Only EU support for absolute right of Palestinians to self-determination will bring change

January 21, 2013
Sarah Benton

In this posting, 1) Henry Siegman, One Last Chance for the Two-State Solution; 2) Britain and France ‘spearheading new Middle East peace plan’  ; 3) Chapter 7, UN Charter


One last chance for the two-state solution

The real test of any new peace talks

By Henry Siegman, Prospect magazine
January 18, 2013

One of Israel’s most respected political scientists recently dismissed the idea “that simply engaging in negotiations will automatically foster a peace agreement” between Israel and the Palestinians. Writing in Haaretz, Shlomo Avineri, a former director-general of Israel’s foreign ministry, called it “a fantasy proven baseless by the experience of the past 20 years.”

In this he is unquestionably correct. He is off base, however, when he maintains that previous peace initiatives have failed because they tried to resolve questions about the terms of a “permanent status” deal. He argues that even the two sides’ most moderate positions on these core issues are too far apart, making agreement impossible. He therefore proposes that the peace process shift from discussions of the endgame and Palestinian statehood to incremental improvements—“interim agreements, trust-building exercises, unilateral steps and other mechanisms,” that would serve as building blocks for broader future agreements. But this is the most deceptive illusion of all. For what the 20 years of failure to which Avineri refers prove above all is the bankruptcy of incrementalism and confidence-building measures. They were the hallmark of the stewardship of Dennis Ross, special Middle East coordinator for President Bill Clinton, and discredited the peace process.

That illusion should be resisted particularly by those now considering a new attempt at peace talks. European Union countries, led by Britain, France and Germany, are reportedly preparing to present Prime Minister Benjamin Netanyahu and his new government with a new initiative for negotiations with the Palestinians. The initiative is prompted by the anger of European governments at his announcement in November of plans for new construction  in East Jerusalem’s E-1 corridor and other sites around Jerusalem that would effectively exclude the prospective Palestinian state’s capital from East Jerusalem and would also destroy the territorial contiguity of such a state.

The closing off of East Jerusalem to the Palestinians is a deal breaker that forecloses a two-state solution: the creation of a separate Palestinian state alongside Israel. It would also pre-empt any new initiatives President Barack Obama may be considering in his second term with a new team that is likely to be more resolute in its determination to preserve the two-state option.

It is untrue that negotiations that focused on the endgame drove the parties further apart. There were only three such negotiations: the Camp David Summit between prime minister Ehud Barak and Palestinian leader Yasser Arafat in 2000, the Taba talks that followed, and the negotiations between prime minister Ehud Olmert and Palestinian president Mahmoud Abbas at the time of the Annapolis Conference in 2007. Despite their failure, each one advanced the process beyond where it had been.

At Camp David, Palestinians accepted the annexation of the settlement blocs—new towns that Israel has built in the West Bank—and Ehud Barak agreed to the sharing of Jerusalem. The Taba talks that followed narrowed the differences even more. The Olmert-Abbas negotiations of 2007/8 brought the parties even closer together, and according to the principals would have led to an accord had their negotiations not been interrupted by Operation Cast Lead in December, Israel’s military offensive against Gaza, and by Olmert’s resignation.

The peace process was brought to a complete halt only by Netanyahu’s government. Not only did he refuse to address the endgame, but he would not even agree to recognise the pre-1967 border (before the Six-Day War when Israel captured land from Syria, Jordan and Egypt) as the starting point for territorial negotiations. He reacted hysterically when President Obama was about to propose in his address to the State Department on May 19, 2011 that negotiations must begin from that point. Netanyahu called the president and demanded that he remove that proposal from his address. The president did not comply, but he also did not follow up and translate his speech into policy.

The requirement that Israeli-Palestinian talks begin from the 1967 line was so upsetting to Netanyahu and his government because they are unalterably opposed to Palestinian statehood anywhere in Palestine. Obliterating the memory of such a border (going so far as to remove that border from Israeli governmental maps) is therefore seen by Netanyahu as an essential step towards that goal.

To be sure, Netanyahu committed himself to a two-state solution in his landmark speech at Bar-Ilan university in June 2009. Some naively invoke that commitment as evidence that a resumption of the peace process is justified. Tzipi Hotovely, a leading member of Netanyahu’s Likud party, recently explained to these naïfs that the Bar-Ilan speech notwithstanding, Netanyahu has no intention of ever carrying out the evacuation of West Bank settlements. His commitment to the two-state solution was “tactical,” she said, “intended for the world,” but “the Likud will not evacuate settlements.”

The Palestinian people have known all along how utterly disingenuous was Netanyahu’s Bar-Ilan speech. Not only was this self-evident from the facts Netanyahu and his government were creating on the ground, in the form of the West Bank settlements and building in largely Arab East Jerusalem. Senior Likud officials were also the founders and leaders of the “Land of Israel” Knesset Caucus that was established for only one purpose: preventing a Palestinian state in any part of Palestine. At no point did that caucus provoke a murmur of protest from the US or from the Quartet (the joint attempt by the US, UN, EU and Russia to mediate the Israel-Palestinian peace process). Imagine their reaction—or the reaction of the US Congress, for that matter—if President Abbas’s cabinet members had established a “Land of Palestine” Caucus within the Palestinian Authority.

Indeed, even when Netanyahu announced plans to build extensively in the E-1 corridor, the best that the US and the EU were able to say is that such a plan would be an obstacle to peace and to a two-state solution. There were no intimations that such a plan, if implemented, might trigger sanctions against Israel or end the American and European insistence that Palestinians can achieve statehood only in negotiations with the man who has been systematically dismantling what chances for such an accord might still exist.

What Middle Eastern experts, not to speak of the US and European governments that are calling for a return to negotiations, cannot get themselves to acknowledge is that Netanyahu does not accept Palestinian statehood anywhere in Palestine, and will do everything in his power to prevent it because he and his government want the West Bank for themselves. It is that simple. They are convinced that with their vast military superiority over the Palestinians, they can have it all. That is an obstacle to the achievement of a two-state solution that neither incrementalism nor reconfiguration of parameters for resumed negotiations (a subject to which leading US Middle East experts last year devoted an entire book) can overcome. Anyone who still does not understand this simple reality, or who refuses to address it, has little to contribute to a discussion of this subject.

To be sure, Israelis remain concerned about retaining the financial, military and diplomatic support of the US, but Netanyahu is convinced this is not a problem. He believes he exercises greater control over the US Congress than does President Barack Obama.

As ridiculous as this may sound, there are good reasons for that belief. The main TV commercial in Netanyahu’s campaign for reelection in January to his third premiership of the country featured his last address to the combined US Senate and House of Representatives, whose members jumped up from their seats to applaud wildly every second sentence in his speech. The speech included the suggestion that the West Bank is “disputed” territory, not occupied territory, to which Israel has as much a claim as do the Palestinians, a claim rejected by the whole world, the only exceptions being residents of the Capitol building in Washington.

But it is not only the behaviour of the US Congress that gives Netanyahu and his supporters the confidence that the US will always have their back. It is a notion reinforced by President Obama as well. In his speech to the UN General Assembly in September of 2011, he admonished Palestinians, saying that they could achieve statehood only through negotiations with Israel. He thus removed the issue from the realm of international legality and turned it over to the man he knew, from the experience of his first two years in office, will never allow that to happen.

Both formally and politically, what the president said is untrue. Formally, the right to self-determination by a majority population in previously mandated territories is a “peremptory norm” in international law. The implementation of that right was one of the primary purposes of the UN’s establishment, and international courts have confirmed it is a right that even overrides conflicting treaties or agreements. The only reason the Security Council has failed in its clear responsibility to implement the Palestinians’ right to self-determination is Obama’s threatened veto.

Practically, it is true that given its overwhelming military power, and the virtually uncritical support it receives from the US in the exercise of that power, Israel’s government can and will continue to block Palestinian statehood. But that is a reason not to subject the Palestinians’ peremptory right to self-determination to an Israeli veto. Instead it is a reason to demand that the UN exercise the role assigned to it by its charter. Israel’s engagement with the Palestinians will cease to be the historic fraud it has been only when its government comes to believe that its continued stonewalling will lead to America’s support for intervention by the Security Council. That is yet to happen.

The problem is that too often the policy proposals of experts and diplomats are shaped in response to the claims made by the protagonists, but not by realities on the ground. Israel’s government insists it has no choice but to continue its occupation because it has made many painful concessions, and promised more, only to run up against Palestinian refusals to consider reciprocal concessions. It will put to you that in return for Prime Minister Ariel Sharon’s magnanimous unilateral withdrawal from Gaza in 2005, President George W. Bush agreed to allow Israel to take in the main settlement blocs.

However, Israel has not offered a single concession on any of the issues in dispute. On every one, whether borders, territory, Jerusalem, refugees, water or security, it wants the concessions to be made by Palestinians. Not a single concession has been offered by Netanyahu on Israel’s side of the 1967 border.

As to the alleged “gift” of the settlement blocs to Sharon, Secretary of State Condoleezza Rice said this at a joint press conference with Israel’s then-foreign minister Tzipi Livni in February 2006:

“The United States position on [unilateral changes in the border] is very clear and remains the same. No one should try and unilaterally predetermine the outcome of a final status agreement. That’s to be done at final status. The President did say that at the time of final status, it will be necessary to take into account new realities on the ground that have changed since 1967, but under no circumstances should… anyone try and do that in a preemptive or predetermined way, because these are issues for negotiation at final status.”

Netanyahu has famously accused Palestinians of demanding that Israel “give and give, while they only take and take.” This comes from the head of a government that has already helped itself to more than 60 per cent of the West Bank. Here is what Israel’s president, Shimon Peres, had to say on the subject. When challenged to defend his claims for the importance of the 1993 Oslo Accords (and for which he was awarded the Nobel Peace Prize), Peres said, “Before Oslo, the Palestinian state’s size should have been according to the 1947… UN map. In Oslo, Arafat moved from the 1947 map to the 1967 one. He gave up on 22 per cent of the West Bank. I don’t know any Arab leader who would give up 2 or 3 per cent. He gave up 22 per cent.” (But instead of acknowledging that this concession was a gut-wrenching one-sided Palestinian contribution to peace, Peres described it as “our greatest achievement.”)

* * *

If Netanyahu and his new government are not to continue on their certain road to apartheid, President Obama would have to leave no doubt in their minds that the “special relationship” between the US and Israel has its roots in shared values, and an Israeli government that acts in egregious violation of those values undermines that special relationship. International law grants native populations of former colonies the right to national self-determination. An Israel that denies Palestinians that right—in this case, in the territories beyond the pre-1967 border—while at the same time denying them full and equal Israeli citizenship is not a democracy but an apartheid state.

Is President Obama up to that challenge? Nothing in his performance during his first term in office would indicate that he is. However, two recent developments hold out some hope. The first, as indicated above, is his nomination of Senator John Kerry as Secretary of State and Senator Chuck Hagel as Secretary of Defence—two men who have few illusions about the reason for the failure of the peace process and the courage to speak the truth.

The second are intimations of a new European initiative to present to Israel’s new government a set of clear parameters that establish the pre-1967 border (with provision for equal land swaps to compensate Palestinians for Israel’s retention of the large settlement blocs) as the starting point for resumed peace talks. It is a parameter that by definition precludes Israel’s unilateral annexation of all of East Jerusalem. Another parameter would preclude a large scale return of Palestinian refugees to their previous homes in Israel.

Because the UK, France and Germany are reportedly all on board, it is likely this initiative will also receive the backing of most—perhaps all—EU countries. More important, its sponsors are likely to have received assurances that even if Washington will not lead the effort, it will not block it. If so, that would indeed be a significant change of direction. Ironically, the chances of this initiative’s success will only be strengthened if the new Israeli government proves even more rigidly opposed to Palestinian statehood.

But no one should be deceived about the chances of such an initiative if it does not contain the one condition that is the litmus test of its seriousness. That is that if the parties do not accept the parameters or are not able to reach an accord by a certain date, the terms for an end to Israel’s occupation of the West Bank will be determined by the UN Security Council, acting under Chapter VII of the Charter [see below]. If it lacks that provision, or the provision faces the threat of an American veto, the initiative will be as phony as Netanyahu’s commitment to a two-state solution in his Bar-Ilan speech.

For nothing short of the threat of being turned into a pariah by the entire international community because of its apartheid regime will persuade Israel’s electorate to bring back a government that will safeguard the country’s democratic character and accept a viable and sovereign Palestinian state along its border.

Henry Siegman is the president of the US/Middle East Project. He also serves as a non-resident research professor at the Sir Joseph Hotung Middle East Programme, School of Oriental and African Studies, University of London

Britain and France ‘spearheading new Middle East peace plan’

Britain and France are spearheading a new peace proposal for the Middle East that could put the Israel’s leaders on the defensive by pushing them to resolve the conflict with the Palestinians within a year, Israeli officials reportedly said on Sunday.

By Robert Tait, Daily Telegraph
January 13, 2013

Jerusalem–The initiative is expected to be tabled by March following the formation of a new Israeli government after next week’s general election. It will include a provision for a Palestinian state with its capital in east Jerusalem – a major sticking point in past negotiations.

The Yedioth Ahronoth newspaper said the plan was being spearheaded by Britain and France with Germany’s support. It could eventually be adopted as a pan-European initiative by the EU’s foreign policy chief, Baroness Ashton, the newspaper reported.

Disclosure of the initiative follows international condemnation of Prime Minister Benjamin Netanyahu’s Right-wing government over a recent wave of plans to expand West Bank settlements, which the EU and US fear could kill off prospects for a two-state solution.

“We do know that the EU is planning to come up with something after the elections, when the new government has been formed,” one Israeli official told The Daily Telegraph.

“We don’t know if it’s going to be a fully-fledged plan, or an idea or something more or less ambitious because we have not been consulted. We believe they may want to put forward some sort of deal with parameters but they are perfectly conscious of the fact that an agreement can only be negotiated between the two sides.”

Citing Israeli diplomatic sources, Yedioth Ahronoth, said the proposal would suggest negotiations based on pre-1967 borders with possible land swaps and push for all core issues to be resolved by the end of 2013. It would also demand a freeze on building work in the settlements.

“There is great movement behind the scenes. The Europeans can’t force Israel to enter into an agreement, but they can certainly put us in an awkward position,” an Israeli diplomatic official told the newspaper.

“It is likely the Palestinians will accept it and that Israel will have some difficulty. It will drive us into the corner.”
Mr Netanyahu said Israel would continue to build after security forces early on Sunday evicted dozens of Palestinian activists from a makeshift protest camp in the highly-sensitive E1 area in the West Bank.

The camp, known as Bab al-Shams, was erected last Friday in protest at Israel’s decision to start planning processes for building new settlements, despite warnings that it could destroy the territorial coherence of a future Palestinian state.
“We will not allow anyone to harm the contiguity between Jerusalem and Maale Adumim [a Jewish settlement next to the area],” Mr Netanyahu told the Israeli cabinet after praising the eviction of the activists.

The Foreign Secretary, William Hague, told the Commons last month that he was consulting with his French and German counterparts about how to lend European weight to a US-led peace initiative.

“The Foreign Secretary has made the UK position clear in recent statements to the House,” a Foreign Office spokesman said. “The only way to give the Palestinian people the state that they need and deserve and the Israeli people the security and peace they are entitled to, is through a negotiated two-state solution, and time for this is now running out.

“This requires Israelis and Palestinians to return to negotiations, Israel to stop illegal settlement building, Palestinian factions to reconcile with each other and the international community led by the United States and supported by European nations to make a huge effort to push the peace process forward urgently.
“The UK is working with international partners to that end.”

A spokesman for Baroness Ashton said she had been asked to take the lead in promoting peace talks. “There is no secret initiative on the Middle East peace process,” he said. “However, the last meeting of the EU Foreign Affairs Council tasked the High Representative [Baroness Ashton] to take the lead in advancing the work on the Middle East peace process on the various strands.”


[Chapter 7 of the Charter of the United Nations authorising the Security Council to call on member states to use a range of measures, from boycott and breaking off diplomatic relations to military force, in order to restore international peacae and security in the event of any threat to the peace, breach of the peace, or act of aggression]

Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 43
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.
Article 44

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member’s armed forces.

Article 45
In order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Staff Committee.

Article 46
Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47
There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.
The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee’s responsibilities requires the participation of that Member in its work.
The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently.
The Military Staff Committee, with the authorization of the Security Council and after consultation with appropriate regional agencies, may establish regional sub-committees.

Article 48
The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 49
The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Article 50
If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems.

Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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