Netanyahu's Settlement Moratorium: The Reality

The main operational effect of the settlement moratorium announced by Prime Minister Benjamin Netanyahu on November 26 has been to increase the pace of authorized new settlement housing construction above historical averages, including east of the separation barrier, where more than 70,000 settlers reside. In the months before the new policy was announced, ground was broken on hundreds of new dwellings—perhaps as many as one thousand—throughout West Bank settlements. As a result, close to 4,000 dwellings are currently under construction in West Bank settlements, a rate of construction not seen since 2000. The true test of the effectiveness of the restrictions will be felt, if at all, in the period subsequent to the expiration of the moratorium on September 30, 2010, and only then if it continues, as the administration of Barack Obama hopes, indefinitely.

The International Legal Framework

Settlements are widely understood to be illegal under international law. Article 6 of the Fourth Geneva Convention, for example, notes, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The United States has never formally repudiated the 1978 opinion of Herbert Hansell, a State Department legal adviser, who wrote in a letter submitted to the House Committee on Foreign Affairs that “the establishment of the civilian settlements in those territories is inconsistent with international law.” In practice, however, no U.S. administration since the Carter administration has formally declared settlement to be illegal under international law.

The Oslo accords referred only indirectly to the need to constrain settlement expansion, but in practice Israel has increased the settlement population in the West Bank by 203,000 since 1992 and by about 49,000 during the same period in East Jerusalem.

The road map presented by U.S. president George W. Bush on behalf of the Quartet in October 2002 specifies, “Consistent with the Mitchell Report, [Israel] freezes all settlement activity (including natural growth of the settlements).” The November 2009 moratorium notwithstanding, Israel remains in violation of this key provision.

The Netanyahu Moratorium

The Israeli moratorium on settlement expansion announced in November 2009 rests upon a decision taken by Netanyahu’s security cabinet and a subsequent military order outlining the terms of the new policy. The order restricts the construction of new residential settlement dwellings in West Bank settlements outside the annexed areas of East Jerusalem, where no moratorium has been declared. There are no restrictions on myriad other forms of settlement construction—public infrastructure and education, religious, cultural, and sport facilities, for example—or planning by the Ministry of Interior or other settlement bodies.

Despite the widespread appearance in press reports of a specific number of settlement units permitted under the military order, no numerical ceiling appears in the official announcements. The Netanyahu government has not respond−ed to U.S. efforts to formally identify the precise locations of those dwellings permitted under the new policy, making the establishment of an agreed upon baseline from which violations can be determined impossible.

In the weeks after the announcement, the policy was amended to restore some authorizing powers to local settlement councils, to establish a compensation mechanism for settlers and contractors injured by the policy, and more generally to broaden the “exceptions” to the moratorium in order to enable continued settlement construction. For example, Yediot Aharonot reported on December 6, 2009, that “a kibbutz near the northern Dead Sea, which built the infrastructure for a dairy that cost millions and has not yet started construction—received a permit to build it. Young couples who prove that they bought a plot, took a mortgage and remain without a house—will receive a permit. And now the government is wracking its brains: what about construction extensions in places where some of the houses are inside the Green Line and some are on the other side.” In addition, some settlements, many of them located east of the separation barrier, are now eligible for enhanced state-financed benefits according to the new map of “national priority” zones.

Despite widespread reports of vigorous official enforcement of the moratorium, only 140 stop work orders were issued to violators during the period from the starting date of the moratorium until January 15, 2010. This number is no more than 4 percent of current construction now underway and does not represent a departure from historical averages. For example, during 2008, the civil administration issued 293 stop work orders for unauthorized construction in settlements. In other words, settlers have not engaged in extraordinary actions on the ground to violate the terms of the order, most probably because of 1) the quickened pace of new construction starts in the months before the new policy was announced and 2) administrative efforts now under way in various planning bureaucracies aimed at expediting approvals and new construction once the moratorium lapses in late September 2010.

Diplomatic Impact

The settlement moratorium is widely viewed as an insufficient demonstration of an Israeli intention to meaningfully alter its historical support for increased settlement in the West Bank and East Jerusalem. In this critical sense, the diplomatic effort led by the Obama administration during its first year has confirmed rather than allayed suspicions among Palestinians and the Arab world generally of Israeli intentions to continue its settlement enterprise. This outcome has in turn undermined rather than enhanced the effectiveness and credibility of U.S. policy and has failed to encourage public recognition by Arab states of the need to respond to Israeli actions with confidence-building measures of their own.

The failure of the American effort to build upon a settlement freeze to jump-start diplomacy on issues of final status—borders, settlements, Jerusalem, security, and refugees—has resulted in a (so far) unsuccessful effort since September to establish broad parameters (Terms of Reference) defining a diplomatic reengagement between Israel and the Fateh-led Palestinians represented by Mahmoud Abbas, including a reference to the 1967 border and a vague but nonetheless unprecedented reference to the relevance of settlements (“subsequent developments”) as one of the key elements in determining an agreed upon border between Israel and Palestine (see story page 1).

Domestic Politics

Netanyahu sought neither full cabinet nor parliamentary endorsement of the settlement moratorium, depending instead on support by a majority in the smaller security cabinet. Netanyahu has stressed the limited nature of the decision —excluding East Jerusalem, for example—and its duration, insisting that the moratorium will be lifted in late September 2010. In addition, procedural amendments to the decision since its inception in November have expanded permitted construction beyond that initially included.

Settlers have reacted with unanimous opposition to the policy, which has served to unite the larger settlements west of the separation barrier that are usually described as within the Israeli “consensus,” with smaller and more ideological settlements east of the barrier. Their primary political concern is the domestic political consequences of decisions that they see as aimed against settlements and at isolating settlers from the Israeli mainstream, rather than the (limited) practical effect of the new policy on the ground. Rejection of the policy has also energized broadly representative settlement institutions—foremost the YESHA Council and regional councils—which had been eclipsed by the more aggressive and popular tactics of the promoters of settlement “outposts.”

The government is sensitive to settler charges of “abandonment” and “discrimination.” One of the results can be seen in efforts by the military to demonstrate its continuing commitment to settler well-being, most notably by the December 26 incursion into Nablus when soldiers killed three Palestinians said to be involved in the drive-by killing of a settler.