b i t t e r l e m o n s. o r g
    July 13, 2009 Edition 27                      Palestinian-Israeli crossfire
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Are settlements an obstacle to peace talks?
. Negotiations and settlement construction cannot coexist        by Ghassan Khatib
Settlement construction renders negotiations meaningless.
  . For our own good        by Yossi Alpher
Obama is justified in presenting the settlement freeze idea to the Arab world in strategic terms.
. Freezing settlement construction a defining test of Israel's intentions        by Daoud Kuttab
Continued Jewish settlement in areas slated for a Palestinian state is contrary to US national interests.
  . Clarifying US policy        by Dore Gold
The settlements question is clearly an overstated issue in the peace process.

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Negotiations and settlement construction cannot coexist
by Ghassan Khatib

One subject on which there is complete Palestinian consensus across the political spectrum is that negotiations and Israeli settlement expansion in occupied territory including East Jerusalem are mutually exclusive.

Indeed, according to numerous studies and surveys, one of the main reasons for the steady decline in public support for the PLO leadership, whether under President Mahmoud Abbas during the Annapolis process or the late President Yasser Arafat before him, is that they continued negotiating with Israel in spite of the settlement expansion.

There is a very simple, logical reason for this. The peace process, from a Palestinian perspective, is about ending the occupation that started in 1967. This is necessary in order to allow for the creation of a Palestinian state to live alongside Israel and thus necessary for the two-state solution that the world has declared is the only proper resolution of the Palestinian-Israeli conflict. However settlement construction--including expansion of existing settlements, the establishment of new settlements, or construction of settlement infrastructure such as road networks and the wall--is about consolidating the occupation.

Hence if negotiations are about ending the occupation there must first, as a logical necessity, be an end to settlement construction. Settlement construction renders negotiations meaningless.

But the negative consequences of settlement construction are not just felt regarding chances for a negotiated peace agreement. Continued settlement expansion also impacts on the domestic balance of power on the Palestinian side, because such construction directly strengthens the opponents to the peace process who argue that a negotiations process will not secure legitimate Palestinian aspirations for statehood and freedom from occupation.

The last few months have witnessed renewed Palestinian hope for a meaningful negotiating process. Expectations have been raised because a US administration has, for the first time, demanded that in order for it to renew its political efforts vis-a-vis the conflict Israel must fulfill its obligations under the roadmap, which became a resolution of the United Nations' Security Council, and stop all kinds of settlement activity and expansion, including for so-called natural growth.

The resulting tension between Israel and Washington over this issue has put the credibility of both the peace process and the new American administration on the line. Should the US government and the rest of the international community fail to make Israel abide by its international commitments, especially regarding ending the expansion of settlements, it will sabotage efforts to renew the political process. And even if negotiations did resume, the resulting process would founder yet again on the rocks of the settlement project.

On the other hand, should Washington be successful in its "friendly" efforts to persuade Israel to stop its settlement expansion there will be more than one positive effect. Ending settlement expansion will not only secure the resumption of a meaningful process, it will, to a large extent, empower the peace camp and undermine the opposition, not only in the Palestinian context but also in Israel and the region.

Crucially, it will also allow again for the practical possibility of a Palestinian state. Without a freeze to settlement expansion, the very concept of the two-state solution will be undermined. And a two-state solution is the inescapable precondition for peace between Israel and the Arab world.- Published 13/7/2009 © bitterlemons.org

Ghassan Khatib is coeditor of the bitterlemons family of internet publications. He is vice-president for community outreach at Birzeit University and a former Palestinian Authority minister of planning.

For our own good
by Yossi Alpher

Ever since the Israeli-Palestinian peace process began in earnest with the Oslo accords of 1993, the two sides' negotiations have been accompanied by Israeli settlement construction. Serious Israeli peace-seekers like Yitzhak Rabin, Shimon Peres, Ehud Barak and Ehud Olmert all continued building or at least expanding settlements even as they sought interim and final status arrangements with the PLO leadership. The latter, first Yasser Arafat and in recent years Mahmoud Abbas, proceeded with negotiations even as they protested settlement expansion.

The unwritten understanding between these Israeli and Palestinian leaders went more or less as follows: because of the structure of Israeli politics and the influence of right-wing elements it is easier for an Israeli government to negotiate peace than to remove settlements or even freeze their growth, especially when no final status agreement appears likely in the near term. An Israeli prime minister could be aiding and abetting the expansion of a given West Bank settlement in parallel with negotiations destined to remove that very settlement in favor of a Palestinian state. The settlement "beast" had to be fed to keep the coalition together and prevent serious unrest, thereby allowing negotiations to proceed. Once an agreement was reached and the Israeli body politic was presented with the incentive of an end to the conflict and thereby recruited to support it, the government would tackle the momentous and traumatic task of removing settlements.

It was also argued that settlement construction presented the Palestinian camp with an incentive to hurry up and negotiate peace before more of its territory was lost to the settlers. By the same token, the Palestinians had never sought peace with Israel before settlements were built, or even before the occupation began in 1967, so how could settlements be an impediment?

These Israeli leaders of course understood that the more the settlement enterprise grew, the harder it would be to negotiate a final status map acceptable to the Israeli public. Yet they persevered with this self-contradictory policy, apparently because each leader in his turn reasoned that this was the only way to survive politically. On the other hand, the political camp they represented drew encouragement from PM Ariel Sharon's success in 2005 in removing all the settlements and outposts from the Gaza Strip. If Sharon could do it without a peace agreement, his successors presumably could remove settlements with one.

By and large, during most of the years since Oslo, the American governments involved in the Israeli-Palestinian peace process have accepted this Israeli logic, as long as Israel was seen to be trying to restrain settlement growth. This explains the oral understandings reached by the Sharon and Olmert governments with the Bush administration.

In fact, in the years after 1993 even these agreements were honored in the breach and settlement growth was rampant. By 2003, with the advent of the roadmap, the patience of the otherwise friendly Bush administration had been stretched thin enough to dictate roadmap phase I, to which the government of Israel remains committed. It states explicitly that "GOI immediately dismantles settlement outposts erected since March 2001. Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)." Bush, however, never got serious about the roadmap.

President Barack Obama's insistence that Israel finally begin carrying out these roadmap obligations regarding settlements is thoroughly consistent with official American policy. But is it consistent with efforts to reach a peace agreement? In other words, can or should the Netanyahu government abide by the Obama administration's demands in order to improve the chances for peace? Is a complete settlement freeze a sine qua non of a peace process with the Palestinians?

The answer is complex. On the one hand, the Netanyahu coalition will not collapse if it agrees to a complete settlement construction freeze and moves aggressively to remove outposts. Its members have a vested interest in holding on to their ministerial and Knesset posts for a couple of years before they contemplate taking steps that could lead to a coalition breakup. It's all a question of prestige, vested interest in budgetary allocations, and even pension rights.

But on the other hand, despite Abbas' avowed refusal, Israeli-Palestinian peace negotiations will resume even without a settlement freeze if and when Washington and Ramallah are convinced that Netanyahu is serious about negotiating a final-status agreement with the Palestinians. Thus far they are not convinced and for good reason.

Perhaps of greatest importance, precisely because the entire settlement enterprise since 1968 constitutes a major strategic blunder on Israel's part, Obama is justified in presenting the settlement freeze idea to the Arab world in strategic terms. When a succession of Israeli prime ministers who are negotiating peace allow settlement expansion to go on, the message the Arab world is getting is that Israel really seeks to swallow the territories and erase the Palestinian issue from the Middle East agenda. True, that is not the message Rabin, Barak or Olmert sought to project. But it is the message the Arabs got. When Israeli leaders who purport to be concerned with the demographic existential threat to Israel as a Jewish state mindlessly allow the proliferation of hilltop settlements that lock three million West Bank Palestinians in Israel's embrace, our Arab neighbors can be forgiven if they get confused regarding our true intentions.

Obama wants to present a genuine settlement freeze as a signal to the Arab world that Israel is serious about peace. Even if there is no chance at all for a successful Israeli-Palestinian peace process in the near term and Obama's sights are set on bigger regional issues like Iraq and Iran, he is doing us Israelis a huge favor in soliciting from those same Arabs confidence-building measures like overflight rights and interest sections. After all, this Arab quid pro quo is to be given in return for us doing what we have in any case committed to do, what corresponds with our own legal obligations and what is calculated to save us from ourselves.- Published 13/7/2009 © bitterlemons.org

Yossi Alpher is coeditor of the bitterlemons family of internet publications. He is former director of the Jaffee Center for Strategic Studies at Tel Aviv University.

Freezing settlement construction a defining test of Israel's intentions

by Daoud Kuttab

A year or so after the signing of the Oslo accords, I was one of a group of Palestinian journalists who were invited by Shimon Peres to his office at the Israel Foreign Ministry in West Jerusalem. When questions focused on continued settlement activities, the then foreign minister tried to deny them. When a journalist from the Jerusalem Media and Communications Center presented documented facts about land confiscations, he reluctantly admitted the fact, but said that Palestinians should not worry about these issues since they will soon have sovereignty over their own state and therefore these issues will become inconsequential.

Fifteen years later, Palestinians are understandably adamant that they will not be tricked again into accepting the continuation of Jewish settlement activity in occupied territory. For ordinary Palestinians as well as negotiators the demand that Israel completely freeze all settlement construction (including for so-called natural growth) has become the real test of whether Israel is serious about peace.

The international community has repeatedly asserted that the building of Jewish settlements on lands occupied by Israel in 1967 for Israeli civilians is illegal and in clear violation of the Fourth Geneva Convention. In 2004, the International Court of Justice at the Hague yet again affirmed that the settlements were illegal when considering an appeal against Israel for building a wall inside occupied territory. All settlement construction, including for "natural growth", is clearly rejected by the roadmap agreement that Israel signed and the Knesset approved.

The Bush administration, followed by President Barack Obama's team, publicly supported the creation of a viable and contiguous Palestinian state, defining it as an American "national interest". It follows that continued Jewish settlement in areas slated for a Palestinian state--that obviously in practice act to undermine prospects for a two-state solution--is contrary to US national interests. It should be no surprise then that Palestinians are pleased that Washington is finally serious about at least this one crucial aspect of the conflict. If the present administration continues in the same vein, many Palestinians may be more patient in allowing negotiations to run their course in order to secure an end of occupation.

Whether negotiations are swift or prolonged, the one specific aspect that worries Palestinians most is how settlements, these "facts on the ground", will shape the final outcome. Their concern is not limited to the fact that Israel routinely demands concessions from the Palestinians in return for agreeing to give up settlements. During the Bush administration, these facts on the ground became "a reality" that "Palestinians must take into consideration during Israeli-Palestinian negotiations". A 2004 understanding between Bush and Sharon is said to include an agreement that the US will support Israel's demands to keep hold of the settlement blocs closest to the green line.

In 1967, after Israeli troops occupied the West Bank, including East Jerusalem, and the Gaza Strip, the UN Security Council in the preamble to resolution 242 called the occupation "inadmissible". Today, 42 years later and after hundreds of illegal settlements have been built on occupied Palestinian land, the issue of freezing construction in the settlements has become a defining issue for peace in the region. While negotiations require concessions from all parties, mistrust and unfulfilled commitments have been the main obstacles to peace in the region. Palestinians need to address Israel's security concerns and the Israelis need to understand Palestinian aspirations for freedom and statehood.

Continued settlement construction provides a concrete reminder to Palestinians that the world community is unable to enforce this simple but crucial prerequisite for peace. The authors of the roadmap placed obligations on both sides. Fulfilling these obligations will go a long way toward creating a better environment for talks that can lead to peace and security for Israelis and independence and freedom for Palestinians.- Published 13/7/2009 © bitterlemons.org

Daoud Kuttab is an award winning Palestinian journalist and a former Ferris Professor of Journalism at Princeton University.

Clarifying US policy

by Dore Gold

Israeli settlements in the territories captured in the 1967 Six-Day War date back more than 40 years. They began as military and agricultural outposts located for the most part in strategically significant areas of the West Bank that Israel planned eventually to claim. These settlements were also situated in areas from which Jews had been evicted during the 1948 war. While the United States did not support the settlement enterprise, its response to the settlements has varied in intensity, depending on the overall relationship between the two countries.

In the late 1960s, the Johnson administration was critical of Israeli settlement activity, but did not characterize the settlements as illegal. Indeed, Eugene Rostow, a former dean of Yale Law School who was undersecretary of state in the Johnson years, would write years later that, "Israel has an unassailable legal right to establish settlements in the West Bank." It was not until the Carter administration that State Department Legal Advisor Herbert Hansell expressed the view that the settlements violated international law. The Carter policy was reversed by all of his successors. Thus, President Ronald Reagan declared in 1981 that the settlements were "not illegal". He criticized them on policy grounds, calling them "ill-advised" and "proactive".

The question about the legality of settlements derives from the way various legal authorities interpret the applicability of the 1949 Fourth Geneva Convention relative to civilian persons in times of war. Article 49 of the convention clearly prohibits "mass forcible transfers" of protected persons from occupied territories. Later in the article, it states that, "the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies." American interpretations of this article maintained that it referred to forcible deportations that were practiced by the Nazis and not to Israeli settlement activity.

Many observers are surprised to learn that settlement activity was not defined as a violation of the 1993 Oslo accords or their subsequent implementation agreements. During the secret negotiations leading up to the signing of Oslo, Yasser Arafat instructed his negotiators to seek a "settlement freeze" but PM Yitzhak Rabin and FM Shimon Peres rejected Arafat's demand. Nonetheless, Arafat agreed to the Oslo accords despite the lack of a settlement freeze. The Oslo accords were essentially an interim arrangement; they stipulated that the issue of settlements would be addressed in permanent status negotiations. If the US is subsequently seeking to constrain Israeli settlement activity, it is essentially trying to obtain additional Israeli concessions that were not formally required according to Israel's legal obligations under Oslo.

Settlements became a far more salient issue with the release in 2001 of the report of a commission headed by Senator George Mitchell that sought to address the outbreak of the second intifada in 2000 and to propose a return to negotiations. The Mitchell report recommended that as a part of confidence-building measures between the parties, "Israel should freeze all settlement activity, including the 'natural growth' of existing settlements." The Bush administration adopted the Mitchell report, putting the settlement issue right in the center of US-Israel discussions.

It appeared at the time that the US felt itself to be in an awkward position as an honest broker in peacemaking if Israel were to expropriate more land for settlement growth during the course of future negotiations. To address this concern, the Sharon government proposed a formula whereby Israel could continue to build within existing settlements, but only from the outer ring of construction inward in each settlement. That way, Israel could address the need for natural growth without taking more land for Israelis living in the settlements.

As the Bush administration drafted its 2003 roadmap for peace, it decided to include the Mitchell report's settlement freeze. Dov Weisglass, who headed PM Ariel Sharon's negotiating team on the settlement issue, has explained that Sharon had serious reservations about the proposed freeze. Weisglass relates that in order to facilitate the Israeli government's acceptance of the roadmap, Israel reached an understanding with the US about what exactly a settlement freeze entailed. The two sides concluded that no new settlements would be built; no Palestinian land would be expropriated or otherwise seized for the purpose of settlement construction; building within the settlements would be confined to "the existing line of construction"; and public funds would not be earmarked for encouraging settlements. Weisglass also wrote to US National Security Advisor Condoleezza Rice in 2004 that his government undertook to remove what were known as "unauthorized outposts".

The Bush administration and the Sharon government never formalized these understandings in writing. This has allowed the Obama administration to question their existence and validity. President Bush's deputy national security advisor, Elliot Abrams, has been partially supportive of Weisglass' claim, arguing in April of this year that the US and Israel had negotiated specific guidelines for settlement activity even if they were never "formally adopted". According to Abrams, the formula succeeded in creating a situation whereby "settlement activity is not diminishing the territory of a future Palestinian entity."

The Obama administration's current focus on Israeli settlement activity--including natural growth--raises a number of questions. If the US is concerned that Israel might diminish the territory that the Palestinians will receive in the future, then the Obama team could continue with the quiet guidelines followed by the Bush administration and the Sharon government. Given the fact that the amount of territory taken up by the built-up areas of all the settlements in the West Bank is estimated to be 1.7 percent of the territory, the marginal increase in territory that might be affected by natural growth is infinitesimal. Moreover, since Israel unilaterally withdrew 9,000 Israeli settlers from the Gaza Strip in 2005, the argument that a settler presence will undermine a future territorial compromise has lost much of its previous force.

The US and Israel need to reach a new understanding on the settlements question. It is clearly an overstated issue in the peace process. Legally and diplomatically, settlements do not represent a problem that can possibly justify putting at risk the US-Israel relationship. It might be that the present tension in relations is not over settlements, but rather over the extent of an Israeli withdrawal from the West Bank that the Obama administration envisions.- Published 13/7/2009 © bitterlemons.org

Dr. Dore Gold, Israel's ambassador to the UN in 1997-99, is president of the Jerusalem Center for Public Affairs. His latest book is The Rise of Nuclear Iran: How Tehran Defies the West (Regnery, forthcoming fall 2009).

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Editors Ghassan Khatib and Yossi Alpher can be reached at ghassan@bitterlemons.org and yossi@bitterlemons.org, respectively.

Bitterlemons.org is an internet newsletter that presents Palestinian and Israeli viewpoints on prominent issues of concern. Each edition addresses a specific issue of controversy. Bitterlemons.org maintains complete organizational and institutional symmetry between its Palestinian and Israeli sides.