Illegal Construction in Jerusalem: A Variation on an Alarming Global
Phenomenon
by Justus Reid Weiner, Adv
Jerusalem Center for Public Affairs ( http://www.jcpa.org )

Executive Summary

Impediments to Providing Quality Public Services in Jerusalem's Arab
Neighborhoods / Claims that Jerusalem is Being 'Judaized' / Israeli
Planning Law / Identified Causes for Illegal Building in Jerusalem's Arab
Neighborhoods / Extensive Palestinian Authority Subsidies for Widespread
Illegal Building / Illicit Profit: The Role of Criminal Elements in Illegal
Building / The Controversy over Building Permits / The City has Authorized
Plans (Exceeding the Demands of Faisal Husseini and Sari Nusseibeh) that
Meet the Housing Needs of the Arabs Until the Year 2020 / The Controversy
over Administrative Demolitions / The Controversy over 'Treaties' /
Long-term Consequences of Illegal Building / The Global Epidemic of Illegal
Building and Demolitions / Conclusions

The struggle for sovereignty in Jerusalem remains among the most contentious
of the many disputes that exacerbate the Palestinian-Israeli conflict.
Interwoven with this struggle are issues relating to Israel's use of urban
planning, particularly as it affects the Arab residents of Jerusalem.
Palestinian and other critics of the Municipality insist, alta voce, that
the application and enforcement of the Israeli Planning and Building Law
(1965), as amended, places Arab residents of the City in an impossible
situation. This accusation asserts that they are denied the opportunity to
participate in the decision-making process by which their neighborhoods are
planned. It follows, so it is claimed, that the Israeli urban planners
exploit the law to the detriment of the Arab residents, by systematically
rejecting their applications for building permits. According to the
narrative, they have no choice but to build illegally, and, as a
consequence, they run the risk of being snared by the Municipal inspectors.
Those caught by the inspectors face economic catastrophe, not to mention
psychological trauma, if City bulldozers demolish their unlicensed houses.
The argument continues to the effect that Arab Jerusalemites (Arab residents
of the City who reject Israeli citizenship), many of whom are poor, are
discriminated against in the delivery of public services and amenities. All
of the aforementioned discriminatory treatment, so the argument goes, is
premeditated - aimed at 'Judaizing' Jerusalem. Thus, the Municipality
stands accused of using the artifice of the planning law to force the Arab
residents of Jerusalem, and their growing families, to abandon the City.

Surprisingly, despite the importance of Jerusalem, the complex matrix of the
planning/illegal building/demolition/demographic manipulation issues has
never been thoroughly analyzed - not by a scholar, not by an NGO, not even
by the Municipality itself. Moreover, this oversight is emphasized by the
chorus of condemnation emanating from NGOs in regard to demolitions carried
out by the Jerusalem Municipality, juxtaposed with their silence concerning
demolitions in numerous countries throughout the world. This Study will
address this controversy and attempt to expose the underlying reality behind
the constant barrage of contentious accusations.

Impediments to Providing Quality Public Services in Jerusalem's Arab
Neighborhoods

Before examining the causal factors behind illegal building, it is necessary
to explore the oft-misunderstood and ignored antecedents that influence and
stimulate illegal building. This background includes the sources for
funding infrastructure projects and the enforced Arab boycott of City
politics.

A good place to start is with the disparity in budgetary allocations between
Jerusalem's Arab and Jewish neighborhoods and the widespread complaint that
the Jerusalem Municipality furnishes an inferior level of public services to
the Arab neighborhoods. This problem is long-standing in nature and grew
out of the differential development prior to the 1967 War, when the per
capita expenditure for public services in the western sector was almost five
times that spent in the Arab neighborhoods by the ousted Jordanian
administration.

However, 35 years after the 1967 War, the Jewish neighborhoods continue to
enjoy a higher level of public services, and underlying infrastructure, than
do the Arab areas, prompting the claim of continued discrimination. One
obvious reason is that the citizens and residents of Jerusalem are not, on
the whole, affluent, which limits their ability to pay the City real estate
taxes (arnona). Arnona remittances form the largest source of Municipal
revenue. The Municipal administrations of Mayors Teddy Kollek and Ehud
Olmert concluded that outside funding would have to be secured to address
the infrastructure deficiencies in the Arab neighborhoods. Attempts have
been made, by various methods, to do precisely that. Most productively,
repeated efforts have been made to secure funding from the national
government, with some success. Nevertheless, according to Mayor Olmert's
projections, an additional 780 million NIS (New Israeli Shekels) of outside
funding, over a five-year period, is required to raise the level of public
services in the Arab neighborhoods to parity with the Jewish neighborhoods.

The second preliminary issue that needs to be discussed is the long-standing
Arab boycott of the Municipal political process at the behest of the
Palestinian Authority and formerly, the Palestine Liberation Organization.
The Arab residents of Jerusalem are frequently portrayed as victims that pay
City taxes and fees but are denied the necessities and amenities that
normally accrue therefrom. The reality is much more complex. Omitted from
this narrative is a decisive antecedent - the Arab residents' lack of
political influence. Indeed, the 35-year-long boycott of Municipal politics
by the Palestinian leadership has, perhaps more than any other single
factor, prejudiced the prospects of the Arab neighborhoods of Jerusalem
receiving budgetary allocations for public services and infrastructure on a
par with the Jewish neighborhoods.

Significantly, as residents of the City, Israel has entitled the Arabs to
cast ballots and seek office in the Municipal elections. Playing by the
rules of a democracy, it would be legitimate for the Arab Jerusalemites, or
their leaders, to use politics to demand a larger slice of the Municipal
budget. Regardless of their ultimate national allegiance, Arab politicians
could have made their mark in Municipal politics just as the ultra-Orthodox
Jews have in Jerusalem, and disadvantaged minority groups have done in
democracies elsewhere. With their current population, assuming the same
percentage of eligible voters cast votes as in the overall Jewish sector,
they could elect seven or eight members to the City Council. Such a bloc
could well cast the swing votes on many issues. Trapped by their leadership
's myopia, the Arab Jerusalemites have never capitalized on the essence of
municipal politics - the building and funding of good schools, paving
streets, furnishing public transportation, allocating tax assessments, and
the like. The day-to-day needs of the Arab residents of Jerusalem are
subordinated to the Palestinian leadership's attempts to import national
issues, like sovereignty and borders, into Municipal politics.

Due to the Palestinian leadership's policy of non-cooperation or, as it is
often called, steadfastness, Jerusalem Arabs do not present themselves as
candidates for the City Council. Consequently, they have had no direct role
in the democratic political process by which the City is governed. The
vacuum caused by their enforced absence has, to some extent, been filled by
certain individuals: certain Jewish members of the City Council who champion
Arab rights; the Mukhtars; the neighborhood committees; the village
councils; the Mayor's Advisor for Neighborhoods; and the Mayor's Advisor on
Arab Affairs (recently renamed 'The Mayor's Advisor on East Jerusalem
Affairs'). Most Arabs, however, refuse to participate openly in or
cooperate with the Municipal administration, either because they reject any
act that might be construed as submitting to Israeli rule or because others
have intimidated them.

Any cooperation with the Municipality is an anathema to the Palestinian
Authority. Its methods and aspirations were summed up in a poster
distributed by Yasser Arafat's Fatah faction in the 1998 Municipal
elections. It states that, "not recognizing legitimacy of the Israeli
occupation is more important than our day-to-day services.. We in the Fatah
movement call our holy people to boycott the elections and to fight a war of
existence and identity" (emphasis added). Indeed, this poster expresses the
Palestinian Authority's calculation that the struggle for equal, day-to-day
public services is trumped by their national political objectives.
Unfortunately, this premeditated refusal to cooperate in running the City
inevitably impacts the quality of public services in the Arab sector.

Claims that Jerusalem is Being 'Judaized'

The core accusation leveled at the City is that the alleged discriminatory
planning policy is motivated by a furtive objective - to 'Judaize'
Jerusalem. Consequently, the veracity of this charge needs to be ascertained
before discussing the specific issues of illegal building. It is claimed
that the entire planning scheme of the Municipality is geared to increase,
or at least maintain, the Jewish percentage of the City's population.
Denunciations from across the Arab and Islamic worlds refer to this as the
'Judaization' of Jerusalem. Upon examination, however, it is clear that
there is no factual basis for these claims and, indeed, the reverse is true.
The Jewish population has, since 1967, actually decreased as a percentage of
Jerusalem's population.

For more than 25 years the 'plot to Judaize Jerusalem' has rendered various
political opponents of Israel apoplectic. A few examples will suffice. As
far back as 1978, UNESCO condemned Israel for "continuing to Judaize"
Jerusalem. During the original Intifada, the Unified National Leadership of
the Uprising issued a leaflet that warned against "the systematic attempts
to Judaize Jerusalem." Subsequently this claim, repeated often by Yasser
Arafat, has become a chorus, repeated in many forums far from the Middle
East. For example, Arafat's charges regarding Israel's 'Judaization' of
Jerusalem were covered in the January 24, 1998, Los Angles Times and in his
July 29, 1998, speech to the Organization of the Islamic Conference's
Jerusalem Committee. Arafat stated, "We shall.save holy Jerusalem from the
Judaizing monster" (emphasis added). Likewise, the Palestinian
intellectual Edward Said published an opinion piece in the English newspaper
The Observer, which accused Israel of attempting "to 'Judaize' what was
formerly Palestinian about East Jerusalem." Finally, despite the fact that
Jordan is a country at peace with Israel, on September 10, 2001, the
Secretary General of Jordan's Royal Committee for Jerusalem Affairs
condemned the "Judaization of Jerusalem."

Before considering the accuracy of these claims it is important to grasp
that during the entire 100-year period that preceded the emergence of the
modern State of Israel, Jews constituted the largest component of Jerusalem'
s population. By the 1880s, all sources acknowledged that Jews constituted
a majority in the City. Data from the British Mandatory period, between the
world wars, reflected the Jews comprising approximately 60 percent of the
total population in the City, with the remainder divided almost equally
between Muslims and Christians. According to the (separate) Jordanian and
Israeli censuses of 1961, in their respective zones, the City's aggregate
population was comprised of 72 percent Jews, 22 percent Muslims, and 5
percent Christians.
The frequent assertion that Israel uses the planning law and, in particular,
the purported refusal to grant construction permits and the demolition of
illegal structures to discourage Arabs from living in the City makes no
sense even if, for the sake of argument, one assumes such a demographic
policy exists. Had there been an Israeli policy to rid Jerusalem of its
Arab inhabitants, or to discourage them from building, the Municipality
could have turned to much simpler (and quieter) inducements. Measures not
taken were to refuse to connect them to the Israeli water network and/or not
to extend the rights of residency to those Jerusalem Arabs that declined
Israeli citizenship.

Most importantly, despite the persistence and vehemence of the 'Judaization'
claim, demographic information since 1967 belies this indictment. Indeed,
the non-Jewish component of Jerusalem's population has steadily increased
since 1967 when it stood at 26.6 percent, to 31.7 percent in 2000 (Appendix
7A). Further, it is projected that this percentage will continue to expand,
reaching 37.8 percent in 2020 (Appendix 6A). This is the consequence of a
number of factors including the higher fertility rate of Arab residents, net
out-migration of 7,000 to 8,000 secular Jews per year, and employment
opportunities that have attracted many Palestinians from the West Bank.
According to Israel Kimhi, a former Municipal City Planner, "paradoxically,
the Arab population of Jerusalem and its environs increased more rapidly
over the past 30 years under Israeli rule than during any other period in
the twentieth century." Moreover, since 1967 new Arab construction has
outpaced Jewish construction.

To the surprise, or delight, of those who have publicly campaigned against
the presumed shift in favor of the City's Jewish majority, the actual
divergence has been in favor of the rapidly growing Arab minority. Might it
be that the pace of this transformation has not satisfied those who campaign
regularly against the supposed 'Judaizing' of Jerusalem?

Israeli Planning Law

As in other countries, Israeli planning law differentiates between legal
(licensed) and illegal (unlicensed) building. It is helpful to briefly
describe the standards and procedures that apply throughout Israel and how
controversy arose when they were applied in the Arab neighborhoods of
Jerusalem.

Planning in Jerusalem began during the three decades of the British Mandate.
As in other historic cities, planning schemes must balance preservation
against development. From the outset, the objective of the planners was to
preserve Jerusalem's special character and flavor. This is accomplished by
dictating the limits of an individual's rights with regard to his/her land.
Simply put, private rights have to be weighed against public needs. Among
the most misunderstood features of the Israeli Planning and Building Law is
the requirement that every resident wishing to build (including by adding
permanent additions) must comply with certain standards and obtain a permit.

To understand how urban plans are created in Jerusalem, it is necessary to
look at the overall tiered structure that is formulated in the Planning and
Building Law. There are four levels of plans. The overall plan is known as
the 'national outline scheme.' Its function is to lay down the planning for
the whole of the area of the State. The next level of planning is known as
the 'district outline scheme.' Its object is to determine details necessary
for the implementation of the 'national outline scheme' in each district and
any matters of general importance to the district. The third level of
planning is known as the 'local outline scheme.' Its purpose is to monitor
the development of land within the local planning area, while safeguarding
the assignment of agricultural purposes to suitable lands. The fourth level
of planning and the one of interest for this Study is known as the 'detailed
scheme.' The 'detailed scheme' specifies what land can be used for
residential construction and what is set aside for other uses. It also
details the maximum height, setbacks, and building percentages in
residential construction. When the local outline scheme doesn't have
appropriate provisions, a detailed scheme may enact provisions.

Before a permit to construct a building can be issued by the Municipality,
Israeli law requires approval of a statutory plan by the Jerusalem District
Authority. A statutory plan includes the third and fourth levels of
planning mentioned above. An 'urban plan' refers specifically to the third
tier of planning (local outline scheme). The colloquial term 'urban
planning' refers generally to the collective impact of the various levels of
planning within a particular area.

Urban planning is not something unique to Jerusalem or Israel, but a
burgeoning, worldwide trend. In fact, urban development, in the modern
sense, requires painstaking urban planning. One American judge described
the planning process as bringing to bear "the insights and the learning of
the philosopher, the city planner, the economist, the sociologist, the
public health expert and other professions concerned with urban problems."
A brief description may be helpful in grasping the magnitude of the task
that faces those who conscientiously plan Jerusalem's future, aware of the
City's special meaning to millions of people everywhere. They must study
what exists - infrastructure, housing, roads, topography, open areas, the
commercial sector, industrial areas, etc. Next, they must predict future
needs. They must take care to preserve open space, in particular the
valleys and the green belt around the Old City's walls, priorities inherited
from the British planners who preceded them. Also, attention must be paid
to preserving historical structures, holy sites, archaeological excavations,
and vistas. Planners must factor in the risk of natural (i.e., earthquakes)
and man-made (shellfire, explosions, and terrorist attacks) disasters, and
protect the public against structures that are insufficiently strong to bear
the load (i.e., the Versailles wedding hall collapse). Overriding budgetary
constraints must be factored in, too. Still more problematic, the already
composite planning process in Jerusalem, which is inherently value-laden in
nature, has become entangled in the Israeli-Palestinian conflict.

Identified Causes for Illegal Building in the Arab Neighborhoods

Two factors have been identified as the causes of illegal building in the
Arab neighborhoods of Jerusalem: poverty and cultural preferences. Poverty
is often highlighted as a leading cause of illegal building in the Arab
sector. Thus it is asserted that poor people with large families can ill
afford to approach the City for a permit when they build or expand their
living unit. A closer examination reveals the nuances in the 'poverty'
explanation for illegal construction. That is, economic distress is more
prevalent in some of the poorer southern Arab neighborhoods than in the more
affluent north, where many empty, completed apartments dot the landscape of
Beit Hanina, Shoafat, and Isawiya. Interestingly, despite the Arabs'
relatively lower average incomes, the post-1967 pace of Arab construction in
Jerusalem has not been measurably inhibited. A 1997 study prepared by
Israel Kimhi revealed that, since 1967, Arab building in Jerusalem has
outpaced Jewish construction. This conclusion was based on an examination
of Municipal tax records and corroborated by aerial photographs (Appendix
4). According to Uri Bar Shishat, the Director of the Policy Planning
Department of the City Engineer, this remains true in 2002.

As for the cultural factor, it is often noted that Arab society prefers to
live village-style, with few multi-story buildings. Traditionally, they
spread out over a lot of land with very low-density housing units. However,
the role played by cultural factors is not as significant as is often
portrayed, and attitudes and norms towards land use are changing. For
example, in recent years the Arab housing pattern has been evolving from
single or two-family homes to taller buildings containing several
apartments. Other Arab cultural factors include the traditional
unwillingness of landowners to exchange the plots they inherited and/or to
give up a significant part of their holdings for public infrastructure.

It is often asserted that poverty and cultural inclinations are the primary
causes for the current calamitous situation. While poverty and culture
undeniably play a role in illegal construction, they are eclipsed, in this
Author's opinion, by the political and economic factors described in the
following two sections.

Evidence of Widespread Non-compliance Subsidized by the Palestinian
Authority

The Palestinian leadership offers various justifications and apologetics for
their non-compliance with the urban planning mechanism as it applies to
Jerusalem. Dr. Sari Nusseibeh, the Palestinian Authority's Political
Commissioner of Jerusalem Affairs, stated that after the 1967 War the
Municipality was interested in spreading its authority by annexation and
demographic change, with the intent of excluding as much of the Arab
population as possible. What Nusseibeh calls "settlements" [new Jewish
neighborhoods] were, in his view, created to augment the Jewish demographic
majority. Nusseibeh stated, "as a result a competition was created between
Palestinians and Israelis over assertion of territory." Nusseibeh
continued, "[t]he net result of this has been, as you look at Jerusalem, a
disaster as far as the environment and the City is concerned. If you look
ahead, this disaster is going to become even more tragic unless people take
another look and begin seriously, once again, to plan" (emphasis added).

In the opinion of this Author, Nusseibeh's "competition" theory explains
only a small part of the massive wave of illegal Arab building. The two
dominant factors are, as will be demonstrated below, the direct sponsorship
of illegal construction by the Palestinian leadership and simple criminal
avarice. As regards the direct sponsorship, tens (or perhaps even hundreds)
of millions of dollars have been raised and expended to advance the
political objectives of the Palestinian leadership via subsidizing and
encouraging massive illegal construction in the Arab sector of Jerusalem.
Evidence of the central role of the Palestinian Authority is clear from
dozens of internal documents that this Author was able to access. The
following illustrative statements and sources demonstrate this pattern:

- In an interview, Faisal Husseini, then a Member of the PLO Executive
Committee in Charge of the Jerusalem Portfolio, gave to the Egyptian
magazine El-Aharam Al-Arabi in June 1997, he was quoted as stating, "[t]he
Palestinian program is to create a Palestinian belt around the Israeli belt
[of post-1967 new neighborhoods]." He continued, "[t]he most important
Palestinian challenge is building, even without permits."

- CNN has publicized the theme of Jerusalem being the site of a "demographic
war" between Palestinians and Israelis. For this program, CNN interviewed
Khalid Tufakji, a Palestinian demographer who worked out of the Orient House
(then the PLO's political headquarters in Jerusalem). Tufakji stated, "[w]e
can build inside Jerusalem, legal, illegal - rebuild a house, whatever we
can do. Maybe we lose ten houses, but in the end we build 40 more houses in
Jerusalem" (emphasis added).

- On September 11, 2000, Mhahfat El Quds Jamil Othman Nasser, the
Palestinian Authority's Governor of the Jerusalem District, wrote to Yasser
Arafat on the official stationary of the Palestinian Authority's Ministry of
Interior. The letter, as shown in Appendix 8G, states that any Arab who
builds in Jerusalem has accomplished a national act of the highest order.
It further states that the firm stand of the [Arab] residents protects the
Arabization of Jerusalem and protects their land from invasion by [Jewish]
settlements. Nasser requests Arafat to follow up by paying the fines
assessed against those who build illegally. Arafat's own handwriting
appears on the side of the typed letter, instructing that the matter should
be forwarded to Sami Ramlawi, the Director of the Palestinian Authority's
Ministry of Finance, for attention (emphasis added).

- Also revealing was the March 21, 2001, letter from Mhahfat El Quds Jamil
Othman Nasser to Sami Ramlawi. It concerns a fine of 75,000 NIS assessed
against Assan Machmad Shaban for building without a license. Nasser states
that, according to Arafat's instructions for these cases, Ramlawi should
instruct the Palestinian Authority's Ministry of Finance to pay the fine
(emphasis added).

- At a conference that took place on January 7, 2002, at the Jerusalem
Center for Women, Hatem Abed El-Khader Eid, a member of the Palestinian
Legislative Council representing the Jerusalem district, proudly announced
that, during the last four years, Palestinians have erected 6,000 homes
without building permits, out of which only 198 were demolished. Eid's
statement regarding the massive illegal building campaign, and his mention
of the figure 6,000 illegal living units, was also picked up in the weekly
newspaper Jerusalem. Eid declared, "we in the Palestinian Authority are
willing to build ten homes for every house demolished by Israel" (emphasis
added). According to a report in the newspaper Ha'tsofeh, Iran, Saudi
Arabia, and the PA are among the sources of funding for the wave of illegal
construction in Jerusalem .

These examples demonstrate something striking that goes beyond the extensive
effort Arafat and his senior subordinates have made to subsidize illegal
construction in Jerusalem. That is, this well-financed campaign involving
the Palestinian leadership, up to and including Arafat, has not, to the best
of this Author's knowledge, been exposed, let alone analyzed, in even one of
the numerous NGO reports that focus on illegal construction and/or
demolition. This silence can only suggest an active disinterest in
revealing one of the two major causes of illegal building - that is, efforts
by the Palestinian leadership to enlarge their demographic foothold in the
City via endorsing, massively subsidizing, and prioritizing widespread
illegal construction.

Illicit Profit: The Role of Criminal Elements in Illegal Building

A no less important causal element in the illegal building epidemic is the
pursuit of illicit profit. This factor can be termed 'economic,' but not in
the sense this word is commonly used. It is often asserted that poor Arab
families, with many children, have no alternative but to add additional
rooms onto their living units in violation of the Planning and Building Law.
Certainly such 'economic' motives do exist - often involving poor Jews as
well as poor Arabs. Their minor additions to existing legal structures,
however, should be distinguished from the wave of new construction by
criminals who erect entire structures in pursuit of a quick profit. These
law-breakers often build multi-story, luxury apartment buildings suitable
for rental or sale to the affluent. Even a cursory tour of the hundreds of
upscale apartment houses, some of which are photographed in Appendix 3, will
give the reader a sense of the magnitude of the sums involved in illegal
construction in the Arab sector of Jerusalem. These four-, six-, and
eight-story apartment houses were not put up by, or for, Arab families
living in poverty. Indeed, any persons living in such illegal structures,
if and when the City demolition crew arrives, are likely pawns in a cynical
game motivated by criminal greed.

As with the case of the Palestinian Authority's political subsidies, not one
of the NGOs has identified the preeminent motivation of old-fashioned greed
in the illegal building epidemic. Why are they silent? The leading weekly
newspaper Kol Ha'ir ran an impressive investigative article describing how
the Palestinian Authority authorized a criminal gang of Arab builders. Some
of these criminal elements have formed links with senior officials in the
Palestinian Authority's intelligence and security services who also want to
get rich quickly. Using high quality forged documents of land ownership,
these criminals encroached on land owned by Arabs living abroad, property of
the old and the weak, and even land belonging to the Waqf (the Islamic
Religious Endowment), by erecting major structures in Beit Hanina and
elsewhere. Indeed, the Waqf, usually thought of as a powerful institution
enjoying the good grace of the Palestinian Authority, felt compelled to take
the awkward step of complaining to the Municipality. Where were the NGOs?
One City official complained that the NGOs only get involved at a later
stage. That is, when the Municipality commences the process of
administrative demolition, the criminals complain to the NGOs and the media,
hoping they will stigmatize and stymie the law enforcement process.

The Controversy over Building Permits

One of the primary accusations leveled at the City is its alleged
unwillingness to grant building permits to the Arab residents of Jerusalem.
It is often claimed that the Arab residents of the City who flout the permit
process do so as a last resort, since the City never or seldom issues
permits for them to build legally, even when their ownership of the land is
not in dispute. A few typical examples illustrate these claims. A report
by the Palestinian rights organization, Al-Haq, accuses Israel of "refusing
to grant them building permits," and "[pursing a policy aimed at] altering
the ethnic composition of.Jerusalem." Similar accusations appeared in the
English language Palestinian weekly newspaper The Jerusalem Times, which
claimed that the "building laws in effect.pose a serious obstacle in the
face of Palestinians wishing to obtain building permits," alleging that the
cost of such permits "reach[es] upward of $30,000." This article goes
further to assert that the number of permits granted is "no more than a few
dozen annually, granted after a wait of one to three years." Not one of
these baseless accusations is true.

First, contrary to the claim regarding "a few dozen annually," the average
number of permits issued to Jerusalem Arabs annually during the past five
years is 183, and the waiting period (for simple applications) is four to
six weeks, not "one to three years." Further, an unfortunate result of the
Palestinian Authority-enforced boycott of the Jerusalem Municipality is that
more Arabs do not file applications. Moreover, the percentage of
applications that result in the issuance of a building permit is virtually
identical in Arab and Jewish neighborhoods. Second, the fees for a building
permit consist of three components, two of which are based on the City's
efforts to recoup some of the expenses it incurs in connecting a residence
to the water supply and sewage lines. For a typical housing unit in the Arab
areas of Jerusalem measuring 72-square-meters (the approximate size of an
average living unit) on a 250-square-meter plot of land, the following
charges are assessed:

- a connection to the water system fee of 5,917 NIS ($1,220 U.S.);
- a building fee of 1,290 NIS ($266 U.S.); and
- a sewage connection fee of 10,285 NIS ($2,120 U.S.).

The total for these fees comes to 17,493 NIS ($3,607 U.S.), approximately
one-tenth the sum mentioned in the above-mentioned Jerusalem Times article.
The fees are collected according to a sliding scale, equally in all of the
neighborhoods of Jerusalem, whether Arab or Jewish.

Third, far from "strangling" Arab development, or in the words of Al Haq's
fantastic accusation, "creating a nation of homeless and dispossessed," the
City expends considerable effort to facilitate the routine issuance of
building permits to those Arab residents who apply. Al Haq's nonsense about
strangulating Arab development is readily disproved by even a cursory look
at aerial photographs in Appendix 4, not to mention the fact that since 1967
Arab building has outpaced Jewish building in the City, as discussed above.
Fourth, their foray into international law, characterized by invented
standards and irresponsible accusations, is rebutted in Section VI. C 3 and
4 of the Study. Fifth and finally, Appendices 2, 6B and 6G of the Study
demonstrate that if the Arab residents who build illegally were to first try
obtaining a permit, their prospects would be excellent.

The City has Authorized Plans (Exceeding the Demands of Faisal Husseini and
Sari Nusseibeh) that Meet the Housing Needs of the Arabs Residents Until the
Year 2020

Contrary to the repeated claims that it is impossible for Arabs to build
legally in Jerusalem, the attached map (Appendix 1) and chart of various
Arab neighborhoods (Appendix 2), provide clear evidence that the opposite is
true. The approved plans in more than 90 percent of the Arab neighborhoods,
marked in yellow on the planning map (Appendix 1), authorize the issuance in
excess of 33,000 permits for new housing units in the Arab sector. Except
in isolated neighborhoods where the landowners have been reluctant to come
to an agreement via the process of unification and reparceling (exchanging
land to rationalize planning), all that is required to actualize this
potential is for the owners of the land to request and receive permission
under the routine procedures that apply throughout the City.

Neither Nusseibeh nor Husseini can be accused of selling short the housing
needs of the Arabs of Jerusalem. Yet, the up-to-date facts indicate that
the needs that they forecast can be more than met, without any need to build
illegally, within the existing urban plans of the City. Nusseibeh's
calculation of the needs of the Arab Jerusalemites, "about 20,000 units,"
deserves careful consideration alongside the similar estimate of his
predecessor, Husseini. In the mid-1990s, Husseini put out a 23-page booklet
encouraging diaspora Palestinian and other private investors to "preposition
themselves at an early stage.to profit." Projecting some 15 years into the
future, Husseini wrote that by the year 2010 the Arab population would need
about 26,200 new residential units, including those required for returnees
(Palestinian refugees) and tourists. Since the current Intifada started
neither returnees nor tourists are arriving in significant numbers, but as
Husseini did not furnish any numerical breakdown, it is impossible
recalculate his global figure of 26,200. Nor did Husseini make any
allowance for the enormous number of unoccupied apartments in the Arab
neighborhoods. Yet even accepting Husseini's full figure, the Municipality
has already approved plans, intending to meet the projected Arab needs for
the next 18 years, that authorize in excess of 33,000 units. Tellingly, this
significantly exceeds the numbers demanded by either Husseini or Nusseibeh
and translates to a housing potential that surpasses the anticipated
population growth. In all, it is clear that the core assertion of the
critics - that the City will not issue building permits to Arabs - is today
demonstrably false.

Actually, the City expends considerable efforts in assisting Arab residents
who wish to build legally. Architects, engineers, entrepreneurs, and
lawyers who prefer not to practice their profession in Hebrew, or who have
difficulty doing so, can rely on an Arabic-language planning brochure
(Appendix 8A), the Municipality's Arabic Internet website, and individual
assistance from Arabic-speaking City employees. Similarly, professional
translators have translated 23 of the urban plans for Arab neighborhoods
into Arabic. These services make applying for and obtaining a building
permit both simple and routine for those who are willing to make the effort.

It is clear that the core assertion of the critics - that the City will not
issue building permits to Arabs - has today been shown to be tendentious.
Applying for and obtaining a building permit is both simple and routine.
However, based on the limited number of applications for building permits in
recent years, the Arab residents of the City have not taken full advantage
of the potential that exists. Simultaneously, the number of Arab violations
of the Planning and Building Law has skyrocketed. Already in 1988 an
internal memorandum presented to then Mayor Kollek warned that "[t]he
situation is fast getting out of control." Again in 1991 a department
memorandum warned, "[t]he situation is deteriorating from day to day."
Additional internal warnings were sounded in 1993 and 1994. In 1996 the
extensive Eitan Meir Report carefully reviewed the impact of illegal
building on the quality of life. During the period 1996-2001, City
inspectors reported nearly 4,000 violations in the Arab neighborhoods.
Experts who study aerial photographs believe this number represents only 30
percent of this problem. Other authorities have come up with various
estimates of the extent of the problem. For example, Bar Shishat estimates
that in recent years 2,000 to 3,000 illegal living units have been erected
in the Arab neighborhoods of Jerusalem. Israel Ben-Ari, the City's Deputy
Manager of the Licensing and Inspection Department, made a study using
aerial photographs of the Arab neighborhoods, comparing images from the end
of the year 2000 with similar photographs taken one year earlier. He
identified 1,000 new illegal buildings that had been erected during that
twelve-month period. Ben-Ari did not want to estimate the total number of
living units contained therein, but he noted that some buildings contained
only one living unit, while others had between four and ten units. It
stands to reason that if the average number of units per building was five,
then the additional illegal housing constructed, during that one-year
interval, was 5,000 units. This estimate is close to the number 6,000
proclaimed by Hatam Abdel Khadir Eid, a member of the Palestinian
Legislative Council, although he was not specific as to the time frame he
was referring to. In sum, the knowledgeable sources all agree that
thousands of illegal units are going up. Extrapolating from the
assessments, the number might well exceed 10,000 if the tally were to begin
five or ten years ago.

This Author visited the City's permit office and walked through the process
of obtaining a permit with the guidance of an official who handles such
applications. To reiterate, the taxes and fees charged are uniform for
living units of identical size on the same size plot, regardless of whether
it lies in a Jewish or Arab neighborhood. If the application is of a simple
nature (not exceeding the local limitations as to area, number of floors,
etc.), as most are, the Department of Information can usually give a
preliminary ruling on the spot. After completing the necessary forms, the
applicant makes a down payment amounting to 20 percent of the total cost of
the fees that will be payable if the application is approved. The local
committee rules on the application, typically with a turnaround time of a
month to six weeks, which is comparable to the waiting time for permit
applications in England.

If the application for a building permit embodies a request for a variance
(i.e., additional density or floors), the application procedure is
lengthier. This is primarily due to the need to publicize the request and
to evaluate any objections raised by neighbors. Yet, when substantial
building projects involving a requested variance are proposed in the Arab
sector, the City works with the applicant to advance the application
process. Thus, the builder Atman Halk's project in Beit Hanina was
licensed. Likewise, the housing projects of the Association of Arab
Teachers, also in Beit Hanina, and that of the employees of the Waqf, in
Sawahna (Wadi Joz), have been granted permits.

The Controversy over Administrative Demolitions

No single planning policy, or practice, is as controversial as the City's
demolition of illegal structures. Similar to the allegations of
'Judaization,' demolitions by the Municipality have generated a refrain of
condemnation by NGOs and even foreign governments. To comprehend this
process it is necessary to outline the procedures involved in demolition.

Precise and demanding procedures precede the issuance of an administrative
demolition order. The exact same procedure applies in all parts of the
City. According to a policy decision of Mayor Olmert, the Municipality only
issues a demolition order when it is not possible, even retroactively, to
receive a building permit under the urban plans in effect. Demolition
orders can be set into motion if the illegal structure is built on a
roadbed, a green area, on land stolen from an absentee, or on government
land intended for a school or other public facility. Other violations are
typically dealt with by opening a criminal file against the builder. This
usually results in a fine being assessed by the court.

Attorneys representing persons engaged in illegal building frequently use
frivolous delaying tactics in Court to block the City's enforcement process.
These attorneys are portrayed as serving the interests of their clients and
of the Arab sector generally. In actuality, they are prejudicing the
long-term interests of the Arab sector. By frustrating the planning scheme,
these attorneys, and their clients, deface the landscape for the indefinite
future with structures that would not meet any modern planning standards.

Local and international NGOs, including Amnesty International, have led the
efforts to stigmatize the Municipality for enforcing the planning law. At
the outset, it should be observed that many NGO press releases and studies
depict isolated examples of questionable demolitions, rather than presenting
a systematic or representative overview of the overall planning process,
framing their condemnation of the Municipal policies in the terminology of
human rights law, humanitarian law, and international law. The NGOs seem
willing to recite any incidents that might be viewed as outrageous behavior
by the Municipality of Jerusalem or the State of Israel. These
misrepresentations are frequently based on unverified accusations of
unnamed, politically motivated sources. This would be unobjectionable if
they also informed the public that the 'law' they reference is soft,
ambiguous, and/or less than authoritative. They do not.

The Controversy over 'Treaties'

A recent Municipal initiative aimed at giving the Arab residents of
Jerusalem a stake in planning is the 'treaty,' an informal agreement between
City officials and the Arab residents of interested neighborhoods. The
objective is to involve the residents in planning their own neighborhoods.
These treaties arose out of a history of widespread illegal construction
which, had the provisions of the Planning and Building Law been fully
enforced, would have prompted the demolition of thousands of illegal
structures. Instead, Yossi Cohen, the Mayor's Advisor for Neighborhoods,
envisioned the 'treaty' as a novel way to plan together for a better future.

Hod El Tabel (northern Beit Hanina) was an area that had not been the
subject of urban planning. In November 1999, the Chairman of the Beit
Hanina Community Development Association turned to Cohen requesting the
assistance of the Municipality in approving an urban plan that they would
draft. The City Engineer agreed. The residents of Hod El Tabel signed a
treaty (in Arabic) with the Municipality. It stated, inter alia, that until
permits could be issued under the forthcoming plan, the Municipality would
refrain from demolishing illegal structures. Concurrently, the residents of
Hod El Tabel agreed to stop building illegally. Most of the residents of
Hod El Tabel, 83 in all, signed the treaty, despite threats from the
Palestinian Authority (Appendix 8C). Within two years an up-to-date City
plan that incorporated input by the residents was approved. The City plan
featured permission to build more than one thousand new housing units.

The first major violators of the Hod El Tabel treaty were residents of the
Palestinian Authority-controlled areas who desired to become recognized as
residents of Jerusalem. By proving that they live and conduct their lives
in the Jerusalem Municipality, they can apply for a Jerusalem residency
permit, which has various economic and political advantages. Criminal
elements from outside Beit Hanina joined in the illegal building spree,
squatting on land and rapidly erecting new structures. Some of this
construction was on land earmarked for public use, such as roads, a new
school, and sidewalks. The frenzy of illegal building caused fear among the
normally law-abiding residents of Hod El Tabel, some of whom complained to
the City only after persons building illegally rejected their entreaties to
stop. The residents fully intended to honor the treaty, but the spiral of
illegal building forced them to erect cement walls around the perimeter of
their land to defend their property against encroachment. As a result, the
once scenic and rural Hod El Tabel has become a virtual maze of bare cement
fences, scarring the environment (Appendix 3, images 27 and 28), and placing
in doubt the hopes for the enforcement of a cohesive City plan.

On a larger scale, the failure to enforce the Hod El Tabel treaty has caused
the City to lose credibility in the eyes of Jerusalem's Arab residents. In
the opinion of one senior City official, who prefers to remain anonymous,
this entire fiasco could have been avoided had the Municipality rigorously
enforced the terms of the treaty, and immediately demolished the first few
newly erected illegal structures. However, due to inaction on the part of
the authorities, a message was perceived in the Arab sector that building
illegally is unlikely to be punished, even when it violates a newly signed
treaty. Despite this, Arab residents in other neighborhoods have petitioned
the Municipality, in the hope of concluding a 'treaty.' Notwithstanding the
risk, there exists a willingness on the part of many Arabs to work with the
Municipality for their mutual benefit.

Long-term Consequences of Illegal Building

The consequences of illegal construction are savings to the individual who
breaks the law followed by increased costs to the public when it attempts to
provide infrastructure for public services. Sometimes illegal construction
vitiates the possibility of later providing proper infrastructure, as is the
case with structures that are not set back the proper distance from the
street. The likely result: that a street may never again be wide enough to
accommodate two-way traffic; nor will it have sidewalks that safeguard
pedestrians. Also buildings that do not meet code present an ongoing risk,
such as when the Versailles banquet hall collapsed killing 23 (in a Jewish
industrial/commercial area), or if an earthquake should strike, as has been
forecast.

Some Arab leaders recognize that whatever its political utility, illegal
construction has deleterious effects on the daily life of the residents,
especially in the Arab neighborhoods. To reiterate Nusseibeh's well-founded
fears, we are facing a "disaster.as far as the environment and the City is
concerned.unless people take another look and begin seriously, once again,
to plan." Nusseibeh also reasoned that the gangs that build illegally on
land that does not belong to them should be thrown into jail, rather than be
allowed to persist in illegal conduct. Azam Abu Saud, the Director General
of the Office of Arab Commerce in Jerusalem, spoke to this issue in the
newspaper Al Quds. Abu Saud reasoned that ignoring the planning law
encourages violence and injures the rights of others, as when they build
(illegally) without leaving the proper space between buildings and when
people build on roadbeds. At the risk of deviating publicly from the
Palestinian Authority's position, he recommended pulling down illegal
structures. Parenthetically, the Palestinian Authority is faced with
illegal building in the Municipality of Gaza. Mayor On A-Shawa explained,
"In the recent period there is an increase in the number of illegal
structures that damage the urban planning of the city." The local
government reacted by initiating a campaign to demolish illegal structures.

Keep in mind that these demolitions occurred under the rule of the same
Palestinian Authority that attempts to turn every instance of demolition in
the Arab areas of Jerusalem, regardless of its factual and legal
justification, into an international incident. According to one report in
The Washington Post, Palestinian Authority bulldozers "flattened" Fatima Abu
Suayed's house, with all her possessions inside, because they claimed that
it was illegally constructed on "Palestinian State Property." According to
the account, "a bulldozer plowed down more than 20 homes." No mention was
made of any legal process or safeguards. Other than one small Gaza-based
NGO, none of the critics that regularly attack the Jerusalem Municipality
and the State of Israel uttered a word of protest.

The Global Epidemic of Illegal Building and Demolitions

The use of demolitions by authorities struggling to cope with illegal
construction is by no means limited to Jerusalem. In recent decades,
municipalities and governments in all parts of the world have grappled with
the issue of illegal building. It is instructive to consider the following
example from Lebanon:

The army used troops and bulldozers to demolish what were described as
illegally built houses and shops in a shantytown on the southern outskirts
of the capital city. The demolished buildings belonged to Muslim war
refugees, who were accused by an official of putting up their structures on
land belonging to the government and private citizens. Officials indicated
that 35 buildings were demolished in one day, but visits to the area
indicated that the number could be much higher. One official claimed that
he had warned those living in the shantytown that demolition was imminent.
One woman screamed, "My house has gone." Soldiers who fired their rifles
into the air kept excited residents away from the demolition work.
Moreover, demolitions have been carried out in such countries as India,
Yugoslavia (by UN peacekeepers at that!), United States, Australia, the
Philippines, and Nigeria. Indeed, they have occurred on every continent,
with the exception of Antarctica.

Political interest in assessing the conduct of these governments is minimal.
Contrary to the furor that demolitions in Jerusalem attract, to the best of
this Author's knowledge, not a single human rights group, international
body, or foreign government has criticized demolitions in any of these other
countries. Thus, rather than being sui generis, Jerusalem is an example of
the worldwide phenomenon of illegal building. Further, the severe
implications of illegal building, as recognized in a variety of other
countries, is, in the case of Jerusalem, being obscured by venomous and
unsubstantiated, politically-inspired allegations.

Conclusions

Illegal construction is fast becoming the norm throughout Jerusalem. The
magnitude of the problem is most pronounced in the Arab neighborhoods where
thousands of illegal units, many of them substantial structures, are
scattered across the landscape, frequently on land that does not even belong
to the builder. Common wisdom blames it all on poverty, cultural factors,
and discrimination and manipulation by the City of Jerusalem and the State
of Israel. Overlooked are factors that, in recent years, have become the
two cardinal reasons for today's illegal building epidemic. First, illegal
construction enjoys the political and economic backing of the Palestinian
Authority and various foreign factors including Arab states and, indirectly,
the European Union. Second, lucrative illicit profits accrue to those who
build illegally.

NGOs, often appropriating the propitious title 'human rights organizations,'
reiterate their condemnations of Israeli policy ad nauseam. These include
that the City's legal machinations make it virtually impossible for Arabs to
comply with the Planning and Building Law; that it systematically rejects
most Arab applications for building permits; that the Arabs have no choice
but to build illegally to accommodate their large families; that the
Municipality is 'zealous' in enforcing the law - but only against Arabs; and
that Israel is in flagrant violation of international human rights and
humanitarian law, particularly as regards its use of demolition. The
critics' prolific narrative continues that the damage caused by what they
deem to be 'discrimination' is simultaneously the result of, and compounded
by, denying the Arabs residents the opportunity to participate in the
decision-making processes by which their neighborhoods are planned. They
also complain of discrimination in the delivery of public services and
amenities, which is also attributed to malevolent intent. Many of the
critics even evince a nefarious design behind these policies - the
'Judaization' of Jerusalem via demographic manipulation. They variously
impute to the City, its Mayor, and/or the State of Israel a plot to force
Arab residents to emigrate from Jerusalem while ignoring the fact that,
notwithstanding all the complaints that the City mistreats its Arab
residents, thousands of new illegal Arab migrants arrive yearly from the
West Bank. Finally, these accusations are couched in the terminology of
international law, while failing to inform the public that the law they
reference is soft (less than authoritative), ambiguous, and/or actually
sanctions the Municipality's planning enforcement actions.

These inventions and malicious assumptions are conveniently translated into
the image of a large, poor Arab family, forced out of their house in the
middle of a rainy winter, on the order of the Mayor. This makes it easy for
the poorly informed public to align its sympathies with the 'victims' of the
uncaring municipal bulldozers. Why should the media, international or even
Israeli, search to find the deeper causes and motives bound up in this
enigma?

It turns out, upon examination, that not one of these accusations is
correct. Taking a fresh look at the matrix of issues surrounding illegal
building, of which infrequently carried out demolitions are merely the most
visible aspect, this Author believes that a more complex, and quite
different, reality emerges. First, not only is there no explicit or
implicit policy for 'Judaizing' Jerusalem, but statistics prove that the
non-Jewish percentage of the population has steadily increased since 1967.
Second, despite the proffered justifications of culture and poverty, it is
clear that the political calculations of the Palestinian Authority as well
as criminal avarice are the preponderant causes for the copious increase in
illegal building. Third, the Municipality uses administrative demolition
cautiously and as a tool of last resort against structures, usually
uninhabited, which could never be granted a permit, even retroactively.
These same considerations regulate the use of demolition in Jewish
neighborhoods, where this tactic is also employed, as the Municipality deems
necessary. Administrative and judicial safeguards exist to protect against
abuse of this measure, making mistakes infrequent. Fourth, the fervent
denunciations of the Municipality for supposedly hindering the granting of
building permits and charging of exorbitant fees are completely
unsubstantiated.

This prompts the question that if there is no substance to the 'Judaization'
charge, and together with the evident negative publicity that demolitions
generate, why has the Municipality been carrying them out? The consequences
of unfettered illegal building are extremely grave for the environment,
public safety, and the quality of life. This is true not only in the City's
Arab neighborhoods, but for the entire region due to its retarding effect on
regional economic development and capital accumulation. Thus, for example,
demolitions are carried out in order to safeguard green, red, and brown
areas (see Section VII. A), whose purpose is either to preserve space for
future development and for the construction of public infrastructure. As
Deputy Mayor Uri Lupolianski pointed out, "we must, for professional
planning reasons alone, prevent the City from becoming a jungle."
Ironically, by turning demolitions in the Arab neighborhoods of Jerusalem
into a cause célèbre and hindering the implementation of coherent urban
plans, the critics are actually prejudicing the affordability of
infrastructure improvements in the future and even hastening the erosion of
the quality of life for the Arab residents.

If one expands the horizon to consider the worldwide use of demolition (to
cope with illegal building), many striking similarities and one stark
difference are revealed. The difference is the nearly complete lack of
publicity when other governments demolish vis-a-vis the incessant
denunciation of rather infrequent demolitions by the Jerusalem Municipality.
Of course, it may be asserted that Israel is 'different' since demolitions
carried out by the Jerusalem Municipality (at least those in the Arab
neighborhoods) are viewed as political. Yet, the demographic facts
discredit claims that there is a policy of 'Judaization' and, additionally,
tangible efforts are made to enable Arab residents to build legally and
become involved in neighborhood planning. The most rational explanation,
therefore, is that these demolitions in Arab neighborhoods are being
conducted under Israeli auspices in response to the serious danger posed by
illegal building, as a policy analogous to those pursued by dozens of
diverse countries. It is easy to oppose demolitions. But the many critics
of demolition have failed to come forward with a viable alternative that, as
a final backstop, will protect the future livability of Jerusalem.

In summation, illegal building severely mortgages the City's future. People
who love this City, regardless of their political views, ethnicity, or
nationality, should unite to turn the tide against those who undermine
Jerusalem's quality of life with illegal building. They should show zero
tolerance for this dysfunctional scourge, wherever it manifests itself.