The Settlements Moratorium: A Three-Month Accounting

05/02/2010 05:12 am ET | Updated May 25, 2011
  • Hagit Ofran Director, Settlement Watch project: Israeli Peace Now movement

On November 25, 2009, the Government of Israel announced a 10-month moratorium on settlement construction. From the outset it was clear that the impact of this decision would depend mainly on whether the government of Israel implemented the decision in good faith.

Now, three months into the moratorium, it should be recognized that there are some positive aspects to the moratorium, but it must also be recognized that these have been outweighed -- especially in terms of impact on the political process -- by Israeli actions, decisions, and policies that call into question its good-faith commitment both to the moratorium and to peace negotiations. (For a more extensive version of this analysis, see here).

1. There are significant positive aspects to the announcement of the moratorium:

The moratorium is official law. Unlike previous declarations on "Settlement Freeze", this time the government of Israel issued a military order imposing the moratorium, making it a legal obligation and violations are considered breaches of the law.

The moratorium does not distinguish between settlements. The military order implementing the moratorium treats all settlements as equal with no "settlement blocs" or other excuses, and in effect recognizing the Green Line as the basis for future negotiations (except in East Jerusalem).

The moratorium does not distinguish between governmental or private initiatives. The previous serious (but still partial) freeze - announced by the Rabin government in the 1990s - only applied to government-initiated projects. The current moratorium applies to both private and public initiatives.

If the moratorium is extended there could be a complete freeze of construction in the settlements. Since the moratorium allows only to complete construction that started before the moratorium was declared, theoretically, if it is extended past the 10-month period (with no new exceptions or loopholes), eventually when all the current construction is completed there will be, for the first time ever, no construction in the settlements.

There are some positive political facts disclosed by the moratorium:

This government is stable. Netanyahu's coalition has proved to be very stable. His right-wing partners know that if they leave the coalition, the Kadima party will quickly join 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 moratorium shows that when pressed, this government is willing and able to abandon its hard-line rhetoric for more pragmatic policies.

The Israeli public is prepared to accept serious compromises on settlements. 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 objecting to the moratorium have not really been echoed in the public arena.

2. Some aspects of the announcement of the moratorium contradict and undermine the credibility and impact of the moratorium.

The moratorium itself is problematic. The moratorium is full of holes: it doesn't include East Jerusalem; it permits a great deal of construction to continue; and it is time-limited.

Wide-scale "legal" construction and planning in settlements continues.

Built into the moratorium were a large number of "exceptions" permitting construction that was already underway to continue and some new construction to start. These exceptions reflect a far higher rate of construction than inside the Green Line.

Construction continues in violation of the freeze, with no apparent consequences thus far. Settler violations of the moratorium have been constant and blatant, with the government of Israel admitting they are taking place in at least a quarter of the settlements. Peace Now has documented evidence of settlers laying fake foundations, and documented evidence of settlers carrying out new (unauthorized) infrastructure work.

The government of Israel is creating 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. Among other things, the revised order gives the settler municipalities the authority to process (but not grant) construction permits. This means that when the moratorium ends, there could be a significant pool of permits ready to be issued immediately.

The government of Israel is refusing to take action against illegal outposts (and appears to be trying to legalize some). The government of Israel has told the High Court that it cannot take action on outposts because of the burden placed on it to enforce the moratorium, and the government has told the court that it is planning to re-examine the cases of two illegal outposts with an eye toward retroactively authorizing them.

The government of Israel is adopting policies and making statements that undermine the credibility of the moratorium. 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. For the moratorium to be credible, it must be backed up by actions and words that demonstrate Israeli good faith. Unfortunately, thus far the evidence points to an absence of good faith. Examples include: the government's decision to include most of the settlements in the list of "national priority areas,"; Netanyahu's declaration at a tree-planting ceremony that Ariel will forever remain part of Israel; the IDF's decision to re-establish a military outpost on Palestinian lands near Bethlehem and the recent government decision to include several sites in the West Bank in new list of Israeli national heritage sites.

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. 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, and the steady stream of problematic Jerusalem-related developments: the announcements of new tenders for 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.

Co-authored by Lara Friedman