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Akiva Eldar: The last legal loophole

Haaretz

29 July, 2007

The realization slowly began to dawn on Dror Etkes when the Civil Administration notified him that its inspectors had issued demolition orders for the structures built by Amona settlers in 1997 next to Ofra, on private Palestinian land. It turned out that the inspectors had confiscated several construction tools from the settlers. It all became clearer still when Etkes was informed that the inspectors had confiscated a container in Modi'in Illit, while bulldozers were working feverishly on private land belonging to the residents of the nearby Palestinian town of Bil'in, preparing to transform the land into a park for Modi'in Illit's large ultra-Orthodox community.

In Etkes' small room, in the offices of Peace Now, lay a list of all pending demolition orders against illegal construction in settlements. Back then, their number amounted to some 3,000. Etkes, the head of the settlement monitoring team, who essentially constituted the entire "team," decided he had had enough of this tragicomedy.

"The system wants to present an image of the rule of law and order," says Etkes, 39, who is about to leave Peace Now after five years of running around the West Bank. "On one hand, they issue demolition orders, but on the other hand, they don't implement them. It's easier to tell these fictional stories while the inspectors are out in the field, as if they were doing something. In the meantime, the system, which is corrupt from within, is making deals with settlers and adding another pillar to the reality of apartheid. The norm is one of illegality."

Etkes realized that the public battle he waged against the settlements, under the umbrella of Peace Now, has exhausted itself. In some cases, he disagreed with the organization's policy. "I said what I have to say within the organization and even so I merited welcome cooperation from quite a few good people." That is all he is willing to say about the matter.

Etkes, the son of Emanuel Etkes, a professor of Jewish history, grew up in a religious home and attended religious schools. On the eve of his enlistment in the Israel Defense Forces, he stopped wearing his skullcap. But he continues to carry a copy of the Scriptures in his knapsack. He served in the paratroopers during the first intifada, and experienced both the settlers and the occupied Palestinians, as well as the relationship between the two.

Although his connection with Peace Now has come to an end, the drama between him and the settlers will continue. The battlefield will move from the Knesset and the media to the courtroom. He plans to cooperate with the joint battle waged by human rights organizations and Palestinian residents against the transformation of the security fence into the settlers' fence. His new activity will be similar to that of Yesh Din, which specialized in representing Palestinians whose rights are violated by the security establishment and the settlers.

"The current situation, where there is no need to account for anything, makes it easy for the state," says Etkes. "The reports we issued, as harsh and precise as they may be, did not prompt the state to act. I want to force the state to prepare the settlements and the outposts to pay the price, or to evacuate them and pay a different kind of price. Instead of fighting over a comprehensive change in policy, which will never happen, I'll sue the state over the many cases in which it is breaking the same rules which it claims to obey. I want to take this matter to its bitter end: You say that you're a state with the rule of law, then explain to the court why you are building settlements and outposts on so-and-so's land. I hope that in so doing we'll put the state in the situation it least wants to be in: to have to act to confront the settlers."

Twenty-eight years ago, in the High Court of Justice, Peace Now disclosed the despicable use the state made of "security needs" to appropriate lands for the benefit of the settlers of Elon Moreh. Since then, Palestinian lands have been stolen by defining any parcel not privately owned as "state lands."

The High Court's ruling in late January 2006 and the evacuation of the nine permanent structures built in Amona a few days later, which was accompanied by violent clashes with thousands of settlers and right-wing protesters, taught Etkes an important lesson. He realized that the settlers' trespassing on private lands is the only loophole that can be used to ask the court to order the thieves expulsed and to force the authorities to act against them. Had he not managed to find the Palestinian landowners, the High Court would not have ordered the state to dismantle the outpost's nine houses. The proof: the 10th house, which was also built without a permit, but was not included in the petition because no ownership papers were found, remains standing as a monument to the rule of law in the territories.

Within the Green Line, both authority and responsibility for enforcing the law lie in the hands of the attorney general. In the territories, they are in the hands of the defense minister, a politician exposed to coalition considerations and the settlers' pressure. "There is an official mechanism of taking over lands and there is a semi-official mechanism, which is the State of Israel," Etkes describes the system. "The petitions relating to the theft of private lands, as in the case of Amona and Migron [which will be decided on shortly], force the state to adopt a position that breaks its unwritten alliance with the settlers.

"We managed to disrupt this arrangement whereby settlers steal and the state protects them. After the government invested millions in infrastructure and sent soldiers to protect the settlers, it must inform the court when it will dismantle the houses, and not if it will evacuate them at all. The State Prosecutor's Office acknowledged that we are right. So where has the state been until now?"

Etkes is willing to disclose that when the Amona incident occurred, a senior minister, among the few who knows the material and also cares a little, told him he realizes that the government will have to deal with the outposts located on private land. "I told him that there are settlements like that, including Ofra, and he responded with a smile: 'I know that everything stinks to the high heavens, but it's impossible to do anything.' At the same time, he promised that the route of the fence nearby Ariel is not final and that he considers all the area's settlements to be a bargaining chip in negotiations with the Palestinians."

Etkes, his friends at Yesh Din and their legal adviser, Attorney Michael Sfard, feel that when it comes to the theft of land - mainly private land - there is no difference between a settlement and an outpost, between Ariel and Amona, between Ofra and Migron. After the Civil Administration confirmed that many of the homes in Ofra (nearly one out of three) were built on private lands, they plan to locate the lands' owners and ask the High Court to order them removed, although the settlement was established 25 years ago. "It's not important how long they've been there," argues Etkes. "No court can reject a petition relating to the takeover of private land without an occupancy order or an administrative order."

Etkes was invited to one of the rare meetings of the ministerial committee for the implementation of Talia Sasson's report on outposts. Haim Ramon, the justice minister at the time, chaired the committee. "I left there feeling that Ramon was the only minister who had any idea of what was going on. It was clear to me that his interest, as Ehud Olmert's man, was to legalize as many outposts as possible."

When Etkes talks about "the state" he means all recent governments, regardless of party, minister or coalition composition. When it comes to political aid for the fight against the creeping annexation of land and for enforcing the law, he has nothing good to say about those Peace Now veterans who became ministers: Amir Peretz and Yuli Tamir. When Peretz was sitting in the Defense Ministry, he refused to meet the number one expert on the no-man's land under his jurisdiction. According to Etkes, if there was a change in enforcing policy against the settlers during Peretz's era, it was a change for the worse.

Etkes also sees no difference between Shaul Mofaz, of the Likud and Kadima, and Labor's Binyamin Ben-Eliezer, who held the defense portfolio before him. "According to Ben-Eliezer's false statistics, he evacuated a larger number of outposts than actually existed. Amram Mitzna and Ophir Pines-Paz were the only Labor people who showed an interest in the issue of the settlements. Apart from isolated incidents where it was worth their while, most Labor MKs kept their distance from us. Once Efraim Sneh heard one of my briefings and saw detailed photos of the expansion of outposts. He took the material to a faction meeting and was careful not to say where it came from."

Amona marked the watershed in terms of the settlers' attitude to the Don Quixote from Peace Now. "Until then, they treated me as a fool who devotes his life to running around on the hills. The sense of total immunity and the arrogance embedded in many of them, who consider themselves a 'serving elite,' meant they did not take a lone wolf like me seriously," he says. "The Amona incident made them realize I had discovered the method and that I could present in its full intensity the question of 'who the hell is the sovereign on the ground, the state or the settlers?' Instead of looking in the mirror and berating themselves for the sin of stealing, which is included in the Ten Commandments, they chose to accuse the person who held this mirror up to them." Etkes reveals that once Amona was evacuated, a Knesset member who was elected shortly after the evacuation approached him. The man spoke of the possibility of voluntarily evacuating outposts situated on private land, in return for freezing High Court petitions. Etkes refused.

Etkes believes that the storm caused by the Amona evacuation and the disengagement from the Gaza Strip exposed the settlers' weakness. "This is the behavior of a society whose entire existence is based on the settlement effort. When this endeavor is in danger, their world collapses. Otherwise it's impossible to have 3,000 people fighting over nine houses. It shows the fragility of the enterprise. Just like with the ultra-Orthodox, who believe that if you remove the capote, you'll end up on Sheinkin, the settlers live in a reality where every minor concession can bring them down. That's why they have to bring the craziest youths to protect every container at all costs. Despite the mass of concrete and steel surrounding them and despite the generous assistance they get from the establishment, the settlers know that they are living on borrowed time. Suddenly all of the concrete and steel and support from the establishment hang on a thread."

Amazingly, Etkes finds similarities between himself and the settlers. On both sides, he says, the battle focuses on awareness and symbols of sovereignty, rather than on a given settlement or another. He has no problem with an Israeli who lives in Ramallah. He even feels more at home in the West Bank than in Herzliya and insists on driving West Bank roads in an unprotected car, even in times of security tensions. In so doing, Etkes is letting the settlers know that he, too, is willing to risk his life to promote his worldview. To him, dealing with the settlements is a battle against a political culture that is both anti-civil and anti-equality. The future of the state, in his view, depends on whether the rabbis of the Yesha Council of Settlements in Judea and Samaria and the thugs on the hilltops will be compelled to obey the government's decisions or whether they will become the ones to dictate them.