Michael Sfard, an Israeli human rights lawyer (described by Daniel Levy as Israel’s “pre-eminent human rights lawyer”, has written that Israel’s settlement freeze — now about half-way through the promised ten-month period — appears to be a “game” that may prove to be a bad deal for the peace process.
Sfard is litigating the cases mentioned. His analysis is posted on Didi Remez’ website, Coteret.
“Almost five months after the declaration of the moratorium, it is now clear: the Netanyahu-Barak government is compensating the settlers generously for introducing this (partial) construction freeze. The reward is huge and expensive and it is paid in the most precious currency Israeli leaders have: outpost legalization and planning approval. The settlers, ideological and patient in a manner that only messianic communities are, understand that while the construction moratorium is temporary, legalization of outposts and approval of construction plans will have long-term effects. They see the attraction in this barter for the long run and act accordingly. They play their role in the freeze game: they demonstrate against it, they send their young hooligans to clash with the Israeli army and police, they violate it publicly but they do not declare the current government as their enemy, as they did when the late Prime Minister, Yitzhak Rabin, declared a narrower construction moratorium– one that applied only to state-funded construction in settlements. The planning-and-outpost-legalization-for-temporary-moratorium deal has never been announced publically or ever officially confirmed. We may only infer its existence by reviewing the evidence revealed in the last five months. And the evidence is ample and compelling:
First, in three Israeli High Court petitions brought by Palestinian land-owners, Israeli human rights organizations and peace groups, demanding to enforce demolition orders issued against illegal houses built in four outposts, the government has altered its position significantly after the moratorium was declared. While its pre-moratorium position was that the demolition orders must indeed be carried out but that the court should leave it to the government to choose the timing, its post-moratorium position was that a survey of property rights should be carried out so that it may consider a retroactive legalization of the illegal houses. This new position was presented in the cases of Derech Ha’avot, Rechelim, Haresha and Hayovel–all outposts built illegally (even by Israel’s own definition of what constitutes illegality in the Occupied Territories) and without official governmental approval.
Secondly, in about a dozen other petitions pending in the Israeli High Court of Justice, where demolition orders against illegal construction on private Palestinian land are at stake, and therefore legalization of those buildings is not an option, the government also made a significant position change. Its pre-moratorium position was that demolitions should be carried out according to prioritization that is to yet be set. It took the government more than three years to present before the High Court the demolition enforcement priority principles it adopted. However, shortly afterwards, the moratorium was declared and the government announced that during the moratorium period the priority document is suspended. Why? Because “all energy, resources and manpower is dedicated to the enforcement of the moratorium”. Making sure the settlers do not build in violation of the moratorium, the government told the High Court, makes it impossible for us to deal with old illegal construction.
And finally, since the construction freeze was introduced, several major neighborhood plans for settlement were either approved or advanced in the relevant planning committees. Those plans include together thousands of housing units in extremely sensitive places and some of them were pending for years while consecutive governments avoided advancing them. When negotiating the construction freeze, the American administration did not listen to Israeli voices who repeatedly warned of the shortcomings in a construction freeze that did not include a planning freeze. The result, as anticipated, is severe, and its first signal arrived less than a week after the moratorium was declared: the West Bank planning committee approved a plan for a new neighborhood of 360 housing units in the Talmon settlement, deep in the West Bank. The plan retroactively Koshered 60 illegal houses already built and allowed the erection of hundreds of new ones. The plan was pending for years and the settlers have failed time and again to have it approved. In the same way other plans were advanced since the moratorium was declared, most of them far from the 67? line and others in East Jerusalem.
The settlers are preparing for the day after the construction freeze; the day of the de-freeze. And when that day comes, they are certain a construction boom of significant scale will commence. Unfortunately, unless something dramatically changes, the freeze might be seen in retrospect as a bad deal for the peace process”.
Michael Sfard’s analysis is posted on Didi Remez’s website, Coteret, which also publishes translations of some important articles from the Hebrew-language press here. This analysis was originally posted on FP here.