13. Another matter of concern for the Rapporteur during the reporting period is the passage of an Israeli law that would subject any agreement reached in intergovernmental negotiations to be made subject to a national referendum unless approved by 80 or more members of the Knesset.[15] If an agreement were to be reached that embodied the rights and duties of the respective governmental actors, adding internal requirements of approval by either a parliamentary super-majority or a national referendum would only unnecessarily burden that process. Saeb Erekat has gone a step further and stated that the new legislation
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[11] “Abbas: Israel seeking to ‘close door to right of return’”.
[12] See e.g. Robert Serry, “Is the two-state solution fading?”, 27 April 2010, speech at Truman Institute, Hebrew University.
[13] Reuters, “Palestinians demand immediate statehood to counter Israeli “unilateralism’” 9 November 2010.
[14] World Bank, “A Palestinian State in Two Years: Institutions for Economic Revival” (September 2009), para. 3. 15 See Chaim Levinson, “Knesset mandates referendum to withdraw from annexed land”, Haaretz, 23 November 2010.
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III.
“is making a mockery of international law”.[16] States do customarily require some form of legislative endorsement of international treaty obligations. In this instance, the public validation by Israel of any agreement reached might add to its political legitimacy and the likelihood of future respect and, if it failed to gain sufficient Israeli support, could signal the unsustainability of the agreement. Thus, this new constraint on the finality of a negotiated settlement can at best be viewed as ambivalent, and not itself unlawful, although it might be imprudent, if the objective is to end the conflict through a negotiated agreement, a position that is increasingly confronted by doubts.
Continuing expansion of settlements in the occupied Palestinian territories
14. Given the centrality that has been accorded by both sides to the settlement phenomenon, the Rapporteur believes that more detailed attention to the facts and legal implications of recent settlement expansion seems appropriate. The Israeli 10-month self- delimited “moratorium” on settlement expansion in the West Bank expired on 26 September 2010, leading to the breakdown of the briefly resumed peace process and giving rise to lengthy negotiations aimed at re-establishing the moratorium that have now been abandoned. However, several points must be noted. First, the 10-month moratorium did not stop settlement construction but only slowed the pace of expansion in some parts of the West Bank;[17] it did not purport to freeze settlement construction in occupied East Jerusalem, contending, contrary to the international legal and political consensus, that the whole of Jerusalem, as expanded by Israeli law since 1967, is unoccupied, and that the whole city is the capital of Israel, leaving no part of the city to be available as the capital of a future Palestinian state. In the West Bank, settler construction of public facilities such as schools and community centres as well as thousands of housing units already under construction continued unabated during the moratorium. Second, according to the movement Peace Now, a surge of settlement building took place in the first six weeks following the end of the moratorium on 26 September.[18] Further, the settlers managed to start to build 1,629 housing units, and to dig the foundations for 1,116 of them. Work started in 63 settlements, 46 of them east of the separation wall and 17 on the western side of it. In all of 2009, according to the Israeli Central Bureau of Statistics data, work on 1,888 new housing units have started. Had the construction continued at the same speed without the moratorium, there would have been 1,574 units during the 10-month period. In the six weeks following the end of the freeze, the settlers managed to start a similar number of units attesting to the reality that the settlement freeze was no more than a 10-month delay in the construction.[19] In fact, the rate of settlement construction quadrupled compared to what it had been during the two years before the moratorium.[20] Third, and perhaps most importantly, the underlying premises of the moratorium were never drawn into question, namely, that it was a matter of Israeli discretion to initiate or terminate a settlement freeze. Official diplomacy never considered the relevance of the continuing violation arising from the presence of the settlements or the questionable status of the 500,000 Israeli settlers who
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[16] “Erekat on referendum: Israel making a mockery of int’l law”, The Jerusalem Post, 23 November 2010.
[17] See Peace Now, “Eight Months into the Settlement Freeze”, 2 August 2010.
[18] See Peace Now, “In 6 weeks the settlers almost made up for the 10 months Settlement Free,” 13 November 2010.
[19] Ibid.
[20] See International Middle East Media Center, “Rate Of Israeli Settlement Construction Quadrupled In Last Month”, 21 October 2010.
A.
now reside in the West Bank and East Jerusalem and benefit from a preferential legal and administrative structure, which contributes to the impression of apartheid (as a result of its discriminatory, coercive and ethnically specified characteristics). In this respect, the magnitude of the settlement phenomenon, combined with its persistence and character, also warrant concern that the occupation is a form of colonialist annexation that has been established with a clear intention of permanence.
The de facto annexation of East Jerusalem
15. The Israeli insistence on excluding East Jerusalem from the partial moratorium and its overall attitude toward its status is of further concern to the Rapporteur. Prime Minister Binyamin Netanyahu, along with other Israeli leaders, has repeatedly confirmed continuing rejection by Israel of United Nations resolutions and other relevant aspects of international law recognizing that the occupied Palestinian territory includes East Jerusalem. Mr. Netanyahu dramatized this point when he recently stated that “Jerusalem is not a settlement – Jerusalem is the capital of the State of Israel. Israel has never restricted itself regarding any kind of building in the city, which is home to some 800,000 people – including during the 10-month construction moratorium in the West Bank. Israel sees no connection between the peace process and the planning and building policy in Jerusalem, something that hasn’t changed for the past 40 years”.[21] Although such an assertion amounts to defiance of international law, it is a significant expression of Israeli diplomatic posture, casting further doubt on what could be expected to emerge from a negotiating process that attempts to foreclose a fundamental Palestinian right to have the part of historic Jerusalem occupied by Israeli in 1967 as its national capital. Again, it is disturbing to note the absence of formal objection by the international community and interested Governments to such an Israeli posture taken in advance of negotiations.
