The Middle East Channel

September 23, 2011: A historic day for Israel-Palestine?

Ethan Frome

Cynicism and skepticism always have their place, but today might just go down as an historic day on the Israeli-Palestinian front. No, there is no direct or quick fix move from the Palestinian application for U.N. membership to the actual realization of a Palestinian state (and certainly not when one factors in the Israeli response) but the Palestinian U.N. move does represent the most definitive break yet with the failed and structurally flawed strategies for advancing peace of many a year. Many Palestinians and others are now suggesting that the PLO leadership progress from the symbolism of September 23rd to a concerted struggle for their freedom centered on nonviolent resistance, diplomacy, and international legality, believing that this would finally deliver a breakthrough.

In its theatrics, today was rather predictable -- other than the Quartet statement of the afternoon, on which more in a moment. The speeches of Abbas and Netanyahu held few, if any, surprises. Abbas played to the Palestinian community at home and around the world, and to the rest of the international community.

Abbas spoke to the refugee experience, including his own, while leaving wiggle room for a future solution and embracing the Arab Peace Initiative on this score. He clarified that the PLO would continue to represent all Palestinians until all issues are definitively resolved, urged that this not become a religious struggle (pushing back on Netanyahu's attempt to make this about a Jewish state), and linked the Palestinian struggle for rights to the so-called Arab Spring, albeit something that will have to be born out in reality beyond the made-for-TV pictures from Ramallah's town square.

Abbas could also not have been more explicit on this being a Palestine alongside Israel, on the 67 lines, on only 22% of Mandatory Palestine -- and thus calling the lie on Netanyahu's claim that Abbas wants to have a state that would come at Israel's expense, replacing Israel.

Netanyahu was playing to the Israeli public and to the American and Jewish right. His speech represented a doubling down of the porcupine strategy that guides his government's policy. He told the world body that its Security Council was being presided over by terrorists and posed as the champion of the "Clash of Civilizations" narrative. In reminding his audience of the sacrifices entailed by Israel's withdrawal from Gaza six years ago, he somehow overlooked the fact that this was a withdrawal that he himself vociferously opposed. In referring several times to Israel's peace with Egypt, Netanyahu may have left some reminiscing that in that agreement Israel withdrew to the last centimeter of the 67 lines, removed every settler and IDF position, and entrusted security to an international force -- the MFO.

In response to their respective speeches, Abbas received overwhelming applause from the delegates in the GA hall while Netanyahu's support came only from his own delegation and from the peanut gallery -- perhaps that was filled with a U.S. congressional delegation on a daytrip to the U.N.!

As attention shifts away from Turtle Bay, one should look to at least three arenas for what happens next.

First, What next at the U.N.? Do the Palestinians also go to the General Assembly in the coming days and weeks -- especially when their move is visibly stuck in committee at the Security Council? Pressure is likely to grow on Abbas to make that move and the lead option might become to re-cast the Sarkozy speech into a General Assembly initiative with European and Arab support. Doing so would give the Palestinians a concrete achievement, constituting an upgrade to non-member state while receiving an overwhelming General Assembly majority as things slowly progressed at the Security Council.

Second, what happens on the ground? Mass nonviolent popular protests? Do settlers provoke, is there violence, what will be the IDF response. Will Palestinians really join the "Arab Spring"?

Third, how does the government of Israel respond? Do they take punitive measures against the PA as some ministers -- led by Foreign Minister Avigdor Lieberman -- have threatened, including withholding Palestinian tax revenues? This would be hugely counter-productive of course and ultimately hurt Israel more than the Palestinians. But that Israel might nonetheless do this speaks to the excesses of Netanyahu-led government and its crass political and tactical calculations.

Finally, what of that Quartet statement hurriedly put together and released just hours after the two leaders' speeches had surely rendered it dead on arrival.

After over two months of trying and in a week in which Israel-Palestine has dominated the global agenda, the Quartet belatedly showed signs of life in releasing a statement. But that statement was perhaps more noteworthy for what was omitted than for what was codified. Since President Obama's two speeches in May, the Quartet, notably in a principals meeting in July - and then for much of this week in New York - has been attempting to reach language on proposed parameters for a two-state solution that would then be presented to the parties and to the world. That consensus could not be reached.

The Europeans, alongside the Russians and the envoy of the U.N. Secretary General, adhered more closely to parameters that have previously been discussed as well as to certain principles of international law (in particular, not koshering the settlements post-facto). At the same time, the US administration sought to further move the goal posts for a two-state deal in the direction of the Netanyahu government's comfort zone -- a place faraway from any reasonable two-state outcome. The Palestinians can be relieved that the drafts prepared between Jerusalem and Washington did not prevail.

Instead, the Quartet presented what was largely a reiteration of existing positions and a limited procedural agenda and timetable to promote negotiations and an agreement. The Quartet's apparent continued faith in the idea that negotiations between the parties can be fruitful and that trust can be built seems ever-more detached from reality. More extensive heavy-lifting will be needed by the international community if a realistic basis is to be created for any future direct-negotiations. Notably they would have to address the asymmetry that exists between the parties and the Israeli sense of impunity for maintaining and entrenching a status quo of occupation.

There were, nonetheless, a few features of this Quartet statement worthy of comment:

  • The Quartet called on the parties to present comprehensive proposals for territory and security in three months. This represents a more forward-leaning and conscious effort to pursue the logic initially outlined by President Obama on May 19 for making progress (borders and security first). It is perhaps the only really new element; however it appears that the Quartet are willing to sacrifice that somewhat novel approach to a breakthrough on peace on the altar of loyalty to direct negotiations. If the parties cannot overcome that trust gap (and the language of the Quartet statements suggests that some Quartet members at least doubt it) then why not have the parties submit their proposals on territory and security to the Quartet -- that might be a more serious approach.
  • Any explicit reference to settlements is conspicuous in its absence. One has to carry a peace-process dictionary to understand that the reference in point five to "provocative actions and Roadmap obligations" is in large measure a way of saying settlements. It is a reflection of how ineffectual the Quartet is likely to continue to be, that we have reached a stage where they cannot explicitly reference a settlement freeze. International legality be damned. For the Palestinians, the absence of settlement freeze language and the absence of clear terms of reference, as they had requested, will be a hard swallow (albeit the terms of reference they would have got would have constituted an even harder swallow).
  • In an atmosphere in which Congress is threatening aid to the Palestinians in retaliation for their UN approach, and in which members of the Israeli cabinet are doing likewise with regard to the transfer of Palestinian tax revenues, it is noteworthy that the statement spends two paragraphs acknowledging the institution-building achievements of the PA and calling for a PA donors conference. On this, there is consensus: dramatically shaking up the status quo by taking the kinds of steps that would precipitate the PA's collapse would then put the international community in an uncomfortable situation. It is also a reflection of the understanding that while the PA provides an element of self-government as well as employment and services to the Palestinians, it is ultimately a mechanism that is hugely convenient for Israel, in shouldering the direct burden of managing the occupation. It is easier for the US to defend something that is so clearly in Israel's interest.
  • The Quartet is potentially given a greater role in overseeing this effort, which may be an acknowledgement of America's inability to lead given its domestic political realities, or maybe that just helped grease the wheels for the rest of the Quartet to go on this journey.
  • The idea of holding a future peace conference in Moscow conference -- long buried --makes a reappearance. This apparently helped seal Russian approval for issuing a Quartet statement as the Russians had been something of a holdout during the ongoing talks.
  • Finally, there was no consensus position in relation to today's Palestinian application for U.N. membership -- and that is an issue that one imagines that the Quartet and much of the Security Council, not least the U.S., would be happy to avoid voting on any time soon.

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The Middle East Channel

Sticky wicket at the U.N.

It's Palestine season at the United Nations! As the world's governments field their teams and their talking points for the next round of diplomacy's most bruising sport, some of you watching from home may be wondering how to judge who the winner is. Your confusion is understandable: Palestine has been on the U.N.'s agenda since Britain placed it there in 1947; and, like other games invented by the British, this one is interminably long and difficult to follow. Use this guide to make sense of what happens next.

You can expect almost everyone to jump into the fray in New York this season, but four teams are especially worth watching: the Palestinians, the Israelis, the Europeans, and the Americans. Here is what each needs to do to win.

The Palestinians are entering the field with practically a home side advantage. They can look back on a long string of triumphs at the United Nations, including scores of supportive resolutions in the U.N. General Assembly and Human Rights Council, the International Court of Justice's 2004 declaration that Israel's West Bank wall is illegal, and the Goldstone Report's finding that Israelis committed war crimes in Gaza in the winter of 2008. These achievements are not insubstantial; if nothing else, they have helped to keep the Palestinians in the game, despite the tremendous odds against them.

But in order to win more than a symbolic victory this year, the Palestinians will need to achieve one or both of the following goals:

  • Secure sweeping international support for their territorial claims -- in particular, their right to exercise sovereignty over the West Bank, including East Jerusalem, and the Gaza Strip, subject only to minor and equitable negotiated revisions to the pre-1967 border, and
  • Obtain sufficiently broad recognition from world governments of Palestinian statehood to enable the International Criminal Court (ICC) to exercise jurisdiction to prosecute Israeli war crimes in Palestinian territory.

Of course, the Palestinians will eventually need to return to negotiations with Israel even if they achieve both of these objectives. But they would have improved their leverage in two ways: first, by making clear that the international community expects Israel to provide fair compensation in land for the settlements on Palestinian territory Israel annexes as part of a peace deal; and, second, by increasing the costs to Israel of continuing to expand settlements, which are considered a war crime under the Rome Statute of the ICC.

The Palestinians need not go to the Security Council to achieve either of these goals. Although the U.N. General Assembly cannot admit Palestine as a member without the Council's approval, it can recommend parameters for resolving the conflict. While the Assembly's recommendations are non-binding, they would have considerable influence if Europe signed on -- and could even receive American endorsement once elections have passed. The Assembly could also welcome Palestine's participation in its proceedings as a non-member observer state, which would help establish its credentials as a state for ICC purposes. Either of these outcomes would constitute a solid victory for the Palestinians.

The Palestinians will score extra points, especially on the Arab street, if they appear unflinching in the face of American power and Israeli intransigence. But while a confrontation with the United States at the Security Council is likely to be exciting, it is unclear how it would advance the Palestinian cause strategically. The Palestinians may find it difficult to convince the General Assembly to take up the matter while the Council is seized of it (though it's not prohibited), which means that the action could be stopped for weeks while the Council deliberates. The United States is working hard to convince other Council members to vote against the resolution so that its veto won't be decisive. And if the Palestinians return to Ramallah with nothing but a dead draft Security Council resolution in hand -- an outcome they could have predicted a year ago -- they shouldn't expect a ticker tape parade. The crowds are more likely to demand that a new team be fielded the next time around.

The Israelis are less comfortable playing at Turtle Bay. Although the State of Israel was established 63 years ago on the recommendation of the U.N. General Assembly, Israelis have come to prefer other arenas, eschewing multilateral forums for bilateral negotiations where they are better able to control the outcome. In addition, the Netanyahu government's obstructionist policies have made Israel anything but a crowd favorite, even if the U.S. Congress is sure to cheer him on.

Many Israelis would welcome more proactive steps by the international community to define the parameters of a peace agreement -- and even to hold their leaders to account for their misguided settlement policy -- but the Netanyahu government loses if either of these steps occurs. Although the Israelis have already succeeded in enlisting the United States to run interference in the Security Council by vetoing a Palestinian application for admission as a full member of the U.N., the prize Palestinians are after is not membership but recognition and the enhanced leverage it affords.

On the other hand, Netanyahu will win big if the Palestinians drop out of the game following a confrontation with the United States in the Security Council. He will have succeeded both in preserving Israel's leverage (both in future talks and on the ground) and in embarrassing the Obama administration, for which he feels little affection despite its Herculean efforts on Israel's behalf.

The Europeans are undoubtedly feeling plucky this year, enjoying the spotlight after years of being forced out of the game by the United States. Their problem is teamwork. If Europe can forge a unified position within the Security Council and the General Assembly, its influence will be greatly enhanced. That unity, however, has so far proved elusive. Some European governments have come out squarely in support of the Palestinians, whereas others are hesitant to take a stand that may be perceived as anti-Israel. Abstaining from taking sides may help the Europeans to avoid any injuries, but it will likely send them back to the sidelines.

The Americans can point to some major recent victories at the U.N., including passing sanctions against Iran and mobilizing the coalition against Libya's ousted leader Col. Muammar al-Qaddafi, but the Obama administration is entering the field this season with some severe handicaps. The U.S. has the power to veto a resolution admitting Palestine to the U.N., but exercising that power will further inflame the Arab street at a time when the United States wants to present itself as an advocate of freedom and self-determination. On the other hand, Republican leaders (and even a few Democrats) will blame Obama for any Palestinian success in New York this year, arguing that Obama's rousing speech at last year's General Assembly encouraged the Palestinians to turn to the U.N. in the first place. Mindful of the elections to come -- and of the Democrats' stunning loss in New York's special election last week, which some regarded as a referendum on Obama's Middle East policy -- the Americans will be hesitant to support any outcome that Netanyahu disfavors.

In the short run, the Americans win if they manage either to convince enough Security Council members to vote with them against Palestinian admission or if they prevail on the Palestinians to head home without having a go at the General Assembly. However, the next time Palestine comes to the U.N. -- and it will -- the U.S. will find its credibility and authority further weakened. And if it refuses to play fair with the Palestinians' current leadership, it may well have to contend with less sporting players next season.

Omar M. Dajani is professor of law at the University of the Pacific's McGeorge School of Law. Previously, he served as legal advisor to the Palestinian negotiating team in peace talks with Israel.

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