Preparing for the Inevitable Negotiation

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VOL. 35

2005/06

No. 3
P. 39
Open Forum
Preparing for the Inevitable Negotiation
FULL TEXT

In his 1991 letter of assurances to the Palestinians prior to the Madrid Peace Conference, then secretary of state James Baker III explained, “It has long been [the United States’s] position that only direct negotiations based on UN Security Council Resolutions 242 and 338 can produce a real peace.” [1] Fifteen years after Madrid, however, the process of negotiations itself is being increasingly challenged as an efficacious means of achieving Palestinians’ national goals. A number of factors have prompted this reassessment: Israel’s paltry offerings at Camp David after years of talks with the PLO; the unconstrained Israeli actions to predetermine the outcome of a final settlement unilaterally, particularly with the construction of settlements, settler bypass roads, and the separation wall in the West Bank; the popular view, championed by Hamas, that Israel’s withdrawal from the Gaza Strip represents a “victory for armed resistance” [2]; the prospects, buoyed by the ICJ’s advisory opinion on the separation wall, for taking legal and diplomatic action against Israel through international institutions; and concerns about the extent to which the Palestinians’ official leadership is sufficiently competent, disinterested, and representative to serve Palestinian interests capably in negotiations.

To be sure, none of these factors eliminates the ultimate necessity of negotiations: Israel’s political and military strength, and the relative frailty of international enforcement mechanisms, are realities that are unlikely to change in the foreseeable future. [3] Moreover, as South Africa’s experience made clear, negotiations will be necessary even if the Palestinian national movement were to be recast as a civil rights struggle in the framework of a one-state solution. These factors do, however, oblige us to rethink our national strategy in light of our unproductive experience with negotiations during the Oslo process. That effort, I submit, should involve more than simply a reassessment of past negotiating positions and tactics. We must also undertake to remedy the dysfunctions both in our public institutions and in the negotiating process that have hindered our capacity to achieve our national goals.

Reconstituting the Palestinian National Movement

As variously articulated, Palestinians’ goals are as disparate as the Palestinian population is dispersed: an end to Israel’s occupation of the West Bank and Gaza Strip and the establishment of a viable, democratic state, with Jerusalem as its capital; an end to the political and economic disenfranchisement of Palestinian refugees; the realization of refugees’ right of return to Israel; the achievement of equal rights for Palestinian citizens of Israel; and the establishment of a single state, secular or Islamic, in Mandate Palestine. The pursuit of each of these objectives presents costs. In view of prevailing attitudes in Israel, insistence upon refugee return, for example, is likely to foreclose the achievement in the medium term of a peace agreement capable of delivering benefits to residents of the occupied territory; similarly, a decision to use violence may propel forward a separation strategy built on Israeli withdrawal from Palestinian areas, but it is likely to undermine efforts to persuade Israel to open its borders to Palestinian laborers or refugees, to allow Palestinian access to shared spaces such as Jerusalem, or to extend equal treatment to its Palestinian minority. Simply put, we must recognize that the costs of each of these choices would not be borne equally by all segments of the Palestinian population.

If we intend to allocate these costs fairly, we must come to terms with the fact that the identity and interests of Palestinians are plural. Palestinian refugees in the camps of Lebanon and in the suburbs of Washington, DC, are not similarly situated, even if they all champion the right of return; the same can be said of Palestinian residents of Jerusalem, Tulkarm, and Um al-Fahm, even though all consider themselves Palestinian. We must respond to this reality not by ignoring the differences in our circumstances, but by developing a forum within which different interests can be debated openly, reconciled when possible, and prioritized when necessary. No Palestinian institution currently offers such a forum or possesses the legitimacy necessary to make the difficult choices that a renewed negotiations process is certain to require.

In response to Hamas’s sweeping victory in PLC elections in January, Mahmud Abbas has called for an effort to re-energize the PLO. The proposal warrants careful consideration, quite apart from the politics apparently motivating it. It is the PLO, not the PA, that possesses international legal competence to negotiate on behalf of the Palestinian people, [4] which may itself make it a sensible address for foreign relations and national decision-making. If the PLO is to play these roles effectively, however, Palestinians must address the fiction that, as currently configured, it is a representative institution. We should give urgent consideration to options for reforming and revitalizing its organs, with particular focus on democratic models that are feasible in view of our geographic dispersal and other national allegiances. In that context, while there may have been good reasons for blurring the roles of the PA and PLO during the Oslo period, the legitimacy of future negotiations will be bolstered by clearer functional separation between the two, if only to make clear that the institution negotiating for Palestinians represents all Palestinians, not just residents of the occupied territories. Accordingly, while the efforts described below by Professor Talhami to organize Palestinian refugee communities around the world should continue, it is critical that they be linked to a national framework in which refugee interests may be assessed in relation to other interests. Similarly, an effort to re-energize the PLO should not be conceived as a means to make an end-run around Hamas’s control over the PA. Hamas has become too influential a participant in the Palestinian national movement to make circumventing it feasible or advisable. Indeed, one important lesson that should be drawn from the Oslo process is that failure to address our internal differences responsibly leaves us vulnerable to their exploitation by others.

The revitalization of the Palestinian national movement is likely not only to help define a strategy for negotiations, but also to improve our performance in them. Many of the problematic patterns of Palestinian negotiating behavior that became evident during the Oslo process emerged from structural flaws in Palestinian political institutions. Indeed, Palestinian negotiators’ passivity, lack of preparation, and lack of strategy arose to some extent from the way in which Palestinian institutions were configured. Negotiators arrived at the table without fully elaborated fallback positions in part because they had lacked an opportunity to discuss the contours of necessary compromises prior to the negotiating sessions. To the extent that such forums existed—Chairman Arafat and Abu Mazin occasionally convened “Palestinian leadership” meetings at which such discussion was to occur—they were occasions for grandstanding, not sober deliberation. Although these dynamics are not unique to Palestinian politics, the lack of clear channels of authority as a result of the delays in elections, the blurring of the lines between the PA and the PLO, and institutional corruption made Palestinian politics particularly competitive—and a particularly inhospitable setting for dispassionate policy analysis. [5] They also increased the vulnerability of Palestinian negotiators to manipulation by their Israeli and American counterparts. The recent dramatic changes in the Palestinian political landscape provide an opportunity, long overdue, to address these problems, an enterprise that we should pursue inclusively and responsibly.

Strengthening Palestinian Self-Government

An assessment of the utility and structure of Palestinian self-government in the occupied territory should be among the first tasks of a revitalized national movement. The institutions established under the Oslo agreements were not designed to be permanent, and they reflect their transitional mandate, as evidenced most clearly by the seven-year delay leading up to this year’s elections. In the near term, there are three primary choices with regard to self-government: (1) dissolve the PA; (2) declare statehood either within “provisional” borders, as suggested in the road map, or within the entire occupied territory, including East Jerusalem, with a new government to supplant the PA; or (3) continue efforts to strengthen PA institutions.

As negotiating strategies, each of these options involves trade-offs. Dissolving the PA presents advantages: it may raise the costs to Israel of failing to conclude a peace deal by obliging it to reassume responsibility for the economic welfare of the Palestinian population, eliminate the fiction of parity between Israel and the PA that has distorted international perceptions of the conflict, and help recast the Palestinian-Israeli conflict as a civil rights struggle rather than a border dispute. These advantages, however, must be weighed against important countervailing factors. First, given Israelis’ increasing attraction to unilateral separation, it is by no means clear that Israel would take on responsibility for the Palestinian population if the PA ceased to exist, and the international community has proven reluctant to pressure Israel to meet even its current obligations. Second, PA salaries remain a primary source of income for Palestinians in the occupied territories. Although the dissolution of the PA may place greater pressure on Israel, it could also hasten Palestinians’ impoverishment and political fragmentation, particularly since some may perceive it as an attempt to disempower Hamas. Indeed, after striving for many decades to build national institutions, we should be cautious about pulling them down.

Conversely, the effect of a declaration of statehood—even with borders coextensive with the Green Line—is likely to be incremental rather than transformative. It may yield more explicit international recognition of Palestinian sovereignty within 1967 borders, somewhat greater access to international institutions, an ability to invoke the right of self-defense if Palestine’s territorial integrity is threatened, and an opportunity to address some of the needs of Palestinian refugees while a permanent solution to their problem is pending. Declaring statehood, however, may simply serve to deflect attention from the issues in real contention—borders, settlements, Jerusalem, refugees, and water—and focus it on what is no longer in contention, i.e., Palestinian statehood. In addition, because the political balance of power within a Palestinian state will be shaped by the circumstances that led to its birth, a failure to end the occupation prior to declaring statehood could yield a radicalized Palestinian government, which in turn could increase the difficulty of securing even the limited benefits of international recognition of and support for the state.

Although our third option—working to develop the PA’s political institutions and service delivery capacities—is an unsatisfying proposition in many respects, it may be the best strategy for the immediate term, if pursued in tandem with efforts to revitalize the PLO. To be sure, the establishment of the PA so far has yielded only limited benefits, both as a result of the crippling effect of Israel’s continuing military occupation and closures and as a result of Palestinian corruption and mismanagement. Even so, while the viability and independence of a future Palestinian state will rest in part on the contours of its borders and the sovereign powers it assumes, they also will rest on the strength of its national institutions. Even in the context of military occupation, the PA presents Palestinians with an opportunity to build structures for resolving internal disputes politically, to build a coherent legal infrastructure for future economic and political development, to educate children pursuant to a curriculum designed by Palestinians, and to develop a civil service that, unlike Israel’s so-called “civil administration,” puts Palestinians’ interests first. Indeed, whatever one thinks about the results of January’s elections, the manner in which they were carried out says much about what Palestinians can achieve in even the worst of circumstances.

Using International Law and Institutions Wisely

The Declaration of Principles left little doubt as to the approach to conflict resolution it embodied: the agreement set the parties on a path toward peace and reconciliation “through the agreed political process” [6]—not, by implication, through a legal solution imposed by others. Although a broad cross-section of the international community undertook to articulate parameters to guide the Palestinian-Israeli peace process within the UN General Assembly, Israel and the United States refused to join in. Indeed, from the beginning, the United States declined to constrain the outcome of the peace process in any way other than to insist that it be negotiated bilaterally, promising to “accept any outcome agreed by the parties,” and declining to support “a competing or parallel process” in the United Nations. [7] This unconstrained bilateralism served neither Palestinians nor the peace process well. Lacking agreed parameters for the negotiations, the parties commenced permanent status negotiations with wildly divergent positions and—at least as far as the Palestinians were concerned—little notion of what they could expect the process ultimately to deliver. The consequence was time-consuming, highly politicized positional bargaining without reference to a commonly accepted body of legal norms or other standards.

Our experience during the Oslo process offers a number of important lessons. First, Palestinians have little to gain from entering a bilateral negotiations process unless authoritative members of the international community—necessarily including, but not exclusively, the United States—provide clear assurances regarding both the impermissibility of attempts to prejudice further the outcome of peace talks and the broad parameters of a final settlement. Deciding whether to participate in a new negotiation process is one of the levers of influence Palestinians have over that process, and we should not squander that leverage on vague promises of statehood and viability.

Second, where possible, we should urge more explicit linkage between internationally defined parameters for a permanent settlement and international legal norms. Making that linkage would promote both predictability and flexibility: on the one hand, many international norms are sufficiently developed to help fill in gaps in internationally defined parameters and resolve disputes about them; on the other hand, international law is not so rigid that it deprives the parties of the ability to tailor a resolution of the conflict to their own needs. For example, a clear recognition by the international community that the Fourth Geneva Convention is to inform resolution of territorial issues would go a long way toward resolving disputes of the kind that emerged from the Clinton ideas (such as whether the contiguity of Palestinian villages in the West Bank would trump the contiguity of Israeli settlements there), while at the same time giving the parties considerable discretion to fashion a compromise that suits them both. In this regard, while Article 49 of the convention clearly prohibits settlement construction in occupied territory, it does not prescribe what should be done with the settlements, leaving open the possibility of land exchange, leasing, or other equitable solutions. Simply put, while international law does not provide all of the answers, it can—and should—provide some of them.

Third, we must continue to pursue nonviolent means in international forums of increasing the costs to Israel of noncompliance with international norms. Israelis’ assessment of the value of a negotiated settlement with Palestinians will turn to a great extent on the costs and benefits of the alternatives. Although litigation in the ICJ and national courts, enforcement of the terms of the EU-Israel Association Agreement, and sanctions and divestment campaigns will not obviate the ultimate need to negotiate with Israel, they could both hasten the Israelis’ return to the table and moderate the positions they take when they get there. That said, a final point bears emphasis: in an international system in which enforcement is more often the exception than the rule, we should not lose sight of the importance of persuasion. In diplomacy and public relations, invoking legal norms is not enough; we must also explain them—why they are fair and how they are responsive to the interests not only of Palestinians, but also of Israelis and the broader international community.

Conclusion

At this unpromising moment in our history, Palestinians are faced with manifold obstacles to the realization of our national aspirations and basic rights. Many of these obstacles—U.S. hegemony, Israeli military supremacy, the impotence of international institutions—were not of our creation and are beyond our capacity, in the short term, to change. What we can do, however, is to ensure that when we negotiate again—and we will—we are represented by institutions that have the legitimacy and the capacity to serve our needs.

 

Omar M. Dajani was legal adviser to the Palestinian negotiating team in talks with Israel from 1999 to 2001, and then political adviser to the UN Special Coordinator in the occupied territories. He is currently assistant professor of law at the University of the Pacific, McGeorge School of Law. 

1. “United States Secretary of State James Baker’s Letter of Assurance to the Palestinians (18 October 1991),” in M. Cherif Bassiouni, ed., Documents on the Arab-Israeli Conflict: The Palestinians and the Israeli-Palestinian Peace Process, vol. 2 (Ardsley, NY: Transnational Publishers, 2005), p. 881.

2.  In polls conducted on the eve of Israel’s withdrawal from the Gaza Strip, 84 percent of Palestinian respondents in the occupied territory regarded the withdrawal as “a victory for armed resistance.” Palestinian Center for Policy and Survey Research, poll no. 17, available at www.pcpsr.org.

3.  Indeed, notwithstanding their rhetoric about the efficacy of violence (however it is characterized), even Hamas officials have declined to rule out a negotiated accommodation with Israel, if not a negotiated peace. See Arnon Regular, “Hamas Candidate Speaks of Future Talks with Israel,” Ha’Aretz, 15 January 2006.

4.  See generally Omar M. Dajani, “Stalled between Seasons: The International Legal Status of Palestine during the Interim Period,” Denver Journal of International Law and Policy 26, no. 1 (September 1997), pp. 72–73.

5.  For more detail, see Omar M. Dajani, “Surviving Opportunities: Palestinian Negotiating Behavior in Peace Talks with Israel,” in Israeli-Palestinian Negotiating Styles: A Cross-Cultural Study (Washington: United States Institute of Peace Press, 2005).

6.  Palestinian-Israeli Declaration of Principles on Interim Self-Government Arrangements, preamble (emphasis added).

7.  James Baker’s Letter of Assurance to the Palestinians (18 October 1991).