A sector above the law
In many senses, the Migron outpost, near the settlement of Kokhav Yaakov, can be considered the "capital of the outposts" in the West Bank. It is a well-established and relatively large outpost. Trailers were brought in and construction on several permanent buildings began five years ago. The residents - currently 43 families - have fenced in the area and prepared infrastructure for additional permanent homes. There are currently 60 trailers and two completed permanent houses. The Benjamin Regional Council ensured that the Israel Electric Corporation connected the outpost to the electricity grid and the Mekorot Water Company supplied it with water.
Migron began with a deception, Brigadier General Ilan Paz, the former commander of the Benjamin Brigade, told attorney Talia Sasson, who authored the outposts report requested by prime minister Ariel Sharon. At the end of 2001, at the height of the terror attacks, a request was submitted to place a cellular antenna at the top of a hill about half a kilometer from route 60. The Israel Defense Forces could not refuse a request that would improve communication in the region, which would prove helpful while rescuing terror victims. Only later did Paz understand he had been deceived: "They built a tower in disguise," he told Sasson, but the requests "to fence in the antenna" and connect it to the electricity grid had already been approved by the IDF. The outpost became a fact on the ground.
One night in 2002, Paz was informed that five trailers had been placed near the "antenna." When he arrived and found several trucks parked nearby, the settlers blocked his way. Pinhas Wallerstein, the head of the Benjamin Regional Council, was also there.
"There were arguments and verbal confrontations," as Sasson describes it, "and curses hurled at the brigade commander." He contacted the Civil Administration to ask what to do. The reply: Although there was no permission to place the trailers, there was no permission to remove them either. "The outcome was that trailers were placed at the site, and thus the settling of Migron outpost began," writes Sasson.
Nine months ago, the IDF destroyed nine permanent houses at the illegal outpost of Amona, following a legal struggle in the High Court of Justice that forced the state to implement demolition orders issued months earlier. Last week the High Court began a new legal proceeding. Its initiators hope it will lead to results similar to those at Amona, but this time the judges are being asked to order the evacuation of an entire outpost, Migron. This time as well, Peace Now is behind the petition, but this time it has recruited backup players to come to its assistance, at least on the legal playing field - the Palestinian landowners.
This is the first time Palestinians have joined a petition demanding the evacuation of an outpost. Five petitioners are from the village of Burqa, and one is from the village of Deir-Dibwan. All six have land registry records, wills of inheritance and contracts proving ownership of the land where the outpost was established.
"The outpost was established and fenced in via trespassing and invasion of private property, without permission from the landowners or authorities," attorney Michael Sfard wrote in the petition. "The petitioners tracked what was happening in the Migron outpost and regularly reported the legal violations to the Civil Administration, and repeatedly asked the authorities to intervene to stop the damage to private property. In spite of that, none of the authorities responsible for enforcing the law against Israelis in the West Bank took the actions required to prevent the construction and settlement or to evacuate the squatters."
This petition reveals the lack of law enforcement when it comes to Israeli citizens living in the territories. As opposed to the other sectors of the population, which are under the authority of the State of Israel - Israelis in Israel and Palestinians in the territories, for example - and in total opposition to the basic principles of the rule of law - law enforcement vis-a-vis the settlers is dependent on the goodwill of the political leadership. If the defense minister wants, the law will be enforced; if he does not, all the legal injunctions, legal proceedings and laws and regulations are worthless.
"The establishment of unauthorized outposts involves the commission of crimes," wrote Sasson in her report, "but dealing with the crimes, one encounters many problems. For example, transporting a trailer within the West Bank without a permit is a crime that carries a five-year jail sentence. But no court is authorized to try this crime. The result is that cases are opened and criminal investigations are conducted 'on empty.'"
Moreover, "without the defense minister's approval, a demolition order will not be carried out. Without the orders of the prime minister and the defense minister, an unauthorized outpost will not be evacuated. For years the defense minister has not issued instructions to carry out demolition orders. Thousands of demolition orders are on the table, and no action is being taken. The conclusion is that law enforcement in the territories, as opposed to law enforcement in Israel, is partially in the hands of the Israeli political leadership."
That is exactly what happened in the case of Migron, as the affair is described in the High Court petition. In August 2003, Peace Now turned to the West Bank Civil Administration to find out in whose name the outpost land was registered. In February 2004, the Civil Administration replied that the land was not state-owned and that no construction permit had been issued to build there. After an additional request, the administration replied in October 2005, "The entire Migron outpost is defined as an illegal outpost. Stop-work orders were given for all the buildings in the outpost, and most of them received demolition orders as well," according to the petition. However, the fencing and construction did not cease.
Two months ago, a representative of the petitioners turned once again to the Civil Administration, this time with a demand that should have been self-evident: "To immediately adopt all necessary measures in order to evacuate the outpost residents without delay, and to carry out the demolition orders."
The Civil Administration's reply, received about two weeks ago, was surprising in its honesty: "Although the stop-work orders and the final demolition orders for the outpost buildings were approved," stated the Judea and Samaria region's legal office, "as far as the demolition orders are concerned, they will be carried out subject to an assessment of the security situation and in accordance with the approval of the political leadership."
In other words, issuing injunctions is one thing, and carrying them out is another.
Has the law-enforcement system in Israel actually created a legal "black hole," making the law unenforceable on settlers in the territories?
"It is unquestionably an anomaly," Sasson says this week. "No democratic sovereign state would let the political leadership be responsible for enforcing the law. That is a fundamental principle behind the rule of law and separation of powers. But the norm in the territories is that there simply is no law enforcement - certainly not for these types of crime, crimes of planning and construction.
"I'm not saying that if a Jew were to murder a Jew there would be no enforcement, but ideologically motivated crime causes a problem, and that includes various types of criminality. This system, where the military commander of an area internationally defined as occupied - who is sovereign in the area - is subordinate to the political leadership, leads to distortion."
"Subjecting law enforcement activities to political approval," Sfard writes, "is not legal, and is even dangerous to our system of law. It comes in opposition to the principle of legality and the ethical and ideological basis of the rule of law. The rule of law is supposed to operate without political considerations. Its enforcement is a matter for trained professionals, and not for statesmen or politicians. These things are so clear that there should be no need to expand on them. Is it conceivable to wait for the justice minister's approval before submitting an indictment? Is it conceivable that before the Tel Aviv Municipality carries out a demolition order against a balcony closed off without a permit, the municipality's enforcement department would ask for the mayor's approval?"
Asleep on the watch
Apparently someone in the Israeli legal system fell asleep on his watch. Does Attorney General Menachem Mazuz feel comfortable with the fact that the system for which he is responsible is sleepily standing by in the face of ongoing law violations by an entire sector of Israelis? A year ago, the following statement was publicized in Mazuz's name: "The Justice Ministry, insofar as things depend on it, is working energetically to create relevant and effective enforcement instruments in order to deal with the phenomenon of the illegal outposts."
Sasson's outpost report, declared the Justice Ministry, "has been studied thoroughly and handled on various levels, with a clear understanding that we must work to eradicate the phenomenon." That's all well and good, but in Migron they have yet to hear about this.