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US pulls the plug on settlement moratorium deal

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Update from AIJAC

December 10, 2010
Number 12/10 #04

The US government has announced it is no longer seeking a second Israeli moratorium on construction in settlements for 90 days. This is because, according to  a senior administration official quoted in the New York Times, the administration "concluded that even if Mr. Netanyahu persuaded his cabinet to accept a freeze — which he had not yet been able to do — the 90-day negotiating period would not have produced the progress on core issues that the United States originally had sought." This Update looks at the way forward from here on Israeli-Palestinian peacemaking.

First up is the always insightful Robert Satloff, the director of the Washington Institute for Near East Policy, who sees this decision as a good opportunity for the US Administration to "reset" its approach to peacemaking. He argues recent efforts focussing on settlements have been a tactical mistake by the US Administration, but makes a case that in fact "the current Israeli and Palestinian leaderships may be closer to agreement on the core issues at contention than is commonly recognized." He offers a concrete program to test this idea, including a focus on getting negotiating "deposits" from the parties, meaning promises to make certain concessions if key conditions are met; focussing more on "bottom-up" state-building and security cooperation; and harnessing Wikileaks embarassment to get more positive involvement from Arab states. For this essential description of the situation and a possible way forward from a top expert, CLICK HERE.  Also saying "good riddance" to the settlement freeze focus is Israeli journalist and blogger Shmuel Rosner, while Barry Rubin argues that in acknowledging the 90-day moratorium would not have achieved anything, the US Administration is finally facing reality.

Next up is Washington Post deputy opinion editor Jackson Diehl, who says that the current impasse imposes a stark choice on US President Obama - double down on Middle East peace or back off. He points out that not only was the Administation's focus on the non-central issue of settlements a tactical mistake, another was not realising that neither Middle East party was that keen for fast progress toward a final settlement. He argues that Obama can either now slow down and re-orient his efforts toward assisting in Palestinian state building, or try to present his own peace plan and impose it on the parties, concluding by warning that the last would likely lead to either a " diplomatic fiasco" or "maybe a new war in the Middle East." For all the details of Diehl's top-flight analysis, CLICK HERE. Also, former US official in charge of Middle East policy Elliot Abrams calls for Obama to re-orient his policy by replacing George Mitchell as his mediator, and takes on Mitchell's repeated efforts to invoke Northern Ireland as an analogy for the Middle East peace process.

Finally, Alan Baker, an international law expert and former Oslo Accords negotiator, discusses the dangers of the trend toward recognising a Palestinian state without a peace deal - something done by a number of South American states this week. Reviewing the relevant treaties and resolutions, Baker argues that these states are not only undermining the Oslo accords, but violating their own commitments at the UN to assist in the pursuit of a genuine two-state agreement, Nonetheless, he says, these acts of "recognition" are purely an expression of a political view, with no legal effect. For his full argument, CLICK HERE. The Jerusalem Post also commented on the problems with such "recognition", while here is some analysis of problems with the text of the "recognition" from Brazil and Argentina.

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Beyond the Freeze Deal: A New Agenda for U.S. Efforts on the Peace Process

By Robert Satloff

PolicyWatch #1732
December 9, 2010

The recent announcement that the Obama administration has ended efforts to negotiate a ninety-day extension of Israel's moratorium on West Bank settlement construction is more opportunity than embarrassment. After twenty-two months of near-fruitless efforts to promote Israeli-Palestinian negotiations conditioned on a total cessation of Israeli settlement activity, the administration can finally focus its efforts on the substance of its diplomatic mission -- to test the tantalizing proposition that the current Israeli and Palestinian leaderships may be closer to agreement on the core issues at contention than is commonly recognized.

Dark Clouds and Silver Linings


By any measure of success, Washington's peace diplomacy deserves a reset. After identifying Middle East peace as a high priority and appointing a top-level envoy on the second day of his administration, President Obama cannot be proud of the fact that there has been less progress in Arab-Israeli diplomacy on his watch than during any presidency since Lyndon Johnson.

Although several factors contributed to this poor record, a central reason -- now broadly recognized by key decisionmakers in the administration -- was the misplaced decision to junk the tacit understanding on Israeli settlement construction limitations reached under the George W. Bush administration, and instead insist on a total freeze of Israeli settlement activity as a condition of U.S. engagement in diplomacy. This new position elevated a tactical issue to center stage, fed a damaging and flawed narrative about the impossibility of diplomatic progress without a freeze, denied both the Israeli and Palestinian Authority (PA) leaders room for political maneuver, and distracted attention from promising opportunities to address core issues on the negotiation agenda. Without Israeli-Palestinian agreement regarding what would happen on day ninety-one, an additional ninety-day settlement freeze would only have exacerbated these problems, not resolved them.

What is little appreciated in this moment of reassessment -- a codeword from the 1970s that American diplomats are at pains to avoid using today -- is how ripe the Israeli-Palestinian arena may be for progress.

First, Israeli prime minister Binyamin Netanyahu commands overwhelming support from the Israeli public for his view that peace requires the creation of an independent Palestinian state that is demilitarized in terms of offensive capabilities, based on the repartition of historic mandatory Palestine. He has privately indicated to the White House (in a manner that reportedly satisfied President Obama), that if his agreement can be reached on security arrangements and recognition of Israel's status as the legitimate and accepted homeland of the Jewish people in a final arrangement that ends all Palestinian claims on Israel, he believes a compromise is achievable on the Palestinians' territorial requirements.

It is important to note that Netanyahu is the third Likud prime minister in a row to endorse the two-state solution, though the previous two -- Ariel Sharon and Ehud Olmert -- did so after leaving the party that brought them to the height of power. While the current Israeli government is an unwieldy, hydra-headed beast that is unlikely to survive a major breakthrough toward real peace with the Palestinians, three other facts are also true: (1) no major political figure on the Israeli political scene opposes the two-state objective; (2) the current right-heavy government has not lost a single member of Knesset, let alone cabinet minister, as a result of either Netanyahu's support of the two-state views or his implementation of the ten-month settlement moratorium; and (3) in the event the government crumbles because the prospect of real peace entails too much compromise for some of its constituent parts, Netanyahu has alternatives without having to resort to new elections.

Another promising indicator is that the "West Bank first" strategy designed after Hamas' 2007 takeover of Gaza to show rapid progress in the security, economic and institutional situation of what remained of PA-controlled territory is succeeding. Thanks to creative and persistent effort by PA prime minister Salam Fayad, prudent support by President Mahmoud Abbas, enlightened self-interest on the part of Israel's security establishment, and important advice and aid from the United States and other international partners, the West Bank today is being transformed.

Especially noteworthy is that the great leap in such progress over the past two years -- security cooperation with Israel, imposition of law and order, economic growth and vitality, improvement in government services, and so forth -- occurred precisely when there was no movement at all on the diplomatic front. While this does not mean that top-down diplomatic progress is unconnected to bottom-up practical progress -- to the contrary, the existence of an organic link between the two directions of peacemaking is recognized universally -- this does mean that something has taken hold on the ground that reflects the very real interests of both Israelis and Palestinians. In that sense, continued progress is even more important than it is commonly viewed to be.

In addition, the separation between the PA-led West Bank and Hamas-led Gaza, combined with the deadlock in "reconciliation" efforts between these bitter rivals, has opened a window of opportunity for Abbas to make decisions without having to temper his positions to take account of Hamas as a junior partner in government. Given Abbas's refusal to bury the hatchet with Hamas and the PA's tough measures against the group's operatives in the West Bank, it is well understood that Hamas will attack him no matter what he says or does. With this certain opposition comes a measure of freedom that, should he wish to exploit it, should provide Abbas leeway to avoid having to hide behind the lowest common denominator of Palestinian public opinion and instead to test whether leadership can bring Palestinians to statehood based on equitable compromise with Israel. Although the West Bank-Gaza division precludes full implementation of any peace deal, it is urgent to test the idea that this same divide offers hope that the PA leadership, unfettered by the chains of intra-Palestinian unity, may actually be able to make a deal.

Turning a New Leaf
In this environment, the demise of the U.S.-Israeli settlement freeze proposal gives Washington the opportunity to engage in a different type of diplomacy to advance President Obama's goal of Israeli-Palestinian peace. Key elements should include:

  • Testing the potential areas of Israeli and Palestinian diplomatic progress through an intensive exercise at winning parallel deposits from each party as to what it would be willing to do, on core issues, should the other meet essential conditions. This would not be a return to the dead end of proximity talks, which were, in practice, talks about talks. Rather, it would be high-level engagement with leaders exploring a set of hypotheticals: If the Palestinians acceded to Israel's security requirements, what territorial withdrawal would be on offer? If the Israelis indicated a willingness to meet Palestinian demands for negotiations based on the 1967 ceasefire lines (with mutually agreed changes), what security arrangements would Palestinians countenance? How would Israeli and Palestinian confidence in each other's commitment to security and territory, respectively, affect perceptions on Jerusalem? These exchanges -- which would require discretion, candor, and authoritativeness -- would not replace eventual direct negotiations, but they would prepare to launch them at a much more advanced stage than is currently the case.
  • Complementing this exploration of high diplomacy with a U.S. decision to give equal diplomatic, bureaucratic, and political weight to the bottom-up process as it does to the top-down process. At the moment, the former is the poor stepchild to the latter. Top-down is sexy and headline grabbing, while bottom-up is messy, unattractive, and to many, boring. That mindset must change.
A good way to do that is, as former U.S. and Quartet official Robert Danin has argued, to endow a high-level U.S. official with responsibility for promoting this effort. This official's responsibility should include strengthening the strong foundation that the PA has begun to lay for the efficient provision of services; the fair and speedy administration of justice; the effort to root out radical Islamist, anti-peace, and anti-Israel sentiment from schools, mosques, and public discourse; and the further reduction of PA reliance on donor aid for budgetary support.
 At the same time, his or her charge should include deepening Israeli-Palestinian practical cooperation on a broad array of security and economic issues. A key element of this task is to explore a series of phased, coordinated steps each side could take -- especially on issues of security responsibility over different zones of territory -- that would anchor the existing progress and insulate bottom-up achievements from vicissitudes in the top-down process. While appointing a new outside envoy for this task is not a requirement for effective policymaking, if Washington takes this part of peacemaking as seriously as it should, then having mid-ranking U.S. Agency for International Development officials run the effort is not the right model either.

  • Channeling the embarrassment of Arab leaders over their WikiLeaks revelations into making real their now-famously hollow commitments to support Palestinians and, more broadly, advance Arab-Israeli peace. As regards the former, the current moment is a rare opportunity to prod Arab leaders into tangible support for the Palestinian institution-building effort and, more generally, to convince them to provide definitive, unconditional, and open-ended cover for Abbas to make decisions on key negotiating issues in the name of both Palestinian and wider Arab interests.
On peacemaking itself, the WikiLeaks moment is an opening to work with Arab leaders on operationalizing the Arab Peace Initiative, first proposed in 2002. So far, Arab diplomacy on that initiative has been nonexistent; Arabs have no strategy to achieve it other than repeated calls on Israel to withdraw to the 1967 lines as a precondition for any real Arab-Israeli engagement, along with self-defeating threats to turn to the United Nations as an alternative to the hard work of peacemaking. This is a pose, not a policy. As Bahrain's crown prince argued at the Manama Dialogue last week, Arabs need to be bold and creative vis-a-vis incremental normalization with Israel if they too are not to miss what could be an opportunity for real progress.

Taken together, this is a new agenda for Middle East peacemaking. It represents the fact that the failure of the past two years was due not so much to collapsed negotiations or a fundamental flaw in the two-state concept, but largely to bungled U.S. tactics. Therefore, the course correction is to fix the U.S. approach and not for the United States to shift direction to another negotiating track (e.g., toward Syria) or for Israelis or Palestinians to choose unilateral options over improved diplomacy. At the heart of this new U.S. approach is a different mindset about the process -- one that values the achievement of goal-driven though incremental progress over setting deadlines, making public demands, and trying to satisfy some elemental wish to be viewed popularly as working toward Middle East peace. This is likely to require major, systemic changes in the internal U.S. decisionmaking apparatus on this issue, which will itself have implications throughout the administration.

This strategy may not work, of course. The spoilers are powerful and the obstacles are high. The potential for conflict on Israel's northern border -- a conflict that could escalate into multifront fighting -- is regrettably real. The persistence of mixed messages from Washington on such a basic issue as whether Iran should believe that the threat of military force is or is not on the table is deeply damaging to U.S. power and influence in the region. And, even with the best of intentions, which should not be taken for granted, there may just not be a deal in the offing.

But for an administration that has identified the pursuit of Israeli-Palestinian peace as a top foreign policy priority, failure to change course, rethink strategy, and put the resources, personnel, and energy into testing the proposition that real progress is possible would itself be a failure tantamount to the two years the process has lost already.

Robert Satloff is executive director of The Washington Institute.

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Obama's double-or-nothing moment in the Middle East

By Jackson Diehl

Washington Post "Post Partisan"
Posted at 1:00 PM ET, 8/ 12/2010

The latest collapse of the Middle East peace process has underlined a reality that the Obama administration has resisted since it took office -- that neither the current Israeli government nor the Palestinian Authority shares its passion for moving quickly toward a two-state settlement. And it has left President Obama with a tough choice: quietly shift one of his prized foreign policy priorities to a back burner -- or launch a risky redoubling of U.S. efforts.

Israelis and Palestinians have conducted face-to-face peace talks off and on for 18 years without agreeing on the issue of Jewish settlement construction in the West Bank and Gaza Strip. Yet the prospect for a renewal of the negotiations that began in September collapsed Tuesday after the Obama administration was forced to announce the abandonment of its latest effort to strike a deal with the government of Binyamin Netanyahu on settlements. Netanyahu agreed in principle to a three-month partial freeze of building in the West Bank but demanded that the White House put its quid pro quo -- including $3 billion worth of advanced warplanes -- in writing. Meanwhile, the Palestinians preemptively announced that the deal wouldn't be good enough for them to end their walkout from the talks, because it didn't include Jerusalem.

As I have pointed out before, the settlements are mostly not material to a deal on a Palestinian state, since both sides accept that the majority of them will be annexed to Israel in exchange for land elsewhere. The issue has become an obstacle in large part because of Obama's misguided placement of emphasis on it, which forced Palestinian President Mahmoud Abbas to embrace a hard line.

But the fact that the administration has been unable to take the issue off the table -- even after offering gold-plated bribes to Israel in exchange for a 90-day freeze -- reflects the fact that both sides are happy to have an excuse not to talk to each other.

Abbas has resisted negotiating with Netanyahu ever since he took office early last year, saying he doesn't believe the right-wing Israeli leader will ever offer serious peace terms. But Abbas also turned down a far-reaching offer from Netanyahu's predecessor; and he's never spelled out his own terms for a settlement. By now it should be obvious: at age 75, he prefers ruling a quiet West Bank to going down in history as the Palestinian leader who granted final recognition to a Jewish state.

Netanyahu has made an effort to show that he is ready to negotiate seriously about Palestinian statehood. But the terms he has talked about -- including a long-term Israeli military presence on the West Bank -- are considerably more stringent than those Abbas already turned down. Even the suggestion by Netanyahu that he would consider concessions such as a division of Jerusalem would probably cause the collapse of his right-wing coalition.

U.S. officials are saying that they will continue to talk to the two sides separately, beginning with meetings next week in Washington with aides to Netanyahu and Abbas. They say they will set the settlement issue aside, and -- as Arab leaders have been urging both in public and private -- focus on the more fundamental issues of a final settlement.

Yet Obama will not meet his goal of an agreement on Palestinian statehood by next August through indirect talks. So this impasse presents him with a choice: He can slow the pace and ambition of his Mideast diplomacy, bowing to the reality that, as former Secretary of State James Baker famously put it, the United States cannot want peace more than the parties themselves. That would give U.S. and Israeli officials time to quietly continue working with Palestinian Prime Minister Salaam Fayyad, who is trying to build the tangible institutions and security forces needed for statehood.

Or Obama could do what Abbas, Egyptian President Hosni Mubarak and Jordan's King Abdullah have wanted all along: prepare a U.S. or international plan for Palestinian statehood and try to impose it on both sides. History -- including that of the last two years -- suggests that double-or-nothing bet would produce a diplomatic fiasco for Obama and maybe a new war in the Middle East. But given Obama's personal fascination with Middle East diplomacy, there's a reasonable chance he'll try it.

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Recognition of a Palestinian State:

Premature, Legally Invalid, and Undermining any Bona Fide Negotiation Process

Alan Baker

Jerusalem Issue Briefs Vol. 10, No. 13   
9 December 2010
  • The acts of recognition of a Palestinian state in 1967 borders by Brazil, Argentina, and possibly other Latin American states have no significance other than as a political expression of opinion.
  • These acts of recognition run counter to statements by Brazil and Argentina in the United Nations Security Council in 1967 in favor of freely negotiated borders between the parties and an internationally sponsored peace negotiation process as set out in Resolution 242.
  • The unceasing efforts among states by the leadership of the Palestinian Authority to attain recognition of unilateral statehood within the 1967 borders and thereby bypass the accepted negotiation process, runs counter to their commitments in their agreements with Israel, as witnessed and guaranteed by members of the international community.
  • The hostile actions and statements of the Palestinian leadership lack bona fides and prejudice any reasonable negotiating ambiance between parties that seek to establish peaceful relations between them, and are indicative of an utter lack of a genuine will to reach a peaceful settlement.
The reported declarations of formal recognition by Brazil, Argentina, Uruguay, and possibly other Latin American states of a “free and independent Palestinian state within the 1967 borders” raise several significant issues – both political and legal, whether in the bilateral political relationship between Israel and those states, and between Israel and the Palestinian Authority.

Recognition of a political entity as a state does not, in and of itself, create a state, as such recognition carries no definitive or substantive significance in the creation of statehood. At most, it is indicative of the political viewpoints of the recognizing states.

Establishment of statehood, on the other hand, requires a series of internationally accepted and customary criteria, as set out in the 1933 Montevideo Convention on the Rights and Duties of States, relating to a capability of governance, permanent population, defined territory, and capacity to enter into relations with other states.

In fact, that convention specified specifically that “the political existence of the state is independent of recognition by the other states.”

But in the Palestinian context these criteria for statehood must be read in the context of the substantive, tailor-made requirements of the various United Nations resolutions dealing with the settlement of the Middle-East issue, as well as the specific commitments by the Palestinians in several still-valid agreements signed with Israel over the years.

This factor was perhaps amplified following a Palestinian attempt to declare statehood in 1988, when over 100 states gave their recognition. But clearly, this unilateral Palestinian attempt to dictate a solution to the Israel-Palestinian issue outside the internationally accepted and sponsored peace negotiation process established by the UN Security Council in Resolutions 242 (1967) and 338 (1973) was never seen to be a serious factor in solving the issue.

Thus, any act of recognition of a Palestinian state, whether by Brazil, Argentina, Uruguay or anyone else, can have no validity whatsoever other than some sort of political expression. To the contrary – such declarations of recognition run counter to the very resolutions to which those states are party, and to the agreements that they themselves have, over the years, endorsed and supported.

Interestingly, the present instance of the Brazilian declaration of recognition of a Palestinian state within “the 1967 borders” would appear to run counter to Brazil's own statement to the Security Council during the course of its acceptance of and support for Resolution 242, in November 1967, when their representative declared:
Its acceptance does not imply that borderlines cannot be rectified as a result of an agreement freely concluded among the interested States. We keep constantly in mind that a just and lasting peace in the Middle East has necessarily to be based on secure permanent boundaries freely agreed upon and negotiated by the neighboring States. (S/PV.1382(OR), 22 November 1967).

In fact, a draft resolution submitted to the Emergency Session of the UN General Assembly by eighteen Latin American states (including Brazil and Argentina) on 30 June 1967 included a call to the parties

...to end the state of belligerency, to endeavor to establish conditions of coexistence based on good neighborliness and to have recourse in all cases to the procedures for peaceful settlement indicated in the Charter of the United Nations. (A/L. 523/Rev.1 para 1(b)).

Thus, the vital and overriding principles advocated by Brazil, Argentina and other states in 1967, endorsing boundaries being freely agreed upon, good neighborliness, and peaceful settlement procedures pursuant to the UN Charter, would appear to have been overlooked by the recent decision of the Brazilian and Argentine governments, at the behest of the Palestinian leaders, to favor unilateral Palestinian dictation of a boundary, without agreement, in violation of any notion of “good neighborliness,” and undermining the UN-sanctioned peaceful settlement procedures.

However, while Brazil, Argentina, and Uruguay may well be undermining their own declared principles, the Palestinian Authority leadership, in actively lobbying for such recognition throughout the world as part of a declared and concerted aim to achieve recognition by the United Nations of a unilaterally declared Palestinian state, and acknowledgement of the 1967 lines as its border, is in fact undermining the whole peace negotiation process and abusing the bona fides of the international community.

Legally speaking, the actions by Palestinian Authority head Mahmoud Abbas, and his aide Sa'eb Erekat, in pushing to achieve this aim are in violation of the Israeli- Palestinian Interim Agreement of 1995, article IX, paragraph 5(a), according to which:

...the [Palestinian] Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.

No less importantly, the Palestinian leadership is committed, in Article XXXI, para. 7, not to “initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”

Any activity by the Palestinian leadership, including lobbying foreign governments for individual recognition and initiating resolutions in United Nations organs to bring about the unilateral establishment a state outside the negotiation process, is a serious violation of their commitments vis-à-vis Israel. It is tantamount to bypassing the internationally accepted negotiating process, and undermining the very resolutions and agreements that serve as the basis and foundation for the peace- negotiation process.

Since the Palestinian commitments vis-à-vis Israel were witnessed and guaranteed by central elements of the international community, including the U.S., UN, EU, Russia, Egypt, and Jordan, and endorsed by most other states, including Brazil and Argentina, then clearly the Palestinian lobbying activities must be condemned by those elements, and should not be encouraged by them.

This problem becomes even more complex on the background of the ongoing and concerted efforts by the Palestinian leadership to block any progress in the negotiating process through their misleading demand that Israel freeze all settlement activity – a demand that has no basis whatsoever in the series of agreements between Israel and the Palestinians.

In addition to the above, it would appear that the Palestinian leadership is, by its own hand, undermining and prejudicing any negotiating ambiance or good faith between the two sides through a series of offensive actions such as:
  • Hostile statements by their chief negotiators, both vis-aÌ€-vis the internal Palestinian population and vis-aÌ€-vis the international community
  • Open encouragement and initiation of legal proceedings in international as well as foreign national courts against Israeli leaders and officials, and other activities in foreign states aimed at undermining Israel’s status
  • Attempts to utilize and abuse the international community to question the national and historical heritage of the Jewish people
  • Daily official incitement in schools, universities, and in the Palestinian media
Clearly this activity, openly, officially, and even proudly sponsored and supported by the head of the Palestinian Authority, Mahmoud Abbas, and the head of the negotiation division of the Authority Sa’eb Erekat, in addition to its inherent and obvious bad taste, is utterly incompatible with any negotiating ambiance.

How, one might ask, can the Palestinian leadership expect to instill confidence in the Israeli government and public while at the same time engaging in a policy of maligning Israel and its leaders, seeking to delegitimize Israel, and undermining the agreed-upon negotiating process which is aimed at achieving peace between the two peoples?


***
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobu, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.

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