Sleight of Hand: Israel, Settlements, and Unauthorized Outposts Daniel Kurtzer
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MEI Policy Focus 2016-24 Sleight of Hand: Israel, Settlements, and Unauthorized Outposts Daniel Kurtzer Middle East Institute Policy Focus Series October 2016 Every U.S. administration since 1967 has opposed Israeli settlement activity, and nearly every Israeli government since 1967 has supported the building and expansion of settlements in occupied territory. Despite continued U.S. objections, Israel continues to flout international law and the commitments it has made to the United States regarding its settlements expansion. Aside from harsh rhetoric, the United States has taken nearly no action against settlements. As a result, the next administration will face the same settlements problem its predecessors have faced, and will need to find a way to balance its support for Israel’s security and its opposition to expanding settlements, which continue to obstruct a path to peace. Key Points ♦ Defying the Elon Moreh Israeli Supreme Court ruling, Israeli settlers have, with government knowledge and support, continued to build settlements on private Palestinian land ♦ President Barack Obama has taken a tougher stance on settlements, heightening his already tense relationship with Prime Minister Benjamin Netanyahu ♦ The next administration could support a U.N. Security Council resolution criticizing settlement construction ♦ The next administration could consider a reduction in aid if Israel does not adhere to its commitment to remove all outposts since 2001 ♦ The next administration could also follow in the footsteps of the E.U. by excluding Israeli goods and services produced in occupied territories from the benefits of our bilateral free trade agreement Daniel Kurtzer Daniel Kurtzer, a mem- Introduction ber of MEI’s Internation- al Advisory Council, is a srael’s settlements policy continues to Professor of Middle East exacerbate the situation on the ground, policy studies at Prince- I ton University’s Wood- and Israel’s bilateral relationship with the row Wilson School of United States and other countries. On the Public and International heels of signing a ten-year, $38 billion aid Affairs, and a former U.S. agreement with the United States, Israel an- ambassador to Israel and Egypt. The author thanks nounced its intention to build a substantial Dov Weissglas, former number of new housing units in the mid- chief of staff to Prime Minister Ariel Sharon, for his dle of the West Bank, far outside any settle- substantial advice and counsel in the preparation of ment bloc. This announcement evinced an this study; and Lara Friedman and Hagit Ofran of Peace Now for their assistance in checking facts. Any extremely harsh reaction from American errors are the sole responsibility of the author. policy spokesmen. Israel is also continuing efforts to retroactively legalize settlement illegal under international law. The Fourth outposts as an alternative to dismantling Geneva Convention prohibits an occupy- them. ing power from transferring citizens from Israeli government spokesmen, including its own territory into the occupied territory. Prime Minister Benjamin Netanyahu, have The Hague Regulations prohibit an occu- dismissed the criticisms and defended set- pying power from undertaking permanent tlement activity, including the actions tak- changes in the occupied area unless they are en regarding outposts, as Israel’s right. The related to military needs or undertaken for settlements and outpost issues are fraught the benefit of the local population. Accord- and the subject of tremendous rancor: op- ing to this argument, there may have been ponents argue that settlements contravene cases where the military or security needs international law; supporters argue that Is- of Israel dictated such “permanent chang- rael has a legitimate claim to the West Bank es,” but these have been few and far between and thus Israelis have the right to settle and, in any case, the settling of Israeli citi- there. It is important to understand what is zens in the occupied territories has never at stake and how these issues have played been undertaken “for the benefit of the lo- out over time. cal population.” The position of every Israe- li government since 1967 has reflected, in a Settlements critics focus on three argu- way, the conundrum posed by the question ments: (1) settlements are seen as imped- of the applicability of international law to ing progress toward a two-state solution of Israel’s occupation: every government has the Palestinian-Israeli conflict; (2) they are decided not to annex the territory, while al- a unilateral Israeli effort to change the de- most every government has also supported mography on the ground, and (3) most im- the building and expansion of settlements portantly, they are widely considered to be in the occupied territory. Sleight of Hand 1 Israeli Settlements: A settlement, such as the late Plia Albeck— liberally declared about 16 percent of the Complicated History West Bank as “state land” and allocated more than 14 percent for settlements. The history of the settlements movement is complex, and it is that complexity that Over time, the Israeli government estab- often stymies settlements opponents from lished procedures for approving settlements marshaling political support against Israe- that involved multiple layers of decisions. li policy. Settlement activity began almost In 1992, the government headed by Prime immediately after the June 1967 war and Minister Yitzhak Rabin strengthened these has been advanced by Israeli governments procedures by deciding there would be no of the left and the right. A major turning settlements permitted unless approved by point occurred in 1979, when the Israeli the Israeli cabinet. As a result of this de- Supreme Court handed down a landmark cision, virtually no new settlements were decision in the Elon Moreh case. The court approved, and many construction projects were stopped. Four years later, after the election of Benjamin “Within ten years there were 104 Netanyahu as prime minister, the government turned a blind eye such unauthorized outposts, all when settlers began acting uni- of them illegal under Israeli law.” laterally to establish “outposts,” that is, a collection of trailers and other temporary buildings ruled that settlers needed to evacuate a set- on lands they claimed. Soon after the es- tlement because there was no security jus- tablishment of these outposts, which were tification for the expropriation of private not authorized by the government and thus Arab land for settlement purposes. In ef- were illegal under Israeli law, government fect, the court ruling served notice that set- agencies connected these outposts to elec- tlements could not be established on land tricity and water lines and the Israeli army that was privately owned. provided security and other services nor- mally provided to authorized settlements. In response, the Israeli justice ministry be- Within ten years, there were 104 such un- gan a survey of the West Bank and Gaza authorized outposts, all of them illegal un- to determine which land was private and der Israeli law. which was “state land,” that is, land un- der the control of the ruling authority. In subsequent years, Israeli justice ministry officials—particularly those who favored 2 Kurtzer The Mitchell Report to accommodate “natural growth,” for ex- and New Israeli ample, the expansion of families. In June 2002, in a major policy speech on Commitments the peace process, President George W. Bush endorsed the Mitchell recommenda- In 2001, a report was issued by the Sharm tion on settlements, saying: “…consistent el-Sheikh Fact-Finding Committee (also with the recommendations of the Mitchell known as the Mitchell report) that had Committee, Israeli settlement activity in been commissioned to examine the causes the occupied territories must stop.” In 2003, for the outbreak of the Palestinian intifada Bush advanced the “Roadmap for Peace,” a the previous year. Among other issues, the proposal for resolving the Israeli-Palestin- Mitchell report recommended a freeze on ian conflict in phases. The Israeli govern- Israeli settlement activity, including natural ment voted to accept the roadmap, but put growth. The Israeli government respond- forward 14 reservations, one of which in- ed to the report in a letter stating : “…Is- rael appreciates the “The Mitchell report recommended efforts of the Com- mittee and consid- a freeze on Israeli settlement ers that its Report provides a con- activity, including natural growth.” structive and posi- tive attempt to break the cycle of violence dicated that the issue of settlements should and facilitate a resumption of direct bilat- be deferred until negotiations took place on eral negotiations for peace on the basis of final status. However, the reservations spec- reciprocity.” Reacting to Mitchell’s demand ified that the issue of “illegal settlements” regarding “natural growth,” the Israeli gov- was not part of Israel’s reservations. ernment stated: “…it must be recalled that it is already part of the policy of the Gov- Around the same time, Bush’s deputy na- ernment of Israel not to establish new set- tional security advisor, Stephen Hadley met tlements. At the same time, the current and with Prime Minister Ariel Sharon to try to everyday needs of the development of such reach understandings that would limit Is- communities must be taken into account.” raeli settlement activity. They agreed on Israel’s response was understood at the time four draft principles that were similar to as essentially endorsing