In 2011, the Israeli High Court ruled that Migron, an outpost in the West Bank built without government approval on private Palestinian land, had to be dismantled. After the government ignored the court order and instead worked out an agreement with Migron’s residents that delayed the evacuation, the court stepped in again and ordered Migron evacuated before the deadline that had been agreed upon with the settlers. The Israeli government complied, but rather than end the Migron experiment entirely, it simply moved Migron slightly to the south, where it would now sit on state land, and retroactively legalized its status.
Were Migron an isolated incident, it would be bad enough. But as the current fights over Amona and Netiv Ha’avot – two other unauthorized outposts ordered to be demolished by the High Court – make clear, the story of Migron is the rule rather than the exception. Just like with Migron, Amona is slated to be torn down at the end of the year but the government is planning on relocating it a few hundred yards away and retroactively approving it as an authorized settlement. The fight over Netiv Ha’avot is only just beginning as the High Court ruled last week that it had to be demolished and could not be retroactively legalized, but given the parade of ministers who vowed to prevent its destruction, there is no doubt Netiv Ha’avot will live on. It is critical to understand what is taking place in these unauthorized outposts and to recognize the “solutions” for just how damaging they are, since they are critical to a key talking point that Prime Minister Netanyahu uses when speaking to foreign audiences and point to just how malleable rule of law is within Israel.
While there is controversy over any and all Israeli settlement activity in the West Bank, Israel has attempted to deal with the contested legality of settlements in general by establishing rules and processes for determining when Israeli law deems a settlement legal or not. The two main components that a settlement requires to be legal in Israel’s eyes are government approval in a formal planning and authorization process, and being built on land that is not privately owned by Palestinians. The outposts, which number in the hundreds, violate both of these requirements, which is why the High Court continues to order their demolition. Yet, either because the orders are ignored, the state retroactively legalizes the construction, or the outposts are relocated to the closest parcel of state land, once an outpost goes up it almost never disappears. Even though outposts do not, by definition, have formal government approval, they are often supported by government officials and ministries.
Migron, for instance, was funded by the Housing Ministry at the behest of then-Minister Yair Rafaeli despite never having been formally approved or planned. The best way to understand how outposts get built, evade government efforts to tear them down, and manage to leverage political support and connections to tie up the bureaucracy and keep expanding, is not by reading the news but by reading Assaf Gavron’s 2014 novel The Hilltop, which is an engrossing work of fiction but also a cutting analysis of the dynamics that allow illegal outposts to thrive.
And as Isabel Kershner’s recent New York Times article on illegal outposts makes clear, they are indeed thriving, as the Israeli government retroactively legalizes them and does everything in its power under Israel’s legal system to let them stay. I am not someone who thinks that the presence of a few caravans on isolated hilltops makes it impossible to create a fair and contiguous Palestinian state, but I still think that the largest spotlight possible needs to be shined on this process for a variety of reasons.
First, one of Netanyahu’s favorite rhetorical devices is to note that Israel has not built any new settlements during his current run in the prime minister’s office. He uses this fact to shut down criticism of Israeli settlement activity and as proof that it is only the Palestinians, and not he, who are the real obstacles to achieving a two-state agreement, and when he trots it out before sympathetic or uninformed audiences, it is an effective trick. The trick is that while it is technically and narrowly correct, it ignores the fact that Israel under Netanyahu’s – and his predecessors’ – watch may not be authorizing brand new settlements, but the government doesn’t have to when it can just take the illegal ones that exist and make them legal. The more that interested observers get the sleight of hand at work, the less Netanyahu will be able to make unsubstantiated claims that muddy the waters.
Second, and more substantively important, the process of making illegal outposts legal is devastating to a two-state solution, not because the outposts themselves are such an obstacle but because they point to just how hard it will be for Israel to undertake the big moves that will be necessary down the road. If the government cannot commit to evacuating tens of settlers living in caravans and tents, what will happen when it agrees to evacuate thousands of settlers living in stone structures, like in Kdumim or Shilo or even Ariel? These outposts are a test of the government’s will, and it almost always fails the test miserably. If settlers can establish a community in contravention of Israeli law, clash with the IDF, repel government efforts to make them evacuate, refer to politicians and IDF commanders as Nazis, dictators, and enemies of Jews (all of which routinely happens), and still draw support from ministers and face little worse than having their homes picked up and relocated just yards away, then I wish the government good luck in working up the courage to move tens of thousands of settlers out of the West Bank who actually followed the rules.
Third, the process of dealing with illegal outposts shows how the rule of law in Israel can be more dependent on whom you are than on what you do. When Israeli Jews build illegally in the West Bank, the government has to be dragged kicking and screaming by NGOs who file lawsuits before it takes an action, and that action more often than not is to legalize what was illegal. When Palestinians build illegally in the West Bank – something that they are often forced into by circumstance as Israel issued only one building permit for Palestinians in Area C in 2014 and issued zero in 2015 – their homes are not retroactively legalized or relocated to Area B on the state’s dime, but are torn down. When Defense Minister Avigdor Lieberman announced that he was going to comply with the order to tear down Amona, he made sure to add that he was going to comply with the order to tear down the Palestinian village of Susya as well, which seems defensible on its face since the same rules should apply to everyone until you consider that Israel is going to rebuild Amona right next door while the residents of Susya are more likely going to have to fend for themselves.
In the greater scope of things, a tiny illegal outpost deep in the West Bank is irrelevant compared to the problems presented by places like Givat Hamatos or Givat Ze’ev, neighborhoods that do indeed make a contiguous Palestinian state with access to East Jerusalem overwhelmingly difficult. But these outposts matter because of what they say about the Israeli government and its willingness to give in to extremists and small interest groups at the slightest hint of political pressure. In many ways, as the fate of these outposts go, so goes the fate of the two-state solution.