This is Not a Drill: the Past Week's Settlement Announcements
Exactly one year ago, in February 2019, in the run-up to the first round of Israeli elections in the past year, we wrote:
“Like most people, Israeli Prime Minister Benjamin Netanyahu is a creature of habits – and one of those habits relates to how he uses the issue of Jerusalem in elections. In the past, Netanyahu has repeatedly used last-minute Jerusalem related events in order to energize his base. Exploiting Jerusalem for electoral gain can be viewed as part of his electoral modus operandi. …[T]he potential is high for a Netanyahu-led inflammatory Jerusalem-related event – for example, a move to strengthen Israel’s control over or foothold within East Jerusalem, or in adjacent areas of the West Bank – in the weeks or days before election day (April 9)”.
Among the potential inflammatory schemes likely, we cited the approval of E-1 and the publication of tenders at Givat Hamatos.
On February 20, one week before the third national elections in one year, as Netanyahu is fighting for his political survival, our worst fears indeed did materialize. Netanyahu announced the approval of construction at E-1, Givat Hamatos, and Har Homa, and these three schemes had been preceded by a similar announcement regarding Atarot.
The announcement was initially so fraught with errors and generalities that some hoped that this might be theater in the service of Netanyahu’s re-election campaign. Nothing can be further from the truth. In the days that followed, and one week before the elections scheduled on March 2, Netanyahu backed up words with deeds, issued tenders at Givat Hamatos, ordered the statutory approval of E-1, green-lighted statutory deliberations over Har Homa E and yet an additional expansion of Givat Hamatos.
Two of these schemes, the Givat Hamatos tenders and the statutory approval of E-1, are the two most devastating settlement developments since 1967. They are a clear and present danger, posing an immediate threat to the possibility of any two-state outcome. Dovetailed with the recently released Trump initiative and the approaching annexation scheme, they threaten to condemn Israel to perpetual occupation, the gravest existing threat to the long-term viability of the State of Israel.
Whereas Givat Hamatos tenders and the decision on E-1 are both dangerous and imminent, and will be very difficult to stop, the plans regarding Har Homa E, Atarot and the expansion of Givat Hamatos (as opposed to the tenders) are only in the embryonic stages. Consequently, we will commence our analysis with the two “doomsday” plans, and conclude with a brief description of the less immediately dangerous plans.
IN THIS ISSUE:
- Tenders published: what does it mean?
- Givat Hamatos: Background, History and Ramifications
- The decision to expand Givat Hamatos
- Netanyahu’s instructions to deposit the plan: what does it mean?
- E1: Background, History and Ramifications
Two decisions were made in regard to Givat Hamatos: the publication of tenders, which poses a dire and immediate threat, and the long-term expansion of the building capacity of Givat Hamatos. It is important to distinguish between the two, the ramifications of which will be examined below.
Tenders published: what does it mean?
- What happened? On February 24, four days after Netanyahu announced it, the Israel Lands Authority published tenders for the construction of 1077 units in Givat Hamatos , the first new large Israeli settlement neighborhood in East Jerusalem since Har Homa in the 1990s. A copy of the publication may be viewed here: https://land.gov.il/Land_Tenders/Pages/Tenders.aspx
The 1077 units are part of Givat Hamatos A (Plan 14295), which has a total capacity of 2610 units. Of the 2610 units, 1500 are on state land, and the rest on privately owned lots. The tenders refer to 1077 of the 1500 units located on State land (for background and ramifications of the construction of Givat Hamatos, see below).
- What are the immediate implications of this decision? All required planning and approval for construction in Givat Hamatos has already been completed. This makes it possible to publish and award tenders, and commence construction.
- Can Anything be Done to Stop the Tenders? A tender is technically an invitation by the government for the private sector to submit bids to carry out a project. If a bid is accepted, a contract then signed between the relevant government authorities and the developer. Once tenders have been issued and contracts awarded (i.e. signed), third-party rights – those of contractors, developers, investors, etc. – come into play. At this point, any effort by the government to freeze a plan would open up the government to legal actions by these parties. This makes a rescission of the contract highly unlikely, perhaps impossible.
Our caution on this issue derives from a single precedent (which took place in the West Bank rather than East Jerusalem): In the early 1990’s, the Rabin government imposed a settlement freeze in the West Bank, which included freezing construction already under way. The government’s right to rescind the contracts was upheld – but this required payment of considerable compensation to contractors, etc. (see our Layman guide to the Approval Process Governing Construction in East Jerusalem).
In the present case, although it is unlikely that the tender process can be stopped, there is a very small crack that may, under certain circumstances, create an opportunity to delay or suspend the tender process. At the very least, these possibilities are worth exploring:
Generally, but hardly always, the announcement of tenders is accompanied by the publication of a tender booklet, which contains all of the terms and vital information critical to potential bidders. That did not happen with the tenders published on February 24. The publication indicated that the tender booklet would become available on May 3, 2020. In the absence of a booklet, the developers cannot prepare their bids, much less submit them.
In addition, the final date for the submission of tenders has been set for June 22, 2020. The text of the publication highlights the following standard provision: “The bidders are responsible of keeping up-to-date regarding any change and/or clarification, and/or update of the tender on the website of the Israel Lands Authority until the last date upon which bids may be submitted”.
It is not uncommon for the date for submitting bids to be extended, whether due to technical reasons, a too small number of bids, etc.
It is not unthinkable that, under appropriate circumstances, the use of one of these two mechanisms will serve as a pretext to make the tenders “disappear”. Yet, tenders of this notoriety cannot merely vanish into thin air, but they can possibly be deferred for an extended period of time. It is definitely worth the effort.
- Is there any precedent in which these methods were used to halt the tender process after it commenced? Not exactly, and not under circumstances as these. However, two vaguely similar precedents do come to mind:
In 1995, Israel announced the expropriation of 530 dunams in East Jerusalem, a pittance in comparison with the 24,000 dunams already seized. But given the ongoing negotiations between Israel and the PLO, the move caused a major uproar, and the possibility of a Security Council condemnation, without a US veto, became very real. Rabin “froze” the expropriation. When announced, the expropriation caused an international uproar; when cancelled no one noticed.
In 2005, the Israeli Ministry of Construction and Housing under Prime Minister Ariel Sharon secured the approval of the Jerusalem Municipality for the construction of 130 settlement units in the Muslim Quarter of the Old City. This time, there was no uproar but there indeed was discrete engagement by the Bush Administration. The plan was then sent to the Regional Planning Board as a standard part of the planning process, but never arrived, “mysteriously” disappearing. It was never to be seen again.
It is important to bear in mind that the circumstances and leadership in place today is far different than those of the mid-1990s. Whether these options will be at all possible depends very much on the results of the March 2 elections, and it would be pointless to speculate about those options now. A Netanyahu government will be very different from a Gantz government, and both will differ from a unity coalition. Regardless, these things can never be done “on the cheap”. Whether or not this possibility exists under ANY circumstances will in no small part be determined by the international response given to the publication of the tenders. In the absence of a very immediate and consequential response, it is difficult to see why the next government, whomever it may be, will have any incentive to “make this go away”.
Givat Hamatos: Background, History and Ramifications
Location: Givat Hamatos is located between the existing East Jerusalem settlement neighborhood of Gilo, on the west, and Har Homa to the east, and north of the Palestinian neighborhood of Beit Zafafa. To its south is the West Bank city of Bethlehem (for further details see here).
Key facts about the existing planning process of Givat Hamatos plan are the following:
- Givat Hamatos is the first major settlement neighborhood that is to be built since Har Homa in the 1990s.
- As of this date, the Givat Hamatos plans are divided into four statutory plans:
· Givat Hamatos A (Plan 14295): 2610 units; the tenders published are part of this plan;
· Givat Hamatos B (Plan 5834B): 549 units (located within Beit Safafa);
· Givat Hamatos C (Plan 5834C): 813 units;
· Givat Hamatos D (5834 D): 1100 hotel rooms.
Givat Hamatos A has been approved, Givat Hamatos C and D are in the planning process, and Givat Hamatos B, located in Beit Safafa, is not relevant to our discussion.
- The construction of Givat Hamatos A is planned, sponsored and implemented by the Government primarily, but not exclusively, on “state land”; parts of the plan are on lands privately owned by Israelis, Palestinians and Churches.
- As noted, the plans for construction in Givat Hamatos have been fully approved. The publication of tenders were the last steps before construction can start.
- It is not the first time that Netanyahu considers publishing these tenders. In the summer of 2014, Netanyahu was about to publish tenders for the construction of 1100 units in Givat Hamatos in retaliation for the murder of the three yeshiva students in West Bank, but pulled back at the very last moment.
- If Givat Hamatos is built, it will result – for the first time since 1967 – in a Palestinian neighborhood of East Jerusalem being completely surrounded by Israeli construction. This would have dire implications for the possibility of any future permanent status agreement. Prior to the construction of Givat Hamatos, it is still possible to implement an agreement based on the principle that Arab neighborhoods of the city will fall under Palestinian sovereignty, and Jewish neighborhoods under Israel sovereignty (as laid down in the Clinton parameters). Once Givat Hamatos is built, that will no longer be possible without the relocation of tens of thousands of Israelis.
In short, Givat Hamatos is not just another detrimental settlement; it is a border-changer, and border changers are game-changers.
The decision to expand Givat Hamatos
Under instructions from Netanyahu, the Regional Planning Committee also deliberated a skeletal (master) plan that will allow the additional expansion of Givat Hamatos and approved it for public review. The plan apparently provides for expanding the building capacity of Givat Hamatos to about 6,500 units. The skeletal plan governs the overall designated uses of land in any given area, and does not allow for building permits to be issued. Since the planning of this area is particularly complex, and since the process has barely begun, it will be many years, if ever, before a plan like this will become operational.
Under these circumstances, it is evident that the planned expansion of Givat Hamatos (as opposed to the Givat Hamatos tenders) has little or nothing to do with an actual planning efforts, and everything to do with the theater Netanyahu is creating in his struggle to remain in power.
E1: Towards Final Approval and Implementation
Netanyahu’s instructions to deposit the plan: what does it mean?
- What happened? On February 25, 2020, Netanyahu officially ordered to deposit for public review the plan for construction of approximately 3500 units in E1. The plans are Plan No. 420/4/7 – for 1,228 units; and Plan No 420/4/10 – for 2,184 units (for background and implications of the construction of E1, see below).
- What are the immediate implications of this decision? The statutory planning process of the E-1 settlement has yet to be completed, and the plan needs to be approved before construction can commence. The only thing that was needed to publish the plan was a green light from Netanyahu, which he gave this week. The deposit of the plan for public review enables to start hearings on objections to the plan. There is a 60-day period during which objections can be filed to the Jerusalem Regional Planning Committee by anyone who sees himself or herself adversely affected by the plan. Hearings are then held (usually one session suffices) and after the Committee considers the objections, the plan is either rejected, amended, or approved. As a rule, the process is resolved within about a month (after the end of the 60-day public review period). Once the public review is completed, an announcement of the plan’s statutory approval is published in the Public Record, after which the plan enters effect and tenders can be published. If the Prime Minister supports the plan, as does Netanyahu (who may or may not be the next Prime Minister), the approval of the plan is in all likelihood a formality and foregone conclusion.
- Can construction of E1 still be prevented? As opposed to the Givat Hamatos tenders which are approaching the point of no return, there is a bit more time to challenge and stop E-1. The next stage is the completion of the statutory planning of E-1, prior to the publication of tenders. Even if the plan enjoys the continued support of the next Prime Minister, it is a procedure that will take at the very least, several months. This is still stoppable, provided sufficient political capital is invested by the international community and civil society in Israel to that end.
- Is this merely an electoral stunt that will be reversed by Netanyahu? Under the current circumstances – the release of the Trump Plan, the total apathy with which the Israeli public greeted the announcement, the relatively muted international response, and the approaching US-Israel annexation scheme – assuming that the next Prime Minister will reverse his decisions would be deeply ill-judged. If the next government will be headed by Netanyahu, he will be more, not less, captive to the ideological right, and prone by circumstances and his own nature to pursue these schemes. If the next government will be headed by Gantz, his new government, struggling for legitimacy, will need to expand precious political capital he may not have in thwarting this scheme. In such case, the future of the plan will very much depend on the engagement of the international community and the stalwarts in Israeli society who are concerned by the implications of the scheme.
E1: Background, History and Ramifications
Location : E-1 is a major West Bank settlement planned for a large area of land on East Jerusalem’s northeastern flank (outside the city’s municipal borders). E-1 is designed to complete the settlement “buffer” around East Jerusalem, cementing a contiguous block of settlements from Maale Adumim to the city’s east, through Neve Yaacov and Pisgat Zeev to the north, and extending to Har Homa, to the south.
E-1: A Checkered History of Almost 30 Years
- The Master Plan for E-1 was approved in the 1990’s, during Netanyahu’s first term as prime minister. President Clinton, who fully grasped the implications of E1- ordered Netanyahu to cease and desist.
- In 2005, specific plans were approved by the Maale Adumim Municipality. These specific plans provide for the construction of high rise dwellings, low-density residential units, and the police station in E-1. Sharon actually began the construction of E-1 without having secured the necessary statutory approval. This elicited the direct intervention by then-U.S. President George W. Bush, which led then-Prime Minister Sharon to stop the construction and agree to remove all of the residential units from the plans. These are the very units which Netanyahu is now seeking to approve.
- Every US President since President Clinton has elicited a commitment from every Israeli Prime Minister, including Netanyahu, not to act on E-1, until Trump. Virtually all of the key heads of State in Europe has flagged E-1 as a red line, and infomed successive Prime Ministers of their deep concerns over the scheme.
- In 2012, in retaliation for the extension of non-member status to the Palestinians in the UN, Netanyahu violated that commitment. He announced that the plan would move ahead and instructed the High Planning Committee of the West Bank to deposit the plans for public review. Such publication would have started a process for final approval by publishing the plan for public review (the entire process taking 9 months to a year), after which tenders could be published, permits issued, and construction commence. However, Netanyahu balked, and the plan was never published.
- Since Netanyahu ordered the halt of the approval process of E-1 in 2012, the decision to greenlight it has been his alone. He has now ordered the process resumed, and if allowed to proceed, the plan will likely be approved in several months, after which tenders may be published.
- Until Trump came into office, the emphatic and universal opposition to the plan, including of the United States, was the sole deterrent that prevented Netanyahu from greenlighting E-1. Robust international engagement continued even after Trump got elected, and until this week proved to be successful.
- Notably, since 2005, continuing through the present day, the government of Israel has been methodically preparing to implement E-1. Construction (based on the approved Master Plan) has been completed on much of the infrastructure of E-1, including a six-lane road, large interchanges linking a non-existent neighborhood to the national road grid, electricity, lighting, water, drainage, and terracing.
- Finally, the Israeli government is engaged in systematic efforts to clear the area surrounding Maale Adumim and E-1 of Bedouins who have lived there since the 1950s, including repeated demolitions of their property (for more see here and here). The government has also prepared a plan (similar to the Prawer plan for the Negev) to forcibly relocate these Bedouin communities. The most notorious scheme to demolish a Bedouin hamlet and forcibly relocate its residents is Khan al Ahmar.
E-1 : The Geopolitical Ramifications:
- If built, E-1 would – by design – dismember a potential future Palestinian State into two non-contiguous cantons and seal off East Jerusalem from its environs in the West Bank.
- E-1 would drive a wedge through the West Bank, fragmenting it into a northern canton of Ramallah and Nablus, and a southern canton of Bethlehem and Hebron, with each of these cantons further fragmented.
- E-1 would prevent any territorial connection between these two cantons, and between either canton and Palestinian East Jerusalem.
- E-1 is a clear reflection of Netanyahu’s decade-old policy, now enshrined in the Trump plan and to be secured through annexation that seeks to fragment the Palestinian locations in Area C. E-1 dictates that Palestinian built-up areas will be discontiguous, connected only by “transportational contiguity” – via sealed roads, underpasses, overpasses, etc – in an Area C controlled by Israel by means of a de facto annexation that may well soon become de jure annexation. The starkest example of this is the notorious apartheid road, on which Palestinians may travel through the area of E-1 in a sealed and segregated road that leads from Hizma to A Zayyem. A Palestinian “state” with contiguity secured by a road 16 m. wide is already on display in E-1. (For further maps and analysis, see our presentation, “The Imminent Demise of the Two-State Solution;” slides 21-23 focus on E-1 and its impact).
- Prior to the construction of E-1, it is still possible to create a viable, contiguous Palestinian State, with its capital, East Jerusalem, integrated into its hinterland in the West Bank. After the construction of E-1, there will be no possibility of creating a Palestinian State with any semblance of geographical integrity.
- The destruction of the very possibility of creating a viable Palestinian state not the “collateral damage” of E–1, it is a feautre of E-1 and an important part of the plan’’s objectives.
Broader political ramifications related to both E1 and Givat Hamatos
- In recent years, the international community in general, the EU, and its member states in particular, have been engaging Israel with great efficiency on four “flagship issues” in an attempt to prevent the most egregious and damaging plans in the West Bank and East Jerusalem: the IDF colleges on the Mount of Olives (a campaign that was conclusively successful), E-1, Givat Hamatos and Khan al Ahmar. This engagement has been sustained and coherent, clearly articulating the interests and values of each. A line was drawn in the sand, and until now Netanyahu elected not to cross it.
- Therefore, allowing Netanyahu to pursue these moves with impunity has a strategic impact that goes beyond the implementation of E-1 and Givat Hamatos.
- The credibility of the international community is on the line. If, after such a coherent and sustained effort, Netanyahu is allowed to build Givat Hamatos and E-1 with impunity, all deterrence will dissipate, and there is little that Netanyahu will NOT dare do.
- More specifically, the decision of any future Israeli government to implement unilateral annexation with the consent of the United States will in no small part be impacted by the international response to E-1 and Givat Hamatos, particularly from Europe and the Arab world.
- What happened? – Netanyahu’s announced the construction of an additional 2,200 units in Har Homa. Given that until last week, there had been no planning files opened regarding Har Homa since the approval of the existing neighborhood in the 1990s, it was initially unclear to which plan this announcement referred.
After the Jerusalem’s Planning Board hastily convened this week, it became clearer that the 2,200 announced units were related to Har Homa E. This decision relates to Town Plan 13308 (on which we reported in the past, here), which provides for the construction of 306 units, as well as to a previously unknown plan for an additional 2,200 units at the same location.
Both plans are currently at a very embryonic stage as the real statutory planning related to these units has not really commenced.
- Location: Both schemes are located between Har Homa and Givat Hamatos, in the open spaces to the west of Har Homa and to the east of the Hebron road, several hundred meters north of the Jerusalem-Bethlehem (300) checkpoint (our map designates the general vicinity alone as at this stage, the plan’s boundaries are not yet known).
- Immediate implications – The plan is located beyond the expropriation line of Har Homa, on lands that include a complex mix of ownership of Palestinians, Israelis and Churches. Both the land ownership and the landscape of its location makes this project difficult to implement. There are no immediate implications to the announcement. The approval of the proposed plan and implementation are many years off.
- Broader ramifications – Of the ten large settlement neighborhoods in East Jerusalem, Har Homa is considered to be to date the most problematic by far. With construction commencing after the 1993 Oslo Accords, and completed after the Camp David Summit in 2000, Har Homa was universally condemned, and came to be viewed as a red flag for the Palestinians, the ultimate “unilateral move”. Indeed, in Netanyahu’s announcement on February 20, he took pride that he defiantly built Har Homa despite the international opposition, bragging that the settlement neighborhood now has almost 40,000 residents, although the actual, official number is 24,000 (but given Netanyahu’s problematic relationship with the truth, a Netanyahu’s margin of error of 66.6% percent should come as no surprise).
When implemented, the plan, like that of Givat Hamatos, will contribute to the sealing off of Bethlehem from East Jerusalem.That said, as important as this is, with the devastation of E-1 and Givat Hamatos so immediate, stopping this scheme is not the currently the highest priority.
- What happened? – On February 9, the Ministry of Housing submitted a plan to the Jerusalem Municipality for the construction of 9,000 units in Atarot. The first pre-statutory documentation that was published indicates that the area of the project is approximately 1,240 dunam (approximately 413 acres).
The borders of the project only partially coincide with the 1970 expropriation line and the composition of ownership is a complex mosaic. The majority is State Land, and a small portion is land owned by the Jewish National Fund (on the site of the Atarot moshav, which was abandoned in 1948). However, almost 25% is privately owned by Palestinians.
There has been talk of building a settlement at Atarot for more than a decade, and we saw an internal government Powerpoint presentation on the matter back in 2008 (see our previous report here). Interest in this plan has periodically re-emerged, and the reasons are clear: Jerusalem has exhausted almost all of its land reserves, and the only residual sites are extremely problematic. With the large natural growth in Jerusalem of the ultra-Orthodox communities, young families are compelled to leave Jerusalem for the nearby city of Beit Shemesh, and to two large settlements on the West Bank side of the Green Line, Modiin Illit and Beitar Illit. The new settlement is slated to accommodate the growing needs of these communities, and there has even been a surrealistic scheme to build a tunnel under the Qalandia Refugee Camp, linking Atarot and the ultra-Orthodox settlement of Kochav Ya’acov to the north.
- Location: Atarot is the location of the airfield built during the British Mandate. The site was artificially included in the lands Israel annexed by Israel in 1967 (so that Israel’s capital could have a worthy airport), and expropriated by Israel in 1970. To all intents and purposes Atarot/Qalandia is geographically more part of Ramallah than of Jerusalem. Hence, it is no wonder that the site is flanked on the north by a 9 meter-high wall, separating it from Kafr Aqb (even though the latter, beyond the wall, is formally part of Israeli municipal Jerusalem).The airport was shut down in the 1990s, before the second intifada.
- Can the plan be implemented? – The objective obstacles to planning and implementation as well as its highly problematic locations have to date made forward progress virtually impossible. Even with political determination, implementing it could take many years. The land in question will need to be re-parcelled, creating new lots, each of which will be assigned to the owners. Such reparcellization scheme raise concrete challenges: will it create mixed residential areas with both Palestinian and Israeli residents, which neither want, or will the authorities create an Israeli section and a Palestinian section, chillingly reminiscent of segregation, or even apartheid?
- Atarot and the Trump plan – The recently published Trump Plan left no doubt: under its provisions, there is no Palestinian national collective in Jerusalem, only an Israeli one. The Palestinian stake in the city is not recognized, its residents are denationalized, and the Muslim equities in the city barely mentioned. In addition, the Plan bizarrely chooses to create a so-called Special Tourist Area (under Israeli sovereignty) for the benefit of the Palestinians in the least attractive location one could imagine: Atarot.
And yet, only a few short weeks after the release of Trump Plan, Netanyahu has declared his intention to seize the only crumb that was left to the Palestinians in Jerusalem. The message to the Palestinians is clear: Israel, with the backing of the US, can do as it wishes, even build a settlement in the one location the Trump Plan designated for the benefit of the Palestinians.
Conclusions: It’s Far More than an Election Stunt
In the past eleven years, Netanyahu has been engaged in a systematic, coherent effort to establish a de facto Israeli annexation of Area C in the West Bank and to secure Israeli hegemony, leaving residual Palestinian enclaves with limited self-rule. While doing so, there were a number of things he could not get away with: the doomsday settlements of E-1 and Givat Hamatos, the evacuation and demolition of Khan al Ahmar, and the de jure (not merely de facto) unilateral annexation of Area C.
While the immediate cause of the settlement approval of February 2020 have indeed been electoral, they could not have taken place without the explicit and tacit approval of Trump and his Plan. Under the Trump Plan, Israel’s ability to build with impunity at Givat Hamatos, E-1, and Har Homa not only became possible, they became the “new normal” as each one of these schemes are seen as entirely compatible with the so-called “Deal of the Century”.
The next stage is unilateral annexation, the details of which are now being hammered out between the US and Israel, and to be completed in the weeks or months after the elections.
If Netanyahu and Israel emerge unscathed from the construction of Givat Hamatos and E-1, the conclusion will be that there is nothing he cannot get away with. Accordingly, the settlements approval may well only be a prelude to events not long ago were considered as unthinkable. Unilateral annexation? The demolition of Khan al Ahmar? Large-scale displacement of Palestinians in Silwan and Sheikh Jarrah? A major change in the status quo on the Temple Mount/Haram al Sharif?
These now have all become far more possible, due not only to Netanyahu’s defiance, but to the yawn with which this past week’s developments were received in Israel and in large parts of the international community.
These are not routine events. They have far-reaching, strategic ramifications. They cannot be countered by perfunctory condemnation with clip-and-paste wording.
Without a non-routine response to these measures, in word and in deed, we, and perhaps the future generations, will all pay dearly.