Transcript: "Rethinking a Settlement Freeze"
May 4, 2009
RETHINKING A SETTLEMENT FREEZE
On May 4, 2009, the Foundation for Middle East Peace, the New America Foundation, and Churches for Middle East Peace sponsored a panel discussion at the Carnegie Endowment in Washington. The panel examined the efficacy of freezing Israeli settlements which for years has been a principle of U.S. diplomacy concerning settlements and a two-state peace.
The speakers were Geoffrey Aronson, Editor of FMEP's "Report on Israeli Settlement in the Occupied Territories", Daniel Levy, former senior Israeli official and negotiator who is now Director of the Middle East Task Force at the New America Foundation, and Amjad Attalah, former advisor to Palestinian Authority negotiators and now co-Director for the Middle East at the New America Foundation. The panel was moderated by Amb. (ret.)Philip C. Wilcox, Jr. President, FMEP. Summary in bold, an edited transcript follows.
Repeated U.S. appeals for a freeze of Israeli settlement activity over the past thirty years have failed. Settlements have multiplied and continue to grow. Without a precise definition, exacting monitoring, and a mechanism for accountability, a renewed effort to freeze settlements is likely to fail again. Moreover, a U.S. diplomatic effort to obtain Israeli agreement for a freeze would require an effort no less formidable than to obtain Israeli agreement to evacuate settlements. A freeze would also leave all existing settlements in place. U.S. diplomacy should therefore focus on the endgame: agreements on withdrawal from settlements, borders for a two-state peace, and requisite security arrangements.
Philip Wilcox: It is widely recognized that there will be no two-state peace between Israel and Palestine without a massive removal of Israeli settlements. Today, there are some 260 Israeli settlements in the West Bank, of which about 100 are so-called "illegal outposts." Under international law, all settlements are illegal. The challenge of evacuating many or most of these settlements is huge and will require a transformation of Israeli politics. For years, a settlement freeze has been a major tool of U.S. diplomacy. This idea is that settlements could be frozen to create stability so that the larger issue of settlement evacuation could then be negotiated. Yet there has never been a sustained settlement freeze. Settlements and settlers have multiplied over the years to the point that some doubt that the process is reversible. Given this failure, it is time to re-examine whether a freeze should continue to be a central element of U.S. diplomacy, or whether the U.S. needs a new strategy aimed at evacuating settlements and defining borders for a two-state peace.
Geoffrey Aronson: Israel has devoted extraordinary national resources over the last 40 years to its settlement project to create "facts on the ground" to serve two purposes: to mark out the boundaries of Jewish sovereignty in Palestine; and to create an inextricable link between settlements and Israeli security.
From the '20s when the motto of the "Young Guards" Zionist youth organization was "Where I settle, I guard" to Moshe Dayan's remark in the early 70s that were it not for settlements in the territories occupied in 1967, the IDF would be a foreign army policing a foreign territory, settlements enabled the IDF to create a security doctrine that won Israeli public support because it was not seen as a foreign occupier, but as guardians of Israeli settlers in the "land of Israel".
For Palestinians, settlements undermine their everyday lives and their aspirations for national sovereignty. Unfortunately, for decades, diplomacy has failed to deal with settlements and reconcile Israeli and Palestinians goals. In 1992, before the Oslo era, Haidar Abdel-Shafi, the head of the Palestinian delegation to the Washington talks launched by the Madrid peace conference, wrote: "We consider settlements to be a central issue and if there is no cessation of the settlement process that practically means there is no peace process."
The Oslo process avoided dealing with settlements and, in a sense, protected them. Settlements therefore continued to grow has they had from 1972 onwards. My argument is that we need to draw lessons from past failures to deal with settlements if we want to maintain the credibility of U.S. diplomacy and to make tangible progress toward ending Israeli occupation and establishing Palestinian sovereignty. Two practical examples, the Egyptian-Israeli peace treaty and Israel's disengagement from the Gaza Strip are instructive.
In both of these instances Israel concluded that its security could be enhanced through withdrawal of both its troops and its settlements. The IDF does not view settlements themselves as providing security. When it decided that it did not need troops in the Sinai and Gaza for security, there was no need for settlements or public support to remain in these areas.
In both these cases, the idea of a freeze never arose. The only context in which a freeze has arisen have been unsuccessful efforts to constrain settlement, pending subsequent consideration of their ultimate fate. Ironically, this has resulted not in a freeze but in a protected status for some settlement expansion.
A freeze does not address Israel's security rationale underlying the occupation. It assumes that you can address a freeze while ignoring the security framework in which settlements exist. The lesson is that U.S. policy should attempt to distinguish between settlements and security by providing a more compelling and realistic basis for Israel's security.
Supporters of a settlement freeze view an Israeli commitment to a settlement halt as a practical and a simple demonstration of Israeli good faith to bring about the end of occupation and a Palestinian state. But pursuit of a freeze has failed to accomplish this.
The freeze idea was born in the mid-1970s when there were 10,000 settlers in the West Bank and 50,000 settlers in areas of Jerusalem annexed by Israel. The settlements were still under the direct rule of the IDF military commander. In that context, there are may have been a reason to view a freeze as a confidence-building measure as the parties sought to establish the parameters of an agreement. However, by the early 1990's when the freeze policy reemerged, the transformation of Israel's civilian settlement presence had turned the idea of a freeze into an idea out of time and place. It was unworkable in practice, irrelevant to the requirements of peace and reconciliation, and useful only as a rhetorical instrument for highlighting the destructive effects of settlement expansion.
There has never been much attention to the mechanics of a freeze: where would it apply and for what duration? How do you police it? And how do you assess and enforce penalties? The lack of attention to such of details by its advocates suggests that a freeze has been always been more as a political instrument than as a real policy option for making changes on the ground.
An effective freeze would be an extraordinarily complex and wide ranging undertaking. An Israeli commitment to a freeze would be seen by supporters of settlements as an implied commitment to terminate settlement and occupation. It would thus require a level and intensity of political commitment that would be no less difficult than a decision by Israel to withdraw from settlements and end its occupation. No Israeli government has ever made such a commitment, nor has U.S. policy demanded this.
The U.S. over the years has asked for a freeze, from the first Camp David negotiations under President Carter, the Reagan Plan, the Bush-Baker efforts, the Oslo process, and the Road Map, Israel has spent billions for settlement growth. We can conclude therefore that the freeze concept has been entirely ineffective as a way station to ending occupation, resolving the conflict, and bringing independence for Palestinians. Israel's rejection of a settlement freeze over the years, has thus discredited American diplomacy and created deep cynicism.
Ironically, pursuit of a freeze policy has also established both implicit and explicit support for settlement expansion. For example, there is the most famous example in the early '90s when the U.S. supported Israel's policy of "natural growth". In a statement before the House Foreign Affairs Committee in March, 1993, Assistant Secretary of State for Near East Affairs Edward Djerejian said, "There is some allowance in U.S. policy for - I would not use the word expansion - but certainly continuing construction activities in existing settlements and that is basically in terms of natural growth and basic immediate needs in those settlements." That opened the barn door ever wider.
A settlement freeze has also been used to facilitate achievement of other policy goals without affecting the larger settlement problem. In the Egypt-Israel peace talks, a vague commitment from then Prime Minister Begin to a freeze helped to facilitate the grand bargain between Egypt and Israel. The Begin freeze was limited only to creating new settlements, and did not address expansion of existing settlements. It lasted only three months, and during that period, the settlement of Ma'ale Adumim was in fact established as part of an attempt to thicken existing settlement.
In the early `90's, Prime Minister Rabin's support for a freeze enabled the U.S. to provide loan guarantees to Israel. In fact, there was no effective freeze and Rabin himself said so. There was never an attempt to infuse the Begin and Rabin freeze promises with specific and detailed requirements, monitoring Israeli performance, or sanction violations. At no time did these understandings result in anything more than a marginal change in Israel settlement policy. Indeed, more often than not, the terms that defined a freeze established protective categories for settlement expansion. The Bush-Baker demand for a freeze started out with a forthright and adamant demand. But the result was, after the election of Rabin, a decision to enable Israel to complete the construction of 7,000 units in return for a decision not to construct about 10,000 units that existed on paper. In subsequent years, all of those 10,000 were subsequently built.
The response by Bush and Baker, and later by Clinton, to Israel's continued settlement construction was to reduce the amount of U.S. loan guarantees given in response to an Israeli request by an amount equal to expenditures that the U.S. found to be in violation of the freeze agreement. The penalties for violation of this freeze agreement thus involved no reduction of actual U.S. aid. Also, negotiations over this exercise once again established protected areas for settlement expansion when U.S., for example, agreed that the roads Israel constructed during the 1990's for settler use were for the purposes of security, not settlements.
It can be argued that notwithstanding the failure of the policy of reducing loan guarantees, that it at least established the principle of penalizing settlement-related investments. Perhaps the Obama administration will revive this principle and apply it more effectively to actually constrain settlements and prompt Israel to change its policies.
During the George W. Bush years there was a move to further erode U.S. opposition to settlements whereby the U.S. would sit down with Israeli officials and draw lines for each settlement in order to give Washington's approval for certain settlement expansion. Thankfully, the U.S. decided not to pursue such complicity in Israeli settlement expansion.
During George Mitchell's mission in 2002 to analyze the causes of the second intifada, he brought the settlement problem back to front and center. In his report, he said ceasing settlements is an important and vital confidence-building measure, and he challenged Israel's ability to monopolize the negotiating agenda by removing settlements from discussion. By doing so he rejected one of the key assumptions of the Oslo era that you could have progress toward peace and continued settlement at the same time. He said they could not proceed in tandem.
Mitchell also said there could not be a reduction in Palestinian violence without a corresponding Israeli decision to cease settlements. This represented an extraordinary turnabout from previous U.S. assumptions. His conclusion that settlements endanger and undermine Israel security struck at the core of Israeli policy.
Mitchell's forthright statements notwithstanding, no U.S. administration seems to have understood the full dimensions of a settlement freeze, sought to deconstruct the concept, or offered a U.S. policy on settlements that would both change realities on the ground and address security in a way that would create a two-state peace.
My argument is that Israel's expansion of settlements can be halted, but to do so will require a degree of commitment that neither Israel nor the international community has been prepared to muster. In order to comply with the requirements of an effective freeze, Israel will have to undo a system four decades in the making by which settlers, the legislative and executive arm of the state, public-private and super-national communal organizations collaborate in the encouragement and expansion of settlements. Laws empowering public and private bodies to increase settlement will need to be changed. Many existing military orders will have to be rescinded and new ones issued. Major elements of national legislation and administrative practice which have devolved planning and budgetary power to settlements will have to be undone. Powers of taxation, planning, courts and construction will need to be radically revised in order to reflect the requirements of a freeze. All this will require a radical transformation of Israeli policy and bureaucratic organization.
A cessation of settlement will also require Israel to jettison the linkage between settlement, security and sovereignty that underlines its defense doctrine.
These massive changes indicate the kind of Israeli political commitment that would be required to impose, maintain and enforce such a change in policy and that the U.S., would have to make if it wants to enforce a settlement freeze.
American efforts would be far better spent if we adopt a policy directed at evacuation of settlements and defining borders for two states. This is what supporters of a freeze want, and what supporters of settlements oppose. The issue should be ending settlements, not just freezing them.
If the Obama administration chooses a more cautious path and continues a U.S. settlement policy based on a freeze, it must define the extent of a freeze, its duration, and issues of monitoring and accountability. Is Silwan part of the freeze but Har Homa not? Are the settlement blocks that were vaguely described in the Bush letter of April '04 excluded or not? Are the Jordan Valley settlements? What should be frozen, e.g. houses, land acquisition, roads, water and military infrastructure? Who will monitor this to measure compliance, and what penalties will be imposed? Are we going to put observers, monitors or troops on the ground? Is the IDF expected to change one of its central objectives in the West Bank, which is to assure the quality of the everyday life of settlers and to begin protecting Palestinian land and people from attacks and encroachments by settlers? All these questions need to be answered if we are serious about freezing settlements.
The last point is we have to recognize that settlements are fundamentally a lawless program. Even if the laws are changed and the IDF is somehow tasked to do things it has not done for 40 years, is there any assurance that the impunity for settlers unilateral actions for expanding settlements and other lawlessness will change?
Amjad Atallah: As Jeff said, settlements have gone hand in hand with occupation, almost from the beginning. And settlements have gone hand in hand with the peace process as well. Settlement expansion has been the most defining characteristic of the landscape during many years of Israeli-Palestinian peace negotiations. The fact that settlements were expanding unchecked and even at times accelerated as the peace process went on shows that Israel has had a very different concept than the Americans and the Palestinians about a two state peace.
When you think about all the other elements that are prejudicial to peace - checkpoints, the wall, the settler roads throughout the West Bank - all are part of an overall system of control over the occupied territories. Settlements are a special matter. Some are actual cities, and because they have taken on such permanent character, they have created a domestic constituency inside Israel that can always lobby very hard against any end to the conflict.
As settlements expand and encroach further on the Palestinians, the risk of conflict between settlers and Palestinians grows. Against the backdrop of Avigdor Lieberman's theories of ethnic separation, the prospects increase of violent attempts between Jewish settlers and Palestinians to delineate what are Jewish and what areas are Arab. Once that process gets started, it is going resemble the kind of communal violence we saw in the Balkans.
If so, a settlement freeze would seem to be a way to reduce this danger. But the question is what is the U.S. goal? If it is to use a settlement freeze to manage the conflict, then Washington could find itself involved in a full time and protracted negotiations over the definition of a freeze. Indeed, Netanyahu may come here in a few weeks and offer to negotiate over settlement construction and taking down a few outposts as a way of protecting his interest in retaining the West Bank and most of the settlements. Netanyahu would much prefer such negotiations to confronting a U.S. request to end the occupation and create two states.
On the other hand, if the goal of the Obama administration is to end the conflict during its first term and to have a peace agreement among Israel, Palestine, and all the Arab states as well as the other Muslim states who have signed on to the Arab peace initiative, then the U.S. should focus on ending the occupation via a two-state solution. This would mean taking a firm, principled position on settlements and avoiding an endless negotiation over a freeze.
The U.S. had a firm legal position that settlements were a violation of the Fourth Geneva Convention before President Reagan in 1981 said he didn't think settlements were "illegal." Although the U.S. has not expressly repudiated its former legal position, it policies toward settlements have been progressively weaker. It should reassert its former view that all settlements violate international law.
I want to comment on the Palestinian position on settlements. One of the complicating factors has been the Palestinian government's inability to understand and concentrate on settlements. As Jeff pointed out, the Palestinian negotiating team at Madrid led by Haidar Abdel-Shafi lived in the West Bank and Gaza and knew the damage settlements were doing. They made this a central point of their negotiations with Israel.
When the Israelis launched a secret second track of talks at Oslo with Yasser Arafat and the PLO behind the back of the Abdel-Shafi team that was negotiating in Washington, Arafat and his colleagues, who had never seen a settlement, failed to deal effectively with the settlement issue. Arafat believed he had an oral commitment from Rabin to stop settlement building, but he had no written promise and didn't demand one.
In fact when Arafat was first being driven from the Gaza Strip to the West Bank in 1995 after the PLO was allowed to administer urban areas there, he passed through the settlement of Ma'ale Adumim en route to Ramallah. Revealing his ignorance, he assumed he was still in Israel! It was the first time he began to grasp that some settlements were in fact large urban areas created to surround Palestinian cities.
Even when George Mitchell came in 2002, some in the Palestinian leadership did not make settlements the central issue. Arafat himself kept forgetting to mention settlements in the discussions. Fortunately, the Mitchell Committee traveled around the West Bank and spoke with other Palestinians, discovering in the process that settlements were in fact the primary cause of the violence between Palestinians and Israelis. The Palestinian leadership also failed to focus on settlements at the meetings in Sharm al Sheikh among Bush, Sharon and Abbas. The Palestinians lost another opportunity after winning an important case at the ICJ on the issue of the wall which extended to the issue of settlements, but failed to follow up with an effort to exploit this success.
Now, the Palestinian government has decided to take a principled position on settlements. They will not negotiate with the Israel government which does not want to negotiate with them anyway until Israel stops settlement construction. This principled position makes sense. So the question is what should they do in the meantime if there are not going to be real negotiations between Israelis and the Palestinians because there is nothing to negotiate if the Israelis do not accept the two-state solution and continue to build settlements? My recommendation is that the Palestinians should negotiate with the United States and Europe over the terms of an independent Palestinian state and the evacuation of settlements, not a settlement freeze. The Palestinians should press the Americans and the Europeans on what must be done to stop empowering and providing incentives for Israel to continue building settlements and what must be done to bring about an evacuation of settlements and a two state peace. There is a great deal that could be done to advance the cause of peace if the Palestinians, the Americans, and the Europeans are prepared to do that.
Daniel Levy: The most stunning fact about settlements is their huge expansion over the years. In 1993 number, when the Oslo process begins, there were 111,600 settlers in the West Bank. Today, after 15 years of peace talks, there are 285,000 plus, due in part to generous Israeli incentives to settlers. Using the analogy of the Northern Irish Peace Talks, would they have succeeded if Britain had encouraged the Protestant community with subsidies to occupy confiscated Catholic land?
The settlement dynamic is getting worse. There is growing radicalization, especially amongst the settlers, whose attacks on Palestinians, especially during the olive-growing season, are growing. I respect attempts to use the Israeli court system to prevent these abuses, and continuing confiscation of Palestinian land and settlements. But using the courts is a limited tool because the process is very slow, uncertain and rulings are often not implemented.
I believe radicalization will only increase over time. This will challenge General Dayton's attempt to build Palestinian security forces in the West Bank since Palestinians will ask, increasingly, "Will these forces protect us against settler violence, or is their only role to protect the Israelis against us?" That is an untenable position for the Palestinian Security Forces to be in. I think that, without other changes, this effort is doomed to failure over the long-term.
After the Oslo Accords, on the Israeli side it became impolite to build new settlements. So we found a way to do this by calling new settlements "outposts" that were not officially authorized. But lo and behold, when a new outpost goes up without official authorization, the government builds a road to the outpost, lays power and water lines to serve it, and provides an IDF guard force! Some of the hundred plus outposts established since Oslo are literally three caravans and a dog, but in many cases outposts are a subterfuge for building new settlements.
The settler movement has been very effective in expanding the political constituency that buys into the settlement enterprise, in particular the two ultra-Orthodox parties in Israel who are not ostensibly settler parties or overtly right-wing. Shas and Agudah have a particular sectarian interest now in preventing a freeze on settlements because two of the fastest growing settlements closest to the Green Line are designed almost exclusively to address the greater Jerusalem housing needs of the Shas voters and Agudah populations. The settlements of Modi'in-illit and Betar-illit are two examples.
So, Shas and Agudah will never agree to a freeze, much less Likud and the settler parties themselves, one of which is in the government. In last weekend's Ha'aretz, there is an interview with the leader of the Labor Party, Defense Minister Ehud Barak. He said, to paraphrase, "First we have nothing against expanding the existing settlement blocks. We also say to the Americans that we believe, in accordance with the letter from President George Bush, that they should be part of Israel in the final agreement. Even if a soldier returns from service to the settlement of Eli [east of the separation barrier] and wants to build a home next to his parents, the government should make sure that land is available. Not to let him do that sounds absurd to me."
So, there is not much of a constituency for a freeze. There is also the issue of housing units in the pipeline. There is the issue, as Barak mentions, of the Bush letter of April 2004 which is a koshering process for settlement expansion. There is the problem of the "state within a state" of settlers and their sympathizers entrenched within the bureaucracy, the civil administration in the West Bank, in the municipalities, and Jerusalem. This formidable apparatus will do everything to block a freeze.
The question is what is the U.S. trying to achieve? If the goal is damage limitation on the ground for an interim period, then it should pursue a settlement freeze quietly, on a case by case basis. For example, it could continue opposing settlement construction in the "E1" area east of Jerusalem.
A second option would be for the U.S. to use a freeze as a wedge issue to dramatize to an Israeli public that, for the most part does not support settlements, that a recalcitrant Israeli government is out of step with the U.S. Demanding a freeze might help accomplish this, since Israelis don't want a fight with the U.S. government.
Baker did this with Shamir. The loan guarantee issue actually made a dramatic impact - I would argue - in Israeli internal politics. For the only time I can remember, an election campaign featured settlements as a major issue. Shamir lost the election and Rabin won.
But using a settlement freeze as a wedge to influence politics inside Israel is not enough unless it is accompanied by a broader U.S. policy on settlements that could have a more profound impact on Israeli politics. Otherwise, you might just get a government in power that agrees to a freeze, but insists on endless negotiations to define it without addressing the larger settlements issue.
Today, a lot of the pressure for a settlement freeze issue is coming from the Palestinians. If Washington wants to use a freeze to win support for Mahmoud Abbas and Fatah against Hamas, that won't accomplish much. America's history of meddling in internal Palestinian affairs has been stunningly unsuccessful.
A third option is to try to change the regional dynamic by showing the Arab world you are tough by confronting Israel with a renewed demand for a settlement freeze.
A fourth option would be to use a demand for a freeze to mobilize and demonstrate domestic American support for stronger U.S. peace diplomacy. There are signs of declining sympathy for settlement expansion in the Congress, so a freeze policy might resonate.
But if the President is willing to expend domestic political capital and to use a settlement freeze as a test of Israeli intentions, I agree with Jeff Aronson that he should use that political capital to invest in the endgame and a two state solution, not a settlement freeze.
Of course, the other point is if you did get a settlement freeze - which you will not get - but nonetheless if we are going to go through the exercise, what happens next? There would still be 285,000 Israeli settlers in the West Bank, and 200,000 in East Jerusalem that remain a problem to be resolved.
So I recommend what my colleagues have advocated about addressing the endgame and a two state peace. Washington should stake out a clear position on the future of settlements. Using "unhelpful" is vague and weak. Going from 111,000 Israelis living in the West Bank in 1993 to 285,000 in 2009 is more than unhelpful. The U.S. needs firmer language that is commensurate with the damage settlements have done to the peace process.
The U.S. should monitor and report on settlements, but it should not limit itself to such a game of cat and mouse. It must have a clearly articulated position on ending settlements and occupation and point everyone to that position consistently. It should say to the Israelis: "We understand settlements are living communities. Some of these are cities. If you have a problem adhering to what we have called for in a complete settlement freeze, then let's stop talking about a freeze and talk about delineating a border between two states." That's what the conversation should really be about.
And just as Amjad suggested, there should be a conversation between the Americans and the Palestinians over the needs for a Palestinian state, and how to bring about an end to the occupation and create two states, and in parallel a conversation with Israel about the same thing. Of course, that would ultimately define where Israel can build and where it cannot build and what settlements must be evacuated.
My big picture point is this. If we find ourselves back in the space where America is discussing the limitations of settlement growth with Israel, we remain in the current comfort zone. Relying on the two parties to negotiate a two state peace is also within this comfort zone and has also failed entirely. So has the policy of insisting on Palestinian capacity-building in terms of security, good government, and economic development before the end of occupation. These things cannot be achieved under Israeli occupation and have nothing to do with getting to a two-state solution. We need to step out of our current comfort zone and enter into the decision zone.
In doing so we must acknowledge, of course, that Israel has legitimate concerns about security and Palestinian governance. But we must state clearly that these problems cannot be resolved while Israel's occupation and settlements continue to exist, while offering other solutions, including international stewardship and security arrangements, as alternatives.
In the end, Israeli and Palestinian leaders will make their own decisions. But the U.S. also has compelling interests and must decide whether it will continue to let Israelis and Palestinians move at their own pace, or whether the U.S. intends to drive the process. Once the U.S. makes the latter decision, it will finally become serious about a two-state solution.
Finally, I'll say a world about the Arab League Peace Plan. There is a potentially distracting and unhelpful idea making the rounds at the moment. That is to create another peace process based on the Arab League initiative and to break it down into bite size elements to be accomplished in phases, depending upon positive action by both sides. This is very problematic.
The Arab Peace Initiative is comprehensive. It should not be sequenced since this would create another interminable process designed to postpone the endgame of two states and to create diversionary negotiations about who goes first. That would be a perfect way to bog down this administration in an endless game of sequencing, like we experienced with the Road Map. At a New America Foundation event two weeks ago, Prince Turki of Saudi Arabia was asked if the Arab League plan could be implemented step by step. He warned that such an approach might well kill off the plan.
