x Abu Dhabi, UAEWednesday 17 January 2018

Israeli settlements: an end to nods and winks?

The Obama administration is not the first to demand Israel halt its expansion into the West Bank: presidents since Jimmy Carter have been objecting, to varying degrees.

George H W Bush reduced US loan guarantees but Israel was happy to incur this penalty while it continued its settlement programme.
George H W Bush reduced US loan guarantees but Israel was happy to incur this penalty while it continued its settlement programme.

Largely because the Obama Administration has directly challenged Israel's continuing settlement expansion in the West Bank, the issue has been receiving unprecedented US press coverage. Last week alone, there were several dozen editorials, commentaries and news articles appearing in major US dailies. For more than three decades now, Israel has, despite US objections, carefully plotted its settlement building programme as a way of creating "facts on the ground" to establish its claim to all, or at least significant parts, of the occupied lands. Given Israel's persistence in furthering this settlement enterprise, US presidents have reacted, sometimes harshly, sometimes merely objecting, but with a "wink and a nod". In this context, it is useful to review the evolving US language on settlements.

In the midst of the Camp David negotiations, Mr Carter believed he had secured a commitment from Menachem Begin, the Israeli prime minister, to halt settlement expansion. When construction continued, Mr Carter sought a legal opinion from the state department legal adviser, who determined that settlements were, in fact, a violation of the 4th Geneva Convention, (the applicable international law governing the behaviour of occupying powers).

Mr Carter's comments on settlements often made reference to this ruling. "We consider these settlements to be contrary to the Geneva Convention, that occupied territories should not be changed by the establishment of permanent settlements by the occupying power. The ultimate status of the West Bank and Gaza area will be determined through negotiations, [the US has] long maintained this position that the establishment of settlements in that area was contrary to progress toward a comprehensive peace." (June 1980)

At the end of Israel's 1982 war in Lebanon, Mr Reagan proposed a peace initiative. As part of this effort, he spoke out against settlements. "The United States will not support the use of any additional land for the purpose of settlements. Indeed, the immediate adoption of a settlement freeze by Israel, more than any other action, could create the confidence needed for wider participation in these talks. Further settlement activity is in no way necessary for the security of Israel and only diminishes the confidence of the Arabs that a final outcome can be freely and fairly negotiated."(September 1982)

But, in an off moment, Mr Reagan undermined this position and Mr Carter's policy when he carelessly said, in a 1983 interview, "there certainly is no illegality to the building [of settlements]". Later, he reverted to tougher language saying: "The establishment of new Israeli settlements in the occupied territories is an obstacle to peace, and we're concerned over the negative effect that this activity has on Arab confidence in Israel's willingness to return territory in exchange for security and a freely and fairly negotiated peace treaty." (August 1983) But the damage was done. While the Carter-era determination on the illegality of settlements has never been rescinded, no US president, since Mr Reagan, has made reference to settlements as illegal.

Even before the 1991 Gulf war, Mr Bush was firm in his opposition. "The United States policy on settlements in the occupied territories is unchanged and is clear: we oppose new settlements in territories beyond the 1967 lines - settlements [are] contrary to the United States policy; and I will continue to reiterate the policy, and try to persuade the government of Israel that it is counterproductive to go forward with additional settlements in these territories. Our objective is to get the parties to the peace table." (June 1990)

Following the war, Mr Bush invested significant political capital in organising the Madrid Peace Conference. As part of the confidence-building efforts leading up to this conference, Mr Bush secured an end to the Arab secondary economic boycott of Israel in exchange for a promised Israeli settlement freeze. When Israel persisted in new construction, Mr Bush retaliated by withholding US$10 billion (Dh36.7bn) in loan guarantees Israel was seeking to resettle Soviet Jews.

After Labor's Yitzak Rabin defeated the Likud Party in 1992, Mr Bush freed up the guarantees, but in a way that ultimately undercut his stated goal of stopping settlements. He allowed Israel to receive $2bn in guarantees each year, with the proviso that the annual amount they spent on settlements (between $250 million to $300m) be deducted from the total - a "price" Israel was all too willing to pay.

Having inherited the Oslo Accords, which Israelis and Palestinians negotiated on their own, Mr Clinton took a different approach, arguing that continued settlements and road construction was in violation of the "Oslo process", which prohibited the parties from undertaking "unilateral activities" that could predetermine the outcome of final negotiation. "The settlement issue under the Oslo Accords is a matter for determination between the parties as we move to the end of negotiations. And we have encouraged everyone not to do anything which would weaken the chances of peace." (July 1996) "The settlement enterprise and building bypass roads in the heart of what they already know will one day be a part of a Palestinian state is inconsistent with the Oslo commitment that both sides negotiate a compromise." (January 2001)

While continuing to express its concern with settlement expansion, the Bush Administration often took positions that enabled settlement growth. Although the Mitchell Plan submitted to Mr Bush in May 2001 called for an end to violence and an end to settlement expansion as the first steps in restoring the peace process, Mr Bush appeared to side with Israel's interpretation of the plan, insisting that until all violence stopped, Israel was not obligated to fulfil what was required of it.

Mr Bush also appeared to accede to Israel's effort to distinguish between "legal" settlements and "illegal" outposts. He insisted that the latter be removed (although they were not), while only paying scant attention to the former, which Israel proceeded to encapsulate behind a 675km barrier - in effect redrawing its borders with the West Bank. As a further example of this Bush-era ambivalence, Mr Bush, despite endorsing the 2002 "Road Map" (which called on the government of Israel to dismantle all settlement outposts erected since March 2001 and, as outlined in the Mitchell Report, to freeze all settlement activity, including the natural growth of settlements), sent a letter to then prime minister Sharon in April of 2004, in which he stated that, "in light of new realities on the ground, including already existing major Israeli population centres, it is unrealistic to expect" that these settlements will be returned after final status negotiations.

Mr Obama, it appears, is attempting to turn the corner on this issue, but it remains to be seen how forcefully or completely this turn will be. Speaking in Cairo, for example, Mr Obama referred to settlements saying that, "the United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace ? it is time for these settlements to stop."

When challenged by the Israelis on the need to allow "natural growth" and their claim that the Bush Administration had given them permission to build within the "blocs" - ie, the "new reality" - it was assumed Israel would annex, the Obama Administration denied the validity of the Bush "promise". Hillary Clinton, the secretary of state, rather forcefully stated (speaking of Mr Obama), "he wants to see a stop to settlements - not some settlements, not outposts, not 'natural growth' exceptions ? That is our position. That is what we have communicated very clearly."