Palestine: Another Approach

John Kilcullen

(World Politics Review, 20 January 2010)

[Abstract: The US President has power (independently of Congress) to recognise foreign states. President Obama should offer US recognition of a state of Palestine within the 1967 borders (or narrower borders if the Palestinians choose), on three conditions:  (1) There must be new elections, in Gaza as well as West Bank, for a new Palestinian government; (2) the new government must pledge to carry out the ordinary obligations all states have under international law, including the obligation not to make or allow illegal attacks on other internationally recognised states or their citizens (including Israel and Israelis); and (3) the  new government must have a suitable plan for gaining control over its territory. No other conditions should be imposed. This new attempt to resolve the conflict would not exclude other approaches.]  See Postscript.

The long war between Israel and the Palestinians is not the root cause of all conflicts between Islam and the West, but it exacerbates every such conflict. From Northern Europe through North Africa, the Middle East, Pakistan, Malaysia, Thailand, the Philippines, Indonesia, and down to Australia, there are violent opponents of “the West” motivated, in part, by indignation at the sufferings of the Palestinians. It is not possible to measure consequences in lives lost, but we can be sure that in many places lives (including American lives) have been and will be lost, or severe injuries sustained, because of failure to solve the Palestine-Israel problem. The recent terrorist actions of Mulal al-Balawi and Umar Faruk Abdulmutallab illustrate the point. See also the views of General Petraeus, herehere and here. Various solutions to the Israeli-Palestinian conflict have been proposed -- the “Jordanian option” (or “no state” solution), the “one state” solution (i.e., a single multicultural state), and so on. But for the present, at least, the “two state solution” still seems to most observers to be the best prospect (see here, here, and here). 

Immediately upon taking office, U.S. President Barack Obama and members of his administration made it clear that they were committed to a two-state solution. White House Chief of Staff, Rahm Emanuel, is reported to have said: “In the next four years there is going to be a permanent status arrangement between Israel and the Palestinians on the basis of two states for two peoples, and it doesn’t matter to us at all who is prime minister,” implying willingness to quarrel with Mr Netanyahu over this matter. As an opening move, the administration demanded that Israel accept an absolute settlement freeze. According to Secretary of State Hillary Clinton, “We want to see a stop to settlement construction, additions, natural growth -- any kind of settlement activity.” Vice President Joseph Biden, addressing AIPAC, said the Israelis would have to “not build more settlements, dismantle existing outposts, and allow the Palestinians freedom of movement.” Sen. John Kerry told AIPAC that the settlements “strengthen Hamas by convincing everyday Palestinians that there is no reward for moderation.”

It now seems clear that the Obama administration’s opening move has failed. True, Netanyahu has uttered the words “Palestinian state,” but he has laid down conditions he knows the Palestinians will never acceptHis real position on a Palestinian state is still what it was in 2002: “Not today, not tomorrow, not ever. He has clearly rejected the Obama administration’s demand for a settlement freeze. The U.S. response has been mixed, or at least in need of clarification, with some reports saying it has compromised on its apparently absolute demand, and others saying it hasn’t. In either case, moderate Palestinian leaders have been damaged, exactly as Elliott Abrams predicted when the demand was first made: “Either he [Abbas], too, will have to call any partial moratorium a real freeze, returning to the table while Hamas happily explains that he has once again given away Palestinian rights -- or he’ll have to refuse to negotiate, which would anger Obama. Lose-lose.” Frustrated, Abbas has announced his retirement.

According to Frida Ghitis, “The administration is learning from its mistakes and better understanding the nuances of this complicated conflict.” The demand for a settlement freeze now looks like one of its mistakes. The U.S. now seems to want bilateral negotiations between Israel and the Palestinians to begin again without a total freeze. Netanyahu also wants negotiations, but many suspect his purpose is only to keep the Palestinians talking while Israelis settle more and more of the West Bank. “For 16 years,” wrote Akivar Eldar, “the soft murmur of the ‘peace process’ that has been leading nowhere has drowned out the roar of the bulldozers that are deepening the occupation.”

The Palestinians now seem to be contemplating a third “intifada” aimed at exerting pressure toward a single multicultural state. Some advocate the dissolution of the “Palestinian Authority,” seeing it merely as a means Israel uses to rule the West Bank at the expense of well-meaning foreign donors. Some of the donors take the same view. Chris Patten: “The money that I spent in Palestine on behalf of European voters and taxpayers over five years as a European commissioner has drained away into the blood-soaked sand. Many projects funded by European taxpayers have been reduced to rubble by the Israeli Defence Forces. Is Europe’s role in the region to be the paymaster for intransigence and the use of disproportionate force?” Supporters of Israel heap praise on PA Prime Minister Fayyad for his work in pacifying the West Bank, but his Palestinian opponents regard him and his colleagues as dupes and collaborators.  

A new move

It seems clear that bilateral negotiations between Israel and the Palestinians will never resolve the conflict between them. No leader on either side will ever be willing, or politically able, to offer terms that the other side’s leaders would be willing and able to accept as sufficient. What Israel wants from the Palestinians is an effectual guarantee of peace -- no more talk of wiping Israel off the map, no more car bombs, no more suicide bombers, no more rockets. In view of the history of the conflict and the attitudes of some of the people in the region, Palestinian leaders will find it difficult to establish such a guarantee, and it is unlikely that any Israeli leader could credibly offer anything sufficient to motivate the effort they would have to make, and the risks they would have to take, to provide one.

There is something a U.S. president can offer, though. Whether it is sufficient depends on how much the Palestinians want statehood.

Under U.S. constitutional law, the president, acting alone and without the need for Congressional approval, has the power to recognize foreign states. President Bush recognised Kosovo, despite legal objections; President Obama could do the same for Palestine.  President Obama could declare publicly that the U.S. will recognize the state of Palestine, within suitable borders, subject to suitable conditions. The borders would be the 1967 borders; the main condition would be a Palestinian commitment to peace with Israel.

The U.S. should ask its allies to offer recognition on the same terms, to support U.N. membership for Palestine and to offer financial aid. Nothing would be asked of Israel except not to obstruct the process. There would be no attempt to coerce Israel into making concessions and no attempt to impose unenforceable deadlines. Once international recognition is achieved, the remaining points in contention between Israel and the Palestinians -- notably the return or, more likely, compensation of refugees displaced in 1948 -- would be negotiated between the two states of Palestine and Israel, with the encouragement and assistance of other states. But the Palestinians’ negotiation partner for the key issues of statehood and peace with Israel would be, not Israel, but the president of the United States.

What would constitute “suitable conditions” for recognition?

There should be no demand that the Palestinians recognize Israel’s “historic right to exist as a Jewish state”. Instead, the Palestinians should be asked to meet just one essential condition, with two subsidiary ones. The essential condition is that they commit Palestine to carrying out the ordinary obligations that all states have under international law -- specifically, not to attack any other internationally recognized state (explicitly including Israel), and not to allow such attacks to be made from their territory (e.g., rocket attacks). This condition is not unreasonable. If a state of Palestine is ever established by any method, it will be subject to these same obligations of international law.

The subsidiary conditions, needed to give credibility to the essential commitment, are that the commitment must be made by a freshly elected Palestinian government with a popular mandate to make it, and that this government must set out a plan that is credible in the judgment of the U.S. president for meeting the essential condition -- that is, a plan for gaining control over all Palestinian territory so as to prevent unauthorized attacks.

Conflict between Hamas and Fatah is a serious impediment to any steps toward Palestinian statehood. A U.S. offer of recognition subject to new elections would be intended to induce the factions to agree to an election that could result in a changed political environment. Fresh elections are in any case due, even overdue, for the Palestinian presidency and parliament. The offer would confront candidates with a major election issue, namely whether to commit to peace with Israel. The mere fact that the offer had been publicly made would make it an unavoidable campaign issue.

Some public opinion polls show that most ordinary Palestinians favor a two-state solution. However, if the election became a virtual referendum on peace with Israel, some irreconcilables might obstruct the voting or demand that the U.S. offer be rejected immediately. But even if it were at first ignored or rejected, the offer should remain open because of its potentially transformative effect on Palestinian politics. Once this offer has been publicly made, if statehood is attractive to Palestinians, eventually the various factions will have to give their people the opportunity to vote on it.

A commitment not to make or allow attacks needs to be backed by a plan for giving it real effect, hence the third condition. The newly elected government of Palestine would need to establish control over all its territory to prevent unauthorized attacks on Israel. To do this, it would need foreign aid -- not only money, but probably also personnel. These outside participants, though, should be individuals or organizations hired by and answerable to the Palestinian government, not national contingents answerable to foreign governments. The plan would also need to include measures, including perhaps changes to school curricula, to prevent incitements to violence and hatred against Israel (measures consistent with freedom of speech and inquiry). Formulating the plan would be up to the Palestinian government, and deciding whether it was satisfactory would be up to the U.S. president. In effect the plan would be the subject of pre-recognition negotiation between the newly elected Palestinian government and the U.S.

A conditional offer of recognition is not incompatible with other moves that are currently being made or contemplated. The U.S. would not need to retract or negotiate its demand for an Israeli settlement freeze. Instead, it could let that demand, as well as  Netanyahu’s refusal, stand, while it makes this new move independently of Israel. Neither would the U.S. need to abandon its present hope of renewing the Road Map negotiations, though they may well prove fruitless. The Security Council option suggested by Javier Solana and more recently by Saeb Erekat would also remain open, though it is unlikely the Security Council could ever agree on effective intervention. A conditional offer of recognition would open a new path toward a two-state solution without closing others.

If a conditional recognition offer succeeded, two major issues -- Palestinian independence and measures to put an end to Palestinian attacks on Israel -- would be resolved separately from the interminable “peace process.” As a result of a U.S. initiative, an independent state of Palestine effectively committed to peace with Israel could come into existence within perhaps as little as a year.

The risks

What would be the risks of this new move? Some of them would depend on the “suitable borders” within which Palestinian sovereignty would be recognized. The maximal extent of Palestine would be defined by the “green line,” the borders of June 4, 1967. The green line border would mean that Israelis in the West Bank settlements and in East Jerusalem would become citizens also of the Palestinian state. Inclusion of the settlements in Palestine would effectively nullify the long-running attempt by some Israelis to annex the whole of “greater Israel” by encroachment. It would also mean that both Israel and Palestine would be multi-ethnic states, as every state in history has actually been and every state should acknowledge itself to be. Israel would have a Jewish majority, Palestine would have a Muslim Arab majority, but each would have to respect the rights and interests of minorities.

However, Palestinian sovereignty over the settlements might not be workable. Jewish settlers might resort to violence, possibly with the support of elements of the Israeli armed forces. There might also be violence against the settlers from Palestinians who reject a two-state solution. (Indeed, violence from extremists on both sides will be a hazard if a state of Palestine is ever established by any method.) The Palestinian government could cut the settlers some slack and not insist on immediate close control over the settlements. They could also guarantee that settlers would have both Palestinian and Israeli citizenship and that there would be no ethnic cleansing or compulsory dispossession -- that is, even land unjustly transferred would remain in the possession of current occupants, with compensation to those unjustly dispossessed. The Palestinian state could adopt a Charter of Rights, based on the Canadian model, with its “notwithstanding” clause, and establish institutions to give effect to the charter.

Such measures should be adopted in any case, but even so, the situation might not be workable. In view of this possibility, Palestine might well consider that sovereignty over the settlements would not be worth having. Even before recognition, the new Palestinian government might offer exchanges of territory. That is, when the government announces that it will work to meet the conditions of the president’s offer of recognition, it could at the same time offer to make exchanges with Israel, based perhaps on former Israeli Prime Minister Ehud Olmert’s offer. Alternatively, the Palestinians might simply unilaterally renounce the prospect of sovereignty over all or some of the settlements, rather than offer territorial swaps that would deprive some Arab Israelis of their Israeli citizenship without their consent. At a later date they could try to negotiate with Israel a corridor linking Gaza and the West Bank.

How to handle the issue of the settlements would be a decision for the Palestinian government to make according to its own risk assessment. The “default” boundary would be the 1967 line, and the U.S. should not try to impose anything else. The U.S. offer should be to recognize Palestine when the three conditions are met, within the 1967 boundaries or whatever other narrower boundaries the Palestinian government nominates. The offer need not wait for a solution to the problem of the settlements, nor would it require the dismantling of existing settlements or any prohibition of future Jewish settlement in Palestine.

Would Israel tolerate U.S. recognition of a Palestinian state? Israel has enough military power to prevent Palestinian elections and even to annex part or all of the Occupied Territories. However, moderates in Israel would see the benefit of peace with Palestine and would work to restrain the opposition likely to come from the Netanyahu government and its supporters. If Israeli leaders did block Palestinian independence, they would do so at such serious political cost to themselves that they would eventually reconsider, since most Israelis do not want to resume government of the Occupied Territories. However, it seems unlikely that, even in the short term, Israel would seriously attempt blocking action, because a Palestinian government effectually committed to peace with Israel is so obviously in Israel’s interest. What’s more, there would be no right moment for forcible intervention. A U.S. offer of recognition in exchange for a commitment to peace with Israel would not provide a plausible pretext. Neither would the Palestinians’ decision to hold elections to get a mandate for that commitment, nor the making of the commitment. In any case, it would be up to the Palestinians, not the U.S., to weigh the risks of an adverse Israeli reaction. The U.S. should offer conditional recognition now and let the Palestinians decide whether they can risk provoking Israel by accepting.

What if new elections were held and Hamas won? Hamas has indicated (see here, here and here) that it would cooperate with a two-state solution if it were endorsed by a referendum of the Palestinians. An election on this issue would be a virtual referendum, and if any doubt remained, a follow-up referendum could be held. The U.S. should be content with a Palestinian government that credibly undertakes not to make or allow attacks on its neighbors. Inclusion of Hamas in a government that made such a commitment would, in fact, broaden support for peace in the Palestinian community. Making the initial conditional offer of recognition would not involve the U.S. in negotiations with Hamas, or for that matter with Fatah or any other group. If the offer were taken up, the U.S. would subsequently be dealing with an elected Palestinian government committed to peace, and its composition need not concern the United States.

If the newly elected Palestinian government failed, after all, to make a credible commitment, there would be no U.S. recognition, and the current situation would continue, neither better nor worse. If the new Palestinian government did make the commitment but failed to live up to it, or if later on there was a change of government and extremists won control, Palestine would come into breach of its international obligations -- specifically the obligations all states have not to make or allow attacks on other states. Subsequent sanctions could include withdrawal of U.S. recognition. If attacks were made on Israel, Israel would defend itself, with the support of its allies, including the U.S., in accordance with Article 51 of the U.N. Charter. The U.S. and other countries could make clear in advance that they would support Israel militarily if it came under unlawful attack from other states. They should also make it clear that they would take similar action against Israel if Israel invaded or attacked another state contrary to international law.

What if Palestinian electors were not willing to elect a government pledged to end attacks on Israel? If the offer remained open, it would give the Palestinians an incentive to think again. In the end, extremists can be restrained effectively only by moderates within their own community. But moderates need an issue around which to mobilize support, some objective clearly beneficial to their community and within reach. The prospect of recognition on reasonable terms would be an incentive to Palestinian moderates to try to work together to meet the conditions. “The message that has been given out to Palestinians, time and again,” according to David “is that there is no clear advantage to be gained from being moderate. It has been all stick and no carrot.” The message this time would be that effectual acceptance of the ordinary obligations of statehood will be enough to achieve statehood and independence.

The president would obviously have to consider the risks in much more detail before making the offer. But it seems clear enough that a conditional offer of recognition would not make the situation any worse than it is now, would not provoke any opposition that would not also be provoked by any other attempted solution, would not prejudice those other attempts at solution, and would not damage the standing of the U.S. All this would be true even if the offer were not taken up for the time being, or were never taken up. Failure would not make things worse.

The future

Although we are in the habit of referring to a two-state “solution,” the establishment of a Palestinian state might not be a definitive solution. Perhaps Palestinians displaced in 1948 would gain little directly from recognition of a Palestinian state (see Agha and Malley, here and here), and it will be important to address their well-founded sense of injustice. (On how this might be done, see Mead, Atran and Ginges.) However, there may be no combination of measures that amounts to a comprehensive and permanent solution. The violent imaginings of Benny Morris may turn out to be the reality. Many Muslims may continue to believe that there cannot be a non-Muslim state in the midst of Islam, while many Jews (and Protestant Dispensationalists) may continue to believe that the whole of Israel in its supposed Biblical extent should again be ruled by a Jewish state.

No one can suppose that a definitive solution has been achieved in Northern Ireland. Renewal of the conflict that began with the English plantation of Ulster 400 years ago will remain possible as long as there are Catholics and Protestants who remember their history. Likewise there will be repercussions for centuries from the British effort under the League of Nations mandate to establish a Jewish buffer state in Palestine to protect the Suez Canal and other imperial interests. (“The establishment of a strong, free Jewish State astride the bridge between Europe and Africa, flanking the land roads to the East, would not only be an immense advantage to the British Empire, but a notable step towards a harmonious disposition of the world among its peoples”, Winston Churchill in 1908. A notable step indeed!). As long as Jews and Arabs remember the atrocities and injustices perpetrated in Palestine and elsewhere over many generations, as long as there are Christian, Jewish and Islamic fundamentalists, and as long as the secular ideology of ethnic nationalism lasts, there may be renewed outbreaks of hatred and violence.

The best we can do is to work for the establishment of two states at peace with one another for the present, hoping that, while peace lasts, habits and institutions may develop that will moderate conflict in the future.

See also "The IsraelPalestinian conflict: How did it begin? Will it ever end?"

Postscript, July 2010: At the beginning of President Obama’s administration, it seemed that the US government were determined to achieve a “two state solution” and that they were ready to put some pressure on Israel, beginning with a demand for a complete halt to settlements (see above). At that time it seemed also that many Jews in the US had become sufficiently concerned about the long-term consequences of continued IsraeliArab conflict to be willing to support the President’s attempts at a settlement. But when Mr Netanyahu successfully defied demands for a settlement freeze, the Obama administration went back to the interminable and futile negotiations between Israel and the Palestinians (or some of the Palestinians—not Hamas). The Obama administration’s other difficulties have multiplied and the mid-term elections are approaching. It seems that President Obama does not have enough political capital to risk doing much to resolve the Middle East conflict. It seems unlikely the US will do anything more for a long time. The “two state solution” is probably dead. Perhaps eventually there will be a “one state solution”, but meanwhile Jews and Arabs will continue to die, and the IsraelPalestine conflict will continue to poison relations between the US and the Muslim world.

See “Emanuel to rabbis: US ‘screwed up’.” [“The Obama administration has “screwed up the messaging” about its support for Israel over the past 14 months, and it will take “more than one month to make up for 14 months,” White House chief of staff Rahm Emanuel said on Thursday to a group of rabbis called together for a meeting in the White House.”]

Anne E. Kornblut,  “Obama, Netanyahu meet again” [“Of immediate concern to the Democratic Party is the effect a perceived rift could have on the midterm elections, as Republicans angle to use any perceived rupture with Netanyahu to argue that Obama is insufficiently committed to Israel”]

Gideon Levy, “An excellent meeting” [The title is ironic. “Obama has the congressional elections ahead of him, so he mustn’t make Netanyahu angry. After that, the footfalls of the presidential elections can be heard, and then he certainly must not anger the Jews. Foreign Minister Avigdor Lieberman is pressuring Netanyahu now; tomorrow it might be Likud MK Danny Danon, and after all, you can’t expect Netanyahu to commit political suicide. And there you have it, his term in office is over, with no achievements.”]

Jerome Slater, “Obama’s Dilemma” [“Obama and the Democratic party can only lose if they antagonize the American Jewish community, whose financial and electoral support may be crucial in any close congressional or even presidential election... if Obama were to take a harder line on Israel now, the prospects for congressional passage of the rest of his domestic agenda would be even dimmer: the balance of power in congress may be held not only by a handful of Republicans but also by Democrats who might not shrink from holding Obama’s domestic program hostage to his Israeli policies.”]

Stephen Walt, “Obama is zero for four and  Republicans are sitting pretty.” 
[“The focus now seems to be solely on getting some sort of direct talks started, but even if George Mitchell conjures up a rabbit from his hat, those talks aren’t going to lead anywhere.   Settlements will continue to expand, the U.S. won’t do anything to stop them, and more and more people will come to realize that “two states” is becoming impossible. As I’ve said repeatedly, this situation is bad for the United States, bad for Israel and of course bad for the Palestinians. But it is also bad for Obama, because it means there’s yet another major issue where he will not be able to point to any progress.”]

Martin Indyk, “I think the settlement issue will be resolved” [“American Jews traditionally are pretty supportive of the Democratic Party. They voted overwhelmingly for Barak Obama, they tend to vote for Democratic candidates and they provide a good deal of funding for political campaigns. So the Jewish factor is always a critical factor for Democratic candidates. I don’t think it’s telling any secrets that there are a lot of people who have been upset with President Obama. And I think that the White House came to the understanding that they have a real problem there and they are going out of their way trying to show they are friendly to Israel and committed to peace.”].  

Glenn Greenwald, “Obama’s growing unpopularity in the Muslim world.” 
[“... one-sided support for Israel plays a significant role in generating anti-American sentiment in the Muslim world, this poll leaves no doubt that this is so.  That issue was listed as the primary cause—far and away—of negative views toward the Obama administration.”]