The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Hisham Awartani

Danny Rubinstein

Sam'an Khoury

Boaz Evron

Walid Salem

Ari Rath

Zahra Khalidi

Daniel Bar-Tal

Ammar AbuZayyad

Galit Hasan-Rokem

Khaled Abu Aker

Galia Golan

Nazmi Ju'beh

Gershon Baskin

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Simcha Bahiri

Nadia Naser-Najjab

Dan Jacobson

Jumana Jaouni

Dan Leon

Anat Cygielman

Khuloud Khayyat Dajani

Izhak Schnell



Vol.20 No.2&3, 2015 / Time for International Legitimacy

Focus

Creating the Palestinian State, Revisited

     by Jerome M. Segal

The editors of the Palestine-Israel Journal (PIJ) asked me to look back at the proposals I made in my 1989 book, Creating the Palestinian State: A Strategy for Peace, to a) reflect on what has happened in the intervening 26 years, and b) to offer some thoughts about where the “Palestinians and all of us” should go from here. Part a) is published here; a fuller version including part b) is available online at the PIJ website.

In the spring of 1988 the first intifada was in its early months and had already achieved two big accomplishments: It had fully mobilized the Palestinian population in a way not seen in prior resistance to the occupation, and, it had won for the Palestinians worldwide attention and considerable sympathy for their plight. There was, however, a gaping hole: the absence of strategy. When you asked Palestinians in the Occupied Palestinian Territories (OPT) about how the intifada was to lead to the independent Palestinian state they said they were seeking, you got one of two answers: Either they said that the issue of grand strategy was up to the Palestinian Liberation Organization (PLO), or they invoked the idea of an international conference in which the Palestinians would be represented by the PLO and at which, somehow, the great powers — primarily the United States — would force upon Israel a Palestinian state and an end to the occupation.

Background

In April 1988, I published in the Palestinian newspaper Al Quds an essay entitled “From Uprising to Independence,” which recommended a unilateral Palestinian Declaration of Independence as the key element in a novel strategy for resolving the conflict. The core idea was that it was unrealistic to imagine that the two-state solution could be achieved either through imposition by the great powers or through negotiations.1 Instead, I argued the process should be reversed, with a Palestinian state coming first, to be followed by an end to the occupation and then negotiations to resolve key issues such as Jerusalem and refugees. This possibility of starting with a Palestinian state, I maintained, was made possible by the intifada and could be imposed unilaterally by the Palestinians.

These ideas were further elaborated in Creating the Palestinian State: A Strategy for Peace, and in late August, I gave Arafat a copy of my manuscript when I met with him in Tunis. At the time of that meeting, the PLO had already decided to issue a declaration of independence. This PLO decision had been triggered by Jordanian King Hussein's July 30, 1988 speech in which Jordan disengaged from the West Bank. In addition, there appeared at this time the so-called "Husseini Document," a Palestinian text laying out a plan for a declaration of independence that partially overlapped with the strategy described in my Al Quds piece. Events moved quickly, and on Nov. 15, the PLO, meeting in Algiers, took an historic step: It issued a Declaration of Independence proclaiming the State of Palestine.

A Unilateral Strategy for Ending the Conflict

The Declaration of Independence/Proclamation of the State was clearly a unilateral act. But it does not follow that this act was embedded within a unilateral strategy. Indeed, as I will argue below, it can be maintained that the Declaration played a key role, not in advancing a unilateral strategy but in advancing the PLO's international conference strategy and the subsequent bilateral negotiations strategy.

Within a unilateral strategy, declaring independence and proclaiming the State of Palestine (SOP) was to be only the first of many unilateral steps. It would not lead to an end of the occupation and genuine statehood unless it actually produced a full Israeli withdrawal, and this would not happen unless in addition to being a unilateral strategy for statehood, and ending the occupation, it was also a unilateral strategy for peace. Hence, the subtitle of my book.

Specifically, as a peace strategy, three elements were required:

1) Proclaiming the Palestinian state and bringing it more fully into existence, under conditions of occupation. This meant going from the rudimentary governance of the underground command which was already central to the intifada to a provisional government of the State of Palestine engaged in maximally feasible governance. And it meant obtaining widespread international recognition of the State of Palestine.

2) Convincing the Israeli public that the proclaimed State of Palestine represented a sea change in traditional Palestinian objectives, that the PLO was now committed to living in peace alongside Israel. Thus, the Declaration would have to be the opening act in a sustained unilateral Palestinian peace offensive, operating on multiple levels.

3) Securing an end to the occupation through internal and external pressure on a future Israeli government, to withdraw from what would come to be seen as another country (Palestine), and which was no threat and committed to lasting peace.

Following the Nov. 15, 1988 declaration, the stage was set for the PLO to follow through with 1) and 2) above. To what extent did it do so?

Peace Offensive

Here, the PLO deserves high marks. It made major steps towards peace and did so unilaterally, without any quid pro quo from Israel. Most fundamental was the Declaration itself. It could have just declared the State of Palestine. But it went well beyond that. It explicitly based that proclamation on the continuing legitimacy of the Partition Resolution of 1947. In doing so, it redefined a central tenet of the Palestinian national movement, as found in the PLO Covenant which stated that “[t]he partition of Palestine in 1947 and the establishment of the state of Israel are entirely illegal, regardless of the passage of time.” Moreover, in characterizing the (now legitimate) Partition Resolution, the Declaration specifically stated that it called for two states, “one Arab and one Jewish.” To this day, this remarkable step of linking the legitimacy of the State of Palestine to the international legitimacy of the creation of Israel, and noting that this extends to its Jewish character, remains largely unknown.

Further, within 30 days of the Declaration, the PLO, through Arafat’s statements in Geneva, and to the satisfaction of the Reagan administration, met the three U.S. conditions: It recognized Israel's right to exist; it accepted UN Security Council Resolution 242; and it renounced terrorism.

These were major steps, though as part of a peace strategy the PLO could have done even more. Specifically, I had suggested further unilateral steps, including:


• Announcing that the State of Palestine was at peace with Israel, followed by naming and sending an ambassador to Israel.
• Enacting a constitution like that of Costa Rica, committing Palestine to demilitarization.
• Enacting as law #1 of the new state an anti-terrorism statute, which would be fully enforced.

Nonetheless, with acceptance of the Partition Resolution, the renunciation of terrorism and the recognition of Israel's right to exist, the PLO had launched a unilateral peace offensive.

In the months to come, however, these messages were not regularly repeated and were not reinforced by steps on the ground. Ideally, the intifada should have ended all violence and moved to massive nonviolent protest. And more importantly, the PLO should have acted vigorously against terrorist attacks, regardless of whatever Palestinian faction was involved2. Overall, however, it was an impressive start.

Bringing the State of Palestine More Fully into Existence

Where the PLO really faltered was in not taking further steps to bring the state into existence. Specifically, it failed to establish a provisional government and, consequently, it failed to maximize the extent to which self-governance could have been actualized in the West Bank and Gaza.

The Husseini Document, which in a somewhat muddled way was suspended between a unilateral strategy and the international conference/negotiations strategy, was very explicit in its call for a provisional government once the state had been proclaimed. Specifically, it called for a national parliament that would include personalities from the OPT whose names would appear in the Declaration itself. It even provided a list of 150 people, and it spoke of an interim administrative body to be established in the occupied territories, one that would deal with “health, education, welfare, law, police, agriculture, industry, commerce, construction, electricity, water, municipalities, press and media.” Moreover, the 19th PNC which proclaimed the Declaration that November, also passed a resolution calling for the establishment of a provisional Government “as soon as possible,” and it entrusted the Executive Committee of the PLO with the powers and responsibilities of the provisional government until such time as it was established. This resolution stated that the provisional government “shall be composed of Palestinian leaders, notables and skilled human resources within the occupied homeland and outside.” Yet, other than Arafat being named president of Palestine and Farouk Kadoumi being named foreign minister, no government was ever established. Inside the “occupied homeland,” where the intifada has initiated a state-building process, no leaders were given governmental authority.

In my writings, I had gone a good deal further. Specifically, I had called for the PLO to go out of existence, to be replaced by the State of Palestine. Thus, the entire international apparatus of the PLO would now function as the representative of the new state, and a new constitution would replace the PLO Covenant, which would become an historic artifact with the PLO no longer in existence. This, I argued, more than any other step, would signify a new beginning.

Once established, the new government would:


• Organize elections in the OPT, possibly secret elections, or possibly as public events that dared the Israeli government to suppress them.
• Re-open public schools, again challenging Israel to close them.
• Issue a currency, ideally a coin with intrinsic value to ensure its circulation.
• Issue passports to Palestinian both inside and outside the territories.

Most fundamentally, I urged that the provisional government start functioning as a government. It could legislate in all areas of the law. It could establish a police force and a court system. If necessary, the courts could function outside the territories. None of this occurred. The state had been proclaimed, but it did not govern, which is to say, it did not exist.

The Declaration, Resolution 242 and the Negotiations Strategy

The failure of the PLO to establish a government of Palestine, and the failure of the Executive Committee which had temporary governmental authority to begin functioning as a government, may suggest that the PLO was never really serious about bringing the State of Palestine into existence under conditions of occupation. One might be tempted to conclude that though the Declaration of Independence was a unilateral act, and while it was part of a peace offensive, there really never was a unilateral strategy.

Along these lines, it can be pointed out that the Declaration played a critical role within a different strategy — in advancing the PLO towards an international conference and negotiations. Arafat was sharply focused on being viewed as a legitimate player by the United States. The key to official contact with the U.S. was the requirement that the PLO meet the three conditions, of which the most problematic was acceptance of UNSC Resolution 242, not for what 242 said, but because of what it didn’t say. It never mentioned the Palestinians. In the elaborate and extended dance between the PLO and the U.S. over 242, the Palestinian position was always that they would affirm 242 coupled with an affirmation of the Palestinian right to self-determination. And the U.S., for its part, remained unmoved in its insistence that 242 be accepted without any linkage to Palestinian self-determination. When in December 1988 the PLO found a way to accept 242 without mentioning self-determination, it was able to do this because in unilaterally proclaiming the Palestinian state the Palestinian people had already exercised their right to self-determination. This was both a logical point and an essential fact of political psychology — the self-assertion of the unilateral declaration in November made unilateral concessions possible in December.

This link between the Declaration and the PLO effort to become legitimate in American eyes can be seen in the phrasing that the Reagan administration accepted. Arafat stated:

…we mean our people’s right to freedom and national independence according to Resolution 181 and the right of all parties concerned in the Middle East conflict to exist in peace and security and as I have mentioned including the state of Palestine and Israel and other neighbors according to the Resolutions 242 and 338.

Resolution 242 spoke of the right of “every State in the area … to live in peace within secure and recognized boundaries.” After the Declaration of Independence, Arafat could treat the State of Palestine as one of those states. Self-determination, having been exercised, 242 now covered Palestine. The Declaration was critical to opening the door for PLO participation in future negotiations.

The Quest for Recognition of the State of Palestine: 1988-90

Despite all this, it goes too far to say there was no unilateral strategy at all, and to characterize the Declaration of Independence as an isolated unilateral act that served to advance the preexisting strategy of seeking an international conference and negotiations. It was more than that, as can be seen in what followed the Declaration: a prolonged struggle between the U.S. and the PLO as the PLO sought to obtain international recognition of the State of Palestine and its admission to the UN and an array of other organizations. Starting immediately after the Declaration and lasting a year and a half, the PLO pushed ahead, and the U.S. countered with an enormous effort to thwart international recognition of Palestine.

On the country level, Palestine was recognized by around 100 states, but the U.S. was able to hold the line with the European democracies. Organizationally there were showdowns in the UN General Assembly, UNESCO, the World Health Organization and other organizations, as well as a fight over the accession of Palestine to the Geneva Protocols. In the main, by threatening to cut off funds for the UN and UN-affiliated agencies, the U.S. was able to block admission of Palestine to international bodies. The PLO pursued this diplomatic struggle to advance its unilateral assertion of statehood with great determination and vigor, despite the fact that it severely strained U.S.-PLO relations, just when the U.S. was viewed as the key to PLO achieving international legitimacy and participation in both an international conference and subsequent negotiations.

Oslo and the End of Unilateralism

The year and a half following the Declaration is thus best viewed as a period of dual strategies, a period in which, in some dimensions, the unilateral strategy was vigorously pursued, and in other dimensions it withered. Gradually, however, it was largely abandoned. At Madrid, the long-sought international conference occurred, but it was hardly the empowered conference the PLO had wished for. Mostly it was a gateway to bilateral negotiations, and the PLO was focused on ensuring that it, not Jordan, and not an independent delegation of West Bank notables, would represent the Palestinians. In this struggle over representation, the PLO was ultimately successful, the culminating act being the 1993 exchange of letters in which the PLO straightforwardly recognized Israel's right to exist, and Israel recognized the PLO as representing the Palestinian people.

In all of this, there was no mention at all of the State of Palestine. The Oslo agreement of 1993 read as though the Declaration of Independence of 1988 had never happened. And two years later, with the signing of the Oslo II agreement, the PLO formally abandoned unilateralism. The Palestinian Authority (PA) had been created, not unilaterally but through negotiations, and it was made explicit that it was not a state and possessed no sovereign powers. Moreover, in the Oslo II agreement the PLO agreed that “[n]either side shall 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.” This was a pledge to not return to the already abandoned unilateral strategy.

It is now 22 years since the first of the Oslo Accords was signed, committing Israel and the PLO to bilateral negotiations to end the conflict. For all its early promise, this process has failed to bring a Palestinian state into existence, failed to end the occupation and failed to end the conflict. Looking back, it is hard not to believe that things would have gone far better had the PLO fully committed to a unilateral peace strategy in 1988 and stayed the course.

This judgment is made in hindsight, and a reasonable case can be made that when Prime Minister Yitzhak Shamir was replaced by Prime Minister Yitzhak Rabin in 1992, it made sense to abandon unilateralism. And with the signing of the Oslo Accords, it similarly may have made sense to believe that a permanent status agreement could be reached within the five-year period specified in the agreement.

Subsequent Opportunities

The unilateral strategy relied on two principles. The first was the belief that the Palestinian state could come into existence prior to the conclusion of a comprehensive permanent-status agreement. The second was that this could be achieved through unilateral action. These two elements can be teased apart, and over the years there have been — and remain today — possibilities of returning to one or both of these elements.

In 1995, Rabin was prime minister, Shimon Peres was foreign minister, new elections were a year away, and the talks on the permanent status issues hadn’t even begun. A return of the Likud party to power seemed quite likely, and nothing had been achieved that was not easily reversed. There was no chance of a comprehensive agreement prior to the elections, but there was a possibility of moving immediately to Palestinian statehood. This could have been done through negotiations rather than unilaterally. The state would have sovereignty over Gaza: It would have replaced the PA throughout the West Bank; it would replace the PLO in negotiations. During this period a settlement freeze would be in place.

At the time, I approached Peres with such a proposal. He expressed some interest, and I then approached Arafat, who was distinctly cool to the idea. In my judgment this was a mistake. We will never know, but if we had gone with a Gaza-first approach 20 years ago, I believe we would have progressed to end-of-conflict.

In 2005, there was a different opportunity. Prime Minister Sharon was committed to unilaterally evacuating all Israeli settlements in Gaza and withdrawing all Israeli forces, including from the Philadelphi corridor. Here was a possibility for the PLO to respond unilaterally in its own right. At that point, it could have reaffirmed the 1988 Declaration of Independence/Proclamation of the Palestinian State. The PLO could have gone out of existence with the State of Palestine taking over its international apparatus. The SOP could have nationalized the PA by simply incorporating all of its substantial governing structures into the framework of a Palestinian state. With Israel out of Gaza, Palestine would have been sovereign in Gaza and would have had administrative authority in the West Bank in time for state-to-state negotiations on a permanent agreement. At the time, I presented a unilateral proposal of this sort to PA President Mahmoud Abbas (Abu Mazen) and Nabil Shaath and the idea was seriously considered for a few months. In the end, however, it did not happen.

In 2011, the State of Palestine applied for full membership in the United Nations. In his letter to the secretary-general requesting to join the UN, Abbas signed under two titles: first as Chairman of the PLO Executive Committee and, secondly, as President of the State of Palestine. In the letter he wrote:

This application for membership is being submitted based on the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly of this Declaration in resolution 43/177 of 15 December 1988.

Thus, we had come full circle. The proclaimed Palestinian State had now resumed the path it had pursued in 1989; it was again knocking on the gates of the UN. Once again the U.S. swung into opposition, but not with the same determination it displayed 20 years earlier. And one year later, after the failure of Palestine to gain a Security Council recommendation for membership, the General Assembly did grant Palestine the status of a non-member observer state, something it failed to achieve in 1989 because of the U.S. threat to cut off funds for the UN.

Has the PLO Now Embarked on a New Unilateral Strategy?

Despite the flurry of PLO activity in the international arena, there is no real strategy that connects these moves to genuine Palestinian statehood or to an end to the occupation. And to that end, as has been the case all along, Israel has to be convinced that such steps at least open the door to the possibility of an enduring peace. Almost no one in Israel believes this is possible, and the PLO doesn’t have a strategy for changing that perception.

The present situation is one in which the PLO has given up on negotiations with a Likud government, but hasn’t given up on negotiations altogether. Rather, it is hoping for a change in government. If that happens, the U.S. will fully re-engage and there will be serious permanent-status negotiations. Despite repeated failures, it is possible that, finally, both sides will see that their real interests lie much more in reaching an agreement than in the marginal advantages they can achieve through continued back-and-forth on this or that specific issue. Perhaps such a realization is not likely, but it should not be discounted.

What Now, with Netanyahu Still in Power?

The open question is: What approach should be taken, given the fact that Binyamin Netanyahu has retained his position as prime minister? Here I see two possible avenues that draw on the unilateral threads of the previous years.

Option A: Pursue a full-blown unilateral strategy — the path not fully pursued in 1988.

It is clearly more difficult to do this today than in 1988, especially with Hamas in control in Gaza, but a possibility does exist. Key elements of such a strategy should be to:


• Nationalize the PA, relying on the 1988 Declaration. This will give the State of Palestine formal governing institutions in the West Bank.
• At long last, jettison the PLO. This will eliminate the problem of multiple addresses. For any party to engage the Palestinians, they will have to deal with the State of Palestine.
• Return vigorously to a peace offensive, taking many of the steps that could have been taken in 1988. Name an ambassador to the State of Israel. Adopt a constitution that specifies demilitarization.
• Put forward a fully detailed, no-ambiguities-permitted peace proposal that most Israelis can accept. Gain regional support for it as fulfilling the Arab Peace Initiative. Alternatively, call on the UN General Assembly to establish a listening commission that will engage with the Israeli and Palestinian publics, as well as officials and experts, to determine if there is today any comprehensive treaty arrangement that would resolve all final-status issues and have the support of both publics. If so, then the commission should provide, in full detail, that end-of-conflict treaty — a new Resolution 181. The PLO should commit in advance to accepting this as the basis for any future negotiations with Israel.
• Reaffirm the Declaration’s acknowledgement that Israel was created as a Jewish state under international legitimacy.
• Undertake massive and disciplined nonviolent actions to secure realms of sovereignty in the West Bank.
• Assume the sovereign powers of a state: Assert control over all non-state actors within the West Bank; lay claim to Gaza.
• Stick with this strategy, building international pressure on Israel from the outside and building support within Israel for an end to the occupation.

Option B: Attempt to negotiate with Netanyahu a state with provisional borders.

While no comprehensive permanent status agreement can be reached so long as Netanyahu remains in power, it may be possible to reach a “transition-to-state” agreement which does move in the direction of a two-state solution and does provide for a less explosive, less dangerous environment3. Key elements of such an agreement would be:


• Israel recognizes the State of Palestine with initial sovereignty over a very small area of the West Bank. Keeping this area small is important, because it will avoid any possibility of interpreting this as anything other than a short-term step. Also, it will mean Netanyahu will not have to evacuate any settlements at the time of this initial step.
• At the same time, Israel agrees that the ultimate permanent boundaries of Palestine will be based on June 4, 1967 lines, modified by 1:1 swaps.
• In exchange for this commitment on territory, the Palestinians will reaffirm the Declaration of Independence position on the international legitimacy of the Jewish State.
• With recognition of the State of Palestine, negotiations become state-to-state. The PA will go out of existence, and the PLO should as well. The SOP will take over all PA functions.
• The State of Palestine, with Israel voting in favor, will be admitted to the UN and all international bodies.
• Israel also recognizes SOP sovereignty over Gaza, and it should become an internal Palestinian issue as to whether Hamas will accept POS sovereignty. If it does in the context of future security arrangements, Israel and Egypt should end their blockade and massive economic development should be undertaken.
• Israel and Palestine should agree to a partial, but equal, land swap close to the Green Line. This might cover 2% of the West Bank. With settlements limited to just their built-up areas, this could cover the areas where 60% of settlers live and allow for minor expansion. At the same time, an equal area inside Israel will be attached to the area of Palestinian sovereignty.
• Outside this 2% land swap, Israel agrees to a full and enduring settlement freeze.

Because this agreement will not deal with permanent boundaries, Jerusalem or long-term security issues; nor seek to resolve the refugee issue, nor evacuate settlements; it may be possible to reach such an accord very quickly, if there is a will do so. This is an effort at stabilization, a holding pattern. If this can be achieved, the experience of living with a highly delimited Palestinian state, within the context of a settlement freeze, may give rise to new opportunities.

If this can’t be achieved, then Option A remains. The question is: Does the Palestinian leadership have the discipline and audacity to pursue and sustain a unilateral strategy?


Endnotes
1At the time not only did Prime Minister Yitzhak Shamir oppose Palestinian statehood, but Yitzhak Rabin and Shimon Peres did so as well.
2In June 1990, in the absence of a strong PLO response, the George H.W. Bush administration broke off dialogue with the PLO following an attack on Tel Aviv beaches by the Palestine Liberation Front.
3I take the term "transition to state" from Yair Hirschfeld's new book, Track-Two Diplomacy.








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