[A shorter version under a title chosen by the editor was published by Eureka Street, http://www.eurekastreet.com.au/article.aspx?aeid=41652]
With the collapse of the Israeli-Palestinian negotiations, Fatah and Hamas have announced that they will form a unity government and organise elections by the end of this year. They have also announced that they will seek international recognition through the United Nations. The government of Israel has denounced the Hamas-Fatah agreement and a spokesperson for the US government has described it as disappointing. Mr Kerry has announced a pause in US engagement in the Israeli-Palestinian conflict. US officials and commentators look for a way forward, seeing dangers more than opportunities.
The US and Israel should welcome the opportunity that Palestinian elections will present. Instead of pausing, the US government should redouble its efforts. The Palestinians want international recognition of their state. Under US law, the President by himself, without needing the concurrence of Congress, has power to recognise a foreign state. President Obama should announce that as soon as certain reasonable conditions are met the US will recognise a state of Palestine and sponsor its admission to the United Nations. The conditions should be such as to encourage the Palestinians to do what is needed to give Israel a reasonable assurance of security, in the hope that the remaining points of difference would then be easier to resolve.
What should the conditions be? First, that the proposed elections actually take place. Second, that the newly-elected government undertake to abide by the obligations that international law imposes on all states equally, including explicitly the obligation not to make attacks on other recognised states, including explicitly Israel. Third, that the new government produce a credible plan (credible in the judgment of the US President) for achieving control over its territory, so as to prevent illegal violence. No other conditions should be imposed. The Palestinians should not be asked to affirm that Israel is a Jewish state.
The conditions suggested—democratically-elected government, acceptance of the ordinary obligations of international law and a credible plan for control over their territory—match the criteria the UN Charter (art. 4) specifies for UN membership: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations”. Ability and will are enough. Not to have outstanding disputes with other states is not a condition of UN membership.
The conditional offer of recognition needs to be made as soon as possible. If the US simply pauses, an important opportunity will be lost. An offer made before the elections would encourage the emergence of candidates in favour of meeting the conditions. If there is no hope of recognition on reasonable terms the elections will be dominated by hard-liners. The next few months are critical.
Recognition need not wait until “final status” issues are determined. In particular, it need not wait until the borders of Palestine are determined. When President Truman recognised Israel Israel’s borders were not determined. The borders of Israel are still not settled. Since Israel and Palestine will have a common border, the borders of the one cannot be determined without determining the borders of the other.
Once Palestine is recognised as a state and has been admitted to the United Nations as a full member, negotiations between Palestine and Israel will resume over borders, and also over other difficult matters, such as the return or compensation of refugees and the status and future of Jewish settlements in the West Bank. These are issues to be decided by bi-lateral negotiation between the states of Israel and Palestine. Negotiation will have a much better chance of success if the question of statehood has already been resolved and the Palestinian state is credibly committed to peaceful relations with Israel.
Offering recognition on reasonable terms would not involve the US in negotiations with Hamas, or with Fatah, or with Israel. President Obama would announce the offer, the Palestinians would work out among themselves whether and how to meet the conditions. In the final stage, when the Palestinian government presented its plan for achieving control over its territory, discussion with the US might be needed to determine whether the plan would be effective, but the discussion would be with representatives of an elected Palestinian government already pledged to accept the obligations of international law.
The suggested approach—recognition first, then negotiation—is quite different from the approach the US has been following for so long. Resolutions of the US Senate and House of Representatives threaten sanctions if the Palestinians seek recognition except through negotiation with Israel. This gives Israel a veto over Palestinian statehood, which is surely the intention. Those who insist that there can be no recognition until Israel consents, knowing as they must that Israel will not consent, are in fact saying that there can never be a state of Palestine. If the US and its allies genuinely want a “two state solution” (and there is no Plan B), then they must break out of this framework and reassert their right to give recognition with or without Israel’s consent.
Though many Israelis support the two state solution, Israel is governed by politicians who are dead against a Palestinian state under any circumstances. They have said so many times and they clearly mean it. The first clause of the founding platform of the Likud party ruled out any Palestinian state: “Judea and Samaria will not be handed to any foreign administration; between the Sea and the Jordan there will only be Israeli sovereignty”. The Likud view has never wavered. As Mr Netanyahu said in 2002 in relation to a Palestinian state: “Not today, not tomorrow, not ever”. At Bar Ilan in 2009 he did speak of a Palestinian state, but it would be a “state” subject to conditions that are incompatible with statehood, conditions no Palestinian leader could accept. As Prime Minister Netanyahu’s father said, speaking of his son: “He supports the kind of conditions [the Palestinians] would never in the world accept. That’s what I heard from him. Not from me. He put forth the conditions. These conditions, they will never accept them—not even one of them’”. Mr Netanyahu’s coalition colleague Naftali Bennett is very clear: “I will do everything in my ability, forever, to prevent a Palestinian state from being founded within the land of Israel”. There is much more to the same effect. The “peace process” conducted as a never-ending series of bi-lateral negotiations simply buys time while Israel colonises the rest of what might have been Palestine.
The ideal resolution of the conflict between Israel and the Palestinians would be two multicultural states, one predominantly Jewish but with protection for Arab and other minorities, the other predominantly Arab but with protection for Jewish and other minorities. The boundaries need not and should not attempt to divide Jews neatly from non-Jews, there should be no “transfer” of population, and no one should be deprived without consent of any citizenship they now have.
The ideal solution may not happen. At some future time Arab-Jewish relations may be even worse than they have been. The best that can be done now to improve the chances of a better future is to encourage the emergence of a well-governed state of Palestine pledged to peace and the rule of law. A conditional offer of recognition is the first step, and President Obama should take that step without delay.
See also John Kilcullen,
“Palestine: Another Approach”, World
Review Jan 20 2010
and online article “The
Israel/Palestinian conflict: How did it begin? Will it ever end?” (2011)
 “Under the constitution of the United States, the President has exclusive authority to recognize or not to recognize a foreign state or government”; Restatement (Third) of the Foreign Relations Law of the United States §204, p. 89.