Category Archives: Palestinians
Israel’s Rights in the West Bank and International Law.
November 20, 2019
The issue of international law seems to be increasingly important and an issue that can be interpreted as supportive of either side. Alan Baker weighs in on some issues as I will in a future post.
The issue of Israel’s rights in the West Bank under international law, as simple as it sounds, conceals a complex and extensive web of historic, legal, military and political issues that, for many years, have engaged and continue to engage the parties to the conflict, as well as the international community as a whole.
This article will briefly analyze the three major elements defining Israel’s rights in the West Bank.
Firstly, and underscoring all other considerations, are the international legal rights emanating from the indigenous and historic claims of the Jewish people in the area as a whole, virtually from time immemorial. These rights were acknowledged in 1917 by the Balfour Declaration’s promise of a national home for the Jews in Palestine, and subsequently recognized internationally and encapsulated into international law through a series of international instruments.
Secondly, Israel’s legal rights following the 1967 Six-Day War, as the power administering the West Bank areas of Judea and Samaria (so described in the U.N. 1947 Partition Resolution 181), and the concomitant, unique sui genesis status of the area.
Thirdly, Israel’s rights under international law following the 1993-1995 Oslo Accords between Israel and the PLO, and especially the 1995 Interim Agreement, (commonly known as Oslo 2) which established a unique territorial arrangement as a form of lex specialis, that divided the control and governance of the West Bank areas between a Palestinian Authority established for that purpose, and Israel.
Israel’s rights in the West Bank areas of Judea and Samaria did not originate with Israel’s attaining control of the area following the 1967 Six-Day War.
Long before, the Balfour Declaration issued by the British government in 1917 acknowledged the indigenous presence and historic aspirations of the Jewish people to reestablish their historic national home in Palestine. While legally the Balfour Declaration, in and of itself, was a unilateral governmental declaration, it received international legal acknowledgement and validity in a series of instruments, commencing with the 1920 San Remo Conference and Declaration by the Supreme Council of the Principal Allied Powers. San Remo encapsulated the content of the Balfour Declaration into the post-World War I arrangements dividing the former Ottoman Empire. In this way, the Principal Allied Powers finalized the territorial dispositions regarding the Jewish people in respect to Palestine and the Arabs in respect to Mesopotamia (Iraq), Syria, and Lebanon.
The San Remo Declaration stated inter alia that:
“The mandatory will be responsible for putting into effect the declaration originally made on the 8th [2nd] of November, 1917, by the British Government, and adopted by other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people …”
This was incorporated into Article 95 of the (unratified) Treaty of Sèvres of Aug. 10, 1920, and subsequently in the Preamble and Article 2 of the Mandate for Palestine approved by the Council of the League of Nations on July 24, 1922:
“The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
The continued validity of these foundational legal rights encapsulated in the various international instruments predating the establishment of the United Nations was also assured under Article 80 of the United Nations Charter:
“… nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
The second element defining Israel’s rights under international law in the West Bank areas of Judea and Samaria relates to the period following the 1967 Six-Day War, subsequent to Jordan’s participation in the combined military action against Israel, in concert with Egypt and Syria. During this conflict Israel attained control of the areas of Judea and Samaria and established a military administration to govern the local population, pursuant to the accepted norms and requirements of international law.
However, the issue of Israel’s international rights in administering the area was complex in light of the unique legal and political status of the territory.
In classical situations of belligerent occupation of the territory of a sovereign state, the rights and obligations vis-a-vis the territory and the local population are set out in the 1907 Hague Regulations of Land Warfare and the 1949 Fourth Geneva Convention on the Protection of Civilian Persons in Time of War.
These instruments prescribe clear norms of behavior between an occupier and the local population as to the rights and duties involved in administering the area, protecting the forces of the occupier and respecting the humanitarian rights of the local population. Such norms cover issues of property, respect for local law and private property rights, ensuring public order and safety, and respecting the territorial rights of the sovereign pending settlement of the dispute.
With regard to the West Bank areas, the legal situation was not the classical situation of belligerent occupation of the land of a sovereign state. This irregularity stemmed from the fact that Jordan was not considered by the international community as having attained legitimate sovereign rights over the areas of Judea and Samaria, following its 1950 unrecognized annexation of the areas. As such, from the legal point of view, since there existed no legitimate sovereign power, a sui generis situation existed in which the classic laws of occupation were not legally applicable.
Israel’s status, as explained by its then Military Advocate General, Meir Shamgar (later to become Israel’s attorney general and chief justice), was:
“The territorial position is … sui generis, and the Israeli government tried therefore to distinguish between theoretical juridical and political problems on the one hand, and the observance of the humanitarian provisions of the Fourth Geneva Convention on the other hand.”
From the start, Israel distinguished between the unique nature and status of the territory on the one hand, and accepted and requisite international obligations vis-a-vis the local population in the day-to-day administration of the territory, on the other hand, pending a peaceful solution regarding its final status.
Concomitant with its assuming control in June 1967 Israel committed itself, through a series of military proclamations and orders to act in accordance with the relevant norms of international law in all matters including property, respecting existing local legislation, and other general provisions.
In the same context, without officially acknowledging the formal applicability of the Fourth Geneva Convention to the territories, which would have been tantamount to recognizing that the territory was Jordanian, Israel committed itself to apply vis-a-vis the local population, the humanitarian provisions of the Fourth Geneva Convention.
Pursuant to Article 55 of the 1907 Hague Regulations dealing with the issue of property, Israel, as “administrator and usufructuary,” maintained the right to use public, non-privately owned land and property, pending the final outcome of the dispute.
This premise served as the basis for Israel’s settlement policy, enabling use of public lands and properties while strictly respecting private rights of ownership of local residents of the territories. Thus, residents of Israeli settlements never received ownership rights to the land, which is provisionally leased to them by a government custodian pending an agreed determination of the territorial dispute.
Israel has consistently rejected the oft-heard accusation in international political bodies that its settlement policy violates the prohibition in Fourth Geneva Convention on the mass transfer of its residents into the territory. This in light of the provenance of such prohibition in the post-Second World War mass transfers of populations in Europe by the Nazis in an attempt to alter the demographic structure of the countries involved. This was made clear in the official Red Cross commentary, edited by Jean Pictet, on the sixth paragraph of the Geneva Convention article 49, regarding deportation and transfer of persons into occupied territory.
“…. It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”
The fact that the 1993-95 Oslo Accords determined that the issue of settlements will be a negotiating issue in the permanent status negotiations underlines the fact that the settlement issue has yet to be agreed upon, and is, of necessity, inherently linked to the other permanent status issues, including borders, Jerusalem, security and the like. As stated in the Oslo Accords:
“It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”
Pursuant to the 1967 Six-Day War, U.N. Security Council Resolution 242, adopted on Nov. 22, 1967, set out the basic framework of rights and obligations intended to lead to a solution of the Middle East conflict. The nonbinding but key resolution, adopted under Chapter VI of the U.N. Charter dealing with the pacific settlement of disputes, affirmed inter alia the rights of all states in the area to just and lasting peace, termination of belligerency, respect for sovereignty and independence, and secure and recognized boundaries, and called for negotiations to achieve a peaceful and accepted settlement.
This resolution has constituted the basis for the subsequent peace treaties between Israel and its neighbors Egypt and Jordan. It also serves as the central pillar in the series of agreements signed between Israel and the PLO regarding the West Bank. Such negotiations proceeded over the years to develop possible models for Israel and the Palestinians to negotiate between them the rights that they respectively claim in the areas of the West Bank.
During this period, and up to the signing of the 1993-1995 Oslo Accords, Israel continued to administer the areas on the basis of the rights to which it was entitled pursuant to international law.
The third element defining Israel’s rights in West Bank was the landmark 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) witnessed by the world leaders and endorsed by the U.N.
The parties agreed, pending the negotiation an agreement to determine the permanent status of the area, to divide the effective control between a Palestinian Authority established for that purpose, and Israel. In this way the Oslo Accords created a sui generis legal regime, a lex specialis that overrides any other, previously applicable legal framework that may have been applicable, including the Geneva Convention.
As such, the PLO, as the formal representative of the Palestinian people, formally agreed that in addition to those West Bank and Gaza Strip areas in which all powers and responsibilities for governance and administration would be transferred into the hands of the Palestinian Authority (Areas A and B and the Gaza Strip), Israel would retain powers and responsibilities in part of the area (Area C) vis-a-vis both local Palestinian residents in the area, as well as the Israeli citizens residing in settlements and villages. The parties agreed that this arrangement would remain valid pending the outcome of negotiations between them on the permanent status of the areas.
Despite attempts by the international community, through nonbinding political statements and resolutions in the U.N., to prejudge the outcome of the negotiations by claiming that the territories are “occupied Palestinian territories,” there exists no such legally accepted or agreed to determination.
Similarly, the Oslo Accords did not specify the form the permanent status of the area would take—whether one state, two states, federation, confederation or otherwise. Thus, states and organizations advocating a “two-state solution” are, in fact preempting the outcome of the negotiations that have yet to take place. Any agreed solution will only emanate from negotiations between the Palestinian leadership and Israel and cannot be imposed unilaterally by U.N. resolutions, or by any international forum, or individual leaders.
Any permanent status agreement, if and when reached, will be the sole agreed upon instrument duly determining the status of the area and the respective international and bilateral rights and commitments both of Israel and the Palestinians.
Time will tell.
The article below is reprinted from Tablet and makes a gentle and fair-minded case for why Representative Omar should expand her experiences in Israel. We expect her to criticize Israel for the occupation as well as labeling Israel a colonial state along with additional critical vocabulary. But if she truly is trying to learn with an open mind, then Omar should heed Carly Pildis’s suggestions.
When news broke last month that Rep. Ilhan Omar was planning a trip to Israel, Gaza, and the West Bank with some of her congressional colleagues, I felt a subtle sense of hope. I disagree with many of Omar’s comments on the conflicts, but, given her rapid change in viewpoint after winning her election, I hope that she’ll come to the region with an open mind and an open heart. And having myself visited Israel on numerous occasions—visits that were deeply meaningful to me and helped me shape my view of regional politics—I believe the right itinerary could make a real difference. I’m no travel agent, but I wrestle daily with a complicated view of the Israeli-Palestinian conflict, and, with that in mind, sat down to imagine the trip I would arrange for Omar and her friends.
Tzfat is a good place to start and get rooted. The town has a deep history of Jewish mysticism, religious study, and art. Local legend claims the city was created by Noah after the flood. Yes, that Noah. It has ancient Jewish roots, including mentions in the Jerusalem Talmud and the writings of Jewish historian of Roman times Josephus, as well as a vibrant modern Jewish culture of mystical study and art. I hope Omar will stop by Abraham Loewenthal’s studio and chat with him about mystic art; I have one of his pieces in my kitchen.I hope she walks the ancient streets, exploring its beautiful unique synagogues. Abuhav Synagogue, built by Rabbi Abuhav and his disciples after they were expelled from Spain in 1492, is a favorite of mine. Another is the Ari Ashkenazi Synagogue, built in 1570. In 1948 a piece of shrapnel flew through the synagogue while congregants were praying, and, miraculously, no one was injured. People still write notes to God and slip them in the the hole the shrapnel left behind. I have left my own prayers there.
Why should Omar spend a day touching ancient stones and chatting with hippie mystic artists? Because some of her fellow progressives are likely to tell her that nothing about Israel is authentically Jewish, that it is all a modern construction, a colonialist, white supremacist enterprise. I am hoping after a day in Tzfat she will vocally disagree. Tzfat was the home of PLO Chairman Mahmoud Abbas before his family fled in 1948, and the home of Rabbi Abuhav who took refuge there in 1492. Roots tangle, especially in the Holy Land.
Now that Omar has rooted herself in history, I think she should visit those who best understand what’s at stake, because they have lost the most: the parents who lost a child to the conflict. Parents Circle-Families Forum is a grassroots organization of Palestinians and Israelis who have lost an immediate family member in the conflict. In 2007, I met with Aaron, a father from PCFF who told me lovingly and achingly about his son Noam, who was killed in the Second Lebanon War. His hands never stopped shaking, rolling and unrolling a piece of paper as he recalled hearing the news of his beloved son’s death and how he felt called to push for peace, reconciliation, and dialogue. PCFF brings families together to share their grief, and their hopes that by sharing grief they can create a path to reconciliation and peace. They have offices in both Ramat Efal and Beit Jala you can visit, where members engage in dialogue circles. Additionally, PCFF runs a summer camp for bereaved youth and a hotline that allows Israelis and Palestinians to talk for free and make new connections. It has had over a million callers. PCFF is both heartbreaking and inspirational, and it’s the kind of project that needs more support. In this era of American activists creating “anti-normalization” clauses and refusing dialogue and debate, PCFF stands in stark contrast to Western bombast. It is a model that is both heartbroken and hopeful for peace, deeply committed to recognizing the pain of all its members.
Another space that will help Omar understand the stakes of the conflict is Sderot. The people of Sderot have been hit with thousands of rockets over the past decade, including this past May, when over 450 rockets attacked Southern Israel from Gaza. One landed right outside a kindergarten in Sderot. Forty percent of children in Sderot suffer from PTSD and anxiety due to the trauma of rocket attacks, which is far higher than the national average of 7% to 10%. The Israeli Education Ministry’s psychological service is now training teachers to help them better support children who are traumatized by the conflict. In 2009, the Jewish National Fund donated an indoor playground that doubles as a bomb shelter, so that the children of Sderot can play without risking being too far from a bomb shelter. When a Code Red alert sounds, residents have only 15 seconds to reach a bomb shelter. There are over 200 throughout the city. Rep. Omar and members of her “squad” have proposed cutting U.S. military aid to Israel. I think when she is in the region, she should meet with the families in Southern Israel that would bear the brunt of that cut.
While examining investments in keeping the people of Sderot safe, both in terms of bomb shelters and the Iron Dome, it is important to contrast the average citizen of Sderot with the average citizen of Gaza, who does not have access to a bomb shelters. It seems the Hamas government is unwilling to invest in civilian bomb shelter, preferring instead to invest in underground smuggling tunnels that further the effort to bomb the citizens of Sderot. If Rep. Omar and her colleagues get a chance, they should question the Gazan government’s priorities.
More than any one specific tour stop, I hope Rep. Omar integrates into her itinerary a search for duality. Sometimes we must hold two difficult, even seemingly contradicting truths in our mind at the same time, especially as people of faith. When she visits a West Bank checkpoint, as I hope she will, and confronts the cruelty of the occupation and the hardship it causes, I hope Omar will also talk to the Israeli soldiers on duty. If she does, she’ll see that they are often very young, just out of high school, and very frightened by the burden of responsibility for security placed on their shoulders. I hope she speaks to Palestinians who lost everything in 1948 and became refugees, just like her, and I also hope she speaks to Jewish refugees from Yemen, Tunisia, Morocco, Iraq, Ethiopia, and the former USSR, who found a home in Israel when they were in desperate circumstances. If the congresswoman chooses to pray at the Al-Aqsa Mosque, I hope she also goes to the Kotel. When I touched the stones of the Kotel for the first time, I laid my head on it and wept, because God felt so close and yet so far away. It is the same way for peace in the region, it seems both within our grasp and devastatingly far away.
Below is a set of ideas related to how a two-state solution can work. It is presented by Professor Cohen-Almagor
The recent monthly Peace Index of the Israel Democracy Institute and Tel Aviv University, published in September 2018, finds that half of the Jewish Israeli public thinks that Palestinians deserve an independent state, while (43%) think they do not. Analysis of the Jewish sample by age shows that support for a Palestinian state increases with age: among those aged 18-34 only a minority (35%) supports the Palestinians’ right to a state, 54% of those aged 35-54 support it, and in the oldest age group a 61% majority supports it. Arab-Israelis believe unanimously (94%) that Palestinians are entitled in principle to an independent state of their own.
47% of Jewish-Israelis support signing an agreement based on the formula of two-state solution while 46% answered that they do not. Among Arab-Israelis, 73% support such an agreement. 83% of Jewish-Israelis thinks that “the Palestinians must recognize Israel as the nation-state of the Jewish people before peace talks with them can be revived.”66% of Jewish-Israelis agree that “most of the Palestinians have not come to terms with Israel’s existence and would destroy it if they could.”This rate has remained more or less constant, with slight fluctuations, since the first Peace Index survey was conducted in June 1994.
The Palestinians aspire to have an independent state in the 1967 borders, with Arab Jerusalem as its capital and a substantial return of refugees to Israel. The Israelis wish to retain the Jewish character of Israel, being the only Jewish state in the world. Both sides wish to enjoy life of tranquillity and in security, free of violence and terror. Both parties should explicitly accept UN Security Council Resolutions 242,338,and 1397 and then begin their full implementation. The endgame will be based on the following parameters:
Palestinian sovereignty – will be declared and respected.
Mutual recognition – Israel shall recognize the State of Palestine. Palestine shall recognize the State of Israel.
Mutual diplomatic relations – Israel and Palestine shall immediately establish full diplomatic relationships with each other, installing ambassadors in the capital of the respective partner.
Capital – each state is free to choose its own capital.
Borders– These should be reasonable and logical for both sides. Settling the conflict would give Israel greater international legitimacy to fight terrorism and enable it to deal with the more serious emerging threat from Iran.
Israel will withdraw to the Green Line, evacuating settlements and resettling the settlers in other parts of the country. The major settlement blocs — Ma’ale Adumim, Givat Ze’ev, Gush Etzion, Modi’in Illit and Ariel –- which account for approximately 70% of the Jewish population in the West Bank and for less than 2% of its size, may be annexed to Israel upon reaching an agreement with the PA of territory exchange that will be equal in size.Border adjustment must be kept to the necessary minimum and must be reciprocal.
Territorial contiguity– a corridor would connect the West Bank and the Gaza Strip to allow safe and free passage. As long as peace is kept, the road will be permanently openand solely Palestinian. No Israeli checkpoints will be there. Palestinians will not be able to enter Israel from this corridor, nor shall Israelis enter Palestine from the corridor. Palestine will ensure that this safe passage won’t be abused for violent purposes. Such abuse would undermine peace and trust between the two parties.
The Separation Barrier creates a political reality. It should run roughly along the 1967 mutually agreed borders.
Security– Both Israel and Palestine will take all necessary measures to ascertain that their citizens could live free of fear for their lives. Security is equally important for both Israelis and Palestinians as this is the key for peace. Palestine and Israel shall base their security relations on cooperation, mutual trust, good neighborly relations, and the protection of their joint interests.
The Palestinian state will be non-militarized. This issue was agreed upon in 1995. Also agreed upon were joint Israeli-Palestinian patrols along the Jordan River, the installation of early warning posts, and the establishment of a permanent international observer force to ensure the implementation of the agreed security arrangements. The early warning posts will be periodically visited by Israeli security officers but they won’t be permanently present on Palestinian soil. If there is a need for a permanent presence, this would be trusted to an agreed-upon third party.
Terrorism and violence– Zero tolerance in this sphere. Both sides will work together to curb violence. Both sides will see that their citizens on both sides of the border reside in peace and tranquility. Zealots and terrorists, Palestinians and Jews, will receive grave penalties for any violation of peace and tranquility.
Jerusalem– What is Palestinian will come under the territory of the new capital Al Kuds. Al Kuds would include East Jerusalem and the adjacent Palestinian land and villages. Abu Dis, Al-Izarieh and Al-Sawahreh will be included in the Palestinian capital. The Israeli capital would include West Jerusalem and the adjacent Israeli settlements. To maintain Palestinian contiguity, Israel may be required to give up some of the settlements around Arab Jerusalem. The Old City will be granted a special status. Special arrangements and recognition will be made to honour the importance of the Western Wall and the Jewish Quarter for Jews, and similarly special arrangements and recognition will be made to honour the importance of the Islamic and Christian holy places. The Old City will be opened to all faiths under international custodianship. There will be Israeli-Palestinian cooperation in providing municipality services to both populations.
Haram al-Sharif– On March 31, 2013, aJordan-Palestinian agreement was signed between the PA and Jordan, entrusting King Abdullah II with the defense of Muslim and Christian holy sites in Jerusalem.While Jordan may be a party to any agreement concerning the site, a broader arrangement is welcomed. As agreed by Abbas and Olmert, it will be under the control of a five-nation consortium: Palestine, Israel, Jordan, Saudi Arabia and the United States. The Waqf will continue its administration. Jews will enjoy right of access. Excavation for antiquities may be undertaken only with the full agreement of both sides. Similarly, alterations to the historical structures and foundations can be made only upon the consent of both sides.
Education – Israel and Palestine will institute a shared curriculum on good neighborhood, understanding cultures and religions, respect for others and not harming others. This education program will commence at the kindergarten and continue at primary and high schools. In every age group vital concepts for understanding the other will be studied. This program is critical for establishing peaceful relationships and trust between the two parties.
Languages – Starting in primary schools, Arabic will be a mandatory language for pupils to study in Jewish schools. Similarly, Hebrew will be a mandatory language for pupils to study in Palestinian schools. Language is the most important bridge between different cultures and nations. Israelis will master Arabic to the same extent that they presently master English. Palestinians will master Hebrew as their second language.
Incitement– Both sides need to clean up the atmosphere, fight bigotry, racism, incitement and hate on both sides of the fence/wall. This includes a close study of the education curricula in both the PA and Israel. Both sides need to overhaul their school books, excluding incitement, racism, bigotry and hate against one another.The curricula should reflect a language of peace, tolerance and liberty. Both sides should utilize the media to promote peaceful messages of reconciliation and mutual recognition.
Prisoners– As an act of good will, part of the trust-building process, Israel will release a number of agreed upon prisoners. With time, as trust will grow between the two sides, all security prisoners will return home.
Refugees and their right of return– This is a major concern for both Palestine and Israel. For Palestinians, this issue is about their history, justice and fairness. For Israelis, this is a debated issue, where many Israelis are unwilling to claim responsibility for the Palestinian tragedy and most Israelis object to the right of return as this would mean the end of Zionism. The issue is most difficult to resolve as the original refugee population of an estimated 700,000-750,000 has grown to 4,966,664 refugees registered with UNRWA at the end of November 2010. About 40% of the refugees live in Jordan, where they comprise about a third of the population; another 41% are in the West Bank and Gaza, 10% are in Syria, and 9% are in Lebanon. In the West Bank, refugees constitute about one-third of the population while in Gaza they comprise over 80% of the population.
Israel and the PA have been arguing endlessly about this issue as a matter of principle without examining by surveys how many of the refugees and their families actually are intended to return to Israel if this option were to be available to them. What needs to be done is twofold: first, Israel needs to recognize that it has a shared responsibility with the Palestinians to solve the problem. Israel needs to honestly confront history, refute myths and acknowledge the role it played in the creation of the refugee problem. Second, there is a need to identify the population, establish the numbers, and after mapping the refugee population conduct a survey among them that would include the following options:
- Return to Israel;
- Return to the West Bank;
- Return to the Gaza Strip;
- Emigrate to third countries that would commit to absorbing a certain quota (appeal will be made to countries that receive immigration on a regular basis to participate in this settlement effort);
- Remain where they are. President Donald Trump has started to put pressure on several Arab countries to grant Palestinian refugees living in those countries citizenship.
The 1948 Palestinian refugees will be able to settle in Palestine. The rest of the world is legitimate to set immigration quotas for absorbing Palestinians who apply for settlement in their designated choice of country. Unification of families should be allowed in Israel on a limited quota annual scale. But massive refugee return to Israel will not be allowed. This dream should be abandoned. An international tribunal of reputable historians and international lawyers, including equal representatives of Israel and Palestine, will determine the level of compensation. If needed, Israel and Palestine may establish an international relief fund to which humanitarian countries that wish to see the end of the conflict contribute.
Termination of the conflict– following the signing of a comprehensive agreement covering all issues and concerns, an official statement will be issued declaring the end of the Israeli-Palestinian conflict.
Four Party Permanent Team – Egypt, Israel, Jordan and Jordan will maintain a permanent organization that will meet periodically to discuss concerns and resolve problems amicably. This forum will discuss issues such as the Gaza ports, economic development, water, tourism, security controls along the Jordan River, security concerns in Sinai, counter-terrorism and counter-radicalism.
International Arbitration– Difficult issues that won’t be resolved by direct negotiations will be delegated to a special arbitration committee. This special committee will have an equal number of Israeli and Palestinian delegates plus an uneven number of international experts. Only experts approved by both parties will be invited to serve on the arbitration committee. The committee will include lawyers, economists, human rights experts and experts on the Middle East. Their resolutions would be final, without having the right of appeal. Both Israel and Palestine will commit to accept every decision of the arbitration committee. One model to follow might be the arbitration committee comprised to resolve the Taba dispute between Israel and Egypt.
To resolve the Israeli-Palestinian conflict there is a need for courageous leaders on both sides who seize the opportunities presented to them and make the most for their peoples.
To erect peace, it is essential to have trust, good will and security. It would be far-fetched at present to hope for peace in the short term. We should have little illusions about peace, at least so long as Hamas is determined to wipe Israel off the map. Israel does not even appear on Hamas maps. Israel should aspire to enter a long-term interim agreement; to build trust; evacuate isolated settlements; consolidate economic conditions for Palestinians; bolster security on both sides; stop enlarging existing settlements; dismantle checkpoints to make the lives of Palestinian civilians easier; develop the nautilus Iron Dom against rockets and other anti-rocket mechanisms. Finally, international cooperation is required to lift the existential Iranian threat.
 Tamar Hermann and Ephraim Yaar, “Is the Two-State Solution Still Relevant?”, The Israel Democracy Institute(September 5, 2018),https://en.idi.org.il/articles/24478?ct=t(EMAIL_CAMPAIGN_9_6_2018_16_39)
 Resolution 242 of November 22, 1967, http://unispal.un.org/unispal.nsf/0/7D35E1F729DF491C85256EE700686136
U.N. Security Council Resolution 338 of October 22, 1973,
UN Security Council Resolution1397 (March 12, 2002), http://www.rewordify.com/index.php?wpage=2001-2009.state.gov/p/nea/rt/11134.htm
For pertinent maps, see http://www.geneva-accord.org/mainmenu/static-maps/. See also West Bank “Settlement Blocs”, Peace Now, http://peacenow.org.il/eng/content/west-bank-%E2%80%9Csettlement-blocs%E2%80%9D
See Protocol Concerning Safe Passage between the West Bank and the Gaza Strip Signed in Jerusalem on October 5, 1999, http://www.israel.org/mfa/foreignpolicy/peace/guide/pages/protocol%20concerning%20safe%20passage%20between%20the%20west.aspx
 Analysts: Jerusalem deal boosts Jordan in Holy City, Ma’an News Agency(April 3, 2013), http://www.maannews.net/eng/ViewDetails.aspx?ID=581765
See Daniel Bar-Tal, “Challenges for Constructing Peace Culture and Peace Education”, and Salem Aweiss, “Culture of Peace and Education”, both in Elizabeth G. Matthews (ed.), The Israel-Palestine Conflict (London: Routledge, 2011): 209-223, 224-246.
Alan Dowty, Israel/Palestine(Cambridge: Polity, 2012): 243.
Yasser Okbi, “Report: Trump furthers program for Palestinian refugees in Arab countries”, Jerusalem Post(September 15,2018), https://www.jpost.com/Arab-Israeli-Conflict/Report-Trump-furthers-program-for-Palestinian-refugees-in-Arab-countries-566966
The essay title “Jerusalem for Dummies” has been taken (go here) but I thought it was sufficiently descriptive so I appropriated it. There are of course any number of places where one can read about the history of Jerusalem and its various twists and turns with respect to legal standing, cultural icon, religious center, and capital. But below is a brief overview that helps place Trump’s announcement in context. You can listen again to Trump here: Trump’s bold statement about Jerusalem and the Jews.
Historically, Jerusalem was a small town on the outskirts of the Ottoman Empire. It was mostly significant for religious reasons as water and natural resources were scarce and not particularly strategically located. But as time went on Jerusalem became symbolically more important and a tense mixture of politics and religion. One of the nearby hills in Jerusalem was called “Zion” and it became the term to refer to the entire area and the base of the word Zionism which is the modern movement calling for the reestablishment of the Jewish people and state.
Still, Jerusalem was never automatically assumed to be “Jewish” because of its significance for both Christianity and Islam. Jerusalem is significant to the three Abrahamic religions Judaism, Christianity, and Islam. The Al-Aqsa Mosque on the Temple Mount is believed to be the place where Mohammed ascended to heaven. There is no denying the significance and importance of these religious sites and whatever ends up happening Jerusalem must ensure access to these holy places.
The Zionist leaders were mostly secular and were unsure about the significance of Jerusalem Or, shall we say, they were uncomfortable with the power of the religious connection to Jerusalem and did not want a future Jewish state to be overly religious.
It is significant that when the United Nations divided Palestine into two states (one Arab, one Jewish) in 1947, it left Jerusalem out of this equation. Jerusalem and its surroundings were designated as a separate territory to be overseen by an international body. Many Jews were unsure about this but were satisfied with relinquishing Jerusalem in order to establish the state. But when the Arabs rejected the plan to divide Palestine and attacked Israel Jews considered themselves no longer bound by the UN partition plan and moved in on Jerusalem militarily. At the end of the war of independence Israel had taken the Western part of the city, the Jordanians the Eastern part including the old city and significant religious sites. By now the significance of Jerusalem was increasingly apparent and Jews fixated their identities more on Jerusalem. The city was divided by the new state of Israel and Jordan.
Israel declared Jerusalem as its capital after annexing West Jerusalem. The Jordanians annexed East Jerusalem and there were two capitals up until the Six-Day War in 1967. For 19 years, 1948-1967, tensions between Israel and the Arab world remained and no progress was made on the status of Jerusalem or its unification. The city was not recognized as either Israeli or Jordanian. During the Six-Day War Israel captured East Jerusalem along with a few neighborhoods that were not historically in Jerusalem. Israel has moved all of its government offices to Jerusalem including the Knesset and has consolidated their presence in the city.
Israel’s position is that they are not bound by the UN partition plan or the original partition of Palestine because they acquired Western Jerusalem while defending themselves. The two sides have hardened their position as Israel would now never give up Jerusalem as its capital and the Palestinians maintain a belief in their rights to the city also. Very little progress has ever been made on the status of Jerusalem and the city remains confused according to international law as well as the contradicting claims of each side.
For these reasons official recognition of Jerusalem has been moot for most countries. But Donald Trump changed all that.
The two-state solution to the Palestinian problem continues to be a hopeful image and a rational solution that benefits everyone. Historically there was considerable popular support for the two -state solution but surprisingly enough it seems to be waning. The two-state solution is now in jeopardy. Mosaic, a magazine of Jewish thought, recently published a thorough article reporting polling results that serve as evidence for what Palestinians actually think of the two-state solution. The most common line of thinking has been that everyone supports the two-state solution but leadership and provocative actions from both sides threaten its possibilities.
And we don’t have to guess Palestinian opinions about two-states because polling the Palestinians is persistent and, according to experts, of high quality. Moreover, a variety of reputable organizations frequently poll the Palestinians.
So what do the Palestinians think of the two-state solution?
When asked a direct question about their support for the two-state solution, over a two-year period (from 2012 to 2014), 52% of the Palestinians supported a two-state solution. That number dropped to just under 50% from 2014 to 2016. The average level of support by Israelis was 59%. Over time that number decreased slightly.
This general question about two states is by itself only minimally of interest but when it is converted into specific policy the results are very interesting. One polling study offered to Palestinians a solution package that was beyond what had ever been endorsed by an Israeli government. Palestinians were presented with a two-state solution in which the state was established in line with 1967 borders, East Jerusalem would be the capital and Palestinians would control the Al-Aqsa mosque, they would be allowed a strong security force, and provisions would be made for refugees. The solution package was considered to be acceptable to Israelis and include a generous response to all key issues.
This hypothetical solution was met with more opponents than supporters. There were more opponents 14 times out of the 16 times the package was presented to the Palestinian public. The deal was rejected about 54% of the time and decreased over time such that an average of 61% opposed the deal. Palestinian opposition intensified when they were presented with specific components of a resolution. They rejected the definition of East Jerusalem as their capital, did not think the proposal for refugees was sufficient, and strongly rejected the requirement that Palestine be a demilitarized state. Finally, only 39% of the Palestinians responded affirmatively to a statement that required the recognition of the state of Israel as the state of the Jewish people.
There are other responses to the specific planks of the proposal but the main point as of now is that the Palestinians generally indicate support for two-state solution, but continue to express opposition to the specifics of a generous offer available in the near future. I would add that a number of Palestinians (especially intellectuals) support a one-state or a binational solution, which has never been acceptable to the Israelis or discussed seriously as a political possibility.
But the most troubling finding reported in the Mosaic article is that there has been a regular increase (13% to 18%) in the number of Palestinians who support an “Islamic solution” which calls for a Palestinian state from the Jordan River to the Mediterranean. This is a position more in line with a “liberation of Palestine” perspective rather than a negotiated political solution. When polls asked Palestinians to make a choice between a single state, or a two-state solution, an unexpected 62% indicate their preference for a Palestinian single state in all of historic Palestine. Subsequent polls found that “reclaiming historic Palestine” was the first choice of 60% of respondents.
This more extreme position does not bode well for negotiations or solutions to problems. It indicates a radicalization that will only further divide the two groups. It represents a rejection of the recognition of Israel as the state of the Jewish people and polarizes the discourse by assuming positions that are untenable or considered extreme by the other side. The next post will explore in more detail the implications and the explanations for this liberation preference.
Some believe things are quiet in the Middle East but actually they are stagnating. The governance situation in Palestinian territories is getting worse and both Israel and Palestine are facing untenable governing situations. For starters, the legitimacy of the Palestinian Authority remains limited. And these limitations will eventually affect US policy and interests with the US doing relatively little to influence Palestinian politics.
There is simply no substitute for strong political parties and institutions. Hamas is a terrorist organization that cannot be dealt with and should not be recognized. Then again, if Hamas were a genuine partner in the peace process (something, as of now, difficult to imagine), and they were truly committed to establishing some sort of stability, than they should be part of the process. Fatah, on the other hand, suffers from corruption, lethargy, and a general lack of professionalism. Some of these issues can be addressed by the United States but they also require a political will lacking in the PA.
It’s curious to note that the Palestinian Authority seems to respond more to local values and rhetoric than it does international influences. This limits the role of the United States. The US has negligible influence when it comes to the technical details of Palestinian governance and institutions. This leaves the US doing little more than publicly making statements about deficiencies and problems and subjecting the Palestinians and the Israelis to a discourse of criticism on the international stage. If there were actually consequences of this criticism that it might serve some productive value, but generalized statements criticizing the democratic behavior of the Palestinians or the Israelis seems to have little effect on either.
But as research in the peace and development process indicates, civil society is one of the most important entry points when trying to create new structures and improved relations. Civil society is that level of the polity that includes trade unions, professional associations, educational exchanges, mid-level business activity, and government exchanges. Here, the United States can maintain some influence and viability. It should support NGOs providing services to the public and require the PA to manage civil society effectively. Some NGOs have been controversial in the past with questionable goals and activities indicating that transparency is important.
The US should direct its attention more to working with the legitimacy and effectiveness of Palestinian institutions, especially at the civil society level. The US can help encourage technically skilled reformers and stimulate improved stability and effectiveness. Assistance at this civil society level avoids the ceremonial and political trappings of negotiation among state leaders and still positively influences the institutional development of society. An emphasis on the negotiation communication process at the state level inevitably encounters the stagnation and recalcitrance of Palestinian institutions which makes it even more difficult to initiate new productive directions toward peace and stability. The civil society level makes for interactions that are rationalized through business exchanges and necessary governing processes but still require contact among citizens.
I’m referring here to the Palestinian Authority and the development of its institutions as opposed to the Israelis. Israeli institutions are of course well established within their culture and society but in the future this civil society level will apply equally to the relationship between Israelis and Palestinians. Right now the US is in no position to create powerful conditions for change or improvement of prospects for peace. But they can still be influential in preventing the continued undermining of governance, and the development of the all-important civil society that provides a stable foundation for institutions.
The Palestinians have been politically dominated by two organizations. Fatah is a secular liberation movement that has had the most influence on Palestinian politics. The other group is Hamas and they are an offshoot of the Muslim Brotherhood. Hamas became more popular in the 1990s and had a very successful winning election season in 2006. Hamas is violent and has a tense and difficult relationship with Fatah. There have been other political movements but none have been successful. Hamas is governed very poorly in the Gaza Strip and has little confidence from the public. But the public does appreciate Hamas’s aggressive and challenging stance toward Israel.
A poll reported in an article on Palestinian political rejuvenation (available here), which asked participants what party they would choose in a parliamentary vote, indicated that 32.1% of the Palestinians preferred Hamas, 36.9% preferred Fatah and a full 24.1% said none of the above. These data illustrate how “stuck” the Palestinians are. Minor parties have no traction at all and a significant portion of the population is unsatisfied with either of the two major parties.
Progress toward political legitimacy and independence is hindered by the authoritarian nature of both parties. Both parties have the mechanisms of failing political machinery built into their structure. Unfortunately, these mechanisms include control over government institutions, patronage, and the suppression of dissent. Human rights organizations report that both the PA and Hamas have fashioned the politics of failure by creating standard structures of corruption which include unlawful arrest, poor court systems, suppression of expression, and patronage.
One serious problem is that the PA and Hamas define themselves as liberation movements rather than political development movements. Even after all these years, the PA still uses the language of struggle and presents a narrative rooted in oppression and vulnerability. Clearly, oppression and vulnerability are characteristic of the Palestinian political situation but focusing on these things and ignoring all attempts at genuine political reform is the reason for stagnation when it comes to possibilities for new Palestinian politics. Both Hamas and the PA define the occupation as definitionally tied to the Palestinian identity and anything that does not address the occupation directly is misguided or irrelevant. Those Palestinians attempting genuine change (e.g. Salam Fayyad) are quickly marginalized and labeled as stooges of the United States or Israel.
Moreover, the PA cares more about international attention – and the accompanying international condemnation of Israel – than it does about internal reforms. Such international attention would wane if the PA were focused on building institutions and structural change. In fact, progress in those areas is almost discouraged because it would give the impression that the occupation is less important.
Opinion polls in Palestine show support in the public for change but as of now the support has not been converted into political authenticity. Although the international community is sympathetic toward the Palestinians, they too want change. It does not seem like internal political reforms will be a successful platform for a new Palestinian politics. A solution to the problem will require not only outside help but progress on the key contentious issues between Palestinians and Israelis. Palestinian leaders are probably correct – the Israeli-Palestinian conflict must come first.