July 18, 2010
Parameters for a Final Peace Agreement between Israel and the PA
It is safe to say that the purpose of the Netanyahu-Obama meeting on July 6 was to demonstrate that the two are friends and that the U.S.-Israel bond is unbreakable. Obama needed to send such a message going into the November elections, and Netanyahu needed such a message to keep his coalition intact.
That doesn't mean that the settlement freeze will end in September.
Netanyahu announced that he expected direct talks to start within weeks, and Saeb Erekat announced that the PA wants the freeze to continue and wants guarantees that the direct talks will result in "the establishment of an independent Palestinian state on the lands captured in the 1967 war and small territory exchanges to solve the problem of the settlements."
It is entirely possible that Obama will broker a deal whereby the PA agrees to talks in exchange for a continuation of the freeze in whole or in part. It is less likely that Obama will give such a guarantee.
Many people argue that we know what the ultimate deal will look like -- namely the creation of an independent, viable, contiguous Palestinian state with the '67 borders with minor swaps, a divided Jerusalem, and a just solution to the refugee problem. The truth is quite the opposite.
The peace process began with UNSC Resolution 242, whose goal it was to achieve a "peaceful and accepted settlement." Thus, any settlement must be agreed upon and not imposed. The resolution required "[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict." There was much debate before this language was adopted by the UNSC, clearly indicating that not all territories must be withdrawn from. In fact, Israel has already withdrawn from more than 90% of such territories in the form of Sinai and Gaza. Little-noticed is that this provision requires no withdrawal from territories occupied in the '48 war of independence.
This resolution also provided that such a settlement must include "termination of all claims or states of belligerency" and the recognition that "every State in the area" has the "right to live in peace within secure and recognized boundaries free from threats or acts of force." This is the basis for Israel demanding an end-of-conflict agreement.
At the Rabat Conference in 1974, Jordan and all Arab countries recognized the PLO as the "sole legitimate representative of the Palestinian people" with respect to Judea and Samaria (the West Bank).
Egypt signed such a peace treaty with Israel in 1980. Jordan signed a peace treaty with Israel in 1994.
Pursuant to the Oslo Accords, Israel must now reach an agreement with the Palestinian Authority, which replaced the PLO as the negotiating party. The Oslo Accords did not predetermine the disposition of Jerusalem, borders, Israeli settlements, and refugees other than to label them as final status issues to be negotiated. The Oslo Accords envisioned a settlement pursuant to the parameters of Resolution 242.
In 2003, the Roadmap was accepted by the PA and by Israel, albeit subject to fourteen reservations. Chief among the changes to the peace parameters of Oslo was the insertion of the Saudi Plan, later adopted as the Arab League Initiative. This plan was at odds with Resolution 242 in that it required the withdrawal from all occupied territories subject to minor swaps of land of equal value, the division of Jerusalem, and a just settlement of the refugee problem pursuant to General Assembly Resolution 194, which provided
that refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for property of those choosing not to return.
This resolution, being passed by the General Assembly, was not binding.
PM Sharon objected strenuously to the insertion of the Saudi Plan, but Secretary Powell overcame his objections by ramming it down his throat, arguing that "the Roadmap is only a process."
Sharon had one more bite at the apple when he was negotiating with President Bush for a letter of commitment and principles in conjunction with the proposed disengagement from Gaza.
Dore Gold of the JCPA commented on the significance of this letter.
- President Bush's April 14, 2004, letter to Prime Minister Sharon represents a significant shift in U.S. policy, as compared to the Clinton Parameters advanced by the former president after the failed Camp David Summit of July 2000 and in subsequent months.
- In his plan, Clinton provided conditional approval of settlement blocs, but insisted that there needed to be "territorial swaps" of land from pre-1967 Israel in exchange for any West Bank land Israel would retain. Bush does not insist on any land swaps involving Israeli territory.
- Clinton spoke of Palestinian refugees finding homes in other states including Israel, while Bush states that Palestinian refugees should be settled in a future Palestinian state "rather than Israel."
- The Clinton Parameters dropped the idea of defensible borders and replaced them with "security guarantees" including a proposed "international presence" in the Jordan Valley. In contrast, Bush refers to "defensible borders" in the context of preserving and strengthening "Israel's capability to deter and defend itself, by itself."
- According to the Clinton Parameters, Israel's security needs "need not and should not come at the expense of Palestinian sovereignty or interfere with Palestinian territorial integrity." In contrast, Bush allows for Israel to continue to control airspace, territorial waters, and land passages in the Gaza Strip and the West Bank "pending agreements or other arrangements."
- During the Clinton era, the signing of a peace treaty was supposed to produce security for Israelis. Under Bush, security must be achieved first, as a prerequisite for peace. Given the threats Israel still faces from Hamas, Islamic Jihad, and Yasser Arafat's own Fatah Tanzim, the approach taken in the Bush letter represents a significant improvement for Israel and for the prospects of a lasting peace.
- The Clinton Parameters explicitly envisioned the re-division of sovereignty in Jerusalem according to a formula whereby "what is Arab should be Palestinian" and "what is Jewish should be Israeli." Bush's letter is silent on the issue of Jerusalem. While support for a unified Jerusalem under Israeli sovereignty is missing, at least there is no attempt to return to the Clinton formulations.
Thus, the Clinton Parameters were much in line with the Saudi Plan, and the Bush letter flew in the face of both of these and resorted to Resolution 242, which provided the original parameters of Oslo.
In June of last year, Secretary Clinton disavowed the Bush letter, saying it "did not become part of the official position of the United States government." Israel begs to differ.
When Obama was interviewed by Yonit Levi for Israel TV on July 7, he said at forty seconds into Part 2, "our view on settlements is consistent with all the previous administrations" and continued "that view was always voiced not in the spirit of trying to undermine Israel's security but to strengthen it." He made it clear that he was talking about the freeze, which he called the "moratorium."
Keep in mind that there are two separate but interconnected issues here: namely where Israel can build in the interim and what lands she is expected to cede in the final agreement. Bush's letter clearly referred to the parameters for final settlement, but such parameters have implications for where he permitted Israel to build in the interim. Israel and the Bush administration had agreed that Israel could build within the construction line of the settlements in Judea and Samaria and could build unabated in the settlement blocks. Obama is flat-out wrong to say that his view on settlements is consistent with that of Bush. It isn't. By demanding the freeze, Obama was against Israel building anywhere east of the green line.
The Jerusalem Post reported on July 5,
"according to [an Israeli] proposal, Obama would publicly hint at acceptance of then-US president George W. Bush's 2004 letter to then prime minister Ariel Sharon, and Netanyahu would say that while settlement construction would continue inside the large settlement blocks, it would not be restarted outside of those areas.
The Washington Times reported the next day on the significance of the Bush letter and reported that Dan Shapiro, the White House National Security Council's senior director for the Middle East and North Africa, "declined to say whether the 2004 letter reflected the Obama administration's understanding of the parameters or borders of a final settlement to the conflict."
So this proposal is still out there. President Obama must accept the terms of the Bush letter for there to be any progress. Even then, there will be great debate on what blocs will be included. Negotiations will include whether Israel will cede Arab east Jerusalem (where the Palestinians live) to the PA and whether it will allow a token return of refugees, both in line with the Clinton parameters. It is likely that if Israel gets to retain more land and settlements, it will be more flexible on accepting a token number of refugees. Thus, all the issues are interrelated.
In the interview mentioned above, Obama was asked if he was still demanding a freeze, and he replied that he now only seeks direct negotiations. Make of that what you will.
Still to be debated are whether Israel will get defensible borders and whether the Bush letter will be followed in placing Israel security needs above Palestinian sovereignty.
The fact that the PA doesn't speak for nearly half the Palestinians who are living in Gaza is an issue that can not be ignored. If Israel came to an agreement with the PA on final status issues, Hamas, which runs Gaza and remains dedicated to Israel's destruction, could hold out. The fact that the PA continues to incite sentiment contrary to the Roadmap is also ignored.
The bottom line is that all issues are to be negotiated and agreed upon. This requirement is in both Resolution 242 and the Roadmap. If there is no agreement between the two parties, which is likely, will Obama or the U.N. attempt to impose a plan, even though it is illegal to do so under prior agreements?
Ted Belman is a retired lawyer and editor of Israpundit. He made aliya in 2009 and lives in Jerusalem.