On March 10, during a visit by Vice President Biden to Israel and the Occupied Territories, Israeli authorities announced the approval of 1,600 new housing units in the settlement of Ramat Shlomo north of East Jerusalem. The announcement drew widespread international criticism, including a harsh rebuke from the Obama Administration, and prompted Palestinian President Mahmoud Abbas to cancel planned “proximity talks” with Israel just days after agreeing to them.

This was certainly not the first time a high-ranking U.S. official was greeted by an announcement of new settlement plans—a practice pioneered by Menachem Begin in the late 1970s and continued under successive Israeli governments of all political persuasions, in times of both conflict and active peacemaking. In the lead-up to the 1991 Madrid peace conference, then-Secretary of State James Baker famously complained to Congress:

Every time I have gone to Israel in connection with the peace process, on each of my four trips, I have been met with the announcement of new settlement activity. This does violate United States policy. (James Baker, Testimony before the Subcommittee on Foreign Operations of the House Appropriations Committee, May 22, 1991)

Indeed, every U.S. administration since Lyndon Johnson has opposed Israeli settlement activity in the Occupied Territories. Moreover, virtually all U.S.-led peace efforts have sought to end or at least curtail Israeli settlement expansion as a means of moving the process forward—including those of Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

Given the Palestinians’ persistent demands for an end to Israeli settlement activity and the nearly universal international opposition to it, one might expect to find the terms of a formal settlement freeze spelled out in the Oslo Accords, the first major breakthrough in Israeli-Palestinian negotiations. Yet, Oslo made no mention of a settlement freeze—formal or otherwise—and, in fact, deferred the settlement issue altogether until so-called “permanent status” negotiations to be held in five years. Oslo’s failure to address the need for a freeze, and more importantly the PLO’s failure to codify it within the Accords themselves, remains one of the most serious and far-reaching flaws of the Oslo process—the “original sin” that continues to haunt the peace process and the Palestinian leadership to this day.

Why a Settlement Freeze Matters

While some have attempted to downplay (or even deny) the need for a settlement freeze, Baker’s 1991 testimony effectively summed up the centrality of the issue:

It is the first thing that Arabs—Arab governments—the first thing that Palestinians in the territories—whose situation is really quite desperate—the first thing they raise when we talk to them. I don’t think there is any greater obstacle to peace than settlement activity that continues not only unabated but at an advanced pace.

A decade later, quoting Baker, former Senate Majority Leader George Mitchell reaffirmed longstanding U.S. opposition to Israeli settlements and the need for a full settlement freeze in his 2001 fact-finding report as well as in his congressional testimony the following year. Among the Mitchell Report’s key recommendations was that “The [Government of Israel] should freeze all settlement activity, including the ‘natural growth’ of existing settlements.”

The need for a settlement freeze is even more pressing today, a matter Sen. Mitchell has once again been forced to take on in his new capacity as U.S. Envoy for Middle East Peace. Since the start of the peace process, the Israeli settler population has more than doubled from roughly 232,000 in 1991 to well over 500,000 today, and continues to grow at an average of 3.5 percent each year, more than three times the growth rate of the Jewish population within Israel. Meanwhile, since Mitchell’s appointment in January 2009, Israeli settlement activity has sparked three separate crises with the current U.S. Administration.

Setting aside the legal status of Israeli settlements (whose illegality under international law has long been a matter of international consensus, including official U.S. policy until 1981, but which is today largely irrelevant in U.S. policy discussions), Israeli settlements severely undermine the peace process—politically, economically and practically—in several ways. First and foremost, settlements are incompatible with the “land for peace” formula and severely prejudice permanent status negotiations. Whereas the peace process, and the “land for peace” formula on which it is based, aim to create an independent, viable Palestinian state, the primary goal of Israel’s settlement enterprise is to alter the physical and demographic status of Palestinian territory in order to prevent its return, whether in whole or in part. As Baker himself explained in 1991, settlement expansion is a form of “de facto annexation… changing the fact[s] and circumstances on the ground in the absence of negotiation between the parties, which would be designed to resolve this Arab-Israeli conflict in a peaceful way.”

At the same time, settlements severely impede Palestinian socioeconomic growth and development, thereby undercutting prospects for a territorially and economically viable state. Though the actual “built-up areas“ of settlements constitute just 1.2% of the West Bank, Israel’s vast settlement enterprise—including land reserves, agricultural and industrial facilities, ‘by-pass’ roads, the ‘separation’ wall, and other infrastructure—controls well over 40% of the West Bank. Numerous studies by the UN Office for the Coordination of Humanitarian Affairs (OCHA), the World Bank and others show how Israel’s settlement enterprise fragments Palestinian territory and severely restricts Palestinian access to vital land and water resources, commercial markets and social services.

Finally, settlements and settlers are a primary source of instability, violence and extremism. Given these and other settlement-inspired restrictions on Palestinian life, the presence of Israeli settlements and settlers is itself a primary source of Palestinian resentment, militancy and even violence. Likewise, since many in the settler movement are themselves deeply ideological, often violently so, the propensity for extremism and violence is even greater. Extremist settlers frequently engage in violent attacks against Palestinians and their property, often with impunity. The connection between settlements and violence was firmly established in the 2001 Mitchell Report, which stated: “a cessation of Palestinian-Israeli violence will be particularly hard to sustain unless the GOI freezes all settlement construction activity.”

Oslo and the Settlements

The Oslo process began with the signing of the “Declaration of Principles”, a secret agreement reached between the PLO and Israel in August 1993 in the Norwegian capital. Notably, the Oslo Accords, including the 1993 Declaration of Principles (“DOP”) and the 1995 Interim Agreement as well as subsequent agreements and protocols, did not deal directly with the issue of Israeli settlements, either with regard to their legal status (i.e., under international humanitarian law) or in terms of limiting their continued expansion.

This omission has severely eroded the PLO’s credibility over the last seventeen years, as well as that of the peace process itself. In particular, Oslo’s failure to bring about a genuine settlement freeze led to unprecedented settlement growth and severely undermined prospects for a negotiated two-state solution. During the seven years of the Oslo process (1993-2000), Israel’s settler population increased by an unprecedented 111,000 settlers (42 percent), more than either of the seven-year periods immediately before or after Oslo.

In terms of the substance (i.e., text) of the agreements, we can identify at least three fundamental flaws in Oslo’s handling of Israeli settlements, which have had far-reaching implications:

  • Failure to secure an explicit cessation of Israeli settlement expansion

First and most obviously, the Oslo Accords failed to include an explicit reference to ending (or even limiting) Israeli settlement activity in the Occupied Palestinian Territories. Indeed, while Palestinians frequently cite continued settlement activity as a “violation of Oslo,” successive Israeli governments have assiduously pointed out that Oslo contains no reference to a settlement freeze as such. Although PLO negotiators reportedly did attempt to include a clause banning new settlement construction in the lead-up to the DOP (which of course Israel refused), their inability to do so was clearly not a “deal-breaker” from their point of view. Thus, the Israelis had every reason to doubt the seriousness of the Palestinian side’s demands for a freeze, particularly after the signing of Oslo.

Despite the absence of an explicit settlement freeze, the Oslo Accords did include clauses that PLO negotiators apparently felt would help mitigate this omission. First, Article IV of the DOP (1993) (reiterated in Article XXXI(8) of the Interim Agreement (1995)), states:

The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period.

This clause was viewed by Palestinians as affirming their claim to the whole of the occupied West Bank and Gaza Strip (i.e., within the 1967 borders), although these geographical terms were never defined in the accords themselves. It was also seen as a crucial safeguard against the fragmentation of Palestinian territory as a result of the settlement enterprise, whether by severing Gaza from the West Bank or through the internal fragmentation of the West Bank itself (both of which, ironically, are currently realities on the ground).

The more important clause, however, is contained in Article XXXI(7) of the Interim Agreement (1995), which states:

Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.

Whereas Palestinians clearly took the view that this provision applied to Israeli settlement activity—a view shared by the United States, as articulated in its Letter of Assurances to the Palestinians on the terms of the Madrid Peace Conference (Oct. 24, 1991) and reiterated by President George W. Bush as recently as January 2008—Israel has interpreted this provision narrowly, arguing it applies only to the legal status of the Occupied Territories rather than to their physical or demographic status.

  • Deferral of settlements and Jerusalem to “permanent status”

Further complicating matters, the Oslo Accords deferred any resolution of the settlements, Jerusalem and other core issues of the conflict for a period of several years. Article V of the DOP (reiterated in Article XVII (1(a)) of the Interim Agreement) provided for a five year “transitional period” during which negotiations would take place on all remaining so-called “permanent status” issues, including Jerusalem, refugees, settlements, security arrangements, borders and other bilateral matters. Meanwhile, in the interim, Israel would continue to be responsible for the overall civilian and security needs of the settlements in the West Bank.

The problems with this arrangement are fairly clear. Most notably, its success hinged entirely on one key assumption: that a permanent status resolution would in fact be reached within the allotted five year interim period (or at least within a reasonable time thereafter). As we know, by the end of the proposed interim period in May 1999, no agreement had been reached on the remaining permanent status issues. Thus, not only did Israel continue to expand settlements throughout the interim period, the indefinite postponement of a permanent status agreement meant it would continue doing so indefinitely.

  • Implicit acceptance of Israeli definitions of “settlements” and “Jerusalem”

Another problematic aspect of the Accords is their (and by extension, the PLO’s) implicit acceptance of Israeli definitions of key terms, including “settlements”, “West Bank” and “Jerusalem”. Article XII(5) of the Interim Agreement states:

For the purpose of this Agreement, “the Settlements” means, in the West Bank the settlements in Area C; and in the Gaza Strip – the Gush Katif and Erez settlement areas, as well as the other settlements in the Gaza Strip, as shown on attached map No. 2.

Meanwhile, Article XI(3)(c) defined “Area C” as “areas of the West Bank outside Areas A and B… except for the issues that will be negotiated in the permanent status negotiations…” [i.e., settlements and Jerusalem].

In addition, although the terms “West Bank” and “Jerusalem” were not expressly defined, various references throughout the agreement to “the Palestinian people of the West Bank, Jerusalem and the Gaza Strip” (Preamble, Article III(3), Article IV) make clear that these constitute separate and distinct geographic designations. In other words, whereas Palestinians (and international law) consider East Jerusalem an integral part of the West Bank, the Oslo agreements treat “Jerusalem” and “West Bank” as distinct and mutually exclusive geographic entities, in conformity with standard Israeli definitions and usage.

This has far reaching implications indeed. By lending de facto recognition to Israeli-defined “Jerusalem”, including the 70 square kilometers of the West Bank annexed by Israel in 1967 to unilaterally expand the Jerusalem municipality, both Oslo and its PLO negotiators confer a degree of legitimacy to Israel’s annexation of East Jerusalem, thereby undermining the legal basis for territorial negotiations—the 1967 line—as well as Palestinian claims to Jerusalem. In practical terms, it meant that the dozen or so settlements located within Israeli-defined municipal Jerusalem, at the time comprising 54% of the settler population, were not counted as settlements under Oslo. More importantly, this state of affairs applies not only to the interim period, but also to the Oslo-defined future permanent status negotiations. In other words, when it came time to negotiate the permanent fate of the settlements, Israel could claim (and indeed has done so consistently) that Jewish “neighborhoods” within Israeli municipal Jerusalem were simply not on the table as they are not “settlements”.

Conclusion

Although the need for a settlement freeze was eventually addressed in the Quartet’s Roadmap for Middle East Peace (April 2003), Israel has steadfastly rejected the call to “freeze all settlement activity (including natural growth of settlements).” Moreover, its omission from the Oslo Accords themselves and the accelerated settlement expansion that took place throughout the Oslo years had already done considerable damage, both on the ground and in terms of the PLO’s negotiating credibility. Moreover, Oslo’s far-reaching flaws established dangerous precedents—legal, political and behavioral—for subsequent negotiation processes and has severely handicapped current efforts by the Palestinians, the United States and the international community to impose a meaningful settlement freeze.

The entire Oslo process was premised on the notion that confidence-building measures and incremental progress on “day-to-day” issues (e.g., security cooperation, the gradual transfer of administrative responsibility, improved economic conditions, etc.) would enable the parties to tackle the more difficult core issues of the conflict further down the road. However, the success of this formula rested on two key assumptions: first, that existing arrangements would be temporary(no more than five years); and more importantly, that the status quo would be maintained in the meantime (Oslo’s “status” provision)—both of which were thoroughly and repeatedly breached almost from the start. Meanwhile, settlements continued to expand at unprecedented rates throughout the Oslo years and during subsequent negotiation processes.