 2009 and 2013 alone, over $220 million was channeled from tax-exempt nonprofit organizations based in the United States to Israeli settlements.⁴⁶ The money was used for activities ranging from the purchase of buildings in the West Bank, including East Jerusalem, to the addition of facilities to attract residents.⁴⁷

Longstanding American policy considers settlements illegitimate. Moreover, the granting of tax-exempt status in the United States requires that organizations are organized and operated for certain purposes,48 which are generally for the public good and in line with public policy.49 The policy of allowing hundreds of millions of dollars coming from the U.S., which help to sustain settlements and the discriminatory, unlawful settlement enterprise more broadly, is inconsistent with U.S. domestic law and foreign policy.

In upholding their international responsibilities, states must go beyond condemnation and an expectation that Israel will change its policy. States must begin to genuinely address Israel’s settlement enterprise — and not give effect to such acts — including by looking internally and acting in a matter that is consistent with domestic policy.