Obama bows to Israel

The Obama administration has capitulated to Israel’s demand that there should be no pre-conditions for the opening of negotiations with Palestinians. In particular, the freezing of all settlement activity, which seemed to be a US pre-condition until recently, has been abandoned.

This capitulation flies in the face of the terms of the internationally approved Road Map for these negotiations. This was put forward by the self-appointed Middle East Quartet (US, EU, Russia and the UN Secretary General) in 2003 and accepted by Israel and the PLO – and endorsed by the Security Council. It laid down several pre-conditions for negotiations (of which more later), including that Israel freeze all settlement activity.

The Obama administration had assured the PLO that this time negotiations would be under the terms of the Road Map. The PLO has made it clear from the outset that it wouldn’t enter into negotiations unless this was so, its bottom line being that Israel must freeze all settlement activity.

Bluntness melts away

At the outset, both the President and his Secretary of State, Hillary Clinton, made unusually blunt demands of Israel that settlement building should cease. For example, on 27 May 2009, Clinton laid down the law in the following terms:

“With respect to settlements, the President was very clear when Prime Minister Netanyahu was here. He wants to see a stop to settlements – not some settlements, not outposts, not natural growth exceptions. … That is our position.” [1]

However, the US never applied any sanctions to Israel to ensure that it obeyed, nor stated bluntly that there would be no negotiations unless it obeyed. And as time went by, the administration’s bluntness melted away.

By September, the President was commending Israel for having “discussed important steps to restrain settlement activity” [2]. As we will see later, these “important steps” don’t amount to a hill of beans. Nevertheless, on 31 October 2009, standing beside Prime Minister Netanyahu in Jerusalem, Clinton described these “important steps” as “unprecedented”:

“What the prime minister has offered in specifics of a restraint on the policy of settlements, which he has just described – no new starts, for example – is unprecedented in the context of the prior two negotiations.” [3]

There, she was drawing attention to the fact that there was no freeze on settlement activity, or even Israeli “restraint” on settlement activity, prior to the Camp David talks in 2000 and the Annapolis process which began in November 2007. On those two occasions, settlement activity was an issue within the negotiations, not a pre-condition of the negotiations beginning.

So, her earlier demand for “a stop to settlements – not some settlements, not outposts, not natural growth exceptions” has been satisfied by Netanyahu’s “restraint”.

What is more, she made it clear that the US now accepted Israel’s position that negotiations should be without pre-conditions. True, when a journalist asked her “if both sides should re-launch the peace process without any preconditions”, she refused to express an opinion “as to whether or not there should be conditions”. However, she added:

“The important thing, as the prime minister just said, is to get into the negotiations. … I think the best way to determine the way forward is, as the prime minister said, get on the path.”

What the US is now proposing is a repeat of the Annapolis process which began without any of the Road Map conditions being fulfilled and got nowhere. As Saeb Erakat of the PLO said on 1 November 2009, in response to the US capitulation:

“Israel has signaled its rejection of any serious discussions on permanent status issues like Jerusalem, recognition of the 1967 borders, refugees or settlements. If America cannot get Israel to implement a settlement freeze, what chance do Palestinians have of reaching agreement with Israel on permanent status issues?” [4]

At the time of writing, the PLO is refusing the US demand that it enter negotiations without Israel fulfilling the Road Map pre-conditions.

The Road Map

The Road Map requires Israel to take a number of well-defined steps prior to the start of negotiations (see A performance-based roadmap to a permanent two-state solution to the Israeli-Palestinian conflict [5]).  These include:

(a) “Israeli leadership issues unequivocal statement affirming its commitment to the two-state vision of an independent, viable, sovereign Palestinian state living in peace and security alongside Israel”

(b) “GOI [Government of Israel] immediately dismantles settlement outposts erected since March 2001”, and

(c) “Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)”.

On 25 May 2003, the Israeli Government, headed by Ariel Sharon, approved the Road Map by 12 votes to 7, but entered 14 reservations [6].  However, these reservations did not relate to points (a), (b) or (c).  The PLO accepted the Road Map without reservations.

The Road Map was endorsed unanimously by the UN Security Council in resolution 1515, passed on 19 November 2003, which called:

“on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartet and to achieve the vision of two States living side by side in peace and security;” [7]

Israel hasn’t fulfilled any pre-conditions

Israel hasn’t fulfilled any of the pre-conditions laid down in the Road Map, and shows no sign of doing so. It hasn’t dismantled the settlement outposts erected since March 2001, nor frozen all settlement activity. It hasn’t even agreed to the ultimate objective of the Road Map – the establishment of “an independent, viable, sovereign Palestinian state”.

Netanyahu made it crystal clear, in his speech on 14 June 2009 [8], that the Palestinian “state” he envisaged would be neither independent, viable or sovereign.  The security needs of Israel demanded, he said, “clear commitments” from the US that “in a future peace agreement, the territory controlled by the Palestinians will be demilitarized”, by which he meant:

“without an army, without control of its airspace, and with effective security measures to prevent weapons smuggling into the territory - real monitoring, and not what occurs in Gaza today. And obviously, the Palestinians will not be able to forge military pacts. Without this, sooner or later, these territories will become another Hamastan.”

On 24 September 2009, a Quartet statement called

“on Israel and the Palestinians to act on their previous agreements and obligations--in particular adherence to the Roadmap, irrespective of reciprocity--to create the conditions for the resumption of negotiations in the near term.” [9]

A few weeks later, the US is attempting to pressurise Palestinians into negotiations without Israel fulfilling any of the Road Map pre-conditions. Just imagine if the boot were on the other foot, if Palestinians were refusing to abide by previous agreements and obligations. Just imagine the opprobrium that would be heaped on their heads.

Netanyahu’s restraint

What does the “restraint” with regard to settlement building amount to? Here’s how he described it in his press conference with Clinton on 31 October 2009:

“I said we would not build new settlements, [would] not expropriate land for addition for the existing settlements, and that we were prepared to adopt a policy of restraint on the existing settlements, but also one that would still enable normal life for the residents who are living there.” [4]

First of all, this “restraint” only applies to the West Bank, not to East Jerusalem, which Israel regards as an integral part of Israel.

Second, all that Netanyahu is proposing is a temporary halt to the planning of new settlement construction in the West Bank. He’s not proposing any restriction on construction that is already “planned”. What does this mean? An article by Hagit Ofran of Peace Now in The Huffington Post on 28 October 2009 explains:

“… there are two stages to the approval process for settlement construction: approval of plans and approval of actual construction. If you want to build in a settlement, you have to get your plans approved, and then, when you are ready to implement the plans, you have to get the actual construction approved. A real settlement freeze would have to apply to both of these stages - no new plans approved, and no new construction approved, even under already-approved plans. Freezing both of these stages is entirely within the government of Israel's authority, but that is not what has been done.

“Instead, we have in place a sort of passive freeze - one that applies only to new planning, while permitting a huge amount of new construction to go ahead, since there is a backlog of plans that have already been approved but not yet implemented. Indeed, according to an official report of the Ministry of Defense, published in Ha'aretz newspaper (the Spiegel Report) [10], the settlements have the theoretical potential to build 40,000 new housing units - units that are already in the pipeline in the context of plans that were previously approved.” [11]

This article also presents evidence that in preparation for a possible freeze on the planning of settlement construction a new “fast track” mechanism is being operated to ensure that lots of construction is planned in advance of any freeze on planning:

“A few weeks ago we obtained a letter written by a key figure in one of the regional settlement councils, in which he refers to a new ‘fast track’ offered by the council for initiating new settlement construction. This new fast track shortens and expedites the process necessary for starting new construction by letting people obtain a permit to dig and lay foundations, rather than begin construction on the building itself. This is not business as usual. Normally when a building permit is granted, that permit applies to everything - the structure and its foundations. Getting such a permit is not a quick process, since applicants must satisfy a series of planning, safety and bureaucratic requirements. The new ‘fast track’ is clearly designed to circumvent this longer process. Why? Simply stated: so that settlers can get as much activity going on the ground as possible, in the hopes that if/when a settlement freeze is declared, anything that is already underway will be exempted from the freeze.” [11]

So Netanyahu’s “restraint” doesn’t amount to a hill of beans.

All settlement building illegitimate

In his speech in Cairo on 4 June 2009, Obama said that “the United States does not accept the legitimacy of continued Israeli settlements” [12].

But, it is not just future settlement building that is illegitimate. All settlement building in the West Bank, including East Jerusalem, is contrary to Article 49 of the Fourth Geneva Convention, which forbids an Occupying Power to “transfer parts of its own civilian population into the territory it occupies” [13].

The Security Council has endorsed this view – in resolutions 446, 452 and 465 – and demanded that settlement building cease and existing settlements be removed.

Every year, the UN General Assembly makes the same demands, most recently in resolution 63/97 passed on 18 December 2008, which reiterated its demand

“for the immediate and complete cessation of all Israeli settlement activities in all of the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and calls in this regard for the full implementation of the relevant Security Council resolutions, including resolution 465 (1980)”.

This resolution was passed by 171 votes to 6, the only opponents being Israel and the US, plus Marshall Islands, Micronesia, Nauru and Palau. Ireland and other EU states voted for the resolution.

The International Court of Justice (ICJ) has also declared Israel’s settlement building contrary to Article 49 of the Fourth Geneva Convention in its Advisory Opinion on the construction of the Wall [14] (paragraph 120).

(The Rome Statute [15] defines the offences – genocide, crimes against humanity and war crimes – for which the International Criminal Court (ICC) may, in certain circumstances, prosecute individuals. Article 8.2(b)(viii) of the Statute defines

“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”

as a war crime. It would seem that there is a strong prima facie case that Israel’s settlement building programme is a war crime.

Like the US and others (for example, Sudan), Israel has not signed up to the ICC and accepted its jurisdiction, so the ICC cannot prosecute it for this.

Theoretically, the Security Council could refer matters in the Occupied Palestinian Territories to the International Criminal Court, as it did the situation in Darfur in March 2005. Then, Israelis could be prosecuted by the ICC for settlement building carried out since 1 July 2002, when the Rome Statute came into force. Needless to say, the US would wield its veto on the Security Council to prevent that happening.)

Since 1967, Israel has transferred around 500,000 Jews into the Palestinian territories it occupies, contrary to Article 49 of the Fourth Geneva Convention. It has ignored demands from the UN Security Council and General Assembly that this transfer cease and be reversed. And the US is not even prepared to force it to cease this transfer – on a temporary basis – to facilitate negotiations with Palestinians.

David Morrison

23 November 2009

References:

[1] www.state.gov/secretary/rm/2009a/05/124009.htm

[2] www.whitehouse.gov/the_press_office/Remarks-by-The-President-at-Beginning-Of-Trilateral-Meeting-With-Israeli-Prime-Minister-Netanyahu-and-Palestinian-Authority-President-Abbas

[3] www.state.gov/secretary/rm/2009a/10/131145.htm

[4] www.nad-plo.org/inner.php?view=news-updates_011109

[5] unispal.un.org/unispal.nsf/0/6129b9c832fe59ab85256d43004d87fa

[6] www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=297230

[7] unispal.un.org/unispal.nsf/f3059c4183c2cc2b85256d33006f5b4b/

71b2c135fca9d78a85256de400530107

[8] www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2009/

Address_PM_Netanyahu_Bar-Ilan_University_14-Jun-2009.htm

[9] unispal.un.org/UNISPAL.NSF/0/BE4D8023EAAD0AE28525763B0072F024

[10] www.haaretz.com/hasen/spages/1060043.html

[11] www.huffingtonpost.com/hagit-ofran/what-is-going-on-today-in_b_327755.html

[12] www.whitehouse.gov/the_press_office/Remarks-by-the-President-at-Cairo-University-6-04-09/

[13] www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/

6756482d86146898c125641e004aa3c5

[14] www.icj-cij.org/docket/files/131/1671.pdf

[15] www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf