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Settlements in Focus (June 14, 2010): The Settlements Moratorium- A Six-Month Accounting

Volume 6, Issue 4

On November 25, 2009, the Government of Israel announced a 10-month moratorium on settlement construction and planning.  In December 2009 we offered an early accounting of the moratorium and its impacts, in the form of a "balance sheet" showing the "liabilities" (negative aspects of the moratorium),  "accounts receivable" (aspects that could turn out to be either negative or positive) and "assets" (positive aspects of the moratorium), and.  In March 2010 we updated this balance sheet. 

Now, six months into the moratorium - with the September 2010 expiration of the moratorium looming large in the minds of policymakers in the US and Israel, as well as in those of the settlers and their supporters - we present our latest balance sheet.


This balance sheet shows the settlements moratorium policy as being increasingly "in the red":

  • assets are shrinking and of diminishing value;
  •  liabilities are growing;
  • accounts receivable will now be the decisive factor in determining whether this entire moratorium will in the end be judged a success or a bust.


IN THE LIABILITIES COLUMN... 

From the start, certain aspects of the moratorium - as well as certain government actions, policies, and statements - have undermined its impact on the ground and its credibility as a political tool to build some of the confidence necessary to catalyze a successful political process.  

Settlement construction continues apace.   Six months into the moratorium, settlement construction continues - the result of the numerous "exceptions" insisted on by Netanyahu. These include the broad exception permitting construction that was already underway as of 11/25/09 to continue (around 3000 units), and exceptions to permit some new construction to start (around 492 units) and another 112 housing units recently approved in Beitar Illit (under the excuse of a safety need, in order to shore up ongoing construction).  While the government of Israel continues to portray these exceptions as necessary and limited, the fact is that these "limited" exceptions reflect a far higher rate of construction than inside the Green Line.  This means that in the West Bank, 1,167 units were being built for every 100,000 settlers.  In contrast, inside Israel, at the time the moratorium was declared, only 836 units were under construction for every 100,000 Israelis, according to official Israeli statistics.  What all this signifies is that if the moratorium is not extended beyond September 26th, the net impact of the moratorium will be nothing more than a 10-month delay in construction, rather than any real drop in construction on the ground. 

A mistaken impression that a freeze has actually been implemented is taking hold Israel's Central Bureau of Statistics (CBS) recently released a report stating that there were no new building starts in settlements during the first quarter of 2010.  This statistic has been seized on by Israeli officials, settlers, and settler advocates as proof that there is a total settlement freeze.  The reality is very different.  First, as the CBS report makes clear, during the first quarter of 2010 construction in settlements continued apace - 415 units were completed and as of the end of March 2010, 2,361 units were under construction.  Official statistics also make clear that in the fourth quarter of 2009, on the eve of the moratorium, there was a 33% spike in building starts compared to previous months, effectively inoculating the settlers in advance so that they would feel little or no effect from the moratorium. Indeed, government-backed construction (as opposed to private construction) increased by 300% in the last quarter of 2009, from 10 housing units in the third quarter to 341 in the fourth quarter.  This was the highest number of starts in this category in any quarter since the beginning of 2007; indeed, since the beginning of 2007 the number of starts initiated by the government had continuously declined. Second, the CBS counts new housing starts on the basis of the number of construction permits issued - it does not conduct surveys of what is actually happening on the ground.  This means that the numbers do not count construction undertaken without permits, which is a widespread phenomenon in settlements, as documented by Peace Now. 

The exclusion of East Jerusalem from the moratorium remains a huge problem.  East Jerusalem is not mentioned in the moratorium, in all likelihood because it was understood that Netanyahu would never agree to publicly limit, in any way, Israeli activities there.  However, it is abundantly clear that provocative Israeli actions in East Jerusalem are inconsistent with a viable peace process.  Jerusalem has thus persisted as a focal point of tensions and of actions that discredit Israeli good faith regarding settlements and negotiations.  This began with 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 then Jerusalem-related crises have continued, most notably with plans to expand the settlement of Ramat Shlomo, announced during Vice President Biden's visit to Israel, followed by news of two developments in Sheikh Jarrah:  the issuance of building permits for a new settlement at the Shepherds Hotel site, announced during Netanyahu's visit to Washington, and plans for large new settlement nearby (Shimon Ha-Tzaddik).  In addition, there have been announcements of new tenders for settlement construction in Neve Yaacov, Har Homa, and Pisgat Zeev; the announcement of major plans to "redevelop" part of Silwan, including evicting many Palestinian residents; 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 Yehonatan), as directed by Israeli courts; and the decision to make visiting the Silwan/City of David part of the curriculum of every Israeli school child, in what appears to be an effort to build "consensus" from a young age that this area is a part of the core of Jewish Jerusalem and can never be give away under any peace agreement.

Planning and preparations for construction in settlements continues. 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.  In addition, the moratorium does not bar efforts to promote new plans for settlement construction (i.e., filing new plans, getting interim approvals, getting final approval - in essence, it is permitted to do everything except obtain a construction permit and start construction).  And, indeed, this is what is happening, with the settlers ready with approved plans, prepared to start construction as soon as the moratorium expires.

Construction continues in settlements in violation of the freeze, with no real consequences.  Settler violations of the moratorium continue and they continue to be constant and blatant.  The government of Israel has admitted that such construction is taking place in at least a quarter of the settlements, but has done little to address it.  In addition, Peace Now has documented evidence of settlers laying fake foundations (in order to "legalize" additional construction by claiming 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).  In response, for the past six months the government of Israel has appeared to be only going through the motions, conducting very few demolitions of illegal construction and tolerating settler defiance of stop-work orders and tolerating, as well, increasing settler violence and hooliganism Settler violence against Palestinians has become a constant, including torching of cars, acts of arson, graffiti, and other vandalism, including burning fields and trees.  Settler violence against Israeli security forces also continues, including attacks on soldiers.  All this is part of the "price tag" strategy to deter any government of Israel actions against settlements and outposts - a strategy that thus far has resulted in no real consequences for the settlers. 

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 six months since the moratorium was announced the Israeli government has not only delayed action to enforce the law against outposts, but is actively declaring its intentions to legalize some.  Earlier this year the government 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 (enforcement which has been poor at best).  In January, the government 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 illegal and promised to demolish.  Most recently, the government declared its intention to look for a way to legalize these two outposts, plus one more (Derech Ha'avot).  The state expressed special interest in legalizing Hayovel, since it is the home to the families of two slain IDF soldiers.  The state also illegally paved a road connecting Hayovel (the illegal outpost that the government is trying to legalize) to the settlement of Eli, provoking a sharp rebuke from the Israeli High Court. 

Most recently, a new argument is being made by Israeli officials, to the effect that Israel is not bound by its repeated past promises to remove outposts.  They argue that this Israeli promise was valid only in the context of secret "understandings" with the Bush Administration that would have permitted Israel to continue building in settlement blocs.  They argue that since President Obama has not respected these secret "understandings" Israel is no longer bound by its commitments on outposts.

Israeli officials continue to make statements that undermine the credibility of the moratorium and indicate that Israel does not intend to negotiate over the future of settlements.  Recent examples include:

The extension of the moratorium requires a proactive action by the government. The moratorium is set, under law, to expire automatically on September 26th.  Absent affirmative action by the government to extend the moratorium, settlement construction will be able to immediately re-start. On the other hand, extending the moratorium would require the government to take action: it would have to issue a new moratorium law. This means the default outcome - the result that will occur if the government simply does nothing - is an expiration of the moratorium and an immediate re-starting of settlement construction.  It means that any other outcome will be a heavy lift politically, inviting further pressure, especially from within the coalition, from those members who do not want to vote, again, against the settlements.

 

IN THE ACCOUNTS RECEIVABLE COLUMN... 

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

Netanyahu is counting on the midterm American elections to block pressure on Israel to extend the moratorium.  Israeli officials constantly repeat that the moratorium will end after 10 months (on September 26, 2010) and will not be renewed. It is now generally understood that Netanyahu's insistence on 10 months (rather than, say, a year) for the duration of the moratorium reflected his desire - some would call it cynical, other savvy - to make sure the expiration of the moratorium coincided with the run-up to November's mid-term elections in the US.  His assumption being, it is assumed, that this will be a period during which the Obama Administration will find it nearly impossible to pressure Israel to extend the moratorium, given how such pressure might play in the elections.  It remains to be seen if his assumption is correct.

The extension - or non-extension - of the moratorium will be the decisive question.  One of the negative aspects of the moratorium is that given all the exceptions, it is already understood that during the ten-month lifespan of the moratorium there will at no point be a visible freeze in settlement construction.  That is, construction on the ground has not stopped and will not stop during the entire 10 months, because sufficient construction was already going on when the freeze was declared to carry the settlers through the entire 10 months.  This means that for Palestinians, any positive impacts of the moratorium are still completely theoretical.  If the moratorium is extended for a significant period of time - with no new loopholes or exceptions - the ongoing construction will be completed and it will eventually mean that there will be a visible freeze, which could contribute significantly to confidence in the peace process.  However, if the moratorium is not extended, these past 10 months will have had no significance on the ground - either in terms of settlement construction (which never stopped) or political impact (since the failure to stop construction contributed to the failure to build of confidence).  Worse still, the moratorium may actually end up having laid the groundwork for a major increase in settlement construction, with settlers working hard, in advance of the expiration, to gain approval for new projects to be implemented as soon as the moratorium ends.

The government can extend the moratorium, but won't do so unless it faces serious pressure. Contrary to the expectations of many observers, Netanyahu's coalition continues to be stable. His right-wing coalition partners - Yisrael Beiteinu (Leiberman), Shas and the Jewish Home - know that they have no alternative but to stay in the government, recognizing that if they leave the coalition to protest the settlement moratorium, the Kadima party will quickly take their place. The fact that this right-wing government survived the adoption of theoretically the most far-reaching settlement freeze in history shows that when pressed, this government can abandon its hard-line rhetoric for more pragmatic policies, with no real cost to the coalition itself or from any external opposition (serious opposition from the right is almost non-existent, since most of the right-wing parties are in the coalition).  This demonstrated stability undermines any political excuses Netanyahu might offer for refusing to extend the freeze past September. 

The Israeli public is prepared to accept serious compromises on settlements, if its government leads in this direction. Six months into the moratorium - and after six months of complaints from the settlers - there is still no real public Israeli outcry or objection to the moratorium or any public outcry against extending it.  Indeed, while the settlers continue to try to capture the Israeli public's attention and sympathy for their cause, what they encountered from the start has primarily been Israeli popular indifference.  The likelihood of the settlers being able to mobilize large-scale Israeli popular opposition to extending the moratorium  - especially in the face of what will no doubt be a high political cost for Israel if it decides to end the moratorium - is extremely low, and the settlers and the government no doubt know this.  On the other hand, the likelihood of the Israeli public being unhappy about strained US-Israel ties (not to mention further international censure) over a decision to end the moratorium - a decision that will be of benefit solely to the settlers - is extremely high.

Jerusalem can be quietly brought under control if Netanyahu wants to do so.  Netanyahu has already demonstrated that when he wishes to do so he can get a handle on Jerusalem provocations.  This was seen with his intervention to stop Jerusalem Mayor Nir Barkat from moving forward with an extremely problematic plan to "redevelop" part of Silwan, and has been evident in the wake of the March 2010 Jerusalem settlement flap (over Ramat Shlomo).  In the wake of this confrontation with the US, provocative projects are no longer being brought up for approval (at least as of this writing).  It should be emphasized that while an extension of the settlement moratorium is vital, a publicly-declared settlement freeze in East Jerusalem is not necessary.  What is needed is a de facto freeze on provocative actions.  Nor, in fact, would such a public freeze necessarily be appropriate or desirable, 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 sustain a credible political process. 

 

IN THE ASSET COLUMN...

The positive aspects of the announcement of the moratorium itself, the way it was declared, and its political impacts thus far, have not really changed since the 3-month assessment, except that as time goes on their actual value becomes increasingly dubious.  Briefly, they are:

There is a slow-down in new construction in the settlements.  Although it is a little premature to determine to what extent in numbers the moratorium is being enforced, we can clearly say from our monitoring efforts in the field that there has been a significant decrease in new construction starts, despite many cases of violations of the freeze. However, as mentioned above, the ongoing construction and the race for new starts at the eve of the moratorium compensates for that slow-down. 

The moratorium is 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 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 the moratorium is, at least in theory, much more concrete and significant than any similar announcement or obligation undertaken by any previous Israeli government.

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 settlements located west of the 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.



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