In his first term in office, President Obama targeted Israel’s settlement activity with a vengeance, like no one before him ever had.  He continued the American policy of calling them “illegitimate,” whatever that means, rather than "illegal," which was the term of choice put forward by the U.N. and the EU representatives.  But he went farther and forced PM Netanyahu to agree to a nine-month construction freeze to enable negotiations to take place.  This wasn’t enough to induce Abbas to enter negotiations until the last weeks of the freeze.

Ultimately, all his efforts to bring about a settlement failed.  It was generally accepted that his insistence on making the freezing of settlement construction the centerpiece of his efforts was largely to blame for their failure.

It should be noted that there is no legal precedent declaring them illegal, but opinions to this effect abound.  On the other hand, the legality of Israeli communities beyond the 1949 armistice lines has been affirmed by international-law experts Eugene Rostow, Stephen Schwebel, Julius Stone, and others.

More recently, Alan Baker, a former legal adviser to the Israeli Foreign Ministry and former Israeli ambassador to Canada, noted:

The Palestinian leadership, in the still valid 1995 Interim Agreement (Oslo 2), agreed to, and accepted Israel’s continued presence in Judea and Samaria pending the outcome of the permanent status negotiations, without any restriction on either side regarding planning, zoning or construction of homes and communities.

In Obama’s second term, he appointed Secretary John Kerry to devote himself to achieving a peace agreement.  Kerry and his team studied all the previous failed attempts, including Obama’s failed attempt and carefully laid out his approach.  He somehow believed that if he could lead the horse, Abbas, to water – i.e., to negotiate – he could get him to drink.  He too failed in his efforts.

Subsequently, he couldn’t resist picking on the settlement activity as responsible for the failure and openly blamed Israel for it.  Martin Indyk, his special envoy, did likewise.

American policy starting with former President Carter was biased in favor of the Palestinians.  After the Oslo Accords were negotiated in secret without American involvement and announced in 1993, an Interim Accord was signed in 1995.

Thereafter, America got involved.  She attempted to override the only binding resolution for ending the conflict – namely, UNSC Res. 242, with the Saudi Plan, which  demanded full withdrawal.  She also attempted to override the provisions of the Interim Accord by demanding a settlement freeze where none was required.  She turned a blind eye to PA violations and blamed Israel for...well, everything.

In line with this bias, Obama announced that negotiations must take placed based on the ’67 lines plus swaps.  This principle had no foundation in law.

Until such time that Israel accepts a peace agreement, she must insist on her rights, including the right to settle Judea and Samaria as set out in the League of Nations Mandate.

Israel has every right to build, having not conceded that right, either in general or specifically as a "gesture" to bribe Abbas to sit at the negotiating table.  We are told that Israel released 76 murderers to preserve that right.  While some argue that settlements are "illegal,"  others "illegitimate," and others yet an "obstacle to peace,"  Israel should ignore these people.  Israel was given the choice of releasing murderers or freezing construction.  Kerry and Abbas, by accepting the release of murderers, ceded the right of Israel to build.  They are not entitled to both a release and a freeze.  Come to think about it, they aren't entitled to either in any event.

Looking at it another way, Abbas, by denying Israel's right to build even in the absence of negotiations is following his narrative that these lands are stolen by Israel from the Palestinians and that any rights given to Jews (Israel) by San Remo or the Mandate are invalid because both of these are illegal.  Israel, by not conceding her right to build, is pursuing her rights according to her narrative.  Just as no one is demanding that Abbas accept her narrative, neither should anyone demand that Israel accept the Arab narrative.

Abbas and Kerry say settlement construction is either illegal or provocative and must stop whether or not there are negotiations.  Would that they also conceded that Arab incitement is provocative and must cease whether or not there are negotiations.  But there is no equivalency here.  The PA has many times agreed to cease incitement and must be held to its agreement before another is entered into.  In fact, there should be no negotiations until the PA honors its earlier agreements.  Israel, on the other hand, has never agreed to cease construction permanently, and thus, there are no grounds for expecting her to do so.

Unfortunately, the Arabs are given a pass on incitement and their resistance because, after all, they and the world want to keep the pressure on Israel.  Similarly, by Israel continuing construction, she is keeping the pressure on Abbas.  The more Abbas avoids painful concessions in pursuit of peace, the more it will cost him.  Building more homes puts time on Israel’s side, while ceasing to build puts time on the side of the Arabs.

Were Israel to agree to stop construction, she would be violating her narrative and her rights.  It is one thing to do so in the context of a final agreement, but quite another in the context of negotiations.

Were Israel to agree to stop building forever, she would be put at a disadvantage forever.  The Arabs, with the support of the EU and the U.S., would continue building in violation of Oslo and would avoid making painful concessions forever.

On the other hand, were Israel to offer to cease constructions for one year to give negotiations a chance, on the condition that if no agreement is consummated in that time frame, then Israel would be fully within her rights to build in Area C, no one would agree to this deal.  What's really at stake here is to get Israel to give up any of her rights to Judea and Samaria before a deal has been arrived at.

The Oslo Accords prohibit acts by anyone that alter the status of the lands.

Specifically, Article XXX of the Interim Accords of 1995 provides:

6. Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.

7. 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.

By “status” is meant the status as set out in the Oslo Accords.  Thus, Israel can’t annex the land, and the PA can’t go to the U.N. to be recognized as a state unless and until the Accords have been abrogated.

Another argument that is trotted out to prohibit construction is that neither side should do anything to prejudge the outcome of negotiations.  This has no foundation in the Oslo Accords or any other agreement made by Israel.  Yet the EU does so constantly by calling the settlements illegal and demanding that Israel cease construction.  The U.S. likewise.  Not only has the U.S. applied a full court press to get Israel to stop building, but the Obama administration is demanding that the settlement be based on the '67 ceasefire line subject to swaps, which is contrary to Res. 242, the only governing law.  If that isn't prejudging the outcome, I don't know what is.

Surely, Israel, by insisting on her rights or defending herself, can't be considered as doing things that pre-judge the outcome.

Bottom line: Israel must continue to build east of the green line.