DO SETTLEMENTS MATTER? AN AMERICAN PERSPECTIVE

Middle East Policy, Fall 2009 by Kurtzer, Daniel C

Since 1967, one of the most pervasive questions in the Arab-Israeli peace process has been whether or not Israeli settlements represent a fundamental blockage to progress. This question is surely on the agenda of the Obama administration as it weighs its options for advancing the prospects for peace. Thus, it is timely to review this matter in some detail.

There is a school of thought in Israel and among some Americans that argues that the settlements issue has been overdrawn and that it does not account for the failure to make progress in negotiations between Israel and the Palestinians. The latest iteration of this view was in an oped by Elliott Abrams, the former deputy national security adviser in the administration of President George W. Bush. In an article entitled, "The Settlement Freeze Fallacy" The Washington Post, April 8, 2009), Abrams wrote that Israeli settlement activity past and present has no impact on whether or not the prospects for Israeli-Palestinian peace are advanced. Abrams dismissed past settlement activity - "[T]hose settlements exist and there is no point debating whether it was right to build them" - and minimized the impact of current building. He argued that most construction takes place in settlements that even Palestinians recognize will remain in Israel and that "[m]ost settlement expansion occurs in ways that do not much affect Palestinian life."

Abrams' argument represents just a small part of the rationale underpinning the views of those who believe settlements are not an obstacle to peace. This school of thought says that the West Bank and Gaza are not "occupied territory" but rather "disputed" territory, that is, territory whose ultimate status has yet to be determined. Israel has historical rights in these areas, and Jewish settlement existed in some places well before the advent of the modern Arab-Israeli conflict. (Some add to this argument the religious dimension, pointing to the biblical borders of the land promised to the Israelites and the particular religious significance of some areas in the West Bank, such as Bethlehem and Hebron and Beit El, for example.) It is further argued that Israel took control of these territories not as a result of aggression, but rather in a defensive war in response to Arab belligerence in 1967. Thus, the conflict between Palestinians and Israelis has less to do with these particular territories than with the refusal of Palestinians to accept the legitimacy of a Jewish state anywhere in historic Eretz Israel. This argument is underlined by the fact that the conflict existed even when Arabs controlled these territories before 1967.

The argument continues that much of the land in these areas is public or state land, the disposition of which is in the hands of the controlling power. Consistent with Israeli court decisions, settlement on private land is not allowed unless the land is purchased legally, but settlement on state land is permissible when the legal processes adopted by successive Israeli governments are followed. In this respect, Israeli governments since 1967 - whether led by Labor or Likud prime ministers - have not challenged the legality of settlements, but rather have expanded or contracted the approval process depending on political circumstances. Finally, it is noted that, just as there are Palestinian residents and citizens of the state of Israel, there can be Jewish residents and citizens of a state of Palestine, when it is created. Thus, settlements do not represent an impediment to the achievement of peace or to the establishment of an independent Palestinian state, but rather create some demographic changes with which negotiators and future Palestinian leaders will need to cope.

Those who challenge the settlement movement and argue that settlements in fact impede movement toward peace mobilize a contrasting array of arguments. They argue that settlements are illegal under international law, citing the Fourth Geneva Convention, which prohibits an occupying power from transferring citizens from its own territory into the occupied territory; and the Hague Regulations, which prohibit an occupying power from undertaking permanent changes in the occupied area unless they are related to military needs or undertaken for the benefit of the local population. According to this argument, there may have been cases where the military or security needs of Israel dictated such "permanent changes," but these have been few and far between and, in any case, were not undertaken "for the benefit of the local population."

A second argument relates to the changes on the ground created by the settlement activities. According to Peace Now, whose data derive largely from the Israeli government Central Bureau of Statistics (CBS), the built-up area of settlements takes up around one percent of the West Bank, but the total amount of land that is under the jurisdiction of settlements - and therefore off limits to Palestinians - constitutes around 9.3 percent of the West Bank. In the Jordan Valley, the builtup area of the settlements is approximately 1 ,364 acres, but virtually the entire Jordan Valley (about 45,540 acres), with the exception of the built-up Palestinian areas, is under the jurisdiction of the settlement councils and thus off limits to Palestinian residents, and access to the Jordan Valley has for several years been almost completely cut off to Palestinians from other parts of the West Bank. An additional example relates to the settlement of Maale Adumim, which has jurisdiction over 11,600 acres - larger than the Tel Aviv metropolitan area - even though its builtup area is just around 1,100 acres. This argument highlights the massive amount of territory alienated from Palestinian use by settlements, whose limits extend well beyond the actual built-up areas.