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If Kerry Fails, Then What

The Bottom Line for Palestinians

by SAM BAHOUR and TONY KLUG

Suppose the US Secretary of State, John Kerry, fails to cajole the Israeli and Palestinian leaders into finally ending their conflict. What would happen next?

A tsunami of pent-up animosities is likely to be unleashed, with each side holding the other responsible for the failure and calling for retribution. Attempts to indict and isolate each other would gather pace and violence might return with a vengeance. The toxins let loose will inevitably have global spillover.

For over twenty years process has trumped outcome, but it is now in danger of being out-trumped itself by the total collapse of the only internationally recognized paradigm for a solution to the conflict. A new international strategy urgently needs to be devised and made ready as an alternative to the prospect of failed bilateral negotiations. Any such strategy should be rooted in a vision of the endgame, based on the principles of a rapid end to the Israeli occupation and equality between Palestinians and Israelis.

Our proposal takes as its starting point the need to resolve two crucial ambiguities regarding Israel’s control of the West Bank and Gaza: its rule over the Palestinians and the colonization of their land. Resolving these matters are essential to achieving a final resolution of the conflict.

First, is it, or is it not, an occupation? The entire world, including the US, thinks it is, and therefore considers the Fourth Geneva Convention and other relevant provisions of international law to apply. The Israeli government contests this on technical grounds, arguing that the Geneva Convention relates only to the sovereign territory of a High Contracting Party, and that Jordan and Egypt did not have legal sovereignty over the West Bank and Gaza Strip (respectively) when they previously governed these territories.

On the basis of this reasoning, Israel has maintained that the Geneva Convention does not strictly apply, and therefore it is not legally forbidden from annexing, expropriating and permanently settling parts of the territory it captured during the 1967 Arab-Israel war.

But at other times, the Israeli authorities rely on the Geneva Convention to validate its policies, particularly with regard to treating Palestinians under Israel’s jurisdiction but outside its sovereign territory differently from Israeli citizens, citing the provisions that prohibit altering the legal status of an occupied territory’s inhabitants.

This ambiguity has served the occupying power well, enabling it to cherry-pick the articles of the Geneva Convention and have the best of both worlds, while the occupied people has the worst of them.

Second, at what point does an occupation cease to be an occupation and become a permanent or quasi-permanent state of affairs? Nearly half a century on, during which time significant alterations have been made to the infrastructure of the territory, is it realistic for the Israeli occupation still to be deemed simply an ‘occupation’, with its connotation of temporariness?

Our contention is that the occupying power should no longer be able to have it both ways. The laws of occupation either apply or do not apply. If it is an occupation, it is beyond time for Israel’s custodianship — supposedly provisional — to be brought to an end. If it is not an occupation, there is no justification for denying equal rights to everyone who is subject to Israeli rule, whether Israeli or Palestinian. Successive Israeli governments have got away with a colossal bluff for nearly 47 years. It is time to call that bluff and compel a decision.

The Israeli government should be put on notice that, by the 50th anniversary of the occupation, it must make up its mind definitively one way or the other. A half a century is surely enough time to decide. This would give it until June 2017 to make its choice between relinquishing the occupied territory — either directly to the Palestinians or possibly to a temporary international trusteeship in the first instance — or alternatively granting full and equal citizenship rights to everyone living under its jurisdiction.

Should Israel not choose the first option by the target date, it would be open to the international community to draw the conclusion that its government had plumped by default for the second option of civic equality. Other governments, individually or collectively, and international civil society, may then feel at liberty to hold the Israeli government accountable to that benchmark.

The three-year window would be likely to witness vigorous debate within Israel and induce new political currents that may be more conducive to a swift and authentic deal with the Palestinians over two states, probably within the framework of the 2002 Arab Peace Initiative for which there is polling evidence of growing support among the Israeli population.

We need to break free of the divisive and increasingly stifling one-state-versus-two-states straightjacket that tends to polarize debate and in practice ends up perpetuating the status quo — which is a form of one state, albeit an inequitable one. The aim of our proposal is to bring matters to a head and to enable people to advocate equal rights for Palestinians and Israelis, in one form or another, free of the implication that this necessarily carries a threat to the existence of the state of Israel.

To be clear, this is not a call for a unitary state. How Israelis and Palestinians wish to live alongside each other is for them to decide and the indications still are that both peoples prefer to exercise their self-determination in their own independent states. Our proposal would not foreclose this option. It would remain open to the Palestinians to continue to agitate for sovereignty over the West Bank and Gaza, for a future Israeli government to relinquish these territories and, in extremis, for the Security Council to enforce the creation of two states through the UN Charter’s Chapter VII mechanism. However, until this is finally determined, equal treatment should replace ethnic discrimination as the legitimate default position recognized by the international community.

A similar principle should extend throughout the region. The stateless Palestinians — not just the four million living under Israeli military occupation but also the five million who have been living as refugees in the surrounding states for the past 66 years — suffer discrimination all over the Middle East. In almost every Arab state, their rights are severely curtailed and they are mostly denied citizenship, even where they, their parents or their grandparents were born in the country. Whatever may have been the original explanation, their continuing limbo status is shameful so many years on.

The bottom line is that until the Palestinians, like the Israelis, achieve their primary choice of self-determination in their own state (if ever they do), they should no longer, in the modern era, be denied equal rights in whatever lands they inhabit. In the case of Israel and its indefinite occupation, this means putting an end to the ambiguities that have lasted for far too long. Suppose the US Secretary of State, John Kerry, fails to cajole the Israeli and Palestinian leaders into finally ending their conflict. What would happen next?

A tsunami of pent-up animosities is likely to be unleashed, with each side holding the other responsible for the failure and calling for retribution. Attempts to indict and isolate each other would gather pace and violence might return with a vengeance. The toxins let loose will inevitably have global spillover.

For over twenty years process has trumped outcome, but it is now in danger of being out-trumped itself by the total collapse of the only internationally recognized paradigm for a solution to the conflict. A new international strategy urgently needs to be devised and made ready as an alternative to the prospect of failed bilateral negotiations. Any such strategy should be rooted in a vision of the endgame, based on the principles of a rapid end to the Israeli occupation and equality between Palestinians and Israelis.

Our proposal takes as its starting point the need to resolve two crucial ambiguities regarding Israel’s control of the West Bank and Gaza: its rule over the Palestinians and the colonization of their land. Resolving these matters are essential to achieving a final resolution of the conflict.

First, is it, or is it not, an occupation? The entire world, including the US, thinks it is, and therefore considers the Fourth Geneva Convention and other relevant provisions of international law to apply. The Israeli government contests this on technical grounds, arguing that the Geneva Convention relates only to the sovereign territory of a High Contracting Party, and that Jordan and Egypt did not have legal sovereignty over the West Bank and Gaza Strip (respectively) when they previously governed these territories.

On the basis of this reasoning, Israel has maintained that the Geneva Convention does not strictly apply, and therefore it is not legally forbidden from annexing, expropriating and permanently settling parts of the territory it captured during the 1967 Arab-Israel war.

But at other times, the Israeli authorities rely on the Geneva Convention to validate its policies, particularly with regard to treating Palestinians under Israel’s jurisdiction but outside its sovereign territory differently from Israeli citizens, citing the provisions that prohibit altering the legal status of an occupied territory’s inhabitants.

This ambiguity has served the occupying power well, enabling it to cherry-pick the articles of the Geneva Convention and have the best of both worlds, while the occupied people has the worst of them.

Second, at what point does an occupation cease to be an occupation and become a permanent or quasi-permanent state of affairs? Nearly half a century on, during which time significant alterations have been made to the infrastructure of the territory, is it realistic for the Israeli occupation still to be deemed simply an ‘occupation’, with its connotation of temporariness?

Our contention is that the occupying power should no longer be able to have it both ways. The laws of occupation either apply or do not apply. If it is an occupation, it is beyond time for Israel’s custodianship — supposedly provisional — to be brought to an end. If it is not an occupation, there is no justification for denying equal rights to everyone who is subject to Israeli rule, whether Israeli or Palestinian. Successive Israeli governments have got away with a colossal bluff for nearly 47 years. It is time to call that bluff and compel a decision.

The Israeli government should be put on notice that, by the 50th anniversary of the occupation, it must make up its mind definitively one way or the other. A half a century is surely enough time to decide. This would give it until June 2017 to make its choice between relinquishing the occupied territory — either directly to the Palestinians or possibly to a temporary international trusteeship in the first instance — or alternatively granting full and equal citizenship rights to everyone living under its jurisdiction.

Should Israel not choose the first option by the target date, it would be open to the international community to draw the conclusion that its government had plumped by default for the second option of civic equality. Other governments, individually or collectively, and international civil society, may then feel at liberty to hold the Israeli government accountable to that benchmark.

The three-year window would be likely to witness vigorous debate within Israel and induce new political currents that may be more conducive to a swift and authentic deal with the Palestinians over two states, probably within the framework of the 2002 Arab Peace Initiative for which there is polling evidence of growing support among the Israeli population.

We need to break free of the divisive and increasingly stifling one-state-versus-two-states straightjacket that tends to polarize debate and in practice ends up perpetuating the status quo — which is a form of one state, albeit an inequitable one. The aim of our proposal is to bring matters to a head and to enable people to advocate equal rights for Palestinians and Israelis, in one form or another, free of the implication that this necessarily carries a threat to the existence of the state of Israel.

To be clear, this is not a call for a unitary state. How Israelis and Palestinians wish to live alongside each other is for them to decide and the indications still are that both peoples prefer to exercise their self-determination in their own independent states. Our proposal would not foreclose this option. It would remain open to the Palestinians to continue to agitate for sovereignty over the West Bank and Gaza, for a future Israeli government to relinquish these territories and, in extremis, for the Security Council to enforce the creation of two states through the UN Charter’s Chapter VII mechanism. However, until this is finally determined, equal treatment should replace ethnic discrimination as the legitimate default position recognized by the international community.

A similar principle should extend throughout the region. The stateless Palestinians — not just the four million living under Israeli military occupation but also the five million who have been living as refugees in the surrounding states for the past 66 years — suffer discrimination all over the Middle East. In almost every Arab state, their rights are severely curtailed and they are mostly denied citizenship, even where they, their parents or their grandparents were born in the country. Whatever may have been the original explanation, their continuing limbo status is shameful so many years on.

The bottom line is that until the Palestinians, like the Israelis, achieve their primary choice of self-determination in their own state (if ever they do), they should no longer, in the modern era, be denied equal rights in whatever lands they inhabit. In the case of Israel and its indefinite occupation, this means putting an end to the ambiguities that have lasted for far too long.

Sam Bahour is a Palestinian-American business consultant in Ramallah and serves as a policy adviser to Al-Shabaka, the Palestinian Policy Network.

Tony Klug is a veteran Middle East analyst and a special advisor to the Oxford Research Group.

This article originally appeared in the English language edition of Le Monde Diplomatique.