Australia/Israel & Jewish Affairs Council

Palestinian unilateralism?/The settlements as a barrier to peace

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Update from AIJAC

October 29, 2010
Number 10/10 #06

According to reports, with the peace process stalled, Palestinian PM Salam Fayyad has resumed issuing public statments about his plans to unilaterally declare a Palestinian state in August 2011 and simply seek UN endorsement. Israel says Palestinian unilateralism will be met with Israeli unilateralism. This Update looks at the implications of this Palestinian strategy if followed through.

First up is Israeli international law expert and former official Alan Baker, who looks at the Palestinian unilateralist idea in international law terms. He points out that doing this would abrogate the Oslo accords, which are, in turn, the legal basis on which the Palestinian Authority is established. Moreover, he points out that the idea that the Palestinians could have the UN Security Council endorse the 1967 borders ignores the fact that there are not actually any such borders - only armistice lines - and doing so would violate existing Security Council resolutions, especially the always cited basis of the peace process, Resolution 242. For much more on why this would be a legally disastrous idea, CLICK HERE. A more historical critique of unilateralism, looking how past unilateral efforts have almost all failed in the Middle East peace process, comes from New York-based interfaith activist Sara Reef.

Next up is Washington Post deputy opinion editor Jackson Diehl, who points out that the Palestinians actually went down this path once before - with Yasser Arafat declaring independence in 1988. It got the Palestinians nowhere then, he argues, and is unlikely to get them anywhere this time. He says the Palestinians may be hoping the US will endorse this strategy, but this appears unlikely, and all such a declaration can achieve is to give PA President Mahmoud Abbas an excuse to avoid further talks with the Israeli government, if that is what he wants. For Diehl's important history and analysis, CLICK HERE. Former American UN Ambassador John Bolton offers a different assessment of the likely US reaction to Palestinian unilateralism, voicing fears the current administration might go along with the idea at the UN.

Finally, Arab Israeli journalist Khaled Abu Toameh addresses the widely held view that settlements are the key obstacles to Israeli-Palestinian peace, a view also addressed and rejected by Israeli PM Binyamin Netanyahu this week. Abu Toameh points out that construction in settlements had never been an obstacle to talks up until the past two years, and were not even forbidden in the Oslo Accords, and discusses some of the reasons that it has suddenly been made so central by the Palestinian leadership. He makes clear what the really important barriers to peace are: "Iran and radical Muslims who want to destroy Israel, and not make peace with it". For Abu Toameh's full article, CLICK HERE. Another article addressing the settlement question is from American analysts Nicole Brackman and Asaf Romirowsky.

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The old/new unilateral threat

By ALAN BAKER 

Jerusalem Post, 10/26/2010 22:52

Palestinian threats show either ignorance of or contempt for the UN system.

 We are witnessing a very curious negotiating process when both sides declare they want to advance negotiations, but each places obstacles – both figurative and real – in the way of genuine advancement. Such obstacles, which seem to have stalemated the negotiations, include demands for a settlement freeze and a demand for recognition of Israel as a Jewish state.

Without discussing the merits of, or justification for, these respective demands – and I have gone on record in The Jerusalem Post claiming that both demands could be sidestepped by the pragmatic drafting of a “code of conduct” (“The negotiating process – where do we go from here? A proposal for a tree-climber’s code of conduct,” October 13) – we now seem to be witnessing an old/new development in the Palestinian negotiating technique, in the form of daily threats by negotiators.

These threats are: to unilaterally declare a state (Prime Minister Salam Fayyad) or alternatively to declare the Oslo Accords void, “to go to Washington to recognize a Palestinian state on 1967 borders. If that doesn’t work, we’ll go to the UN Security Council and ask Washington not to veto.

If Washington vetoes, then the Palestinians will take their case to the UN General Assembly” (statement by Muhammad Shatayeh to The Washington Post, October 22).

This is not the first time in the present negotiating phase that the Palestinians have tried to use the “negotiating technique” of threats. At the recent Sharm e-Sheikh conference, PA President Mahmoud Abbas and chief negotiator Saeb Erekat threatened to walk out if Prime Minister Binyamin Netanyahu did not renew the settlement freeze.

Now, with talks deadlocked practically before they had a chance to begin, we are witnessing this new spate of threats to act independently, through enlisting the UN Security Council, the Americans and Europeans in an attempt to bypass Israel and impose a settlement based on the “1967 borders.”

THERE ARE several legal and practical flaws in these threats. Any unilateral declaration of a state outside the agreed upon negotiating process would undermine the very basis of the Oslo Accords and the framework established by them. This framework would include the legal basis for the existence of the PA, its leaders, institutions and jurisdiction. As such, and being an action intended to, and resulting in the alteration of the status of the territory, it would also be a violation of Article 31 of the 1995 Israeli-Palestinian Interim Agreement, grounds for voiding the agreement, and would open the door to potential Israeli unilateral action vis-a-vis the status of the territory.

Despite attempts to draw a parallel with regard to Israel’s settlement activity, no such parallel can be drawn, since the parties never agreed in the Oslo Accords (or anywhere else) to a settlement freeze, and such a requirement has never become an impediment in previous rounds of negotiation.

Furthermore, the legal arrangements between individual Israeli residents of the territories and the government authority administering real estate preclude changing the status of the land. Thus settlement activity does not violate Article 31 in that it does not alter the status of the territory, which remains subject to permanent-status negotiations.

Since the US (president Bill Clinton), the EU, Egypt (President Hosni Mubarak), Jordan (the late King Hussein) and others are signatories as witnesses to the Interim Agreement, they may not act to recognize such a unilaterally declared Palestinian state set up outside the negotiating process and contrary to the agreement they encouraged, accompanied and signed.

Voiding the Oslo Accords would bring about a legal vacuum that could result in considerable chaos, throwing the area into immense instability and threatening to cast it into uncontrolled violence. None of the interested parties, the PA especially, would want this, and each has everything to gain by maintaining the status quo of the Oslo framework – with all its faults.

Similarly, the UN Security Council would be faced with a genuine dilemma if asked to adopt a resolution declaring a Palestinian state within the “1967 borders.”

The very basis for all the peace treaties and other agreements between Egypt, Jordan, the Palestinians and Israel are the 1967 UN Security Council Resolution 242 and the 1973 Resolution 338, which reaffirmed the need to negotiate Resolution 242 and achieve peace.

These resolutions do not refer to “1967 borders.”

In fact, there are no such borders, but armistice and cease-fire lines that have never been acknowledged to be borders. In fact, during previous phases of the negotiations, the notion of Israel’s return to the 1967 lines was never assumed to be a given element. While there was some reference to using them as a guiding factor in determining real, recognized and secure borders between a future Palestinian state and the State of Israel, nothing more than that figured in the negotiations.

DETERMINING BORDERS is an essential component in interstate relations. The principles of peaceful coexistence and bon-voisinage, whether pursuant to the Charter of the United Nations, or the precedents of the peace treaties between Israel and Egypt and Jordan respectively, determine the necessity for mutual recognition of a common border.

The Palestinian threat to organize an emergency UN General Assembly session to adopt a “uniting for peace” resolution in the event that the Security Council fails to oblige, shows either ignorance of or contempt for the UN system. Any such resolution, which would probably be sponsored by the usual “paragons of international virtue,” such as Iran, Syria, Cuba, South Africa, the Muslim states and even Russia, would doubtless be adopted by an automatic majority, but being a General Assembly resolution, would have no legal significance other than to bolster the Palestinian ego and add another futile resolution to the long list of futile UN resolutions.

The current deadlocked negotiation is too serious a situation to have it dragged into a “threat game” and to oblige the international community to suffer from an irresponsible and ill-advised set of actions the results of which no one can foresee.

Any way one looks at it, it will neither advance the cause of peace nor enhance mutual confidence and respect between the Palestinians and Israelis. How can anyone expect the two sides to return to bona fide peace negotiations over such a chasm of mistrust? The Palestinians cannot blatantly expect the organized international community to dance according to their irresponsible fiddle, in utter contempt of accepted norms and practices of bona fide negotiation. They should get their act together.

The writer served as legal adviser of the Foreign Ministry and ambassador to Canada. He was actively involved in the peace negotiations with the Palestinians and Arab states. He is presently a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co.

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Can the United Nations create a Palestinian state?

Jackson Diehl

Washington Post "Post-Partisan",  October 26, 2010

On November 15, 1988, Yasser Arafat proudly read a declaration by his Palestinian Liberation Organization unilaterally proclaiming "the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem." Shortly afterward the United Nations General Assembly voted overwhelmingly to support the declaration; within months 93 governments had recognized the state of Palestine.

That state, of course, never came into existence. The PLO declaration, the United Nations vote, even the recognition by scores of countries, proved meaningless. Yet Arafat's successor as PLO leader, Mahmoud Abbas, appears to be giving serious consideration to repeating the maneuver.

During a visit to Bethlehem Monday, Abbas was asked about a rash of reports that the PLO might take its case for statehood to the United Nations rather than continue negotiations with the Israeli government of Binyamin Netanyahu. By his own account, Abbas was dragged into those talks by the Obama administration in August. After only two rounds of meetings he has broken them off, citing Israel's refusal to extend a 10-month moratorium on new construction in Jewish settlements.

Abbas responded by saying that Israel has been taking unilateral measures in the West Bank for decades -- and so has no right to oppose the next Palestinian step, "which is to resort to the United Nations."

Abbas is right about Israeli unilateralism: Since the settlement moratorium expired a month ago, construction has begun on more than 500 new homes, according to a count by the Associated Press. It's also true that the United Nations General Assembly, which has a long history of hostility to Israel, would likely respond favorably to virtually anything asked of it by the Palestinians. Netanyahu once noted caustically that if the Arab states wished it, the UN "could declare that the earth is flat."

The question, of course, is whether a Palestinian decision to substitute appeals to international bodies for negotiations with Israel will accomplish anything more than it did two decades ago. True, many states might recognize the new state (again). The International Court of Justice in the Hague might declare Israeli settlements on its territory illegal -- after all, it already declared Israel's West Bank barrier unlawful. New international resolutions would cause anxiety in Israel, where many people worry about what they see as a strengthening campaign to "delegitimize" the Jewish state.

Yet the Israeli "wall" is still standing, six years after the Hague's decree. No country has taken steps to enforce the UN's 1988 vote on Palestinian statehood -- and none would be likely to in this case. In short, it's hard to imagine how a state could be created without Israel's agreement. Sanctions? Those are unlikely to win the support of either the United States or the European Union.

Palestinian and Arab leaders appear to be hoping that after the U.S. midterm elections the Obama administration will crack down on Netanyahu. It can't be a coincidence that the Arab League's deadline for renewing the settlement moratorium is Nov. 8. But Secretary of State Hillary Clinton last week dismissed the idea that unilateral action or appeals to the United Nations could lead to Palestinian statehood. "There is no substitute for face-to-face discussion and, ultimately, for an agreement that leads to a just and lasting peace," she said.

Seeking a UN declaration of statehood would have one big advantage for Abbas: It could give him an excuse to avoid further talks with Netanyahu indefinitely. The Palestinian leader has made it clear ever since the Israeli prime minister took office in early 2009 that he does not want to negotiate with him. That could be because Abbas doesn't believe that Netanyahu will ever offer acceptable terms for Palestinian statehood. Or, it could be that the aging Palestinian leader is unwilling to consider any realistic terms for peace, since those would involve major -- and dangerous -- compromises. An imaginary state, like that declared by Arafat, is a lot easier to found.

By Jackson Diehl  | October 26, 2010; 11:15 AM ET

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Are Settlements Really the Major Obstacle to Peace?

By Khaled Abu Toameh  

Hudson Institute,  Thu Oct 27 2010

For nearly two decades, the Palestinian Authority conducted peace talks with Israel while construction in the Jewish settlements was continuing. Every now and then the Palestinian leadership would complain about the construction, but it never made a big fuss about the issue. Nor had it threatened to suspend the peace process.

The Palestinian leaders even "forgot," when they signed the Oslo Accords with Israel in 1993, to demand that the agreement include an Israeli commitment to stop building in the settlements.

Palestinian leaders living in the West Bank can't say that they never saw the bulldozers working in the settlements.

Palestinian Authority President Mahmoud Abbas lives not far from a settlement near Ramallah. From his balcony, he saw how the Bet El settlement grew over the past two decades. It's impossible to travel throughout the West Bank without noticing the construction work in the settlements.

Abbas and his predecessor, Yasser Arafat, talked and worked with Israel while the construction was continuing. Until two years ago, Abbas was negotiating with former Prime Minister Ehud Olmert and his foreign minister, Tzipi Livni, while the settlements were being expanded. Ironically, the Olmert government built more in the settlements than the "right-wing" government of Binyamin Netanyahu.

So how did the issue of the settlements become the "major obstacle to peace?"

Some Palestinians say that the settlements became a major issue only when the US Administration and other Western governments started demanding a freeze of settlement construction.

The Palestinian leaders can't afford a situation where Presidents Barack Obama and Nicola Sarkozy appear to be more Palestinian than the Palestinians, especially when it comes to the issue of settlements.

There's no ignoring the fact that the settlements are a problem for the Palestinians. But to say that the settlements are the major obstacle to peace is an exaggeration.

If the settlements were really the major obstacle to peace, how come peace did not prevail when Israel destroyed all the settlements in the Gaza Strip and evicted more than 8,000 Jews from there?

In Israel there is talk these days about establishing three major settlement blocs in the West Bank in any permanent deal with the Palestinians. Most Israelis know that many of the settlements will have to be dismantled and
their residents relocated to the three big blocs: Ma'aleh Adumim, Gush Etzion and Ariel.

This means that Israel wants to retain control over 10-15% of the West Bank after signing a peace treaty with the Palestinians. In such a case, the Palestinians should demand that Israel compensate them with the same amount
of land, or even more from, from Israel proper. Some Israelis have already endorsed the idea, which they define as "land swap."

Since the West Bank is not Mecca or Medina, the Palestinians should have no problem making territorial concessions in this area. Peace can never be achieved unless both Israelis and Palestinians agree to territorial
concessions. A Palestinian or Israeli who believes that he will get 100% is living in an illusion.

The major obstacle to peace is those who are trying to create instability and war in the Middle East. The major obstacle to peace is Iran and radical Muslims who want to destroy Israel, and not make peace with it. They are the
biggest threat to peace now because they are also threatening to kill any moderate Arab or Muslim who seeks to make peace with Israel.

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