What a settlements freeze means, the likelihood of one being implemented, and the relevant actions that the Government of Israel can and should take.

Settlements in Focus

"How to Freeze Settlements: A Layman's Guide"

(Vol. 5, Issue 2)A publication of Americans for Peace Now

Q: In a recent op-ed in Haaretz newspaper, you called for a total freeze on settlement construction. What did you mean?

A total freeze on settlement construction means: no new construction or planning for construction in existing or new settlements. It means no new construction contracts and no new construction tenders. It means a freeze on all plans and contracts that are in the works or have already been approved. It means the freezing or cancellation of projects that are already proceeding and compensation, as necessary, for third-parties. It means freezing all policies and actions that enlarge the "footprint" of a settlement (i.e. expand the amount of space it takes up on the ground), that increase the density of construction of a settlement, or that facilitate an increase in the population of a settlement.

Q: Is this actually possible? Can the Government of Israel completely freeze settlement activity?

Yes. The Government of Israel has the power to freeze all settlement activity. Whether or not it freezes settlement activity is a question of political will, not legal authority.

Israel has never annexed the West Bank and Israeli law does not consider the West Bank to be part of Israel. For an example of how Israeli lfaw views the West Bank, a 2004 Israeli High Court of Justice ruling on the legality of land seizures related to the construction of Israel's separation barrier opened by stating as a given that "Since 1967, Israel has been holding the areas of Judea and Samaria.in belligerent occupation.."

As a corollary, Israeli law recognizes that all Israeli planning or construction in the West Bank has particular political, security and international significance. Given this significance, Israeli planning and construction in the West Bank is not treated as just a technical or bureaucratic matter. Rather, it requires the direct involvement of the political echelons of the Israeli government - primarily the Minister of Defense and sometimes the entire cabinet - which must sign off on every stage of a project's progression. The government thus has the power to stop signing off on new plans at various stages in the process, as well as to prevent implementation of plans that have already been approved.

(For a detailed examination of Israeli planning policy in the West Bank, see Btselem's excellent report: Land Grab).

Q: How can the Government of Israel stop new settlements from being established?

This is the easiest of all of the elements of a settlement freeze. Establishing a new settlement in the West Bank requires the approval of the Government of Israel, in the form of a cabinet resolution. According to an official cabinet decision, adopted by the government of Binyamin Netanyahu in 1996, Israel will not establish any new settlement, unless officially decided by the cabinet.

However, while no new settlements have been officially approved in almost two decades, on the ground new settlements have proliferated throughout this period. These have been in the form of:

the approximately 100 "illegal outposts" - each representing a new settlements established without the necessary government approvals, but often with the assistance and collusion of Israeli authorities (as documented in the 2005 Sasson Report); re-cycled sites in the West Bank - like Maskiyot in the Jordan Valley, where a disused military base is being transformed into a new permanent civilian settlement; new "neighborhoods" of existing settlements that are actually located far from the original settlement (and in reality are new, independent settlements); and new tourist sites, agriculture fields and groves cultivated by settlers, and other settler-serving infrastructure, all of which enlarged the territory controlled by Israel and made off-limits to Palestinians in the West Bank.

Each of these "exceptions" to the "no new settlements" policy of successive Israeli governments underscores the critical need for a clear red line that permits no settlement construction of any kind.

Q: How can the Government of Israel stop new construction in existing settlements?

The Government of Israel has a number of different ways to stop new construction in existing settlements:

stopping/freezing the allocation of land for construction in settlements; stopping/freezing the approval process necessary for planning new construction in settlements; and stopping/freezing ongoing and even already marketed construction projects.

Q: How can the Government of Israel stop the allocation of land for new settlement construction?

The Government of Israel has two ways to stop the allocation of land for new construction in settlements:

Don't approve any new allocations of lands for settlement projects. Before a new plan for construction in an existing settlement can be filed, the Civil Administration - the arm of the IDF responsible for all civilian functions in the West Bank - must first allocate the land in question to an approved "settling body." Settling bodies are mainly the World Zionist Organization and the Amana Settlement Movement, as well as other organizations approved as "settling bodies" by the Government of Israel. All such land allocations must be approved by the Minister of Defense. Freezing such approvals would stop any planning before it even got started.Don't renew the approval of old land allocations. Over the years, successive Israeli Governments have approved contracts for the allocation of many plots of land in settlements across the West Bank to settling bodies. The majority of settlement construction in recent years is based on these old allocation contracts. However, each allocation is time-limited. If the time of the allocation contract has passed, there must be a new allocation, which again requires the approval of the Minister of Defense. As far as we know, most of the existing allocations are valid for another 20-30 years, but for the few cases where the time period has expired, refraining from renewing allocations would immediately halt the construction plans that are in the works.

Q: How can the government of Israel stop settlement projects from proceeding in cases where land has been legally allocated to settlement bodies?

The Government of Israel has the power to freeze or roll back settlement efforts at this stage as well.

Don't approve new planning authorizations. Once land has been allocated to a settling body, planning cannot proceed without first obtaining planning authorization from the Civil Administration, approved by the Minister of Defense. Freezing such planning approvals would instantly stop projects for which land has already been allocated and at this stage in the planning process.

Q: How can the government of Israel stop settlement projects where the land has been legally allocated and planning authorization has already been granted?

Plans for settlement-related construction in the West Bank are under the authority of the Civil Administration's "Supreme Planning Council," which oversees almost every stage of the planning process. Moreover, since every stage in such planning has political significance, every stage must be approved by the Minister of Defense.

Don't allow the debate on deposit. One of the first stages in the planning process is the debate at the Supreme Planning Council (SPC) on whether the plan can be deposited for public review - public review (offering the public the opportunity to see the plan and lodge complaints) being one of the key steps in the planning process. In order for the SPC to convene to discuss whether a plan can be deposited for public review, the Minister of Defense has to approve the debate. Refraining from approving this debate will mean a plan cannot move forward.Don't approve the publication of the deposit. If the SPC has already discussed and approved a plan for deposit, the Minister of Defense still has to approve the publication of the plan in the daily newspapers (to notify the public about the plan and offer the opportunity for objections to it). If the Minister of Defense refuses to authorize the publication of the plan, the plan cannot move forward.Don't approve the debate on validation. If the plan has already been deposited for review, objections have already been lodged, and any necessary adjustments have already been made, the SPC must convene again to approve the plan for validation, based on the approval of the Minister of Defense. If the Minister of Defense declines to approve the debate on validation of the plan, the plan cannot move forward.Don't approve the publication of validation. If the plan has already been approved for validation by the SPC, it is still not valid until it is published in two daily newspapers. This publication is under the authority of the Defense Minister. If the Minister of Defense refrains from authorizing the publication of the plan for validation, the plan cannot move forward.

Only if all those stages are completed and the validation of a plan is published, is it possible to talk about a plan being truly "approved" for implementation.

Cancel pre-approvals and blanket approvals. The Israeli daily Haaretz recently published parts of a list of approvals given by Minister of Defense Ehud Barak for new settlement construction. From the documents published at Haaretz, Peace Now realized that the Minister of Defense has through a single decision granted blanket approval, in advance, to all or many of the various stages of a large number of settlement projects. For instance, Barak gave approval to plans "from debate on deposit through publication for validation." This blanket approval appears to be a blatant attempt by Barak to bypass the normal legally-required approval process and in doing so, create legal facts - and new facts on the ground in terms of settlements projects in the works - that the next Minister of Defense will be forced to accept. This effort to circumvent normal government oversight of the planning process and undermine the government's ability to intervene in that process for the sake of clear national interests is legally dubious and the next Minister of Defense clearly has the power to cancel these pre-emptive approvals. Absent the cancellation of such approvals, a settlement freeze will have little meaning.

Q: How can the government of Israel stop settlement projects that have been fully approved for implementation?

Here again, the Government of Israel has all the authority it needs to stop settlement projects from being implemented.

Don't approve the publication of tenders. When the construction initiator is a public body (such as the Ministry of Housing or the Local Authority) the Defense Minister must approve the marketing of a project. Once approved, the Housing Ministry draws up and issues a tender for which building contractors are invited to bid - offering a price for the acquisition of the right to build and sell the housing units. If the Defense Minister refrains from issuing such tenders, a project cannot move forward.Don't approve a development contract. Before any implementation of a plan - even when it is initiated by members of the private sector and there is no need for a tender - the Minister of Defense must approve a development contract for the body that wishes to build. If the Defense Minister refrains from approving the development contract, a project cannot move forward.

Q: How can the government of Israel stop settlement projects for which tenders have been published and/or development contracts approved?

Once a tender is published (for government initiated construction) and a development contract is signed and approved (for any construction), third-party financial interests come into play: contractors who have already invested money, buyers who have already paid for homes, banks, etc. At this stage the Government of Israel can still intervene to stop a project, but doing so will be somewhat more difficult and probably involve financial costs for the government.

Once a development contract has been signed, the builder needs to obtain a construction permit from the local authority. (Local authorities are part of the settlers' own bureaucracy, but they are still public bodies that must obey the law and they are under the responsibility of the Israeli Minister of Interior.) To obtain this permit, the builder needs to present the local authority with the construction program [blueprint]. The local authority's licensing subcommittee needs to make sure that the program matches the approved plan and that it meets all safety and environmental standards in order to issue the permit. At this stage, there is no legal obligation to obtain the political echelon's approval.

However, although legally there is no need for a ministerial approval for issuing those construction permits, the government can still use its political power to prevent the construction. For example, at the beginning of 2008 some developers wanted to renew the construction of the "Agan Ha'ayalot" project in the Givat Ze'ev settlement. They wanted to do so based on a plan approved in 1999 and tenders they won in 2000. Then-Prime Minister Olmert ordered the municipality not to issue the construction permits, because of political pressure Israel was facing post-Annapolis to freeze settlement activity. Based on his order, the permits were temporarily frozen (in the end, following political pressure put on Olmert, mainly by the Ultra-Orthodox parties, he approved the construction permit and the construction started shortly thereafter, in April 2008). If Olmert had been serious about the freeze on settlement construction, he would have ordered the cancellation of the tenders and the reimbursement of money paid by the developers/contractors (as well as some compensation for their investments in preparing the project). He had the legal authority to do so.

Q: How can the government of Israel stop settlement projects that are already fully approved and under construction?

The Government of Israel can stop settlement projects that are already underway, and this is not simply a theoretical observation: there is the Rabin precedent here.

Following the threats of then-Secretary of State, James Baker, to cancel/stop the loan guarantees given by the US to Israel unless settlements were frozen, the Israeli government in 1992, led by Yitzhak Rabin, approved a cabinet resolution to freeze construction in settlements. This resolution included a total freeze of all planning procedures for plans that were yet to be finally validated (as discussed above), unless specifically approved by an exceptions committee. It also included the freeze of any construction activity in settlements. This clause also included a compensation mechanism for those who had already invested in the construction, based on previous governmental decisions and approvals.

The cabinet resolution did allow private housing construction, based on approved and validated plans, but only when the construction and the infrastructure do not involve any public funds from the State's budget. This final caveat was critical, since the government funds much of the development costs in most settlements. According to numerous cabinet resolutions through the years, the latest from July 17, 2008, the government funds half of the development costs for construction in areas designated "preferred zone A" - a designation which includes all of the settlements (except for those in East Jerusalem).

Q: How can the Government of Israel stop illegal construction?

One of the greatest failings of the Israeli governments has long been the lack of law enforcement on settlers. The illegal settlement construction in the West Bank - and this includes not only the so-called illegal outposts but also illegal expansion in "approved" settlements - is something that is well-known to Israeli authorities, and something Israeli authorities have not shown any real interest in addressing. Indeed, the great irony of this story is the fact that the details of the illegal outpost scandal are so widely known in large part due to the Sasson Report - a report commissioned by then-Prime Minister Ariel Sharon to review the issue of law enforcement and illegal outposts. The fact that this report prompted no real change in policy from the government of Israel - serving as little more than a smokescreen to allow Israeli officials to tell the world that they were taking the issue of outposts seriously, even when most of the recommendations of the report remain unimplemented - is a national disgrace.

Enforcing the law is not only about evacuation of existing illegal construction, but also stopping the current illegal construction. Peace Now knows of a number of permanent construction projects (and a number of other projects consisting of temporary structures/caravans) in existing settlements that are clearly illegal, and despite the fact that the authorities know about them, nothing is being done to stop them or go after the people responsible.

In the context of a discussion of what the government can do to stop settlement construction, the question of how to stop illegal construction seems almost surreal. How do you stop illegal construct? Simple: enforce the law. This is especially important, and in many ways easy, because a very large part of the illegal construction is done directly by governmental bodies (mainly the municipal councils of the settlements). In this category of settlement construction, no excuse-making or rationalizing is possible.

Q: Why wouldn't it be enough for the government to simply stop implementation of plans through stopping all new tenders and contracts and by canceling existing tenders and contracts? Why should the government also freeze the planning stages from going forward?

Experience has shown that each new house, new plan, and new approval is seen by Palestinians as a clear sign that Israel is not serious about a viable, negotiated agreement to end the conflict. Each deals another body blow to the credibility of peace efforts and undermines the viability of pro-peace Palestinian leaders. And each further complicates the situation on the ground, making it even more difficult to "unscramble" the egg and come to a mutually-agreeable solution to establish a viable state of Palestine that can live side-by-side with Israel.'

Furthermore, every plan, even if it is not yet fully approved, reflects aspirations and creates expectations. Each planning stage involves the investment of time, money and efforts by the State and individuals - time, money, and efforts that are spent in the expectation that a plan will eventually be implemented. These investments, and these expectations, should also be prevented.

And lastly, in the Israeli political system, where every few years new elections bring new policies, the mere existence of a plan is significant, because even if under current political conditions it is little more than a pipe dream, it is only a matter of time before these political conditions shift and then it will be there, "shovel-ready" for implementation. This has happened many times in the past, where plans have lain dormant for many years and suddenly, with a change of government or a change in political conditions, they are brought out of the drawer and swiftly implemented.

Produced by Lara Friedman, Director of Policy and Government Relations, Americans for Peace Now, and Hagit Ofran, Settlements Watch Director, Peace Now (Israel)