Stopping Givat Hamatos: What Can and Cannot Be Done Until January 20, 2021

On November 24, Daniel Seidemann published in the +972 magazine a broad analysis on the anticipated settler-related developments in and around Jerusalem in the run-up to a new administration in Washington. A copy is enclosed below, at the end of that report, with the key points of that analysis  highlighted.

Insofar as that analysis is comprehensive and up-to-date, we will focus here on the bare-bones operational issues of what steps can and cannot be taken in this regard in the weeks before the inauguration of Joe Biden as the 46th President of the United States, on January 20, 2021.

Succinctly, the common perception that Netanyahu is attempting to create irreversible facts on the ground while Trump is still president is incorrect. A closer examination indicates that nothing conclusive related to these settlement schemes can be decided during President Trump’s term of office, and the fate of all of these will be determined in the early days of the Biden administration.
Hence, Netanyahu has chosen the timing in a way that guarantees that the highly controversial issue of Givat Hamatos will land on the President’s desk days after he assumes office –  precisely at a time when the new administration needs to be focusing on existing crises, rather than dealing with new ones.

While all of the new settlement plans are consequential, Givat Hamatos and E-1 are by far the most urgent (with the former more urgent than the latter). We will focus on both.

Can Givat Hamatos and E-1 be Neutralized Before the January 20 Inauguration?

The answer is an emphatic “yes”.

And it all depends on Netanyahu. If Netanyahu allows Givat Hamatos and E-1 to proceed as he has planned, the Givat Hamatos tenders could be awarded in a few short weeks after President Biden’s inauguration, and E-1 could receive statutory approval in the weeks and months thereafter. Should Netanyahu elect to allow things to proceed in this manner, there is no interpretation other than he has decided to put himself on a collision course with the new President.

But Netanyahu needs not pursue this course of action. He can make Givat Hamatos and E-1 both “disappear”, and without leaving fingerprints (as we detail below, there are numerous ways in which the tenders can be delayed, frozen or even canceled in ways that cannot be traced to Netanyahu – even if he would be in back of these moves). He may take some criticism from the settler right, and it may occur during an Israeli election. But the political price he is required to pay for neutralizing these plans is nominal.

What is the Time Line?

• Givat Hamatos: Developers may submit their bids no later than noon on January 18, two days before the inauguration (initially, the deadline was also cited as January 25, but the matter has been resolved conclusively by means of a formal correction made on November 15 and posted on the Lands Authority website). After the bids are opened, they are examined for their technical validity and the substance of the offer. The bids are then brought before the Tenders Committee of the Israel Lands Authority, which decides to which developers, if any, to award the contracts. This process can take a few weeks, meaning that there is no possibility of tenders being awarded between the bidding deadline on January 18 and the inauguration two days later, and only a remote chance that this can be concluded in the two or three weeks thereafter.Once the bids are awarded, the developer needs to fulfill a number of preliminary requirements, and sign two contracts, an infrastructure contract and a construction contract, all within 90 days of the decision of the Tenders Committee to award the tender.

  This process could be concluded by late spring or early summer 2021.

• E-1: The plan has now been deposited for public review and the period for filing objections was over in August. Several objections have been filed, and hearings before the Higher Planning Committee of the West Bank can be held at any time. No date has yet been set. The hearing and approval process could possibly be concluded within two months. Once the plan is approved and published in the public record, it is legally valid. Legal challenges are possible, but E-1 has been unsuccessfully challenged in court in the past, so the chances of obtaining any kind of judicial relief are remote.

Can the Tender and the Approval Process of Givat Hamatos be Amended, Canceled or Frozen?

Yes.

The provisions of Section 11 of the Givat Hamatos  tender (see enclosed a translation of the relevant portions) determine that the Israel Lands Authority and the Ministry of Construction may:

1. Change the terms of the tender at any time until the deadline for the submission of bids;
2. Extend any date or deadline in the tender, including the final deadline for the submission of bids, and to do so more than once, and at their sole discretion, and/or
3. Cancel/freeze the tender at their sole discretion, and at any time until the contracts are signed.

In none of these events will the bidder or the winner of the tender have any legal claim or recourse.

This wording is standard in governmental tenders, and the terms of these tenders are routinely amended, deadlines are extended, tenders are cancelled, frozen and reissued as a matter of course. There is nothing extraordinary about it.

The Givat Hamatos tender can be cancelled, suspended or deferred indefinitely at any time until the signing of the contracts. That said, these moves can be done until the opening of the bids on January 18 with no visibility and at little or no political cost to Netanyahu. Thereafter, the authority to suspend the tender still exists, but the visibility of doing so becomes much higher, as do the political costs.

Can the Tenders be Stopped after the Construction Contract is Signed?

No. The signing of that contract is literally “the point of no return”. Contracts with the government that relate to West Bank construction indeed contain a clause allowing the government to cancel the contracts based on something akin to “reasons of state”, entitling the developers to compensation for their damages and expenses (this was only used once, in 1994, by Prime Minister Rabin).

But there is no such provision in the specific construction contract for Givat Hamatos as such clause does not exist in governmental contracts in pre-1967 Israel (and since Israel relates to East Jerusalem as an integral part of Israel, in the current context, Givat Hamatos can be treated as such).

Can the Process of Approving E-1 be Stopped?

Yes.

A look at precedent is in order. On November 29, 2012, the UN General Assembly granted the Palestinian Authority Non-Member observer status. The following day, Netanyahu instructed the Higher Planning Committee to deposit the E-1 plan for public review. However, the international uproar was so great that Netanyahu balked, and once again the E-1 plan disappeared for a number of years, only resurfacing in February 2020. Netanyahu could, and still can, freeze the plan at his sole discretion.

The government can merely decide that for now, no hearings on the plan will be held, and if held, that no decision will be made. Netanyahu can indefinitely defer the approval process of E-1 without leaving fingerprints and at a nominal political cost, if any.

Conclusions

1. Netanyahu has choreographed the tender process relating to Givat Hamatos and the statutory approval process of E-1 in a manner that they will reach their decisive stages in the early days and weeks of the Biden administration. Unless Netanyahu acts quickly to delay the process he has set in play and which lead to the finalization of both projects, a confrontation between Netanyahu and the Biden administration over Givat Hamatos will be virtually guaranteed.
2. There are numerous ways in which Netanyahu can indefinitely delay these developments, and he is familiar with all of them. All Netanyahu needs to hear is an unequivocal demand: “make these two plans go away”.

1. The process of stopping Givat Hamatos can be done with far less visibility and at a lower political cost before the bidding ends on January 18, 2021. Thereafter, it remains possible but becomes incrementally more difficult and the risk of a collision with the Biden administration increases. The time to elicit restraint from Netanyahu is now.

1. Once the Givat Hamatos tenders are awarded and the contracts signed, the construction cannot be stopped.

1. There is no reason not to take the Biden team at their word when they say “one President at a time”. Given Trump’s heavy-handed attempt to intervene on resolution 2334 prior to his inauguration, it is highly unlikely that they will take action before the President-elect assumes office.No such restraints apply to those states who have remained engaged on the issues of Israel and Palestine, committed to a two-state outcome, and bound by the norms of international law. In recent years, the serious engagement of these countries have been decisive in thwarting the plans at Givat Hamatos and E-1. Today, by persisting in this engagement, these countries would also be doing a great service to the United States as it tries to rebuild a credible Israel-Palestine political process, by making both Givat Hamatos and E-1 “go away”.

1. At a time when the global order is dealing with more crises that can possibly dealt with adequately, Netanyahu has gratuitously elected to create another one that the new US administration will need to deal with.

Netanyahu has all the means at his disposal to prevent Givat Hamatos and E-1 from becoming another one of these crises.

If he fails to do so, it is not because he can’t defuse these crises, but because he has chosen not to.

Daniel Seidemann’s +972 article: “Inside Trump and Netanyahu’s ‘end of season’ settlement bonanza”, November 24, 2020.

+972 magazine

Inside Trump and Netanyahu’s ‘end of season’ settlement bonanza

Amid ongoing political instability in the US, Israel is advancing ‘doomsday’ settlements in East Jerusalem that would devastate prospects for a future peace deal.

By Daniel Seidemann November 24, 2020

The run-up to the inauguration of U.S. President-elect Joe Biden has witnessed a flurry of non-routine settlement activity in the occupied territories. These range from a surge in West Bank settlement announcements, to fast-track eviction proceedings against the areas targeted by settlers in the East Jerusalem neighborhoods of Silwan and Sheikh Jarrah, to a spike in home demolitions. None of this is being done in stealth, as Secretary of State Mike Pompeo’s highly touted visit to a settlement last week would indicate. Everything is happening in broad daylight.

It is widely understood that the crescendo is a last-minute attempt by Prime Minister Netanyahu, President Trump, Pompeo, and U.S. Ambassador to Israel David Friedman to create not only irreversible facts on the ground, but a “new normal” that would enshrine a Greater Israel and an exclusively Israeli Jerusalem.

The reality may be more complicated than commonly understood, albeit no less sinister in intent. Nothing discloses this more than the accelerated settlement activities taking place in and around Jerusalem in neighborhoods like Givat Hamatos, Atarot, and E-1.

Givat Hamatos

Givat Hamatos is a rocky slope in East Jerusalem, nestled between the settlement neighborhood of Gilo and the Green Line, with the Palestinian neighborhood of Beit Safafa to its north and the settlement neighborhood Har Homa to the east.

The Israeli government has sought to turn Givat Hamatos into the first new large settlement neighborhood in East Jerusalem built since the 1990s, with approximately 3,000 units for Jewish Israelis and several hundred for the expansion of Beit Safafa.

Given its location, the construction of Givat Hamatos will contribute to the creation of a buffer and an effective seal between East Jerusalem and Bethlehem to its south. In addition, Givat Hamatos will be the first time Israeli construction completely surrounds a Palestinian neighborhood (Beit Safafa) in East Jerusalem, making the demarcation of a demographic-based border in East Jerusalem impossible. In this sense, Givat Hamatos will have a devastating impact on the possibility of a future two-state outcome.

It is therefore no surprise that Givat Hamatos has long been viewed by the international community as a “doomsday” settlement that has strategic ramifications for any possible agreement. Almost wall-to-wall opposition, even among Israel’s closest allies, has deterred Israel from implementing the plan.

But on Nov. 15, after being put on hold for years, the Israel Lands Authority published the tender terms necessary for developers to bid on the right to build 1,257 settlement units in Givat Hamatos. The awarding of such tenders is invariably a “point of no return,” after which the construction of a settlement neighborhood becomes virtually inevitable. Prior to awarding tenders, the government may simply decide to cancel or suspend the plan to build. Yet once the tenders are awarded and third-party rights are involved, construction is unstoppable.

Under the terms of the Givat Hamatos tenders, the deadline for submitting bids is either slightly before or slightly after the Jan. 20 inauguration of President Biden, after which the bids can be opened, examined, and awarded.

Timing is no coincidence

In general, the publication of tenders such as these could not take place without Netanyahu’s knowledge and consent. In the case of Givat Hamatos, the intention to publish the tenders made the front page of Haaretz five days before their official publication, leaving little doubt that Netanyahu not only knew the publication was coming, but that he orchestrated the whole thing.

Netanyahu is no stranger to Givat Hamatos and just how radioactive an issue it has become in the international community. In 2012, he had a charged and highly visible altercation in the Oval Office, having just extended statutory approval to the neighborhood only hours before his meeting with President Obama. German Chancellor Angela Merkel has personally expressed her grave concerns to Netanyahu about the plan.

In recent years, there have been a number of démarches in which EU member states, often acting in concert, have registered their grave concern. On Oct. 13, a mere month before the publication of the tenders, 17 EU member states — an unprecedented number —  together expressed their firm opposition to the plan. It is inconceivable that such an extraordinary event would not be brought to the attention of the prime minister.

The question is not whether he knew but why he has elected to sow these winds. The answer to that is not at all clear.

Acceleration of other settlement schemes

Givat Hamatos is not the only Jerusalem settlement scheme currently being fast-tracked. The latest one emerged only last week, when Netanyahu reportedly “asked permission” from Secretary of State Pompeo to commence construction of the new settlement neighborhood of Atarot in the northern reaches of East Jerusalem “…in order to establish facts on the ground before U.S. President-elect Joe Biden takes office in January.”

In the background are a number of additional plans to both change the landscape of Jerusalem and crush any potential for a two-state agreement. In February 2020, when Netanyahu, fighting for his political life in a heated election campaign, first announced his intention to publish the Givat Hamatos tenders, he also announced moves toward the construction E-1 and Har Homa E (known as Har Homa West).

Along with the existing settlement neighborhood of Gilo, Har Homa E, Givat Hamatos, and the recently announced expansion of the Har Gilo settlement, this would form a complete buffer between East Jerusalem and Bethlehem.

E-1, the most notorious of these plans, is the name of the area in the West Bank stretching between East Jerusalem and the settlement bloc of Ma’ale Adumim. Building there would dismember the West Bank into two discontiguous cantons and prevent the integration of East Jerusalem into its environs in a future Palestinian state. Like Givat Hamatos, it would have a devastating impact on any possible future two-state agreement.

Since February, the statutory planning of E-1 has proceeded apace, and hearings on objections to the plan before the Higher Planning Committee — which operates under the IDF’s Civil Administration, the body that bears responsibility for the mechanics of the Israeli occupation of the West Bank —  are soon expected. Needless to say, the approval of the plan is pretty much a forgone conclusion.

Not quite the way it looks

Upon closer examination, this purported attempt to create irreversible facts on the ground turns out to be more theater than actual settlement expansion.

The most telling example is that of Atarot. Is it possible to commence construction of the neighborhood before the inauguration? Definitely – if it’s inauguration day 2029, since the statutory approval of the plan hasn’t even begun. In addition, and with shameless irony, it turns out that under the Trump’s so-called peace plan, Atarot is the one area in Jerusalem that is designated to serve the Palestinian population. Seeking to denationalize the Palestinian collective in East Jerusalem, the plan relegates their equities in the city to a “special tourist area” in Atarot that will be established for their economic benefit.

Essentially, Netanyahu is asking Pompeo’s permission to violate the Trump plan, allowing Israel to replace this “special tourist zone” with a new settlement, and depriving the Palestinian residents of the city of the one meager component that purports to benefit them.

When it comes to the Givat Hamatos tenders one thing is clear: the bidding process will not be concluded before the Biden inauguration. Even if the tender deadline is not extended (a distinct possibility) the awarding of contracts cannot possibly be concluded before the inauguration, since reviewing, comparing, and validating the bids before drafting the contracts takes time. Netanyahu not only knows that nothing conclusive can happen under President Trump, it’s the way he’s planned it.

Similarly, even if fast-tracked, E-1 will not receive statutory approval prior to inauguration day. The same applies to the Har Gilo Expansion and Har Homa E.

There is a common denominator to all of this: none of the highly touted “irreversible facts on the ground” can take place while Trump is in office; all of these matters will arrive at their decisive stages during the Biden administration. Given the timing, the two most volatile and advanced of these schemes, Givat Hamatos and E-1, will likely become one of the most important and urgent issues on the U.S.-Israel agenda under the new president. The issue of Givat Hamatos in particular will reach its most critical stage within days or a few short weeks into the Biden inauguration.

So what is this all about?

If these settlement schemes disclose no serious intent to create facts on the ground before Biden’s inauguration, then what is Netanyahu up to? There are a number of plausible explanations:

• He’s running. It appears increasingly likely that Netanyahu will take Israel to new elections in the first quarter of 2021. To continue his longstanding electoral strategy of consolidating his domestic settler base with controversial Jerusalem issues, he will be able to boast that only he can stand up to these left-wing Democrats.

• Consolidating his Trumpian base. Having exclusively cultivated a Trump-led Republican Party and an end-of-days evangelical base, Netanyahu will now need to navigate toward working with a Biden administration. He will simultaneously need to reassure his evangelical and right-wing Jewish base in the U.S. with “I’m still one of you” messaging. Nothing sends that signal better than Netanyahu’s “I am redeeming Jerusalem” settlement plans.

• “You say two states, I say one (kind of).” Netanyahu’s embrace of Givat Hamatos and E-1 symbolizes Netanyahu’s rejection of the two-state solution. More than any other settlement, each of these schemes alone will alone make such a two-state outcome virtually impossible. Netanyahu is sending a clear message to Biden: “Don’t even think of two states, and Jerusalem is off the table, where it will remain.”

• Netanyahu is puffing out his chest. Netanyahu is not only clarifying his positions, he is laying down his rules of engagement: “I will work with a Democratic President, but I won’t blink. There will be no honeymoon, and Givat Hamatos and E-1 will put relations to a test in the early days of the administration.”
• “Reward me for not doing what I shouldn’t have planned on doing in the first place.” An accomplished brinksman, Netanyahu is adept at agreeing to refrain from doing something he should never have dared thought of doing at all — in exchange for ample “compensation.” Good behavior is a commodity, and Netanyahu insists on being paid for it.

• Netanyahu might want to be stopped. Had Netanyahu really wanted to create irreversible facts at Givat Hamatos and E-1 before January 2021, he could easily have done so. But he didn’t. For the past several years, both of these schemes have been held up not by U.S. deterrence but by persistent, articulate, and sustained engagement by certain EU member states. Ever risk-averse, Netanyahu was and remains aware that Israel also needs the support of Berlin, Paris, London, and Brussels, and he fears the impact that Givat Hamatos and E-1 will have on Israel’s relations with them. It cannot be ruled out that he wants to be stopped, provided he does not appear to volunteer to do so.

Sobriety instead of alarmism

And yet, despite the political theater, there is plenty to be worried about.

The Givat Hamatos scheme is dangerous in its impact and imminent in its possible implementation. It is at “45 seconds to midnight,” and E-1 lags not far behind. Furthermore, there are other schemes that can take place prior to the inauguration, and with grave impact: the demolition of Khan al-Ahmar and the displacement of its residents is a real possibility, as are plans to “legalize” West Bank outposts and recognize Israeli sovereignty over East Jerusalem.

But with a keen eye, a cool head and a steady hand, it may yet be possible to stop or indefinitely defer Givat Hamatos and E-1.

In this interregnum between the Trump and Biden administrations, the whole world is navigating dangerous and uncharted waters. This applies to Israel-Palestine as well. With the current administration in DC not entirely on the rails, and the upcoming administration powerless to act, much depends on those “responsible adults” in the international community already overburdened with the demands of maintaining the remnants of an international order.

It is imperative that those who remain engaged on Israel-Palestine monitor these developments with vigilance and without illusion. Friends of Israel would be wise to caution us from incurring the wrath of the non-totalitarian world and courting isolation by engaging in settlement schemes we have never dared carry out in the past.

One can still hope that when the next president takes office, he will have more than scorched earth, landmines and ticking time bombs left behind by Trump and Netanyahu to work with.