Understanding the Ramifications of Recent Developments
Dangerous Developments towards Construction in E-1
- What happened?
- Why is E-1 so important?
- Key facts about the development of the E-1 plan are the following:
- What happens next?
- Why is the hearing happening now?
- Can the second hearing be cancelled or deferred?
- What is the likely response of the Israeli government?
- What will happen if the hearings take place and the objections rejected?
- The Bottom Line
Important Legal Developments regarding Sheikh Jarrah
- What happened?
Recent Developments Regarding the Status Quo on the Temple Mount/Haram al Sharif
- What Happened?
- The Context
- The implications
Dangerous Developments towards Construction in E-1
- For the first time since the E-1 plan was first put on the table in 1996, the Government of Israel is now taking serious steps towards its implementation.
- On October 4, the Sub-Committee on Objections of the Higher Planning Council of the Civil Administration of the West Bank conducted hearings on the objections to the E-1 settlement plan, and is scheduled to hold the second and final hearing on October 18.
- This is a critical phase towards the construction of E-1: these hearings are one of the last stages of the planning process prior to the final statutory approval of the plan by the Higher Planning Council of the Civil Administration. After the hearings, the Subcommittee on Objections submits the Plan to the Higher Planning Council and its recommendations for final approval. While the decision to convene the hearings and accept or reject objections require no Ministerial approval, the decision to convene the Higher Planning Council and the final approval of the plan require the signature of the Minister of Defense. Once the plan is approved, tenders can be published and awarded and building can commence.
- This is a step so controversial that in the 25 years since the E-1 plan has been under consideration, no Israeli government, including those headed by Netanyahu under President Trump, have dared to take significant steps towards its implementation.
Why is E-1 so important?
- Location and size – 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, in C area). It totals 12.5 sq.km. located to the east of East Jerusalem and to the west of the Israeli settlement of Ma’ale Adumim. E-1 is a major contribution to the creations of three large settlement blocs surrounding Jerusalem in its environs in the West Bank: from E-1 and Maale Adumim and the bluffs overlooking the Jordan river valley to the east, to the Ramot -Givat Zeev “bloc” in northwest of Jerusalem and the Etzion bloc to the south. The plan includes the construction of approximately 3500 units (Plan No. 420/4/7 – for 1,228 units; and Plan No 420/4/10 – for 2,184 units). As detailed below, both the location and size of E-1 makes it the most devastating settlement scheme in the West Bank.
- Geo-political ramifications:
- Disconnecting East Jerusalem from the West Bank: the construction of E-1 would detach Palestinian East Jerusalem from its environs in the West Bank, exacerbating the fragmentation of the Palestinian neighborhoods in East Jerusalem and their connection to the West Bank. It would therefore further undermine the possibility of integrating Palestinian capital in East Jerusalem into a future Palestinian State.
- By creating an Israeli-controlled wedge through the heart of the West Bank, it would also dismember it into two dis-contiguous cantons, one to the north including Ramallah and Nablus, and one to the south, with Bethlehem and Hebron
- Due to the grave ramifications of E-1 , both the US (until and possibly including Trump) and European capitals have been unequivocal in their opposition to the plan. Their robust engagement and firm position has been a key deterrent that prevented Netanyahu, and Sharon before him, from greenlighting E-1. 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 have flagged E-1 as a red line, and informed successive Prime Ministers of their deep concerns over the scheme.
Key facts about the development of the E-1 plan are the following:
- The Master Plan for E-1 was drafted and put on the table in 1996, during Netanyahu’s first term as prime minister.
- In 2004, Prime Minister Ariel Sharon began to expedite both the planning process and construction of E-1. His government actually began construction without having secured the necessary statutory approval. However, President Bush and various European leaders directly intervened. Sharon’s then instructed that the planning and the construction be limited to the construction of the Police Headquarters for the West Bank as well as water, electricity and a network of roads. He ordered that all other planning and construction at E-1 be halted. No construction at E-1 has taken place since, nor have serious steps been taken towards the statutory approval of the plan.
- In 2012, in retaliation for the extension of non-member status to Palestine at the UN, Netanyahu instructed the Higher Planning Council of the Civil Administration to deposit the plans for public review. However, in the wake of strong international engagement, Netanyahu immediately backtracked, and once again, the plans for E-1 were frozen.
- On February 25, 2020, one week before the third national elections in one year, with Netanyahu fighting for his political survival, he again instructed to deposit the plan for public review. A number of objections were filed including the objections of Peace Now, Bimkom, the residents of El Eizariya and others. However, once again, Netanyahu balked, and prior to leaving office, he never allowed any hearings to be scheduled.
- Under the new Bennett government, the hearings on these objections were scheduled for October 4 and 18, 2021.
- Efforts to implement E-1 and to consolidate a large settlement block on the eastern flank of East Jerusalem have been dovetailed with Israeli policies that seek to denationalize the Palestinian sector in East Jerusalem and systematic efforts to clear the area surrounding Maale Adumim and E-1 of Bedouins who have lived there for many decades, including repeated demolitions of their property (for more see here and here). The most notorious scheme to demolish a Bedouin hamlet and forcibly relocate its residents is Khan al Ahmar.
What happens next?
If the hearings proceed, the rejection of the objections to the plan by the Sub-Committee on Objections is a foregone conclusion and it will recommend the approval of the plan, perhaps with some marginal modifications. Both the convening of the Higher Planning Council and the final approval of the plan will then require the signature of the Minister of Defense. The approved plan then enters into effect and construction can commence.
Legal action may be taken by those who have filed objections, but such a suit can be filed only after the approved plan is signed by the Minister of Defense. Since the Israeli Supreme Court has already rejected suits challenging the legality of E-1 on a number of occasion in the past, judicial intervention that would prevent the construction is highly unlikely.
Why is the hearing happening now?
The reason that the hearings have been scheduled are far from clear. While for the last quarter of a century no forward movement on E-1 could take place without the approval of the Prime Minister, it appears likely that this is no longer the case. We have seen no indication that the decision was made on E-1 with the knowledge and consent of Prime Minister Bennett, or any Minister in his cabinet. It seems unlikely that this government would seek a gratuitous altercation with the Biden administration, or undermine the warming relations with the EU. Most likely, this is the “settler regime” within the Civil Administration in the West Bank taking advantage of the new, inexperienced Bennett government, or putting it to a test, or both.
Can the second hearing be cancelled or deferred? Yes, but action must be taken immediately if this is to happen. Any engagement with Israel at this place would best take place behind closed doors. There are numerous ways in which the hearings can be deferred indefinitely, and in a manner that does not require the direct and visible intervention of Prime Minister Bennett, or any of the Ministers of his Cabinet. This government certainly knows how to do so.
What is the likely response of the Israeli government?
- “It’s only a plan which can be stopped later “. True. And that is exactly what the Netanyahu government told Vice President Biden in March 2010 regarding the plan to build 1600 units in the East Jerusalem settlement of Ramat. Today, the kids living in the “only a plan” homes are real. E-1 will soon cease being “only a plan”. Every day that passes makes international engagement and Israeli action to freeze the plan more difficult; every additional stage will make volatile ramifications more likely; every new stage will bring us significantly closer to implementation.
- “Everybody knows” that E-1 will be part a settlement bloc incorporated into Israel in any future agreement. Wrong. There is a broad and very consistent consensus in the international community that E-1 would be a serious blow to the very possibility of ever reaching an agreement.
- “The coalition is fragile”. True. However, the E-1 hearings have received virtually no public attention and have not yet become a cause célèbre. Additionally, the decision to seriously advance the E-1 scheme is a radical departure from long-standing Israeli policy. If the fragility of the current coalition suffices to excuse the construction on E-1, it can be used to justify virtually any Israeli action in the West Bank, however problematic.
What will happen if the hearings take place and the objections rejected?
Allowing these hearings to proceed will send a number of very clear messages:
- It will clearly indicate that Netanyahu and Trump may be gone, but their spirit lingers.
- The desire to “turn a new leaf with Israel” and the de-prioritization of the Israel-Palestine conflict is allowing Israel to take steps no Israeli government – including the Netanyahu government under Trump – has dared take in the past. Israel can act with unprecedented impunity.
- It will send a message indicating that the international community is reluctant to engage proactively on Israel-Palestine matters, and will likely take action only after the eruption of violence.
- With many abandoning the two- state solution, and with those still supporting it conceding that it is not within reach, allowing E-1 to take place would indicate that the purported support of the two-state outcome is no more than lip-service.
- Today, construction in E-1 cannot be immediately implemented. The hearings are a “trip-wire” that signal that Israel is serious in its intent to implement the plan, but also allow for the international community to engage in an effort to suspend this process. After hearings, we will be one signature away from its final statutory approval, which can take place with no further warning. Once the plan is approved, the construction process can commence.
The Bottom Line
The October 4 and 18 hearings on the E-1 plan are major step towards its implementation, one which no Israeli government has dared in the past to take. The second hearing can be deferred indefinitely at no or nominal political cost to the Israeli government. The Israeli government will not take the necessary actions without immediate engagement of the international community, impressing on Israel the dire ramifications that the moves to implement E-1 will have.
Important Legal Developments regarding Sheikh Jarrah
On October 4, subsequent to the August 2 hearings on the eviction proceedings taken by East Jerusalem settlers against Palestinian residents in Sheikh Jarrah, the Supreme Court presented its proposal for an agreed settlement (for a detailed analysis of the state of play regarding the Sheikh Jarrah evictions in the wake of the Supreme Court hearing, read our detailed report here).
The following may be concluded from the terms of the proposed settlement and the court ruling (here is our verbatim translation of the decision):
- The Court appears resolute in pursuing an agreed outcome, clearly disclosing that they wish to refrain from handing down a ruling. That said, the Court explicitly cited that in the absence of an agreement, they would “hand down its judgment based on the materials before it”.
- Towards this end, each party has to respond to the Court’s proposal no later than November 2.
- The Court’s proposal is very much in line with the oral arguments presented on August 2, with a number of revisions:
- The settler corporation “will be recognized” as owners of the site, and the Palestinian residents “will be recognized” as protected tenancy subject to the provisions of the Protected Tenancy Law [Consolidated Version] 1972.
- This recognition is not prejudicial to Palestinian claims of ownership to the land, claims they may assert during the settlement of registration of ownership proceedings. Consequently, the Palestinian residents may assert that they have not conclusively waived claims of ownership, and their right to pursue such claims are more than cosmetic.
- The residents may carry out internal modifications and routine maintenance of their homes, without interference from the settlers.
- The Palestinian residents have submitted to the Court the names of those deemed to be the “original” tenants, basically starting the period of tenancy anew, which creates the prospect – but not the certainty – of their remaining in these homes for many decades.
- The Palestinian residents, in a thinly veiled fiction, will be required to pay their nominal rent (2400 sheqels annually) not to the settlers, but to their attorney.
- The most problematic element of the settlement relates to the settlers’ ability to institute evictions even if the residents are not in violation of the agreement or of the tenancy laws. The settlers will be entitled to institute such proceedings in the event that the ownership rights are conclusively awarded to them, or after 15 years, the earlier of the two. This can be done if the settlers either wish to personally use the property or to demolish and rebuild. Under these circumstances, the settlers will need to offer the residents alternative equivalent quarters.
- For the Palestinian residents. The settlement agreement proposed by the Court is a major achievement for the Palestinian residents and their legal counsel, and to those domestically and internationally who have supported their cause. It also falls far short of what the Palestinians aspire to, and leaves their rights and their ability to stay in their homes vulnerable, and each will become more vulnerable over time. They are confronting one of the most important decisions of their lives, with no good options. We are in no position to advise them on the correct course of action, nor speculate as to what that decision might be.
- For the settlers. As we have noted in our previous report, the settlers have held their cards very close to their chests, and revealed little about their position on the proposed compromise. That said, it is difficult for us to see what incentives the settlers might have to accept the Court’s proposal. Indeed, some of the Palestinian residents have expressed “hope” that the settlers will reject the deal, thereby absolving the residents from making an excruciatingly painful decision.
- The Court: the Court has left the door open for additional negotiations between the parties based on their proposal, and if there will be any interest disclosed by the parties, the Court can be expected to continue to press for agreement. If, however, the proposal is rejected, one may expect a ruling within a matter of days or weeks. It would be incorrect to assume that the Court will allow their verdict to be influenced by the position of either party on the compromise. It continues to appear more rather than less likely that if the Court indeed rules, that ruling will be in favor of the settlers.
- The international community. Pending the decision over the proposed settlement, there is little that anyone in the international community can do that will have a direct impact on the course of events. That said, it is important to bear in mind that were it not for the achievements of the public campaign for the residents of Sheikh Jarrah, and intensive engagement by the international community, the situation of the residents would no doubt be worse. In addition, the current case is the first in a series of similar cases which threaten to displace Palestinians in Sheikh Jarrah and Silwan. This is not the time to relent.
It is not too soon to prepare for the eventuality of a court ruling that will allow the settlers to proceed with the evictions, and to examine the possible courses of action that might still prevent that from happening.
Recent Developments Regarding the Status Quo on the Temple Mt./Haram al Sharif
On September 26, 2021, during the Sukkot holiday, an individual associated with the Temple Mount movement was detained by the Israeli police for openly praying on the Temple Mount/Haram al Sharif. The Police issued a restraining order forbidding him from entering the Mount for 15 days.
The Jewish worshipper appealed the decision to the Jerusalem Magistrates Court, and on October 5, the Court ruled in his favor:
“The daily arrival of the appellant at the Temple Mount discloses that this is a matter of substance and principle for him. The film [of the incident] shows that the appellant was standing on the side, with one or two colleagues next to him, and that his prayer was quite, in a whisper. And for the purposes of this decision, I found no external and visible manifestations of religious activity on the part of the appellant” [T.J’s translation]
Accordingly, the Court rescinded the police restraining order.
The press reports whereby the court had sanctioned Jewish prayer on the Mount began to receive wide attention in the local and international press, and in the international community.
On Friday, October 8, the Minister of Homeland Security, Omer Bar-Lev announced in response to that judgment that “any change in the status quo jeopardized public safety and could lead to an eruption of violence“. He also noted that the Police had appealed the ruling.
In its appeal, the Police claimed that the lower court had misrepresented what happened and what the police claimed happened, and that social media was awash with footage of Jewish groups demonstrably praying. They asserted that in this specific case, the evidence clearly showed that the prayer was demonstrable, took place adjacent to the mosque and in a group numbering more than 50 (See Lower court ruling and the Appeal in Hebrew here).
The court of appeal overturned the Magistrates Court ruling, stating that “the fact that someone noticed that the appellant was praying is sufficient proof that the prayer was visible. If it wasn’t visible – no one would have noticed” (see the District court ruling in Hebrew here). The Court also cited the rules of decorum as posted at the entrance to the site, regulations and that have been ratified by the Israeli Supreme Court:
Translation: “Any religious/ritual activity with visible, external manifestations is forbidden.
It is forbidden to bring any religious vessels or other objects that serve the purpose of religious ritual activity”.
As noted, the District Court reversed the judgment of the lower court and left the restraining order in place.
It is important to distinguish between the court ruling itself, the overall context in which it was handed down, and the interrelationship between the two.
The judgment is not entirely unprecedented. In the past, there have been judges on the bench who are sympathetic to the religious right, and have, at their own initiative, periodically tinkered with the status quo. Here is an example from 2015.
These judgments were invariably reversed.
However, it would be a grave mistake to see the current ruling as “same-old – same-old”. This is not taking place in isolation.
While there are numerous interpretations of the status quo, the common denominator to each is “Muslims pray on the Mount, non-Muslims visit” (Netanyahu’s own words). Those principles are the source of the rules of decorum at the entrance to the site, as cited above.
In recent years that status quo has been eroded, and in recent months has collapsed, as we recently reported. Jews indeed are praying on the Mount and in an increasingly open and provocative manner.
Initially the police accepted the increasing manifestations of Jewish prayer on the Mount with a “wink and a nod”. Of late, they are turning a blind eye to increasingly provocative behaviors. We have not been surprised that the recent events have received wide attention, and palpably increased tensions. We have been surprised it took so long.
The ruling of the Magistrates Court reveals that the permissive interpretation regarding Jewish prayer and the erosion of the status quo is not limited to Police policies. The judgment does not use the term “silent prayer”, but instead invokes “quiet prayer” and “whispering” – which according to the judge is allowed. If this were genuinely an issue of “silent prayer” it would not be an issue at all. One can pray in one’s heart, silently. But “silent” prayer has been the weapon of choice for those seeking to change the status quo. Moving your lips leads to mumbling, which leads to whispering which leads to open prayer. Open Jewish prayer on the Mount in this way became commonplace.
Claims that Israel is violating the status quo on the Temple Mt./Haram al Sharif is not paranoia. It’s a known fact.
The events of recent days made tensions flare dangerously. The judgment of the District Court overturning that decision has apparently defused the situation, at least for now. It seems we have once again dodged a bullet.
This is far from over. The situation remains volatile and the trends of religious radicalization remain. However, as volatile as the situation may be, this is far from a lost cause.
The restoration of the status quo on the Mount must be carried out by people in authority with cool heads and steady hands. The actions of the Police in recent days, along with those of the Minister of Homeland Security Bar-Lev, may perhaps indicate that there is a growing awareness of the perils of the current dynamics on the Temple Mount/Haram al Sharif. It is not yet too late to restore a state of equilibrium.
Much of the efforts to restore the status quo need to take place discreetly, with little or no public attention. However, it now appears that these quiet endeavors will not suffice. The restraint and silence of those who support the status quo –and they remain a large majority of those in authority in official Israel, Jordan and Palestine – no longer suffice. It would be wise to find opportunities to restore public support of the status quo as one of the pillars of post 1967 stability, which has likely prevented much bloodshed.