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The Last Negotiation: How to End the Middle East Peace Process

Foreign Affairs, Volume 81; Issue 3

by Hussein Agha; Robert Malley

1 May 2002

Since the collapse of the Israeli-Palestinian negotiations and the outbreak of the second intifada, two propositions have gained wide acceptance. The first is that trying to find a comprehensive solution to end the conflict has already been attempted -- and at this point, if tried again, can only fail. The second is that an interim solution is therefore the only way out of the current crisis and might succeed if properly implemented. The mounting death tolls on both sides seem to confirm the notion that conflict management rather than conflict resolution should be the order of the day, and that now is the time for taking incremental steps in order to rebuild the torn fabric of trust. In fact, now is precisely the time for a U.S.-led international coalition to put forward an end-of-conflict deal.

The idea that only incremental steps can resolve the current crisis flies in the face of the experience of the past decade. Everything Israelis and Palestinians have tried since 1993 has been of the interim sort -- whether the Oslo accords themselves, the 1995 Interim accords, the 1997 Hebron agreement, or the 1998 Wye memorandum. However sensible it may have seemed at the start, in practice the incremental approach has demonstrated serious shortcomings.

Lacking a clear and distinct vision of where they were heading, both sides treated the interim period not as a time to prepare for an ultimate agreement but as a mere warm-up to the final negotiations; not as a chance to build trust, but as an opportunity to optimize their bargaining positions. As a result, each side was determined to hold on to its assets until the endgame. Palestinians were loath to confiscate weapons or clamp down on radical groups; Israelis were reluctant to return territory or halt settlement construction. Grudging behavior by one side fueled grudging behavior by the other, leading to a vicious cycle of skirted obligations, clear-cut violations, and mutual recriminations.

By multiplying the number of obligations each side agreed to, the successive interim accords increased the potential for missteps and missed deadlines. Each interim commitment became the focal point for the next dispute and a microcosm for the overall conflict, leading to endless renegotiations and diminished respect for the text of the signed agreements themselves. Steps that might have been easy to win support for domestically if packaged as part of a final agreement were condemned as unwarranted concessions when carried out in isolation. Increasingly beleaguered political leaderships on both sides thus were tempted to take compensatory actions: incendiary speeches by Palestinians, building more settlements by Israelis, and from the two parties, a general reluctance to prepare their people for the ultimate compromises. Designed to placate angry constituents, these moves had the unintended consequence of alienating the other side, making a final deal all the more difficult to achieve. Finally, the succession of piecemeal, incremental agreements made it more difficult to mobilize the support of other countries.

Yet another interim agreement could not cure ills that are inherent in the culture of interim agreements. It would not rebuild trust, it would not lead to a durable political agreement, and it would use up considerable local and international energy in the process. The same defects plague plans that call for the immediate establishment of a Palestinian state with negotiations to follow over its size, prerogatives, and other final-status issues. As for the notion of unilateral Israeli withdrawal from parts of the West Bank and Gaza, such a gesture would only add to these problems the real risk of emboldening those Palestinians who believe that Israel can be forced by violence to pull out. As all of these factors suggest, the current confrontation is not an argument in favor of acting small, but rather a call to start thinking big.

History demonstrates that the incremental method has failed. Yet because Israelis and Palestinians did not reach an agreement at Camp David in 2000 or at the talks in Taba, Egypt, that followed, because the parties are deemed unripe, because their leaders seem uninterested and the gaps between them seem unbridgeable, proponents of moving toward a final agreement immediately are dismissed as being at best naive and idealistic, at worst desperately out of touch.

In truth, however, the final-status negotiations that took place in 2000-2001 were not an exception to or a departure from the approach that had prevailed since 1993, but rather its extension and culmination -- conducted in the same spirit, and with the same vices, as that which prevailed during the rest of the interim period. No common principles guided these latter discussions; instead, a vision was meant to emerge from an incremental process of give-and-take. As a result, neither side was able to rebut its domestic opponents or rally potential supporters behind a comprehensive vision. Negotiators who might have been able to market a comprehensive deal were uneasy defending its constituent parts in isolation. And the parties were unable to rally significant regional or international backing for a clearly articulated package deal.

The process that started at Camp David suffered from another basic flaw: it was predicated on the widespread but erroneous belief that genuine, durable agreements can emerge only from direct negotiations between Israelis and Palestinians. Although this might be true when it comes to interim or technical agreements, it does not hold for a permanent accord. With the stakes so extraordinarily high for both sides, Israelis and Palestinians have been reluctant to put forward or accept proposals that risk undermining their bargaining position absent the certainty of reaching a comprehensive deal.

Indeed, as a result of the character of the parties' interactions, the inherent power imbalance, and the existential nature of their dispute, negotiations between Israelis and Palestinians have now reached the point of diminishing -- even negative -- returns. Rather than bring the two sides closer, negotiations serve to play up remaining disagreements and to play down the broad scope of actual convergence. The time for negotiations has therefore ended. Instead, the parties must be presented with a full-fledged, non-negotiable final agreement.

The arguments routinely deployed against making an immediate effort to end the conflict are flawed. Some say, for example, that a permanent solution must await the building of trust between the two sides. But the belief that the conflict cannot be ended so long as mistrust persists is a seemingly logical argument that actually stands reason on its head. Mistrust, enmity, and suspicion are the consequences of the conflict, not its cause. A deal should not be made dependent on preexisting mutual trust; the deal itself will create it.

Other skeptics point to the rightward move of the Israeli public in reaction to the intifada and supposed Palestinian intransigence in 2000 and 2001 as an insuperable obstacle to the acceptance of a final-status deal anytime soon. But this same public moved swiftly from supporting the most peace-oriented government in the country's history to electing one of its most aggressive -- suggesting that it could swing back just as quickly. Every poll confirms that Israelis want quiet, normalcy, and safety in their everyday lives. If they were presented with a U.S.- backed, realistic, end-of-conflict agreement, in all likelihood most of them would embrace it. The impact that the recently proposed Saudi offer (full normalization in exchange for full Israeli withdrawal from the territories conquered in 1967) has had demonstrates just how hungry Israelis are for a conclusive way out of the quagmire. And just as one ought not read too much into the Israeli public's apparent frustration, so would it be a mistake to read too much into past Palestinian behavior. Neither the substance of the ideas at Camp David and subsequent talks, nor the process by which they were presented adequately tested the Palestinians' readiness to accept a fair, end-of- conflict deal that met their core interests.

Many argue, finally, that as a matter of principle, any political effort must await the end of the violence so as not to reward it. Yet violence is a byproduct of the political relationship between Israelis and Palestinians and cannot be divorced from it. That relationship is unfortunately destined to remain a conflictual one until its core issues have been, or are in the process of being, resolved. It would be a historical anomaly for a conflict between two fundamentally unequal antagonists to be resolved without violence. In that sense, violence is latent in the interim approach as much as it contradicts it. Unless the two parties reached an accord, in other words, Oslo all but ensured that their perceptions and expectations would clash, and from that point on the cycle was bound to become ever more vicious. Israel believes it cannot negotiate under fire, and the Palestinians fear that, absent fire, the Israelis will have no incentive to negotiate. The violence so inconsistent with the spirit of Oslo thus became its natural successor. The only certain way to stop the killing is to offer the parties a tangible and fair way to end the underlying conflict.

The case for seeking a comprehensive deal ultimately depends on whether one believes it is possible to design a package that both sides can accept. Such a deal must protect both sides' core interests without breaching either party's "redlines," or non-negotiable demands.

Israel's basic interests are to preserve its Jewish character and majority; safeguard its security and the safety of its citizens; acquire international legitimacy, recognition, and normalcy; maintain its attachment and links to Jewish holy sites and national symbols; and establish with certainty that the conflict with the Palestinians and the Arab states has ended once and for all and that there will be no further claims. These principles translate into a core set of policy redlines: no mass influx of refugees that would upset Israel's demographic balance; Jerusalem as the capital of Israel; recognition of the sacred Jewish link to the Temple Mount; no return to the 1967 borders; the incorporation into Israel of the vast majority of settlers in their current locations; no second army between the Jordan River and the Mediterranean Sea; and the perpetuation of the Jordan Valley as Israel's de facto eastern security border.

As for the Palestinians, their basic interests can be defined as living in freedom, dignity, equality, and security; ending the occupation and achieving national self-determination; resolving the refugee issue fairly; governing and controlling the Muslim and Christian holy sites in Jerusalem; and ensuring that whatever deal is finally struck is accepted as legitimate by members of the Arab and Muslim worlds. These principles similarly translate into a set of policy redlines: Palestinian statehood, with genuine sovereignty over the equivalent of 100 percent of the land lost in 1967; a solution to the Palestinian refugee problem in which refugees are given the choice of returning to the areas where they or their ancestors lived before 1948; Jerusalem as the capital of their state; and security guarantees for what would be a nonmilitarized state.

A close examination of past Israeli-Palestinian negotiations and informal discussions shows that a solution does in fact exist that would be consistent with both sides' needs. The key concept on the territorial issue is swaps: Israel would annex a minimal amount of land in the West Bank and in return provide Palestine with the equivalent amount of land from Israel proper. These swaps would be based on demographic and security criteria and be designed to preserve the viability and contiguity of both states. Israel would incorporate a large number of its West Bank settlers and the Palestinians would achieve their goal of 100 percent territorial restitution. Physically linking Gaza and the West Bank could be achieved without splitting Israel by providing the Palestinians unhindered access to and control of a safe-passage route connecting the two areas.

On security issues, the essentials are the nonmilitarization of the Palestinian state and the introduction of an international force -- led by the United States and initially including an Israeli presence -- stationed on Palestinian territory in the Jordan Valley and along the border with Israel. This force would serve as a political deterrent to any attack, thereby enhancing both sides' sense of security. The fact that it would be an international force would meet Palestinian concerns, while the fact that it would, at first, include an Israeli component would help assuage Israeli fears.

Solving the problem of Jerusalem -- claimed by both sides as their political and religious capital -- will require a deal based on the dual notions of demographic and religious self-governance. In other words, what is Jewish -- namely, West Jerusalem and the Jewish neighborhoods of East Jerusalem, including those established since 1967 -- should become the capital of Israel, and what is Arab should become the capital of Palestine. Each religion would have control over its own holy sites. Provisions would be made to ensure the territorial contiguity of both capitals as well as unimpeded access to each community's religious sites.

The remaining question is the status of the Haram al-Sharif or Temple Mount, which both sides claim as sacred. Israel's priority is to preserve its connection to this holiest of sites, the cradle of Jewish identity. For the Palestinians, the key is to make it plain to their people and the larger Arab and Muslim worlds that the Haram is theirs. One of the fundamental flaws of prior negotiations was that they viewed this issue through the lens of sovereignty rather than focusing on the practical arrangements required to meet both sides' needs. What should ultimately matter is ensuring that both sides have power over that which affects and concerns them most. Control over the Haram would remain in Palestinian hands -- where, indeed, it has rested since Israel captured East Jerusalem in 1967. At the same time, Israel -- which is less interested in governing the area than in preserving its physical integrity -- would be provided with guarantees against any digging or excavation without its express consent. Those guarantees would be backed by the international community and monitored by an international presence.

This leaves what is perhaps the most vexing topic of all: the question of the Palestinian refugees. With one side clamoring for their right of return and the other adamantly rejecting it, this problem seems like one on which no compromises are possible. Throughout the 2000-2001 negotiations, the Palestinians underestimated the degree to which Israelis associate even a theoretical Palestinian right of return with the prospect of the end of Israel as a Jewish state. Israelis simply cannot comprehend why Palestinian refugees, if given a chance to live in their own country, would instead choose to move to what has become an alien land. The only plausible explanation, in their eyes, is that the Palestinians continue to harbor the desire to undermine Israel's long-term viability as a Jewish state. Given the already uneasy demographic realities in Israel -- which now has a 20 percent Arab minority growing faster than the Jewish population -- it is no wonder that the idea of an Arab influx rings alarm bells.

If the Palestinians seem blind to Israelis' fears, the Israelis, for their part, have belittled the seriousness of the Palestinians' demand. With two-thirds of the Palestinian people still living as refugees, Palestinian nationalism remains, at its roots, a diaspora movement -- born and bred in refugee camps and animated by the desire to recover lost homes and belongings. The sense of injustice at being evicted from their land pervades Palestinians' national consciousness and has defined their struggle -- even more than the desire to establish an independent state.

A solution that satisfied the political demands only of the nonrefugees in the West Bank and Gaza while appearing to ignore the moral, historical, and political demands of the refugees, would be inherently unstable. It would have questionable legitimacy, would undermine the new Palestinian state, and -- most alarming from an Israeli perspective -- would leave open the prospect that a sizeable number of Palestinians would decide to carry on the struggle. Although denying outright the Palestinians' right of return might seem a way to end Israelis' immediate anxiety, it would not end the conflict; it would only transfer the seat of unrest to the Palestinian diaspora without eliminating the threat to Israel's security.

The challenge is to find a stable and durable solution that accommodates both the refugees' yearning to return to the areas they left in 1948 and Israel's demographic fears. This can be accomplished by relying on two basic principles. First, refugees should be given the choice to return to the general area where they lived before 1948 (along with the choice to live in Palestine, resettle in some third country, or be absorbed by their current country of refuge if the host country agrees). Second, any such return should be consistent with the exercise of Israel's sovereign powers over entry and resettlement locations. Many of the refugees presumably want to go back to their original homes. But these homes, and indeed, in many cases, the entire villages where they were located, either no longer exist or are now inhabited by Jews. The next best option from the refugees' own perspective would be to live among people who share their habits, language, religion, and culture -- that is, among the current Arab citizens of Israel. Israel would settle the refugees in its Arab- populated territory along the 1967 boundaries. Those areas would then be included in the land swap with Palestine and thereby end up as part of the new Palestinian state.

Together with generous financial compensation and other incentives to encourage refugees to resettle in third countries or in Palestine, this solution would promote several key interests. On one side, Palestinian refugees would carry out the right of return. For them, returning to the general area from which they fled or were forced to flee in the 1948 war would be extremely significant because it would cross an important psychological and political threshold. Although they would not return to their original homes, the refugees would get to live in a more familiar and hospitable environment -- and one that would ultimately be ruled not by Israelis, but by their own people. Through the swap, Palestine would acquire land of far better quality than the desert areas adjacent to Gaza that have been offered in the past. For Israelis, meanwhile, this solution would actually improve the demographic balance, since the number of Arab Israelis would diminish as a result of the land transfer. Most important, it would pave the way for a stable outcome in which Palestinians in Gaza, the West Bank, and the diaspora would all have an important stake.

Of course, such a solution would not be problem-free. Israelis might fear that it will add to the anxiety and discontent of the Israeli Arabs who remained under Israeli sovereignty. But the demographic and political problems posed today by the Israeli Arab community already demand urgent attention. How better to neutralize their potentially irredentist feelings than to resolve the broader Israeli-Palestinian conflict?

Some Palestinians might argue that the above plan represents nothing more than a sleight of hand, disguising resettlement in Palestine as a return to their pre-1948 lands. But do the refugees actually want to live in Jewish areas that have become part of an alien country? Would they rather live under Israeli rule than Palestinian rule? And short of calling into question Israel's Jewish identity, is there any other way of implementing the Palestinian right of return?

Lurking behind every dispute over the substance of an Israeli- Palestinian deal is the problem of its implementation. Over the past decade, Israelis and Palestinians have routinely balked at carrying out obligations they have agreed to. Just as routinely, the international community has watched these violations helplessly and done nothing to stop them. Achieving a lasting final-status agreement now will require some means to persuade both parties that this time, commitments will actually be upheld.

A U.S.-led international force would help provide such assurances. This force would do more than merely verify compliance on the ground -- although it would do that too, adding an element that has been missing from previous accords. The international force would also act as a neutral broker and referee. It would be the recipient for each side's assets during the initial period of implementation -- receiving weapons from the Palestinians, for example, and land from Israel. Handing over valuable assets to a dependable foreign trustee would be much easier for each side than turning them over to a partner deemed untrustworthy. Implementation of these steps could be tied to a transparent system of international incentives and disincentives (such as economic aid to the Palestinians or security assistance to Israel), thus further promoting accurate and timely compliance.

The paradox is that, although the outlines of a solution have basically been understood for some time now, the way to get there has eluded all sides from the start. The lesson of the interim period, and the type of final-status negotiations that concluded it, is that relying on the intentions of Israeli or Palestinian leaders is a strategy with scant chance of success. The nature of the conflict, the imbalance of power, domestic politics on both sides, the character of the negotiators, the psychological makeup of the leadership -- all these factors have prevented the parties from moving toward a solution.

What is needed to overcome this deadlock is a novel process, a means of waging diplomacy that is independent of the will and whims of the parties' leaderships, one that does not cater to their immediate preferences and that bypasses their immediate constraints. Achieving such a deal will require the forceful intervention of outside actors who can present a package that resonates with both the Israeli and the Palestinian peoples, addressing their fears and concerns and showing that some way out of the impasse is actually possible.

Led by the United States, the effort should involve a broad coalition of European, Arab, and other countries and institutions capable of providing security, as well as economic and political support, to Israelis and Palestinians. The proposal should be sanctioned by a UN Security Council resolution and complemented by a number of third-party arrangements such as a U.S.-Israeli defense treaty, possible Israeli membership in NATO, a pledge by Arab nations to recognize Israel and move toward the normalization of their relations (a process that, to be completed, would also require a peace deal with Syria), American and European security guarantees to the Palestinian state, and a sizable aid package to help build the new state's economy.

The forceful presentation by a U.S.-led international coalition of a deal like the one outlined above would oblige the leaderships of both sides to either sign on or defy the world -- along with large segments of their own publics. Indeed, even an immediate negative reply from one or both sides would neither erase the initiative nor rob it of its importance, for the very proposal would marginalize those reluctant to espouse it and set in motion a new political dynamic that, in due course, would force a change of heart among the leaders -- or else a change of leaders.

Some will argue that anything coming from the outside will be viewed as a foreign imposition and therefore be rejected. However, if the deal is based on past and present Israeli-Palestinian discussions it will not be viewed as imposed from outside; and if it is fair, it is unlikely to be rejected. This would not be a case of outsiders seeking to force a secretly concocted agreement on unwilling parties, since the core of the agreement will have derived from the parties' own previous interactions. Moreover, the mechanism of ratification should be predicated on popular referenda in Israel and among the Palestinian people and should be built into the proposal itself.

The danger is to believe that what looks practical and down-to-earth -- step-by-step rebuilding of the process, resumption of security cooperation, gradual improvements on the ground -- is the preferable approach. The incrementalism of the previous decade has proved bankrupt time and again because it was based on a misunderstanding of the nature and dynamics of the conflict. The approach did not fail as a result of the parties' ill will or a lack of faithful implementation; rather, it was the approach that contributed to both.

Seldom has more ink been spilled than over the issue of whether Israeli or Palestinian leaders genuinely want or can make a final deal. These are assumed to be the key questions, the answers to which can unlock the door to a peaceful settlement. But they are not and cannot. The point now should not be to accommodate the Israeli and Palestinian leaders' limitations and shape the effort to fit their proclivities; it should instead be to make the limitations of both sets of leaders irrelevant. As violence continues to threaten and the outlines of a fair agreement lie idly by for all to see, the notion of simply waiting for these leaders to finally negotiate a deal or for the two sides to gradually regain their trust in each other is ringing increasingly hollow. The time has come for an effort that is neither top-down nor bottom-up, but outside-in: the forceful presentation by external actors of a comprehensive, fair, and lasting deal.

Hussein Agha is Senior Associate Member of St. Antony's College, Oxford University. He has been involved in Israeli-Palestinian affairs for more than 30 years. Robert Malley is Middle East Program Director at the International Crisis Group. Between 1998 and 2001, he was President Clinton's Special Assistant for Arab-Israeli Affairs.

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