The true story behind Migron

One day, the Migron affair will be taught in crisis-management schools as an example of management failure. Or, perhaps, as Minister without Portfolio Benny Begin (Likud) has described the root of the crisis, “The members of Migron started their community with the faint encouragement of the Israeli government.”

Indeed, Migron, the largest outpost in Judea and Samaria with its 50 families, came into being simultaneously in sin and with permission. In sin, because the pillar in the guise of an antenna and containers on the “archaeological site” that first “occupied” the hill with a view of Jerusalem served as a transparent, if acceptable, pretext for seizing land for the purpose of establishing communities. Migron was founded with permission because the Housing Ministry translated the mutual “winking” between the settlers, IDF officers and government ministers into an unequivocal message. It invested millions of shekels in Migron, drew up detailed plans and paid for a landscape and development architect, infrastructure, electricity, communications and lighting. It even paved an access road to the outpost.

Migron was founded in sin because one part of the Civil Administration almost immediately classified the buildings erected there as construction violations and those who built them as criminals. It was founded with permission because at the same time, another department in the Civil Administration accelerated the process that allowed Migron to be approved and made into a community. The Palestinians, whom Peace Now dragged to the High Court of Justice over the claim that the land belong to them, did not prove a thing. On the other hand, even the settlers who went to Jerusalem District Court with an identical claim have not yet convinced the court. This ensures that even after the compromise, if one is reached, Migron’s story will be with us for years to come.

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For many months, the state was also mistaken in thinking that Ze’ev (Zembish) Hever, the all-powerful director-general of Amana, the settlement movement, along with the leaders of the Yesha Council, an umbrella organization of municipal councils of Jewish settlements in Judea and Samaria, were the ones with whom to negotiate about Migron. It did not take local residents, the second generation of settler aristocracy, into account. The people of Migron are not “hilltop youth,” but rather the children and grandchildren of well-known figures.

Itai, the son of Yisrael Harel, founder of the Yesha Council, lives in Migron. So does Yoav, the son of the late Col. Dror Weinberg, the brigade commander of Hebron who was killed in a terror attack there in 2002. Other residents include Rabbi Itai Halevi, the son of Professor Yonatan Halevi, director of Shaarei Zedek Hospital; Maayan Wertman, brother of Dagan Wertman, an officer in the Golani Brigade who was killed during Operation Cast Lead; the sons of a well-known judge from Beersheba and a well-known rabbi from Jerusalem, as well as the daughter of Rabbi Moshe Hagar, the dean of the pre-army academy in Yatir.

Many of them accept the authority of Rabbi Zvi Yisrael Tau, the dean of the Har HaMor Yeshiva in Jerusalem, one of the more establishmentarian rabbis in the religious Zionist movement, but the state chose to speak with Zambish, who, when confronted with Peace Now’s petition to the High Court of Justice against the constitutionality of Migron, agreed to the plan that Migron residents accept an alternative parcel of land.

Zambish did not and does not believe, even today, that the legal status of the land on which Migron sits allows for a community to be situated there. The inhabitants believe otherwise. Nevertheless, the Yesha Council and Zambish supposedly acted in their name. They reached an agreement with the state to move Migron to the site of the community of Adam, north of Jerusalem.

But the residents of Migron and the Binyamin regional council, who had followed the negotiations, decided to oppose the agreement. In August 2011, when then Supreme Court President Dorit Beinisch asked whether the residents intended to move to Adam as had been agreed with the settlers’ council, the residents balked. Beinisch defined them as “lawbreakers” and issued the well-known ruling that Migron be demolished by the end of March 2012.

What if it were in Tel Aviv-

Over the past several months, the residents and many of their advocates in the government and in the Knesset have been trying to get the ruling rescinded. They claim that if someone pulled an ancient piece of paper out of the attic and claimed ownership of land upon which residential buildings had already been constructed, no judge would order the buildings demolished. The solution that the state would propose in such a case would be monetary compensation or alternative land.

The people of Migron were convinced that what was good for Ramat Aviv was good for Migron as well. They relied on a professional opinion in that vein by attorney Yaakov Weinroth and retired judge Uri Strausman.

They also had several precedents, one of them in Judea and Samaria. When it turned out that the apartments in Barkan had been constructed on privately owned land belonging to real-estate mogul Moshe Zer, the state compensated him and the demolition was forestalled.

The fact that there are other problematic neighborhoods and outposts throughout Judea and Samaria greased the wheels of this new premise, which was quickly transformed into a bill known as the “Outposts Arrangements Bill,” proposed by MK Zevulun Orlev (New National Religious Party). Orlev suggested deciding that if a residential neighborhood was built on land that a person claimed to own, but had not contacted the court about the matter for more than four years, the buildings would not be evacuated or demolished, and the court would have the power to compensate the claimant either with money or with land if it was convinced his claim was just.

This bill became a whip brandished over the heads of senior politicians, and particularly over the head of Minister Begin, whom the prime minister had appointed to extinguish the Migron fire.

The law had tactical and strategic implications. Tactical because it served as a whip intended to pressure the government to speed up regularizing the status of Migron, and strategic because at least in theory, it was capable of solving similar problems in other places such as Givat HaUlpana in Beit El, Amona, which is near Ofra, or Givat Assaf.

But there was just one “little” problem. The State Prosecutor’s Office reminded the parties that a precondition for invoking the compensation solution was “good faith” and insisted that the inhabitants of Migron had not acted in good faith. The settlers knew from the start that they were moving onto problematic land. Begin understood and explained it to Netanyahu, who blocked the Orlev bill. He threatened to fire ministers who voted against the government’s position. On Wednesday, Orlev postponed, not for the first time, bringing the bill before the Knesset.

Netanyahu, in any case, preferred to leave the large-scale solution to the problem in the hands of a committee led by outgoing Supreme Court Justice Edmond Levy, which would discuss the possibility of regularizing the legal status of the outposts in Judea and Samaria. He decided to leave the specific solution in the hands of Benny Begin, who, after his success with Ramat Gilad, continued his careful “tweezer” approach in Migron as well.

When Begin tried to convince the people of Migron to go back to the Adam solution, he was met with a resounding “No.” Several months ago, a new solution was proposed: Move Migron to the Givat HaYekev compound near Psagot. The people of Migron debated a great deal and agreed in the end.

The question was: under what conditions? In their heart of hearts, and lately openly as well, residents knew this was tactically misguided – they were hoping for a repeat, in Migron, of the Mizpe Kramim affair.

Mizpe Kramim, which is located near Kochav HaShahar [also in the Binyamin region], was evacuated in 1999 following an agreement about outposts between the Yesha Council and then Prime Minister Ehud Barak. Later on, when the status of the original Mizpe Kramim was retroactively made legal, the settlers populated both the old and the new Mizpe Kramim. A similar thing happened many years ago in Elon Moreh. The evacuation there ensured both the future of the original Elon Moreh on Mount Kabir and the establishment of Itamar. There are other examples as well. The people of Migron thought they had a similar chance, too.

The claim to a small piece of the land on which Migron currently stands is being arbitrated in a district court. A demand for compensation by Palestinians for the “fruit” they were allegedly prevented from reaping on their land in Migron is on the verge of being arbitrated in the Jerusalem Magistrates’ Court.

The state, which believed the Arab claim at a hearing in the High Court of Justice and accepted that the land was privately owned, behaved surprisingly in the lower court, claiming that the plaintiffs had not proved ownership of the land. The Arab appellants withdrew their lawsuit after that (although they did not retract their claim).

The people of Migron had therefore hoped to buy time, and also to leave something of present-day Migron at the current site so that if the wheels of justice should turn in the future, they would be able to return there. They appointed attorney Yaakov Weinroth to negotiate with Minister Begin on their behalf.

But this week, after 13 drafts, a public disagreement broke out and the negotiations blew up. The settlers claim that Begin told them verbally that it would be possible to leave mobile homes or houses in the original Migron. Begin denies this vehemently, saying, “It’s a total lie. It never happened.”

In fact, the draft agreement that Begin and Weinroth drew up reached the offices of Israel Hayom.

The draft contains no mention of leaving existing buildings. On the contrary, paragraph six of the agreement states explicitly that “upon the completion of construction of the new neighborhood, the residents of Migron will move to the homes that will be constructed for them,” and that “the current site will be handed over at that stage to the Civil Administration and the buildings that are there today will be removed from the outpost according to law.”

The settlers wish to erase these words from the agreement and claim that the clause contradicts the understanding that they reached with Begin.

As of Thursday morning, Rabbis Zvi Yisrael Tau and Oded Wilensky, the deans of the Har HaMor Yeshiva, whom the people of Migron consult all the time, did not agree to give up the continued presence of the buildings at the site, even a symbolic presence after the residents and the property are evacuated.

Officials at the State Prosecutor’s Office say any attempt to be clever on this matter will destroy the understanding in the High Court of Justice. Nevertheless, behind the scenes they continue talking. Begin is pleading with the settlers. He believes that not much time is left. He says that the security establishment will not wait until the last week or two of March to carry out the High Court’s ruling and evacuate Migron.

Zambish is also in the picture behind the scenes, trying to contribute his understanding and experience of many years.

“The Yekev Compound”

If we had to guess, a compromise will be found in the end. One obstacle was already overcome this week. Members of the planning department of the Civil Administration in Judea and Samaria thought that planning a residential neighborhood in the Givat HaYekev compound was unrealistic – both in terms of conditions on the ground and the timetable. After the director of the national planning department of the Interior Ministry, Binat Schwartz, was brought into the loop and authorized the “feasibility” of planning a neighborhood there, the Civil Administration softened its stance.

This, then, is the proposed solution that has been approved by the prime minister, the defense minister and Attorney-General Yehuda Weinstein. The government will ask the High Court of Justice to postpone the evacuation so that it can be carried out “peacefully.”

A permanent place for Migron will be built in the Yekev Compound, whose zoning will be changed from “travel services and tourism” to “residential.” The estimated amount of time required to complete the planning process is between six months and two years.

Construction will begin only after that and is estimated to continue for another 18 months. The residents of Migron will bear the cost of constructing their new homes, which will be occupied “no later than 20 months at most from the time that the plan for the new neighborhood goes into effect.”

The process will end in November 2015, three years and nine months from now. In Israeli terms, this is an eternity. By that time, Chief Justice Asher Grunis, who this week replaced Dorit Beinisch, will no longer be president of the Supreme Court, and the U.S. will launch into its next election cycle. Over the course of this time, perhaps the settlers will succeed in changing the legal status of the land on which Migron stands and appeal to the High Court once again.

The agreement currently taking shape also states that “the Civil Administration will examine the possibility of putting to civilian use and for the public benefit land abandoned in the current location of Migron, to the extent that such abandoned land exists.” The disagreement, as stated, revolves around a single sentence in paragraph six of the agreement, which the residents of Migron insist on dropping: “The buildings located there [in Migron] will be evacuated from the outpost, as stipulated by law.”

In order to prevent a reiteration of the story of the Adam compound, every single resident of Migron is being asked to sign a personal commitment to uphold his part of the agreement based on this framework.

Now the residents are seeking advice. They are trying to put pressure on Netanyahu so that he will intervene. Meanwhile, Netanyahu is supporting Begin. Only after the residents add their signatures to the draft agreement will the High Court of Justice be asked to approve it.

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In Biblical Migron, Jonathan, son of Saul, fought the Philistines.

In the Migron of 2012, the fight is internal, between Jews. Public Diplomacy and Diaspora Affairs Minister Yuli Edelstein recently said he believed that the coalition would not survive if Migron is evacuated. Perhaps he is exaggerating, but Netanyahu will make great efforts to prevent a recurrence of the images of the violent evacuation of Amona in 2006.

Minister Begin summed up the Migron situation as follows: “They are not a gang of hooligans who came to loiter on one of the hills. Therefore, their rights need to be respected. They are feeling quite a bit of disappointment. They feel that they have been abandoned, that a government had encouraged their settlement. Therefore, it’s impossible to ignore the situation that has been created and we have to find the right way, a way of compromise, to persuade them to do what must be done in the end.”

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