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Settlements in Focus (Nov. 1, 2011): Settlements Back on the Agenda

OutpostLieverman186x140.jpgVol. 7, Issue 1

Talk about settlement construction and a possible new settlement freeze is again in the news. In this edition of Settlements in Focus, we will highlight a number of post-moratorium trends, analyze the current talk about a new settlement freeze, and suggest what would actually be required to make a freeze sufficiently credible to restart, or continue for more than a brief interlude, Israeli-Palestinian peace negotiations.  Please note that the numbers in this document reflect the best information that Peace Now has been able to obtain; additional approvals of construction and planning may have been issued that have not yet come to light.


Please note that as this analysis was being posted, new plans were announced by the government of Israel to expedite 2000 settlement units in the West Bank and East Jerusalem, as punishment for the Palestinians being accepted as members of UNESCO.

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1.  Construction in West Bank Settlements Continues at a Fast Pace

Construction never fully stopped.  As we made clear in previous analyses of the settlement "moratorium," at no time did construction in settlements fully stop, since the moratorium didn't apply to construction that was already underway, or to a number of other "exemptions" insisted upon by Israel.  Although the moratorium did dramatically reduce the number of new construction starts for ten months for the Palestinians, this meant that the "moratorium" was merely theoretical - construction on the ground never stopped. 

The post-moratorium spike in new starts erased the effects of the moratorium on the ground. Immediately after the end of the moratorium there was a spike in new construction that more than compensated for these ten months, bringing the net number of new starts for 2010 back to the previous 2009 level.  Peace Now data, based on the analysis of aerial photos of settlements and field visits, show that in the ten months since the end of the building freeze in the settlements (October 2010 to July 2011) there were 2,598 new housing units started, in all areas in the West Bank (East and West of the Barrier).  A full list documenting all construction (in every settlement) is available here.

The Netanyahu government is authorizing a great deal of new settlement construction.  It is true that some of the current construction is based on old permits granted by previous governments. However, according to press reports, the Netanyahu government has authorized for marketing at least 1,543 new housing units in the settlements (not including East Jerusalem), 1,051 of which were approved after the end of the moratorium.

There are nearly 38,000 housing units in settlements whose planning was authorized in the past, and all that is need to begin construction on them is a marketing permit (the last authorization required from the government before beginning work in a settlement, granted after plans have been approved for validation).   The Netanyahu government approved for marketing almost 500 units in the months immediately before the moratorium and has approved for marketing more than 1000 units since the moratorium ended.  

The Netanyahu government is seeking to retroactively legalize illegal construction in settlements.  On April 4, 2011 it was reported that the defense minister had authorized the advancement of plans whose purpose was to retroactively legalize hundreds of housing units in six settlements.  Another plan for 27 housing units in the settlement of Halamish was advanced on April 13, 2011, with the goal of retroactively legalizing illegal construction that had already begun there.  There are also indications of authorization of the advancement of plans to legalize illegal construction in Itamar and Eli.  

Finally, all of this settlement activity is not limited to so-called "settlement blocs" or even to areas on the Israeli side of the separation barrier built by Israel (largely inside the West Bank).  In reality, two-thirds of new building starts  are in settlements east of the constructed part of the separation barrier:  around one-third (826 units) is in isolated settlements, east of the approved (but not yet completed) route of the separation barrier; and a little more than a third (903 housing units) are in settlements east of the completed barrier, but west of the planned route of the fence (in "fingers" extending into the West Bank where the Israeli government has refrained from completing construction of the barrier for political reasons). The remaining third of the building starts (869 units) are in settlements on the Israeli side (the west side) of the completed barrier.

For further details of all these approvals, see Peace Now's report, here.

2.  There are new and unprecedented Israeli government efforts to legalize outposts 

In March 2011, the Israeli government, in response to a Peace Now petition to the Israeli High Court of Justice dealing with the government's failure to implement the law and remove six illegal outposts,  announced to the court a new policy: it would demolish outpost construction on private Palestinian land, but would seek to "legalize" all other outpost construction.

Previous Israeli governments consistently promised the Israeli High Court they would enforce the law against illegal outposts, but for the most part found legal pretexts to delay doing so. The Netanyahu government, in contrast, was refreshingly honest -- declaring its policy openly rather than continuing the charade. While the government's March announcement was phrased as a general policy, it appears for now that it will implement the policy only in cases where construction has been challenged in court, of which there at least 8, out of a total of at least 70 outposts located fully or partially on privately-owned Palestinian land (along with many official settlements). These 8 outposts involve some 650 illegal homes (approximately 2600 people).  In response to the announcement of this new policy, the Court required the Netanyahu government to report back to it on November 1, 2011, regarding its plans to remove the outposts on private land. 

On November 1st, the government asked the Court for a one-week extension before it has to report back.  This reflects in large part the fact that as the November 1st court-imposed deadline has drawn nearer, settlers have increased pressure on the government to renege on its commitment to the court to remove settlement construction on privately-owned Palestinian land - and Netanyahu appears to be caving. 

In October 2011 the Israeli government let it be known that Netanyahu also wants to "legalize" outpost construction on private Palestinian lands. In order to do so, the outposts, the government of Israel will have to come up with a legal pretext to void the Palestinians' already established and recognized claims to the land.  In early October, Netanyahu announced his intention to establish a committee of independent advisors whose mission would be to find mechanisms to do just that.  This plan has since been reportedly been opposed by the Israeli attorney general, who apparently determined (consistent with Israeli law) that the committee cannot take up cases where the High Court has already ruled that an outpost is located on private land and must be demolished.  In response, a faction of Likud members are suggesting that Netanyahu find a way to bypass the attorney general - disclosing the extent to which some settlement supporters are willing to sacrifice even the pretense of rule of law in order to protect illegal outposts.

These unprecedented efforts to legalize outposts send a message to the Palestinians that Netanyahu isn't interested in serious peace negotiations or a peace agreement.   Any actions related to settlements, and in particular high-profile actions like legalizing outposts, make it difficult if not impossible for the Palestinians to return to the negotiating table. Legalizing outposts located deep inside the West Bank only bolsters the conclusion that Netanyahu prefers settlements to peace. 

For further discussion of this effort to legalize outposts and what it means, see our recent report in the Huffington Post, "Outposts & the Abuse of Law in Service of the Settlements."
 
3.  There is today an unprecedented spike in East Jerusalem settlement activity

Only recently the world learned about well-advanced Israeli plans for a new settlement in the southern part of East Jerusalem, called Givat Hamatos.  This plan has nothing to do with "natural growth" of an existing neighborhood, and while there are genuine housing needs in Jerusalem, the reasons to proceed with this particular (and extremely controversial) plan appear to be primarily political - which helps explain why the plan is being fast-tracked.  The planning requirements related to this settlement are unusually complicated, due to complex property ownership in the area.  Under normal circumstances sorting this out would take years.  But these are not normal circumstances - these are circumstances in which a political decision has been taken to make this plan happen.  As a result, approval of Givat Hamatos is proceeding at a previously unimaginable speed. 

Politically, approval of this plan is fraught with symbolism and political signals, since it will create the first new Israeli settlement neighborhood in East Jerusalem since Netanyahu established Har Homa in 1997, during his first term as Prime Minister.  And on the ground, this project is a game changer.  Givat Hamatos, if built, will become a physical and inhabited barrier blocking any future Palestinian contiguity between Palestinian neighborhoods in the southern part of East Jerusalem and the West Bank.  In doing so it will make a two-state solution in Jerusalem, and thus the entire two-state solution, exponentially more difficult to achieve.  It should be noted, too, that the approval of Givat Hamatos comes on the heels of recent approvals of three other settlement plans for Jerusalem's southern flank.    Taken together, a settlement buffer between East Jerusalem and the West Bank is taking shape before everyone's eyes.
 
Approval of the Givat Hamatos plan is only the latest incident in a pattern of problematic behavior by the Netanyahu government in East Jerusalem.  This pattern started at the beginning of November 2010, immediately after the settlement "moratorium" expired.  That moratorium included, quietly, a de facto freeze on government-back settlement activity in East Jerusalem (beginning immediately after the March 2010 incident, when the approval of construction in the East Jerusalem settlement of Ramat Shlomo was announced during Vice President Biden's visit to Israel).  The moment the moratorium ended the Netanyahu government opened the settlement floodgates in Jerusalem.

Looking at just one key step in the approval process - the depositing of plans for public review - tells the story.  This is one of the final steps in the lengthy process for approving a new plan, which involves a number of approvals at various levels.  During Netanyahu's first year in office, 3710 units were deposited for public review, continuing the high level of approvals that began after the Annapolis Conference.  This number dropped to zero during the moratorium.  But between November 1, 2010 and October 15, 2011, 7779 units were deposited for public review.

Similarly, during Netanyahu's first year in office, 1360 units received final approved.  That number dropped to zero during the moratorium.  But between November 1, 2010 and October 15, 2011 that number jumped to 3995 units.

All of this occurred in addition to private settlement activity, supported and approved by the government of Israel, inside Palestinian neighborhoods in East Jerusalem.  Here, too, the behavior of the Netanyahu government over the past year has been problematic, giving the green light for new units in Sheikh Jarrah, at the Shepherds Hotel, on the Mount of Olives, and in Ras al Amud.  In total, approval has been granted to 114 new units (500-600 people), all located deep inside Palestinian neighborhoods of East Jerusalem, in locations where settlement have one  main purpose: to prevent the establishment of a Palestinian capital in East Jerusalem.

If settlement activity in East Jerusalem continues at current levels, within 2-3 years the geographic and demographic map of Jerusalem will become so Balkanized that the very possibility of the two-state solution will be in jeopardy.  If settlement activity in East Jerusalem continue at current levels, the resumption of negotiations appears extremely unlikely (and if negotiations were somehow resumed, it seems very unlikely that they would last for very long and have a chance of reaching fruition).

For comprehensive details of construction in East Jerusalem please see this presentation on the East Jerusalem Planning/Construction process.

4.  When a "freeze" isn't really a "freeze" at all

In the context of the situation described above, there now comes discussion of new kinds of settlement "freezes" that might be acceptable to Netanyahu and, it is hoped, could pave the way for new negotiations.  All are transparently not "freezes" by any objective definition of the word "freeze."  Under current circumstances, it is extremely improbable that any would be sufficient to convince Palestinians to return to the negotiating table and, if they did somehow achieve this, to keep them there for very long.

Fake Freeze Formula #1: Freeze "government construction" in the West Bank.
  According to recent reports, Netanyahu is offering a construction freeze of governmental construction in the settlements. According to the classical definition of "governmental construction" (that is, "public construction"), such a "freeze" would at best slow only partially and insignificantly the pace of construction, allowing at least 84% of the construction to go on as usual (bearing in mind that the government of Israel has the ability to freeze 100% of settlement construction, both public and private, if it so desires).

  • A "no-tenders" freeze.  A minimalist version of such a freeze would mean only that the government of Israel would not issue new tenders.  Interestingly, the Netanyahu government has already imposed a de-facto "no new tenders freeze" - in the almost 3 years of the Netanyahu government, not a single tender was published for construction in West Bank settlements and relatively few in East Jerusalem. Nonetheless, on the ground the total construction in settlements only increased (except during the 10 months of the settlement moratorium). This is because in recent years there has been a drop in the public construction in settlements and a rise in the private construction. In the first half of 2011, government construction (tendered pre-Netanyahu) accounted for only 16% of the total construction in the settlements, while 84% was initiated privately.  As such, the past few years have demonstrated that even when there are fewer government tenders, total construction in West Bank settlements is not changing, since private construction compensates for the drop.  Meaning that a "no tenders" freeze would be no freeze at all - something the Palestinians have apparently grasped

  • A "no new approvals" freeze.  Another idea is for a freeze not only on new tenders, but also on new approvals of any construction, private or public, in settlements.  However, such a "freeze" would not stop the construction in West Bank settlements. As noted above, according to Peace Now's count, plans for approximately 38,000 units in settlements are already in the approval pipeline, of which some 10,000 have already been fully approved for marketing. This means that even if the Israeli government stopped all new approvals for construction, these 10,000 units could still be built - something the Palestinians have apparently grasped as well

  • A "no construction on State Land" freeze.  Another potential interpretation of a freeze on government construction could be (but it less likely to be) a halt to construction on West Bank land claimed by Israel to be State Land. The vast majority of the construction in settlements (estimated to be over 90% of the construction) is on lands that are considered as "State Land."  However, in order to fully freeze such construction the government would have to issue a military order (like in the previous freeze) officially prohibiting any use of State Land, including land that has already been allocated and approved for settlement construction. Without such an order the Israeli government will only stop new allocations and approvals for marketing, allowing the settlers to still build the 10,000 units that have already received the necessary approvals.  Genuinely freezing settlement construction on State Land would produce a significant halt to construction in settlements, leaving only few projects on lands that were privately bought from Palestinians -- something the Palestinians have apparently grasped

Fake Freeze Formula #2: Freeze construction outside of existing settlements in the West Bank.  Recent reports seem to hint at the Obama Administration moving in the direction of the kind of freeze that was broached during the George W. Bush era - wherein settlers would be allowed to build, but only within the existing area of the various settlements.  However, as we noted back in 2009 during the debate over a settlement freeze, when it comes to this proposal, previous U.S. administrations discovered that the devil is in the details (despite what hard-line U.S. advocates of such a formula might say).   This is because the definitions of "inside a settlement" and "expanding" can be quite flexible in the eyes of the settlers and the Israeli government.  To think about this more concretely:

  • Place your hand on a hard surface, splay your fingers wide apart, and take a pen and trace your handprint. Your handprint represents the built-up area of a settlement.
  • Draw another line connecting your fingers and your thumb. This line represents the land the settlers might argue is, in effect, already part of the built-up area, even if it has no buildings on it yet.
  • Draw a circle around the handprint, leaving a few inches of empty space between this new line and the handprint inside. This line represents the security fence surrounding the settlement, which the settlers might argue is already in effect the "footprint" of the settlement on the ground, since this area is wholly under the settlement's control.
  • Draw another much larger circle around the previous circle. This represents the municipal area of the settlement, which the settlers might argue is legally and officially part of the settlement, even if they have not built on it yet.

It is this argument over lines - with settlers looking to exploit any loophole they can find in order to permit more expansion of settlements - that has led past US administrations into the trap of seemingly endless and irresolvable negotiations over how to decide what it means to build "inside" settlements.
 
This is not a debate over semantics. Many settlements have far-flung "neighborhoods" that, if used as the basis for the "construction line," would permit massive expansion. Most settlements have security fences surrounding them, meaning that this larger area of land is already off-limits to Palestinians. And nearly all settlements have a municipal area many times the size of the built-up area of the settlement - indeed, while the built-up area of settlements takes up less than 2% of the West Bank, fully 9.3% of the West Bank is included within the officially declared municipal boundaries of these settlements; permitting expansion inside these areas would allow settlements to grow many times over, in a way that would make a two-state solution all but impossible.

Some will argue that the difference between construction inside settlements and expansion of settlements is like pornography: you know it when you see it. However, opening this loophole is dangerous, creating a situation where the US will be called on to constantly "referee" what is and isn't permitted.  Given the Obama Administration's demonstrated poor capacity to convince the Netanyahu government to do anything it asks, it seems unlikely that a freeze whose credibility is based on U.S. promises of "don't worry, we will make sure the Israelis don't abuse it" will be difficult for the Palestinians to swallow.

Finally, even if there was an agreed-upon line defining the footprint of a settlement and an agreement that construction would occur only within this line, still the expansion of the settlement, population-wise, might make a compromise impossible.  More settlers in a settlement make it much harder for any Israeli government to evacuate a settlement, and the price of removal of the settlement becomes much higher. Such a loophole might very well endanger chances of getting to an agreement.

Fake Freeze Formula #3: Freeze tenders for settlement construction in East Jerusalem.  As is the case with fake freeze formula #1, this freeze is "fake" for a number of reasons:

  • While there have been relatively few tenders issues in East Jerusalem since the end of the moratorium, under the current status quo there are regular (sometimes daily/weekly) new approvals granted for settlement construction in East Jerusalem, with Israeli officials often making the case publicly that these approvals are intended to block any future political compromise on Jerusalem.  As such, these approvals resonate throughout the Palestinian body politic, and beyond.  They are devastating to Abbas's leadership and credibility, and highlight his inability to "deliver" by means of negotiations (while Hamas is able to deliver the release of Palestinian prisoners).  They also make it impossible for the Arab world to give the necessary political cover to the Palestinians to return to talks.

  • Like in the West Bank, even with tenders "frozen," several hundred settlement units can be built in East Jerusalem by private developers, and construction of more than a thousand units can commence or continue, unabated.  These include units in places like Givat Hamatos and Mordot Gilo, where settlement construction makes a two-state solution in Jerusalem exponentially more difficult.

  • A partial freeze, only of tenders, sets the stage for an even larger surge to follow. Today there are Israeli plans - ready to commence in a year or less - for nearly 10,000 additional units in East Jerusalem settlements (an increase of 18% in the total number of units built in East Jerusalem settlements since 1967).  Of these, tenders can be issued immediately for 2000 units.  Virtually all of these plans affect the potential future border between Israel and Palestine.  Some of them, like Givat Hamatos, will make a political division of Jerusalem exponentially more difficult, if not impossible.  This current surge in East Jerusalem settlement activity is in large part a result of Netanyahu opening the settlement floodgates following the end of the last settlement moratorium, and leads to an understandable suspicion that if the "no tenders" freeze were accepted, it would lay the groundwork for another even larger surge in construction when it inevitably ends.
 
5.  What a real settlement freeze would require 

In order to stop new construction, there must be an "active freeze" -  which requires a government decision that is expressed in a military order prohibiting any new construction, regardless of any approvals have been granted in the past.  This was the case in the 10-month moratorium imposed by the Netanyahu government in 2009-2010.  The Netanyahu government proved in the past that it can freeze settlements without losing its coalition and without any real public outcry.  And while the 10-month moratorium was by no means a complete freeze and had many loopholes, it was nevertheless significant, and reduced the construction in settlements to an unprecedented low pace.

However, as discussed above under the previous moratorium settlement construction on the ground never ended and the moratorium itself paved the way for a huge spike in construction immediately upon its expiration.  As a result it is quite possible that going forward, the Palestinians would be hard-pressed to  accept a freeze that includes similar loopholes, and would instead demand a genuine freeze - a freeze on all construction, regardless of previous approvals, regardless of location, and regardless of whether construction was already underway.

Likewise, the previous moratorium did not explicitly include Jerusalem.  However, the reality is that following the March 2010 Ramat Shlomo debacle, a de facto (undeclared) freeze on all kinds of government-sponsored settlement activity (including approvals) was put into place, through the end of the moratorium.  This proves that Netanyahu can freeze settlements in Jerusalem if he wishes to do so, and he can do so without losing his coalition and without facing any significant public backlash.  In the wake of the recent unprecedented spike in East Jerusalem settlement approvals, it seems unlikely that the Palestinians would settle for less than a similar de facto freeze in Jerusalem.

For further discussion of what it would really mean to freeze settlements, see the March 27, 2009 edition of Settlements in Focus: "How to Freeze Settlements: A Layman's Guide."

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Co-authored by Lara Friedman, Americans for Peace Now, and Hagit Ofran, Peace Now (Israel).  With special thanks to Daniel Seidemann, Terrestrial Jerusalem