APN: Three-Month Balance Sheet on Settlement Freeze

I don’t usually do this, but this report is so well put together and so important, it bears re-printing in its entirety. It was produced by Lara Friedman of Americans for Peace Now and Hagit Ofran of Peace Now’s Settlement Watch. The good, the bad and the ugly of the settlement freeze is here for your review.

The Settlements Moratorium: A Three-Month Accounting

Settlements in Focus, Vol. VI, Issue II 

March 1, 2010

On November 25, 2009, the Government of Israel announced a 10-month moratorium on settlement construction and planning.  As we noted from the outset, the impact of this decision – both on the ground and on the Obama Administration’s efforts to launch new Israeli-Palestinian negotiations – will depend mainly on the good faith (or lack thereof) that characterizes the government of Israel’s implementation of the moratorium.

Almost three months ago we offered an early accounting of the moratorium and its impacts, in the form of a “balance sheet” showing the positive (assets), negatives (liabilities) and potential positives/negatives (accounts receivables).

Now, three months into the moratorium, we believe it is time to update this balance sheet.  The results are mixed.  While the moratorium has clearly had some positive ramifications, both in terms of slowing some settlement planning and construction and putting settlers on the defensive, this positive impact has been outweighed – especially in terms of impact on the political process – by an almost constant stream of Israeli government actions, decisions, and policies that seriously call into question its good-faith commitment both to the moratorium and to peace negotiations. 

It has also been outweighed by the development of a very problematic Israeli political narrative which holds that Netanyahu has done his part by declaring the moratorium and now the burden for action rests entirely with the Palestinians – regardless whether the implementation of the moratorium is being carried out in good faith.

So let’s get to the balance sheet.

IN THE ASSET COLUMN….

There are significant positive aspects to the announcement of the moratorium itself, the way it was declared, and its political impacts thus far.

The moratorium is official law.  While people speak about the government of Israel declaring a moratorium, what the government of Israel actually did was issue a military order imposing the moratorium.  This is highly significant, since it means that the moratorium is not “policy” but law – making implementation of the moratorium a legal obligation, and making violations of the moratorium breaches of the law.  In this way Netanyahu’s actions on settlements are much more far-reaching and concrete than any similar announcement or obligation undertaken by any previous governments.

The moratorium does not distinguish between settlements.  According to the military order implementing the moratorium, all settlements are equal – there is no recognition of or special treatment for “settlement blocs,” or “strategic settlements,” or even special treatment of settlements located west of the separation barrier.  As such, this moratorium – adopted by the farthest right-wing government in Israel’s history – implicitly recognizes the Green Line as the basis for future negotiations (except in East Jerusalem) – something that even the Rabin freeze in the 1990s did not do.

There is no distinction between governmental or private initiatives.  Even under the previous serious (but still partial) freeze – announced by the Rabin government in the 1990s – only government-initiated projects were stopped, while private initiatives were permitted to continue.  The current moratorium, in contrast, applies to both private and public initiatives.

There has been some slow-down in settlement planning and approvals.  Since the announcement of the moratorium, and also in the few months that preceded it, few significant settlement plans in the West Bank were approved or promoted (unlike in East Jerusalem). There were plans for small numbers of housing units in various settlements, but no cases of tens or hundreds, with a few notable exceptions, discussed below.  The fact is, the government of Israel appeared to informally begin freezing public settlement projects even before the moratorium was declared.  In the third quarter of 2009, the number of government-backed building starts had dropped to an unprecedented low (of just four housing units). While this drop was in part offset by a surge in private initiatives, many of these appear to have been efforts primarily aimed at getting “starts” on the ground in order to ensure that such projects would not be frozen – such construction does not appear to be moving forward at a fast pace at this time). 

IN THE ACCOUNTS RECEIVABLE COLUMN…

 

There some aspects of the moratorium where it is still not clear if the impact will be positive or negative.

If the moratorium is extended for another year (without new exceptions or loopholes), there will be a complete freeze of construction in the settlements for the first time.  One of the negative aspects of the moratorium (discussed below) is that given all the exception, there will be no visible freeze in settlement construction during the 10-month lifespan of the moratorium – meaning that for Palestinians, the impacts of the moratorium will be completely theoretical.  However, given the slow-down in planning and approvals, if the moratorium is ultimately extended past the 10-month period (with no new exceptions or loopholes), there will in fact be a total freeze, which would strongly benefit the health of any Israeli-Palestinian political process that might either be ongoing or subsequently launched.

The government of Israel has announced an increase in resources for implementation of the moratorium, and there is some early evidence that these have been put to use.  According to the Ministry of Defense (MOD), during the first two months of the moratorium government inspectors discovered that in some 29 settlements construction in violation of the moratorium was taking place.   In all of those cases demolition orders were issued.  According to the Israeli media, last week the Israeli authorities destroyed foundations which were laid in the settlement of Revava in violation of the moratorium.  Last week (2/24/2010) the Israeli media reported that the MOD has decided to bring violators of the moratorium to court (treating these as violations of the law).  It is still too soon to determine if these are serious steps or if they are only photo-ops to make it look like the government of Israel is doing something.

The declaration and implementation of the moratorium disclose important facts about the political situation in Israel.

 

  • This government is stable. Contrary to expectations, Netanyahu’s coalition – with the right-wing parties of Yisrael Beiteinu (Leiberman), Shas and the Jewish Home – has proved to be very stable. Those parties know that they don’t have an alternative and that if they leave the coalition on the basis of the settlement freeze, the Kadima party will quickly join Netanyahu, and they will be left with no influence in the government.
  • If pressed, this government will take actions that contradict its hard-line declared positions. The fact that this far right-wing government was able to survive the imposition of the most far-reaching (albeit still flawed) settlement freeze in history shows that when pressed, this government is both willing and able to abandon its hard-line rhetoric for more pragmatic policies, with no real cost. In other words, the opposition from the right is almost non-existent, since most of the right-wing parties are in the coalition – so there are no serious voices to attack it from the right. It remains to be seen if the US and international community will press the government of Israel accordingly.
  • The Israeli public is prepared to accept serious compromises on settlements. While this was the most far-reaching freeze in history, there was no real public outcry or objection to it. The settlers tried to raise their voices but they never managed to break through to the Israeli mainstream. As was seen during Israel’s disengagement from Gaza, it seems that the Israeli public is still largely indifferent when it comes to the settlements, and the loud cries of the settlers are not really echoed in the public arena. It remains to be seen if there will be sufficient engagement from the US and international community to achieve the kind of breakthrough in terms of Israeli-Palestinian negotiations that will permit this Israeli readiness to compromise on settlements into support for a viable peace agreement.

 

IN THE LIABILITIES COLUMN…

 

Some aspects of the announcement of the moratorium itself – as well as the steady stream of Israeli government actions, policies, and statements that have been taken since the moratorium was declared -directly contradict and/or undermine the credibility and impact of the moratorium – both in terms of impact on the ground and in terms of building the kind of confidence necessary to catalyze a political process.

The moratorium itself is problematic.  Regardless of the extent to which the freeze is actually being implemented on the ground, the decision itself is full of holes.  Most notably, it doesn’t include East Jerusalem, it permits a great deal of construction to continue (discussed below), and of course it is time-limited.  The latter is especially problematic, as Israeli officials constantly repeat that the moratorium will end after 10 months and will not be renewed. Some people say that the reason why Netanyahu chose 10 months (and not one year) was because the 10 months will end in September, when the American senate election campaign will be at its peak, and nobody will be interested in the settlements issue, thus the government of Israel will be able to get away with renewal of the construction.

Wide-scale “legal” construction and planning in settlements continues.  Built into the moratorium were a large number of publicly-declared “exceptions” permitting construction that was already underway to continue and some new construction to start.  This meant, of course, that despite the moratorium, visible construction inside the settlements would not actually stop, and has not stopped.   While the government of Israel portrayed this as a necessary and limited exception, the fact is that these “limited” exceptions reflect a far higher rate of construction than inside the Green Line.  The government of Israel defined some 3,000 housing units as already under construction (and therefore allowed to continue).  In addition, the government of Israel declared another 492 units as “exceptions” to the moratorium (meaning not already under construction but still permitted to be built).  Per capita, this translates to 1,167 units for every 100,000 settlers (there are approx. 300,000 settlers today).  In contrast, according to the Israeli Central Bureau of Statistics, at the time the moratorium was declared, Israel was building 836 housing units for every 100,000 inhabitants within the Green Line.   Moreover, the government of Israel has in effect asserted some additional and highly significant exceptions, including granting final approval of new construction in the settlement of Talmon (granted days after the moratorium was declared) and continuing to promote a major construction plan in the settlement of Adam, located north of Jerusalem, for 184 housing units (the Adam plan is part of an effort to “relocate” settlers from the illegal outpost of Migron).

Construction continues in settlements in violation of the freeze, with no apparent consequences thus far.  Settler violations of the moratorium have been constant and blatant, discrediting the entire moratorium.  The government of Israel has admitted that construction that violates the moratorium is taking place in at least a quarter of the settlements.  In addition, Peace Now has documented evidence of settlers laying fake foundations (in order to “legalize” additional construction by allowing settlers to claim the construction was already underway – it is unknown at this point whether the Israeli government has fallen for this trick) and Peace Now has documented evidence of settlers carrying out new (unauthorized) infrastructure work (clearing land and digging foundations for new construction).

 

The government of Israel is creating more loopholes to allow more “legal” construction and planning in settlements during the moratorium.  On January 7th, Defense Minister Ehud Barak issued an order “mitigating” the settlement freeze – in effect revising the terms of the “moratorium” imposed earlier by military order.  The order was immediately denounced by settlers as meaningless, but the headlines told the real story, at least in terms of how the decision is viewed politically:   Haaretz: “6 weeks into settlement freeze, Barak eases restrictions“; Ynet: “Barak orders settlement freeze mitigations” and Maariv (Hebrew): “Following the Freeze: Eases in Construction.”  The revised order is in no way insignificant, appearing to give the settler municipalities several significant authorities: authority to grant construction permits for changes and expansions of existing residential homes; authority to carry out public infrastructure works within the borders of the settlement; and – most importantly – authority to go ahead with processing (but not granting) construction permits.  This latter authority means that when the moratorium ends, there could theoretically be a significant pool of permits applications that have been fully processed, with the permits ready to be issued the moment the authority to do so is re-instated. 

 

The government of Israel is refusing to take action against illegal outposts (and appears to be trying to legalize some).  Notwithstanding Israeli obligations under the Roadmap, repeated commitments to previous Administrations, and repeated statements from Israeli officials professing their intent to deal with illegal outposts, in the aftermath of the moratorium announcement the Israeli government is not only delaying action on outposts, but is taking steps to legalize some.  For example, the government of Israel has told the High Court that it cannot take action on outposts because of the burden already placed on the government and law enforcement by the moratorium (which, as seen above, has been poor at best).  Moreover, the government of Israel has declared to the court that it is planning to re-examine the cases of two illegal outposts (Haresha and Hayovel), with an eye toward retroactively authorizing the illegal houses that were built in them. These are outposts that in the past the government of Israel has admitted are completely illegal and promised to demolish. 

Settlers are blatantly defying enforcement personnel, thus far with no real consequences.  Thus far it appears that the government of Israel is only going through the motions, tolerating settler defiance of stop-work orders. In addition, settler violence – against Palestinians and Israeli security forces, as part of the “price tag” strategy to deter any government of Israel actions against settlements and outposts – continues and is increasing, with thus far no real cost imposed on settlers.  In a widely-publicized case in December, settlers set fire to a mosque near Nablus – so far Israel has been unable to find the culprits.  Most recently, settler youth attacked IDF forces carrying out a practice drill in the West Bank – settler leaders defended the youth, arguing that they did not know it was just a drill but believed that the forces were there to remove an illegal outpost. 

 

The government of Israel is adopting policies and making statements that undermine the credibility of the moratorium and indicate that Israel does not intend to negotiate over future of settlements. There are many reasons for the Palestinians to mistrust the Netanyahu government’s intentions, and given that the moratorium is so limited, its actual impact is hard to measure and hard for Palestinians to see on the ground.  Thus, for the moratorium to serve as a means to renew the negotiations, it must be bolstered by actions and words that demonstrate Israeli good faith.  Unfortunately, the actions and words of the government of Israel and Israeli politicians thus far have demonstrated the opposite.  Examples include:

  • In late January, Netanyahu participated in a tree-planting ceremony at the settlement of Ariel, during which he asserted that Ariel (which is located halfway between the Green Line and the Jordan border) and its surroundings will forever remain part of Israel. (Netanyahu: .”)
  • In early December, the Israeli Government decided to include many settlements – including some located east of the barrier and outside the so-called “settlement blocs” – in the list of “national priority areas,” meaning that Israelis would receive special benefits and incentives to live in/move to these areas.
  • In mid-February, Netanyahu announced that several sites in the West Bank would be included in a new list of Israeli national heritage sites (including Rachel’s Tomb in Bethlehem and the Cave of the Patriarchs/Ibrahim Mosque in Hebron). The express goal behind the list is to strengthen Israelis’ connection to the sites as part of asserting Israel’s national heritage and connection with the land. The announcement came in parallel to a new initiative by settler activists to defy Israeli law and force their way into areas under full Palestinian control, in order to visit/lay claim to Jewish sites in these areas. So far there have been no consequences (settlers who illegal entered Jericho, for example, were only briefly detained and then released).
  • In mid-January, Defense Minister Barak ordered that the college in the settlement of Ariel be recognized as a “university center” – a move that settlers have been seeking for some time but one that has been strongly opposed by Israel’s Council for Higher Education, which is in charge of such decisions within the Green Line (since Ariel is in the West Bank, the decision is not in the hands of Israeli educational authorities, but left to the Defense Minister).
  • Almost since the moment the moratorium was announced, there have been a steady stream of statements from Israeli politicians (inside and outside the government) indicating bad faith. Netanyahu and Barak keep offering the settlers “gifts” (see above). Defense Minister Ehud Barak tells settler leaders not to worry – Israel will never relinquish settlement blocs. Kadima leader Tzipi Livni and Knesset Member Shaul Mofaz criticize the moratorium because it includes settlement blocs. Foreign Minister Lieberman assures settlers that as soon as the moratorium expires construction will re-start without restrictions. Israeli government officials make clear that the moratorium will expire in ten months and not be renewed. They insist that as soon as it expires Israel will restart building without restraint, regardless of what might be happening in the peace process. For their part, settlers are pressing for illegal construction during the freeze, with some suggesting that they have assurances that after the moratorium expires, such construction will be retroactively approved.

Events in Jerusalem are out of control.  Although Jerusalem was explicitly not mentioned in the moratorium, Jerusalem emerged immediately as a focal point of tensions and of actions that discredit Israeli good faith regarding settlements and negotiations.  

Neither the Palestinians, the Egyptians nor the Jordanians, much less the other Arab states, can accept negotiations that make them appear complicit in the loss of East Jerusalem to the Arab and Muslim worlds. This does not mean a 100%, publicly-declared settlement freeze is necessary or appropriate (given that some of the most problematic developments are not technically “settlement construction” but fall into the broader category of actions that seek to impose full Israeli-Jewish hegemony on Palestinian parts of the city).  However, unless Jerusalem is brought under control, it will be impossible to launch or sustain a credible political process. 

Examples of the problems in Jerusalem include the announcement of a massive new plan to expand the settlement of Gilo (which came at almost exactly the same time as the announcement of the moratorium).  Since the announcement, there has been a steady stream of problematic Jerusalem-related developments: the announcements of new tenders for settlement construction in Neve Yaacov, Har Homa, and Pisgat Zeev; the refusal to clamp down on extremist Jewish initiatives in the heart of Palestinian neighborhoods (Mt. of Olives, Sheikh Jarrah, Silwan); continued home demolitions and threats of many more (Silwan), refusal to clamp down on illegal settler activities in East Jerusalem (Beit Yehonaton); and most recently the decision (not widely known thus far) to include the area surrounding the Old City and Silwan/City of David  in Israel’s new national heritage plan.

There is also an apparent Israeli effort to roll back progress made on the Jerusalem issue in past negotiations and return to a starting point of “Israel will not negotiate the future of Jerusalem at all.” (Note: Jerusalem-related tensions under the Obama Administration began well before the announcement of the moratorium, with home demolitions that coincided with Secretary Clinton’s first visit to Jerusalem and the Shepherds Hotel fiasco).


Produced by Lara Friedman, Director of Policy and Government Relations, Americans for Peace Now, and Hagit Ofran, Settlements Watch Director, Peace Now (Israel)