John V. Whitbeck
More than a year and a half after the optimistic opening ceremonies in Madrid, the Middle East "peace process" remains dead in the water and the Shamir and Bush administrations which shaped its negotiating structures have both been voted out of office and replaced. This change of administrations provides an opportunity to recognize and rectify the fundamental flaw in the existing negotiating structures which makes genuine progress toward peace virtually impossible.
While a comprehensive Arab-Israeli peace is the formal goal of the current "peace process," the terms of reference for the Israeli-Palestinian bilateral talks effectively bar the Palestinian negotiators from even talking about peace. They may only discuss a restructuring of the administration of the occupation of the West Bank (excluding Jerusalem) and the Gaza Strip for a further period of at least five years. Unless one believes (or hopes) that Jordan, Lebanon or Syria will agree to a Camp David-style "separate peace" leaving the Palestinians out in the cold, one must now recognize that this Likud-imposed straitjacket on the essential Israeli-Palestinian bilateral talks is preempting and preventing, rather than promoting, genuine progress toward peace.
In a post-election interview with the newspaper Ma'ariv, former Prime Minister Yitzhak Shamir stated that, if reelected, he would have dragged out the Israeli-Palestinian bilateral talks for ten years while settling a further half a million Jews in the occupied territories, thereby making clear that it was never his intention that these talks should lead to any agreement of any sort. The true intentions of Secretary of State James Baker in accepting the constricted negotiating structures demanded by Mr. Shamir may never be known, although preventing the convening of a UN-sponsored "international conference" on Middle East peace, called for by the Security Council just before Operation Desert Storm was unleashed, was almost certainly high on his list.
The true intentions of Prime Minister Yitzhak Rabin in pursuing the "peace process" within the same negotiating structures (and indeed with virtually the same negotiating team for the bilateral talks with the Palestinians) are no doubt clearly formed, are unlikely ever to be disclosed with his predecessor's frankness but could change over time. The true intentions of President Bill Clinton and Secretary of State Warren Christopher in this critical area of their foreign policy may not yet have been formed and are thus of immense and overriding importance.
As the Clinton administration seeks to relaunch and reinvigorate the "peace process," it should seriously consider the possibility that rational Palestinians could view "success" in talks on "autonomy" or "self-government" as constituting a giant step backward from the status quo and could be conducting their negotiations within the prescribed straitjacket accordingly.
With an exceptionally weak hand to play in terms of military strength and power politics, Palestinians have always drawn comfort from their confidence that international law is on their side. As the affair of the 415 deportees in southern Lebanon has vividly demonstrated, a strong position under international law does not alone ensure even the slightest measure of justice. Still, when one has so little else, it is not something to be abandoned lightly.
While Israel has formally annexed East Jerusalem and an arc of surrounding territory (an annexation recognized by no other state), it accepts that the legal status of its presence in the rest of the West Bank and the Gaza Strip is that of "belligerent occupation." Indeed, by not annexing these territories, an act which would necessarily raise awkward questions about the rights (or lack of them) of those who live there, while insisting that it will never withdraw (at all under Likud or fully under Labor), Israel has, in effect, been seeking to create a status new to international law, that of "perpetual belligerent occupation."
It is absolutely clear that an occupying power cannot simultaneously exercise sovereignty over an occupied territory. Legally, sovereignty must reside elsewhere. Jordan renounced its claim to sovereignty over the West Bank in July 1988. While Egypt administered the Gaza Strip for 19 years, it never asserted sovereignty over it. Since November 1988, when Palestinian statehood was formally proclaimed, the only state asserting sovereignty over those portions of mandatory Palestine which Israel conquered in 1967 (aside from expanded East Jerusalem) has been the State of Palestine, a state recognized as such by over 100 other states encompassing the vast majority of mankind.
While extending diplomatic recognition to foreign states lies within the discretion of each sovereign state, there are, as a matter of international law, four customary criteria for sovereign statehood: (1) a defined territory over which sovereignty is not seriously contested by any other state; (2) a permanent population; (3) the ability and willingness of the state's government to discharge international and conventional obligations and (4) effective control over the state's territory and population. Judged by these customary criteria, the State of Palestine is on as firm a legal footing as many states whose sovereign status is not a subject of public discussion or doubt.
While Israel has never defined its ultimate borders, an act which would necessarily place limits on them, the State of Palestine has effectively done so. They encompass only that portion of historic Palestine occupied by Israel during the 1967 war. The permanence of Palestine's population is not in question. The state's ability and willingness to discharge international and conventional obligations is demonstrated by its establishment of diplomatic relations with a majority of the world's other sovereign states and its efforts to obtain membership in international organizations such as the World Health Organization and UNESCO, even if those efforts have been blocked by the United States.
The weak link in the Palestinian claim to already exist as a state is, of course, the fourth criterion, "effective control." The state's entire territory is under the military occupation of another sovereign state. (For seven months, Palestine and Kuwait had that much in common.) Yet "effective control" is not purely a question of guns and the capacity to compel submission by physical force. It also encompasses the allegiance of the population, what is sometimes termed "the general acquiescence of the people."
Few states on earth can claim the degree and intensity of allegiance which the people of the West Bank and the Gaza Strip manifest, day after bloody day, to the State of Palestine. When the State of Israel and the State of Palestine issue conflicting instructions to the population, it is abundantly clear which state exercises "effective control" over their allegiance.
Accordingly, as a matter of customary international law, if not yet of international power politics or Western public consciousness, the status of the occupied territories today is clear and uncontested. The State of Palestine is sovereign, the State of Israel is the occupying power, and UN Security Council Resolution 242, explicitly premised on "the inadmissibility of the acquisition of territory by war," is the internationally accepted basis for terminating the occupation.
It is also absolutely clear that a territory cannot be "autonomous" or "self-governing" under its own sovereignty. Therefore, if the Palestinians were to accept a regime of "autonomy" or "self-government," the ostensible goal of the Israeli-Palestinian bilateral talks, sovereignty would necessarily have to shift elsewhere—presumably to Israel. By agreeing to "autonomy" or "self-government," the Palestinians would be acquiescing, for the first time, in the occupation and would, de jure, be renouncing their existing sovereignty over those portions of mandatory Palestine where they still constitute the overwhelming majority of the population. What could possibly induce them to do so?
In these circumstances, one may reasonably assume that, ever since Madrid, the Palestinians (as well as the Israelis) have been "faking it" in the "peace process" negotiations, concerned, above all else, with not being blamed for the inevitable breakdown of those talks when it comes. One may also assume that they will continue to "fake it" until they, like the Jordanians, Lebanese and Syrians, are permitted to discuss with the Israelis what they want to discuss—peace, real peace and how it could be structured to serve the needs and interests of both peoples.
It is conventional wisdom that the specifics of Israeli-Palestinian peace can be discussed only after an atmosphere of mutual trust and confidence has been achieved. However, it should be evident, as a matter of pure logic and simple psychology, that, so long as neither Israelis nor Palestinians believe that any solution acceptable to both peoples can ever be found, the necessary atmosphere of mutual trust and confidence can never be achieved. As Hayder Abdel Shafi, head of the Palestinian delegation, said in Madrid, "It is the solution which opens the door to peace and not the other way around." The time to think and talk about solutions is now.
If the Clinton administration is not content with simply sustaining the illusion of a "peace process" and the appearance of doing something, if it believes (as previous American administrations may not have) that peace actually is achievable and if it is willing to stop "faking it" and do what is necessary to achieve peace, it should also seriously consider whether it would not be easier to reach an agreement by removing the Likud-imposed straitjacket and encouraging Israelis and Palestinians to talk now about how a definitive, durable and mutually advantageous peace could be structured than by leaving them to haggle interminably over "interim measures" — that is, starting together down a road to ... God only knows where, because, under the current terms of reference, the parties are not even allowed to talk about where the road leads and each fears the worst.
Sharing the Holy Land is not a zero-sum game in which any development advantageous to one side must be disadvantageous to the other. One can envisage a society in which, by separating political and voting rights from economic, social and residential rights in a negotiated settlement, both the legitimate national aspirations of Palestinians and the legitimate security interests of Israelis could be simultaneously satisfied.
The non-negotiable minimum for both Israelis and Palestinians is their own self-determination as peoples and nations, that they can have a state of their own in the land that both love, including at least some share of Jerusalem, and that never again will anyone else govern them. This is not impossible. The Holy Land could be a two-state "confederation," a single economic and social unit encompassing two sovereign states and one Holy City. Jerusalem could form an undivided part of both states, be the capital of both states and be administered by an autonomous, elected municipal council.
All current residents of the Holy Land could be given the choice of Israeli or Palestinian citizenship, thus determining which state's passport they would carry and in which state's national elections they would vote. All citizens of either state could vote in municipal elections where they actually live, a matter of particular relevance to Israeli Arabs opting for Palestinian citizenship and to Israeli settlers choosing to continue to live in Palestine. Each state could have its own "law of return" conferring citizenship and residential rights within that state on persons not currently resident in the Holy Land.
Borders would have to be drawn on maps but would not have to exist on the ground. The free, non-discriminatory movement of people and products within the Holy Land could be a fundamental principle subject only to one major exception: to ensure that each state would always maintain its national character, the right to residence in each Holy Land state could be limited to that state's citizens, to citizens of the other state residing there on an agreed future date and to their descendants. (In this way, deeply felt principles could be maintained. Israelis could have the right to live in all of Eretz Israel—but not all Israelis in all of Eretz Israel. Similarly, Palestinians could have the right to live in all of historic Palestine—but not all Palestinians in all of historic Palestine.) A common currency (perhaps printed in Hebrew on one side and Arabic on the other and named the "Shalom/Salaam") could be issued by a common central bank.
To ease Israeli security concerns, the Palestinian state could be fully demilitarized, with only local police forces and UN peacekeeping forces allowed to bear arms and with Israeli listening posts allowed to remain on Palestinian territory for a limited period but renamed "research facilities," staffed by civilians and not flying the Israeli flag. As an essential counterpart to the absence of border controls within the Holy Land, Israel could conduct its own immigration controls, at the same time that Palestine conducts its immigration controls, at the frontiers of the Palestinian state with Egypt and Jordan, with any visitors restricted to the Palestinian state facing penalties if found in Israel. The settlement agreement could be guaranteed by the United Nations and relevant states, with international tribunals to arbitrate disputes regarding compliance with its terms.
The status of Jerusalem poses the toughest problem for any settlement plan, causing many to assume, for this reason alone, that no settlement acceptable to both sides can ever be reached. When the UN General Assembly adopted Resolution 181 in 1947, it addressed the problem by suggesting an international status for Jerusalem, with neither the Jewish nor the Arab state to have sovereignty over the city. Yet joint undivided sovereignty, while rare, is not without precedent.
Chandigarh is the joint undivided capital of two Indian states. For more than 70 years, the entire Pacific state of Vanuatu (formerly the New Hebrides) was under the joint undivided sovereignty of Britain and France. For more than 700 years, the Principality of Andorra has been under the joint undivided sovereignty of French and Spanish individuals (currently the president of the French Republic and the bishop of Seo de Urgel) while its administration is entrusted to an elected General Council. Until German reunification, the western sectors of Berlin, under American, British and French sovereignty, were jointly administered by an autonomous, elected Senate.
As a joint capital, Jerusalem could have Israeli government offices principally in its western sector, Palestinian government offices principally in its eastern sector and municipal offices in both. A system of districts or French-style arrondissements could bring municipal government closer to the different communities in the city. To the extent that either state wished to control persons or goods passing into it from the other state, this could be done at the points of exit from, rather than the points of entry to, Jerusalem. In a context of peace, particularly one coupled with economic union, the need for such controls would be minimal.
In a sense, Jerusalem can be viewed as a cake which could be sliced either vertically or horizontally. Either way, the Palestinians would get half the cake, but, while most Israelis could never voluntarily swallow a vertical slice, they might just be able to swallow a horizontal slice. (Indeed, by doing so, Israel would finally achieve international recognition of Jerusalem as its capital.) Jerusalem is both a municipality on the ground and a symbol in hearts and minds. Undivided but shared in this way, Jerusalem could be a symbol of reconciliation and hope for Jews, Muslims, Christians and the world as a whole.
Such a framework would address in ways advantageous to both sides the three pnncipal practical problems on the road to peace—Jerusalem (through joint sovereignty over an undivided city), settlers (through a separation of citizenship rights from residential rights in a regime of free access to the entire Holy Land for all citizens of both states under which no one would be compelled to move) and borders (through a structure of relations between the two states so open and nonthreatening that the precise placement of borders would no longer be such a contentious issue and the pre-1967 borders—subject only to the expanded borders of Jerusalem, under joint sovereignty—might well be acceptable to most Israelis, as they would certainly be to most Palestinians).
For Israelis, the threat of one day living in a state with a majority of Arab voters or an inescapable resemblance to pre-1990 South Africa would be replaced by the assurance of living in a democratic state with fewer Arab voters than today. The Israelis' security would be enhanced by assuaging, rather than continuing to aggravate, the Palestinians' grievances. By escaping from the role (so tragic in light of Jewish history) of oppressors and enforcers of injustice, Israel would save its soul and its dreams.
For all Palestinians, human dignity would be restored. They would cease to be a people treated (and not only by Israelis) as pariahs uniquely unworthy of basic human rights. For those in exile, an internationally accepted Palestinian citizenship, a Palestinian passport and a right to return, if only to visit, would have enormous significance. And if the Palestinians themselves accepted a settlement, few, if any, Arab states would continue to reject Israel. If a Palestinian flag were peacefully raised over Palestinian government ofices in Jerusalem, few Arab eyes would still see Israel through a veil of hatred. The immovable obstacle to a lasting region-wide peace would have been removed.
While implementation of such a framework for peace would be relatively simple, its acceptance would require a moral, spiritual and psychological transformation from both Israelis and Palestinians. Yet, given the decades of hatred, bitterness and distrust, any settlement would require such a transformation. Precisely because such a transformation would be so difficult, it is far more likely to be achieved if both peoples can be inspired by a truly compelling vision of a new society of peaceful coexistence, mutual respect and human dignity, in which both peoples are winners, than if they are left to contemplate painful programs for a new partition and an angry separation in which both peoples must regard themselves, to a considerable degree, as admitting defeat.
Israelis, Palestinians and the true friends of both must now raise their sights beyond mere "interim measures" and pursue a compelling vision of a society so much better than the status quo that both Israelis and Palestinians are inspired to accept in their hearts and minds that peace is both desirable and attainable, that the Holy Land can be shared, that a winner-take-all approach produces only losers, that both Israelis and Palestinians must be winners or both will continue to be losers and that there is a common destination at which both peoples would be satisfied to arrive and to live together.
Given the huge imbalance between Israel and Palestine in terms of military strength and power politics, the immediate practical challenge for all who are seriously interested in peace must be to find a way to structure the Palestinian state and its relationship with Israel which, while meeting at least the minimum material and psychological requirements of the Palestinians, still permits a majority of Israelis to perceive such a state, as so structured, as enhancing their security and the quality of their lives, so that they can recognize that it is in their own self-interest to accept Palestine's right to exist in peaceful coexistence with Israel.
Peace is unimaginable on any other basis.
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