Restricting space: The planning regime applied by Israel in Area C of the West Bank - OCHA special focus

UNITED NATIONS

Office for the Coordination of Humanitarian Affairs

occupied Palestinian territory

SPECIAL FOCUS

December 2009

RESTRICTING SPACE:

THE PLANNING REGIME APPLIED BY ISRAEL IN

AREA C OF THE WEST BANK

This OCHA Special Focus covers the planning and zoning regime applied by the Israeli authorities in Area C of the West Bank. Under this regime, Palestinian construction is effectively prohibited in some 70 percent of Area C, while in the remaining 30 percent, a range of restrictions virtually eliminate the possibility of obtaining a building permit. In practice, the Israeli authorities generally allow Palestinian construction only within the boundaries of an Israeli-approved plan and these cover less than one percent of Area C, much of which is already built-up. As a result, Palestinians are left with no choice but to build “illegally” and risk demolition of their structures and displacement. The consequences of the current regime are wide-ranging and extend to the entire Palestinian population of the West Bank.

EXECUTIVE SUMMARY

Since the onset of its occupation in 1967, the Government of Israel has implemented a range of measures that restrict Palestinians’ use of land and resources in the occupied Palestinian territory (oPt). One of the primary ways Israel has done this has been through the application of restrictive planning and zoning regimes to Palestinian communities. Such restrictions continue to be prevalent in the over 60 percent of the West Bank that was classiÞed as Area C in the Oslo accords of the 1990s.¹

While the 1995 Interim Agreement called for the gradual transfer of power and responsibility in the sphere of planning and zoning in Area C to move from the Israeli Civil Administration (ICA) to the Palestinian Authority (PA), this transfer was never implemented.² As a result, though the arrangements set up in the Interim Agreement were intended to last no longer than 1999, ten years later, any Area C construction, whether a private home, an animal shelter or a donor-funded infrastructure project, still requires the approval of the ICA, which is under the authority of the Israeli Ministry of Defense.

Under the planning regime applied by the ICA, Palestinian construction is effectively prohibited in some 70 percent of Area C, or approximately 44 percent of the West Bank, in areas that have been largely designated for the use of Israeli settlements or the Israeli military. These include areas that have been placed under the jurisdiction of Israeli settlements’ Local and Regional councils (the majority of which was previously declared as “state” land), areas closed by the Israeli military for training, along with nature reserves, Israeli military bases and a “buffer zone” around the Barrier. In the remaining 30 percent of Area C (approximately 18 percent of the West Bank), there are a range of other restrictions that greatly reduce the possibility of obtaining a building permit.

In order to obtain a building permit, a proposed construction must be consistent with an approved planning scheme – regional, outline or detailed. In practice, however, the Israeli authorities generally allow Palestinian construction only within the boundaries of an ICA detailed, or special, plan, and those plans cover less than one percent of Area C, much of which is already built-up. Such plans have been approved for only a minority of Palestinian villages in Area C and these fail to meet the needs of Palestinian communities. In addition, most private or community-owned lands located on the margins of these communities, which are needed for their development, are excluded.

In the majority of Area C villages, which have no ICA plans, limited Palestinian construction is theoretically permitted, but must conform to the narrow building possibilities allowed by the Mandatory Regional plans of the 1940s, which zone the majority of Area C as an ‘agricultural’ zone and are inadequate to deal with current needs. The Israeli authorities’ restrictive interpretation of these plans makes it virtually impossible for a Palestinian to obtain a permit based on them.

In the current system applied by the ICA, Palestinians have no role in the zoning of Area C land. In addition, they have no input into the development of plans for their communities or in approving construction; Israeli modiÞcations to the Jordanian planning law in force at the start of the occupation eliminated Palestinian community participation and centralized authority for these tasks within the ICA.

As a result of this restrictive planning regime, tens of thousands of Palestinians wishing to build in most parts of Area C are left with no choice other than to carry-out unauthorized construction on their land to meet their housing needs and risk demolition of their structures and subsequent displacement. In 2009, OCHA oPt has recorded the Israeli authorities’ demolition of 180 Palestinian-owned structures in Area C, displacing 319 Palestinians, including 167 children. The targeted communities are among the most vulnerable in the West Bank. While there have been no demolitions since mid-July 2009, the Israeli authorities have continued to distribute stop work and demolition orders to Area C residents and thousands of structures remain at-risk of demolition. According to information released by the Israeli State Attorney’s Office in early December 2009, approximately 2,450 Palestinian-owned structures in Area C have been demolished due to lack of permit over the course of the past 12 years.³

Israel’s planning regime in Area C directly contributes to the poor living conditions confronting many Palestinian residents of the West Bank. In addition to the difficulties faced by those displaced by home demolitions, the inability to carryout legal construction has a direct impact on the provision of basic services as well as livelihoods. For example, while the responsibility for the provision of education and health services to Palestinians in Area C was transferred in the Interim Agreement to the PA, the difficulties in obtaining building permits from the ICA for the construction or expansion of schools and clinics significantly impede the fulfillment of this responsibility. Likewise, the PA is unable to undertake any large-scale infrastructure project in Area C without ICA approval. For herders and farmers, livelihoods are undermined by the inability to construct animal shelters and agricultural infrastructure, along with restricted access to land, designated as military training zones and nature reserves. For the international community, difficulties obtaining a building permit, including for very basic infrastructure projects, make difficult attempts to provide basic humanitarian assistance to some of the most vulnerable communities in the West Bank.

Natural growth and development of Palestinian communities denied

Israel’s continued control over Area C affects not only Area C communities, but also the many thousands of residents of Areas A and B who own land in Area C. In addition, because it is the only contiguous territory in the West Bank, Area C is of vital importance to the entire population, containing valuable grazing and agricultural land, water resources, and holding the land reserves necessary for the expansion of Palestinian population centers in Areas A and B and the development of national infrastructure.

As the Palestinian population expands, the damage of the current planning and zoning regime grows increasingly grave, with Palestinians in ever greater need of space to accommodate the natural growth of their communities. In addition, as the World Bank has noted, Israel’s continued control over planning and zoning in Area C “has become an increasingly severe constraint to [Palestinian] economic activity.”⁴

While the ICA has heavily restricted Palestinian construction in Area C, it has established parallel practices for Israeli settlements. Though it has failed to sufficiently plan for Palestinian villages in Area C, it has approved detailed plans for almost all Israeli settlements located in the West Bank. Also, while Palestinians are excluded from the planning process, settlements participate fully in planning and zoning activities and are generally responsible for enforcement activities within settlement areas.⁵ These planning policies have contributed to the expansion of Israeli settlements, in contravention of international law.⁶ Though the Israeli Prime Minister announced in late November 2009 a partial freeze on new construction in settlements, the freeze is limited in scope and duration.⁷ The establishment of Israeli settlements has had significant ramifications on the Palestinian population, including a reduction in the areas available for Palestinian use and development, the imposition of severe access restrictions, and the exposure to systematic violence by settlers.

The way forward

As the occupying power, Israel is responsible, under international humanitarian law (IHL), for ensuring that the basic needs of the occupied population are met. Israel is also obligated to administer its occupation in a manner that benefits the local Palestinian population and not to transfer its own population into the territory under occupation. Likewise, under international human rights law, Israel must ensure that persons under its jurisdiction enjoy fulfillment of their human rights, including the right to housing, health, education, and water, among others.⁸

In order to improve the current situation, the Government of Israel should immediately cease demolitions in Area C⁹ and adopt measures that will ensure that Palestinian planning needs are met. In addition, given the illegality of settlements under international humanitarian law, Israel should cease transferring its civilian population into settlements in the oPt, freeze all settlement activity and dismantle settlement outposts. At the same time, measures such as opening up areas currently off limits to Palestinian development, including closed military / “Þring” zones and nature reserves, would improve the humanitarian situation. Recent steps forward in PA security reform and efforts to improve the West Bank economy could be further supported by such an opening-up of Area C.

An important step towards addressing not just the housing and development requirements, but also the economic, agricultural and water needs of Palestinians in the West Bank, would be through the transfer of control of parts of Area C from Israeli to Palestinian control, as envisaged in the Interim Agreement. In the long term, the types of immediate steps outlined above would contribute to ensuring compliance with international law and UN resolutions and lay the groundwork for a durable political solution in the occupied Palestinian territory.

In the absence of such concrete improvements, it is vital that the international community identify the short-term, medium-term and long-term needs stemming from current Israeli practices in Area C, particularly the humanitarian needs of Area C residents, and develop appropriate response strategies. In this vein, the oPt humanitarian community has developed a framework for humanitarian assistance in Area C that focuses on enabling partners to meet the urgent needs of vulnerable communities in the areas of education, shelter and water and sanitation. The development of this framework is a positive Þrst step, but much work remains to be done, including identifying response strategies around other key issues affecting Area C (e.g. access impediments, settler violence, etc.). In addition, there is a clear need to develop broader strategies to address the impact of Israel’s continued control over Area C, for example, on the Palestinian economy, development and state- building efforts.

In the context of the above, donor support is critical, in particular, to respond to the immediate humanitarian needs of Area C communities, especially those threatened with imminent demolition and displacement, and to address the longer-term needs of communities impacted by Israeli practices in Area C. In this vein, support for legal aid, planning initiatives and livelihoods support is particularly important. Parallel to the above, there is a need for coordinated efforts to monitor and analyze the impact of Israeli policy in Area C, to mitigate the impact of these policies, and to work towards sustainable solutions.

DEFINING AREA C

While the territory that comprises Areas A and B¹⁰ were clearly identified in the negotiated agreements, Area C was not. The Interim Agreement defined Area C as: “areas of the West Bank outside Areas A and B, which, except for the issues that will be negotiated in the permanent status negotiations, will be gradually transferred to Palestinian jurisdiction in accordance with this Agreement.”¹¹

By excluding “issues that will be negotiated in the permanent status negotiations” from Area C, the agreements made it impossible to determine how much territory is actually included in Area C. For example, in the case of settlements, which is a permanent status issue, was the land excluded from Area C to be the built-up area, the municipal area, or the jurisdiction area of settlements? As a result of this ambiguity, Area C became defined by most observers as West Bank territory, excluding East Jerusalem, that had not been designated as Area A or B.¹² This approach has been adopted in this report.

By the breakdown in negotiations in 2000, approximately 36 percent of the West Bank had been categorized as Areas A and B, with an additional three percent of land, designated a nature reserve that was to be transferred to Palestinian authority under the Wye River Memorandum, negotiated with then Israeli Prime Minister Binyamin Netanyahu in 1998. This left the majority of the West Bank as Area C. There has been no official change to this division since the beginning of the second Intifada in September 2000. As a result, though the interim arrangements were supposed to be temporary, this situation has assumed an air of permanency as no final political settlement has been reached. It is important to note that the division of the West Bank into areas A, B and C, has not altered the status of the entirety of the West Bank as occupied territory.

Limits on Palestinian Construction in Area C

Significant areas off-limits to

Palestinians

Planning and construction in Area C is governed by the 1966 Jordanian Planning Law, as modified by an Israeli military order signed in 1971.¹³ Under the Jordanian law, which had entered into force shortly before the onset of Israel’s occupation in 1967, almost all construction requires a permit. In the majority of Area C, however, Israel has effectively prohibited any Palestinian construction, as it falls in one of the following categories:

• Land earmarked for Israeli settlements and “state land”:

Some 39 percent of the West Bank falls under the jurisdiction of Israeli Local or Regional Councils, the local authorities that run the settlements. This area is almost 40 times more than the territory taken up by the built- up area of settlements and five times more than the municipal area. Most of the territory in this area is land that has been declared by the Israeli government as “state land”, as well as land registered as “government” land in the Land Registrar during the British Mandate or Jordanian rule; the rest was seized by other means, including requisition for military purposes, confiscation, etc.¹⁴ The Israeli authorities have consistently refused to allocate such land for Palestinian use.¹⁵ In the municipal areas of settlements (as distinct from the much larger jurisdiction area of the Regional Councils), the authority to issue building permits lies with the Special Local Planning Committee of the settlement, which will not authorize Palestinian construction.

In addition, after the Interim Agreement, the Israeli military issued an order declaring the municipal areas of the various settlements, as closed military zones for Palestinians, into which a Palestinian may not enter without a permit.¹⁶

The amount of land included within the jurisdiction of settlement councils is particularly important in the Jordan Valley and Dead Sea area, where almost all of the area falls under the jurisdiction of two Regional Councils (‘Arvot Hayarden and Megilot). The practical implication of this is that, in almost the entirety of the Jordan Valley, Palestinian construction is prohibited.

· “Firing” / Training Zones and Other Military Areas: Since 1967, Israel has designated close to 18 percent of the West Bank as a closed military zone for the purposes of military training (as distinct from the closed military areas around Israeli settlements, between the Barrier and the Green Line, etc.). The majority of these training areas are located in the Jordan Valley and along the eastern slopes of the Bethlehem and Hebron governorates. Much of this land overlaps with that which falls under the jurisdiction of the Israeli Regional Councils. While Palestinian access to these areas is prohibited, enforcement of the access restrictions varies and the exact boundaries of the closed area are not clearly demarcated on the ground. In addition, over two percent of the West Bank is taken up by Israeli military bases and by a security zone along the border with Jordan.

· Nature Reserves: Approximately 10 percent of the West Bank is an Israeli-designated nature reserve, in which Palestinian construction is prohibited. Of land designated as a nature reserve, some 48 percent overlaps with the closed military training zones. In addition, under the Wye River Memorandum of 1998, land reserves, amounting to approximately three percent of the West Bank, were supposed to be handed over to the PA to be set aside as a Green Area/Nature Reserve, with the condition that no changes to the land (i.e. no construction) were allowed. To date, the PA has not been allowed to utilize this area.

· Barrier “Buffer Zone”: According to Israeli military orders applicable to the northern West Bank, construction is prohibited within speciÞed areas along the Barrier, ranging from 150 on either side in some places, up to 850 meters total, depending on the location. The “Buffer Zone”, including the Barrier, covers approximately one percent of West Bank land.¹⁷ Within the closed area between the Barrier and the Green Line (the “seam zone), residents are subject to the same building restrictions process as in other parts of Area C, outlined below.

As noted, many of the categories above overlap with one another, e.g. Regional Council areas include territory declared closed by the Israeli military for training, as do nature reserves. Accounting for overlaps, the net amount of territory covered by the categories listed above represents some 44 percent of West Bank territory. As a percentage of Area C, this means that in the over 60 percent of the West Bank designated as Area C, Palestinian construction is effectively prohibited in around 70 percent of that land.¹⁸

In the remaining 30 percent of Area C, a range of factors, outlined below, virtually eliminate the possibility of obtaining a permit. These include the lack of sufficient detailed plans for Palestinian villages, the ICA’s restrictive interpretation of the outdated plans that do exist and, in cases, difficulties Palestinians face in proving ownership of the land on which the proposed construction will take place. In practice, as explained below, the Israeli Civil Administration allows Palestinians to freely construct in less than one percent of Area C and much of this land is built up already.

AREA C POPULATION

The division of the West Bank into areas A, B and C was a territorial and administrative division that did not correspond directly with the built-up areas of Palestinian locales. As a result, towns and villages rarely fall entirely within one area and exact population Þgures are difficult to ascertain. For example, over 400 West Bank villages have part (more than 1%) of their built-up area in Area C, but less than 150 are entirely located in Area C.¹⁹

An additional factor impeding the ability to precisely determine the Area C population is that the distribution of the population within a particular village is unknown (i.e. while it is generally possible to determine what percentage of a locale’s built-up area is located in Area C vs. Area A or B, no data exists indicating the distribution of population in these areas). Ambiguities regarding what exact territory is included within “Area C”, identiÞed herein, add further complications.

Bearing in mind these considerations, the Israeli organization Bimkom has estimated that as many as 150,000 Palestinians reside in Area C.

Insufficient and inadequate planning for Palestinian communities²⁰

In order to obtain a building permit, Palestinians must meet a number of criteria, including the following:

a. the person submitting the application must be able to prove that he/she owns or has the right to use the land; and

b. the proposed construction must be in conformity with an approved planning scheme that is detailed enough to enable building permits to be issued.²¹

These two requirements prove to be the biggest obstacles to Palestinians attempting to obtain a building permit in the remaining 30 percent of Area C.

Regarding land registration, if the land is registered with the Land Registrar, then a Land Registrar extract submitted to the ICA is sufficient. If it is not

registered, which is the case with most land in the West Bank,²² then the applicant will have to submit property tax documents. If property tax documents are not in the name of the applicant, then inheritance documents are required to prove that the applicant inherited the land. If there are several heirs to a single parcel, which is frequently the case, the ICA requires that each one of them sign the application. This requirement often makes it impossible to apply for a building permit, for example, if some of the heirs are not physically present or are considered ‘absentees’.²³

Most Palestinian permit applications are rejected, however, on the grounds that the proposed construction is inconsistent with existing plans. There are two types of plans applied to Palestinian villages in Area C: Special Partial Outline Plans prepared by the ICA and the Regional Outline Plans from the British Mandatory period.

Special Partial Outline Plans

Special Partial Outline Plans (hereinafter “special plans”) are a creation of the ICA (nothing similar exists in the Jordanian Planning Law). In general, these plans have failed to meet the needs of Palestinian communities and can worsen the planning situation in a given village.

While the Jordanian Planning Law dictates that villages and small towns should have detailed outline plans (e.g., plans that both cover the entire area of the community and include detailed instructions),²⁴ Israeli special plans fail to meet this requirement. Within the boundaries of the special plans, the area is divided into up to three residential zones, differing from each other in permissible densities (number of housing units per hectare). They do not allocate lands for public buildings, for public parks, and often do not even provide suitable planning solutions for roads. In addition, they do not show the boundaries of existing building plots or those slated for future construction.

In terms of ICA practice, the signiÞcant element of the special plans is the line demarcating the plan’s boundaries. Generally, demarcation lines of special plans are drawn tightly around the main built- up area of each community. Lands located on the margins of this area and which are available for development are typically excluded. In almost all cases, the special plan leaves outside its boundaries buildings in existence at the time of its approval. In addition, according to criteria approved by the ICA Higher Planning Council in the 1980s, the demarcation line of special plans should not include state land or land expropriated by the Israeli army.²⁵ As noted, such land has been incorporated into the area under the jurisdiction of Israeli settlements Regional and Local Councils.

Inside the line, regulations for building are rarely enforced and structures are seldom demolished. Beyond this line, however, construction is practically prohibited and the prohibition is enforced, via the demolition of structures. As a result, while the approval of a special plan will lift the threat of demolition for families whose houses are included within it, the level of threat for those excluded from the approved areas will actually increase.²⁶

Hundreds of Israeli special plans were prepared in the past (prior to the 1995 Interim Agreement) for villages now in Area B. However, according to Bimkom, the ICA has prepared special plans for only a small minority – 16 – of Palestinian villages that are now located completely in Area C.²⁷ In addition, there are some 80 special plans for mixed communities, a portion of which falls in Area C.²⁸ There are a number of other special plans that have been prepared by the ICA, but objections have been submitted against them on the grounds that they are insufficient to meet Palestinian needs. In total, these special plans cover less than one percent of Area C land.²⁹ In practice, this is the only part of Area C where the ICA allows Palestinian construction and much of this area is built up already.

Israeli special plans were approved only for Palestinian communities, and not a single settlement has a special plan; instead, the Israeli Civil Administration has approved detailed plans for almost all Israeli settlements located in the West Bank and these contrast starkly with the plans prepared for Palestinian villages. For example, density levels of special plans for Palestinian villages range from 24 to 70 housing units per gross hectare; for Israeli settlements, the typical range is 2.7 – 12.8.³⁰ According to planning experts, high density levels (those higher than 40 to 60 housing units per gross hectare) “entail intolerable damage to the residents’ quality of life.”³¹ Many of the special plans approved by the ICA for Palestinian villages envision a residential density of approximately 11 times the level in rural communities in Israel and more than twice the level in Israeli cities.³²

Mandatory Regional Outline Plans

For villages without Israeli special plans, no other plan exists, so their attempts to build must be in conformity with the limited building possibilities allowed by the Mandatory Regional Outline Plans. These plans³³ were approved by the British Mandate government of Palestine in the 1940s, and are inadequate to deal with current Palestinian planning needs.³⁴ They designate most of Area C as an agricultural zone. Despite this, the regional plans do allow for construction to take place (for residential and other purposes) in the agricultural zone. According to Bimkom, in the early days of the Israeli occupation, numerous building permits for construction in West Bank Palestinian villages were issued on the basis of the Mandatory Plans. By the late 1970s and parallel to the expansion of Israeli settlements, the Israeli authorities’ interpretation of these plans became more restrictive, resulting in a situation (which continues to date) where most building permits are rejected on the grounds that they do not meet the conditions imposed by the Mandatory Regional Plans.³⁵

As-a-whole, Bimkom reports that the percentage of approvals for Palestinian permit applications has decreased sharply since the early 1970s, when over 95 percent of building permit applications were approved.³⁶ As the percentage of rejections increased, fewer and fewer Palestinians applied for permits, having lost hope that they would succeed in obtaining one. At present, permit applications are generally submitted only following receipt of a stop-work order, as Palestinians attempt to save their structures from demolition. The issuance of a stop-work order indicates that the ICA has already identiÞed an apparent violation of planning legislation and is the Þrst step in the demolitions process. In this context, few permits are approved; according to official information submitted by the Israeli Ministry of Defense to the Israeli Knesset, less than six percent of applications submitted between 2000 and 2007 were approved.³⁷

Of note, according to Bimkom, the Mandatory plans could meet the needs of many small-tomedium sized communities, if the Israeli planning authorities would allow for the sub-division of plots, a practice that they generally refuse. The Mandatory plans allow for the construction of a single two-storey, residential building per plot of land, that would provide housing to four families at most; however, if the plot is sub-divided, then one residential building could be constructed for each sub-divided plot. For example, if a 40 dunam (ten acres) plot of land, could be sub-divided into smaller plots, with land designated for public needs, such as roads, Bimkom reports that as many as 20 two-story residential buildings could be built on the 40 dunam plot, providing housing to as many as 80 families, all in line with the Mandatory plans.³⁸

No Palestinian participation in the planning and zoning process

The Israeli military order from 1971, which modified the Jordanian Planning Law, nullified a number of provisions that allowed for community participation in the planning and zoning process. As a result, the current system applied to Palestinian communities is highly centralized within the Israeli Civil Administration, with no Palestinian community participation in the preparation of plans, the approval process or the issuance of building permits. This is in contrast to Israeli settlement communities which participate fully in planning for settlements and are responsible for licensing and inspecting building activities in these areas.

For example, the Higher Planning Council, which is now the only body with the authority to approve regional, outline and detailed plans, should consist of members from central and local government, according to the Jordanian Law. Under the process revised by Israeli military order, however, the Higher Planning Council is made up only of Israeli Civil Administration staff members.

Likewise, under the Jordanian Law, Local Planning Committees had authority for planning over specific areas, prepared outline and detailed plans, and issued building permits in accordance with approved plans. Israeli military orders, however, annulled these committees for Palestinian villages. These functions are now performed by the Israeli Civil Administration’s Local Planning and Licensing Sub-Committee, with no Palestinian representation.

In the same vein, Israeli military orders annulled the District Committees, which consisted of local and central government representatives, and had the authority to approve detailed plans for areas and hear appeals and objections to various planning- related issues and decisions. These functions are now carried out by either the Higher Planning Committee or various sub-committees of the ICA, without Palestinian community representation.

Israeli settler participation in planning for settlements

While annulling many of the measures allowing for community participation that the 1966 Jordanian Planning law included, Israeli military orders empowered the Israeli Military Commander with the authority to appoint a Special Local Planning Committee (SLPC) in a “new Planning Area” not existing prior to 1967, provided that the planning area concerned has no town or village council within its boundaries. Despite the sophisticated definition, the result is clear: SLPCs can be appointed only for Israeli settlements. All settlement Local and Regional council areas were subsequently proclaimed new planning areas and virtually all settlements now have SLPCs⁴⁷. These committees issue building permits in line with plans approved by the ICA Higher Planning Council and are responsible for enforcement within settlement areas.⁴⁸ In addition, the ICA has established a separate sub-committee – the settlement sub-committee – responsible for planning in Israeli settlements. This committee is staffed by ICA employees.

CHALLENGES TO HUMANITARIAN ASSISTANCE

Area C has been identified by the humanitarian community as a priority area for humanitarian assistance. However, the permit regime applied by the ICA has a significant impact on the ability to carryout humanitarian assistance projects in Area C, which is home to some of the most vulnerable communities in the West Bank.

The various restrictions described in this report have not only directly contributed to the difficult living situation of Area C residents, they make it difficult to carryout projects designed to alleviate these communities’ most pressing needs. For example, the construction or expansion of schools or medical clinics, the construction of suitable shelters, and the rehabilitation of water infrastructure all require that communities and implementing organizations go through a lengthy and complex permit application process and approval is not guaranteed.

According to the World Bank, the Civil Administration is considered a “major constraint” to implementing projects in Area C.³⁹ In an April 2009 report, the World Bank highlighted the manner in which zoning restrictions impede the development of the Palestinian water sector: “Using the powers of the 1967 Military Order that requires permits for all water structures, Israel monitors and intervenes to control all water related activities in Area C. There has also been use of military control in Area C to enforce Israeli authority over water resources … Even rainwater harvesting cisterns have been destroyed by the IDF.”⁴⁰

According to the WASH Cluster,⁴¹ some 60,000 Palestinians currently living in 71 communities in Area C are not connected to a water network. In the southern West Bank, there are some 32 underserved communities in Area C, which receive less than 60 litres per capita per day (l/c/d), well below the WHO standard of 100 l/c/d; many of which pay more than 20 NIS per cubic metre of tankered water, four to ten times the average cost of water provided by the water network (4.8 NIS per cubic metre). At present, the WASH Cluster has identified 15 projects that need to be urgently resolved in order to meet the pressing humanitarian needs of some 52,000 people in 17 different Area C communities.⁴² It estimates that these projects constitute only 10 percent of all pending water and sanitation-related projects.⁴³

Meeting the education needs of Area C students is also made difficult by the restrictive planning regime. The Education Cluster has identified 25 Area C educational facilities, providing education to over 6,000 students, that face difficulties due to lengthy delays in the granting of permits, or because stop-work or demolition orders have been issued against schools or school infrastructure.⁴⁴

Because of the difficulties in carrying out authorized work in Area C, many agencies either avoid doing so or are unable to secure funding to carry out the work.⁴⁵ Conversely, some organizations implement projects that do not require a permit, but are less efficient, more expensive and do not offer sustainable solutions to the root problem (e.g. delivering tankered water to remote communities rather than rehabilitating existing cisterns). Those who build without a permit run the risk of demolition.

A number of incidents reported to OCHA in 2009 suggest that the ICA is becoming increasingly restrictive in terms of the types of activities allowed in Area C without a permit: in March 2009, an international NGO cleaning water cisterns in a Bedouin community (Dqayqa) in Area C in south Hebron received a stop-work order from the ICA, due to lack of permit. This was the first incident reported to OCHA where a project of this type was halted due to permit regulations.⁴⁶

The Risks of Unauthorized Construction: demolitions and displacement

As a result of the restrictive planning and zoning policies outlined above, Palestinian construction in approximately 70 percent of Area C is almost completely prohibited. In the remaining 30 percent, a range of restrictions make it extremely difficult for a Palestinian to obtain a building permit. In this context, Palestinians wishing to build must do so “illegally” (e.g. without a permit) and live with the risk that their structures may be demolished by the ICA. Building without a permit is also a criminal offense under Israeli military orders, punishable by a Þne or prison sentence, though this appears not to be enforced currently.⁵¹

According to information released by the Israeli State Attorney’s Office in early December 2009, a total of approximately 2,450 Palestinian-owned structures in Area C – or an average of 200 per year – have been demolished due to lack of permit over the course of the past 12 years.⁵²

Though there were indications in 2008 – in the form of a several month lull in demolitions – that the Israeli government might be changing its policy of demolishing “illegal” structures in Area C, the informal freeze that began in April 2008 was short-lived. Demolitions resumed in August 2008 and by the end of the year, the number of demolished structures had almost reached the same level as in the Þrst quarter of 2008, preceding the freeze (though the level of displacement was considerably less).⁵³

Demolitions and displacement in Area C have continued in 2009. In the Þrst seven months of the year, OCHA recorded a monthly average of 26 demolitions and 46 people displaced in Area C, compared to the 2008 monthly averages of 21 structures demolished and 48 persons displaced. Since 15 July 2009, no demolition of an Area C structure for lack of permit has been recorded by OCHA.

Among structures demolished in 2009 were:

· 56 residential structures, including tents and tin shelters

· 9 fruit and vegetable stands

· 70 animal shelters

· 21 traditional “taboun” ovens

· 7 water pools (coverless cisterns)

· 2 partially-built cisterns, among other structures demolished.

IMPEDING THE DEVELOPMENT OF PALESTINIAN COMMUNITIES

Over 400 Palestinian communities have some or all of their built-up area in Area C. Of these, less than 150 are entirely located in Area C.⁴⁹ The majority are mixed between Area C and either Area A or B, or both. While the Palestinian Authority is responsible for planning and zoning in Areas A and B, its ability to do so is affected by its lack of control over planning-related issues and building permits in those parts of the community that are located in Area C. In addition to its impact on planning, these divisions impact the price of land, with Area C land of considerably less value than adjacent land in Areas A or B, given the limited possibilities of development.⁵⁰

Also impacting the planning of communities in Areas A and B is that these communities have housing needs for natural population growth that can only be addressed by using Area C land belonging to these communities. Similarly, these communities have infrastructure needs that can often only be met in Area C, in areas distant from urban areas. For example, a sewage treatment facility or an industrial zone should not be built near residential houses. In many cases, the only appropriate place for such general infrastructure is in Area C.

In June 2009, OCHA oPt recorded the single highest monthly total of Area C demolitions since it developed its Protection of Civilians database in mid-2005; 109 Palestinian-owned structures, including 27 residential tents, were demolished during that month,⁵⁴ resulting in the displacement of 162 Palestinians.

In total, 319 Palestinians, including 167 children, have been displaced in 2009. An additional 392 Palestinians, including 254 children, were affected by the demolition of non-residential structures, or residential structures that were uninhabited at the time of their demolition.⁵⁵

While no demolition of an Area C structure has been recorded since mid-July, the Israeli Civil Administration has continued to distribute stop- work and demolition orders. In November 2009 alone, OCHA recorded the ICA’s distribution of over 65 stop-work and demolition orders issued against Palestinian-owned structures in Area C, due to lack of permit, threatening to displace at least 120 Palestinians, including 70 children.⁵⁶

Most demolitions in 2009 in Closed Military / “Firing” Zones

The main target of 2009 demolitions in Area C, over 80 percent, has been herding communities residing in areas declared closed by the Israeli military as training, or “firing”, zones. Most of these demolitions occurred in the context of the forced eviction of these communities, many of whom resided in the areas prior to their declaration as closed areas. Virtually all of the residential structures recorded by OCHA as demolished in Area C in 2009 belonged to herding communities and included tents, tin shacks and other very basic shelters. In the course of some of these demolitions, the Israeli military requisitioned equipment vital to the livelihoods of these communities (e.g. tractor, water tanker, etc.) and have required the communities to pay a fine before it can be released.

In November 2009, nine eviction orders were delivered for the first time against the residents of a herder community near Al Mughayyir village (Ramallah) in order to evacuate their dwellings due to their location in a closed military area. The orders affect 21 residences and 20 animal pens, placing 13 households, comprising 98 persons, including 67 children, at risk of displacement. While the orders gave 48 hours to evacuate the targeted structures, the families were later told they had an additional week to leave. As of writing, no eviction has taken place yet.

Whether residing in an unauthorized tin shelter in a “firing zone” or in a concrete structure in the Area C portion of a mixed Area B/Area C community, affected residents face the ongoing instability that the threat of demolition and resultant displacement bring. According to official information released by the Israeli Ministry of Defense in 2007, there were over 3,300 outstanding demolition orders for Area C structures.⁵⁷

Just as planning in Palestinian communities and Israeli settlements differs considerably, there is a significant difference between the rate at which demolition orders are executed. The Israeli Peace Now movement reported in 2008 that out of 2,900 demolition orders issued for unauthorized construction in Israeli settlements, 199 demolitions, or seven percent, were carried out. This compares to 33 percent carried out in Palestinian communities in Area C (1,663 out of 4,993) between 2000 and 2007.⁵⁸ According to the figures released by the Israeli State Attorney’s Office, referred to above, approximately 1,230 unauthorized buildings belonging to Israelis in the West Bank were demolished over the course of the past 12 years, compared with the approximately 2,450 Palestinian-owned structures.

Humanitarian Responses to Displacement resulting from Demolitions

Each year, hundreds of Palestinians in the West Bank, including in East Jerusalem, lose their homes as a result of Israel’s policy of demolishing structures built without a permit. Over half of those recorded as displaced (52 percent) by demolitions in the West Bank in 2009 have been children. Thousands of other Palestinians live with ongoing instability due to outstanding demolition orders and the possibility of receiving orders against “illegal” construction. The displacement of Palestinian families and communities has serious immediate and longer term humanitarian impacts on those affected, and is a primary concern of the humanitarian community. Not only are those displaced deprived of their main assets, including sources of physical and economic security, forced displacement frequently results in disruption in livelihoods, reduced standard of living, and limited access to basic services such as water, education and health care.⁶⁰ According to recent research by Save the Children UK of areas characterized as at “high risk”⁶¹ for displacement, many of those at-risk are from already vulnerable communities: approximately 70 percent of those living in high risk areas fall below the poverty line⁶² and 45 percent of breadwinners in high risk areas have lost their job or sources of livelihood since 2000. Around half of respondents living in high risk areas have changed their place of residence either temporarily or permanently since 2000.⁶³

The prevention and response to forced displacement remains a key priority for the humanitarian community in the oPt. As such, a Displacement Working Group (DWG), a dedicated forum that brings together key Palestinian and Israeli NGOs and UN agencies, was established to improve and coordinate efforts that aim to prevent forced displacement through advocacy and legal support and, when it does occur, ensure that those affected are provided with adequate emergency care and assistance.

Core activities include ongoing monitoring, documentation, reporting, advocacy and awareness- raising. In addition, in recent months, partners have placed special emphasis on improving access to free legal aid and assistance and strengthening emergency response in the immediate, medium and longer-terms. This includes, for example, immediate assistance provided within the first 48- hours, livelihood advice and support within 30 days, and psycho-social and other assistance in the longer-term.

Conclusion

Israel’s continued control over space in Area C has wide-ranging impacts on the Palestinian population. As this report has noted, the division of the West Bank into three areas with different administrative statuses was foreseen in the Interim Agreement as a transitory step in the context of ongoing negotiations that would lead to a permanent agreement between Israel and the Palestinians.

As a result of Israel’s continued control over Area C, the housing and development opportunities for the Palestinian population, both Area C residents and many others in Areas A and B, are negatively affected. The restrictive planning and zoning system imposed by the Israeli authorities in Area C, outlined in this report, excludes Palestinians from being involved in planning and zoning activities, deprives Palestinians of appropriate housing, prevents the expansion of Palestinian communities and results in the continued demolition of Palestinian homes.

Israel’s policies in Area C also have a direct impact on Palestinian economic development. The World Bank has noted that: ”as the Palestinian population grows and its resource and development needs increase, this long-lasting situation [Israel’s control over planning and zone in Area C] has become an increasingly severe constraint to economic activity.”⁶⁷ Restrictions on Palestinian construction in Area C have driven up land prices in Areas A and B, where the bulk of the Palestinian population resides, and created an artificial land shortage.⁶⁸ At present, Palestinian construction is effectively prohibited in some 70 percent of Area C. In the remaining 30 percent, there are a range of other restrictions that greatly reduce the possibility of obtaining a building permit. In practice, the ICA only allows Palestinians to construct freely in less than one percent of Area C, the majority of which is already built-up.

The manner in which Israel exerts control over planning and zoning for Palestinian communities in Area C is part of a larger practice restricting Palestinians’ use of space that has been a key feature of its occupation of the West Bank, including East Jerusalem, since 1967.⁶⁹ Restrictions on the use of space include appropriation of West Bank land for construction of Israeli settlements; requisition of land for Barrier construction and for unspecified military purposes; the closure of areas as “firing zones” and nature reserves; and closure obstacles that impede Palestinian access to work places, vital services (such as health and education), places of worship, and grazing and agricultural land, among others.

While the ICA has heavily restricted Palestinian construction in Area C, including almost the entirety of the Jordan Valley, it has established parallel practices for Israeli settlements. Though it has failed to sufficiently plan for Palestinian villages in Area C, it has approved detailed plans for almost all Israeli settlements located in the West Bank. Also, while Palestinians are excluded from the planning process, settlements participate fully in planning and zoning activities and are generally responsible for enforcement activities within settlement areas. These planning policies have contributed to the expansion of Israeli settlements, in contravention of international law.⁷⁰ Though the Israeli Prime Minister announced in late November 2009 a partial freeze on new construction in settlements, the freeze is limited in scope and duration. Prime Minister Benjamin Netanyahu was quoted in the Israeli media afterwards indicating that the freeze is a “one-time, temporary” move.⁷¹ The establishment of Israeli settlements has had significant ramifications on the Palestinian population, including a reduction in the areas available for Palestinian use and development, the imposition of severe access restrictions, and the exposure to systematic violence by settlers.

SIMILARLY RESTRICTIVE PLANNING POLICY IN EAST JERUSALEM

Israel’s policy of limiting Palestinian construction is not unique to Area C; Palestinian residents of East Jerusalem also Þnd themselves confronting a serious housing shortage caused by the Israeli authorities’ restrictive planning and zoning regime, including the failure to provide Palestinian neighbourhoods with adequate planning.⁶⁴

While 35 percent of East Jerusalem has been appropriated for Israeli settlements, only 13 percent is zoned for Palestinian construction, and much of it is built-up already. In those areas where construction is allowed, Palestinians face extreme difficulty obtaining a construction permit due to a lengthy, complicated and expensive permit application process. The number of permits granted per year to Palestinians does not meet the existing demand for housing. The gap between housing needs based on population growth and the legally permitted construction is estimated to be at least 1,100 housing units per year.

As a result, like Area C residents, Palestinian residents of East Jerusalem are left with no choice to meet their housing needs but to build “illegally” and risk demolition of their structures and subsequent displacement. OCHA estimates that at least 28 percent of all Palestinian homes in East Jerusalem have been built in violation of Israeli zoning requirements. As a result, at least 60,000 Palestinian residents are at risk of having their homes demolished. This estimate is conservative and the percentage may be as high as 46 percent.⁶⁵ Between 1 January and 30 November 2009, OCHA recorded the demolition of 64 Palestinian-owned structures, including residential structures, in East Jerusalem, displacing 300 Palestinians, including 149 children.⁶⁶ Reliable sources indicate that the Jerusalem Municipality may have plans to demolish many additional Palestinian structures in the city before the end of the year.

The planning legislation and institutions, including those authorizing and executing demolition orders, differ between East Jerusalem and Area C. The Jerusalem municipality and Ministry of Interior oversee planning issues, and authorize and oversee the demolition of homes in East Jerusalem. In Area C, the Israeli Civil Administration is responsible for these matters. In spite of these differences, however, the reality in both areas is quite similar: Palestinian construction in most of these areas is banned and almost automatically criminalized by the Israeli authorities. Also similar are the impacts of the policy, the most serious of which are the continued displacement of Palestinian families and reduced space for the development of Palestinian communities in the oPt.

The way forward

As the occupying power, Israel is responsible, under international humanitarian law (IHL), for ensuring that the basic needs of the occupied population are met. Israel is also obligated to administer its occupation in a manner that beneÞts the local Palestinian population and not to transfer its own population into the territory under occupation. Likewise, under international human rights law, Israel must ensure that persons under its jurisdiction enjoy fulÞllment of their human rights, including the right to housing, health, education, and water, among others.

In order to improve the current situation, the Government of Israel should immediately cease demolitions in Area C and adopt measures that will ensure that Palestinian planning needs are met. In addition, given the illegality of settlements under international humanitarian law, Israel should cease transferring its civilian population into settlements in the oPt, freeze all settlement activity and dismantle settlement outposts. At the same time, measures such as opening up areas currently off limits to Palestinian development, including closed military / “Þring” zones and nature reserves, would improve the humanitarian situation. Recent steps forward in PA security reform and efforts to improve the West Bank economy could be further supported by such an opening-up of Area C.

on enabling partners to meet the urgent needs of vulnerable communities in the areas of education, shelter and water and sanitation. The development of this framework is a positive Þrst step, but much work remains to be done, including identifying response strategies around other key issues affecting Area C (e.g. access impediments, settler violence, etc.). In addition, there is a clear need to develop broader strategies to address the impact of Israel’s continued control over Area C, for example, on the Palestinian economy, development and state- building efforts.

Restricting space: The planning regime applied by Israel in Area C of the West Bank – OCHA special focus

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Restricting space: The planning regime applied by Israel in Area C of the West Bank – OCHA special focus

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