CO-AUTHORED BY JONATHAN KUTTAB
Jonathan Kuttab is a Palestinian attorney and human rights activist who grew up in East Jerusalem, graduated from University of Virginia Law School, and has worked at the Iaw firm of Mudge Rose Guthrie & Alexander. He is a member of the Bar in New York, Israel, and Palestine. Mr. Kuttab has founded a number of human rights organizations including Al Haq and the Mandela Institute for Palestinian Prisoners. He is the Chairman of the Board of Bethlehem Bible College and has worked with the Holy Land Trust. He is active in other civil society organizations in Palestine and internationally. He was the Head of the Legal Committee negotiating the Cairo Agreement of 1994 between Israel and the PLO and has been active in peace and justice issues for many years.
We are two human rights lawyers, one Palestinian Arab, one American Jew, who believe that both Palestinian Arabs and Israeli Jews need to be able to live free, dignified and whole lives in the Land belonging to both. We are of the view that the liberation of both peoples – Jews from being occupiers and dominators, and Palestinians from being occupied and dominated – in two separate states has now been rendered virtually impossible by the facts on the ground. “Ending the occupation” is therefore no longer sufficient to create a viable future for both. Instead, we need to think carefully about how to accommodate the genuine needs of both peoples in some form of unitary state guaranteed to provide real political rights and human dignity and freedom as well as real and lasting security to both peoples.
The Impossibility of the Two State Solution (“2SS”)
It is now commonly acknowledged that the two state solution has become physically impossible to implement. The premise of 2SS was that the 1967 War provided an opportunity for a pragmatic compromise between the Zionist movement in the State of Israel, and the Palestinian national movement and its Arab Allies which could be achieved in a strategic "land for peace" formula whereby the state of Israel would withdraw from the lands it recently occupied, in return for peace and normalization. Additional elements were sometimes mentioned such as the sharing of East Jerusalem, a Palestinian Right of Return to the new Palestinian state as well as security arrangements such as demilitarization of the State of Palestine. Clearly, Jewish settlements and settlement activities have run counter to this proposed compromise, but there they are.
Now, in 2016, the extent, depth, and longevity of the occupation have created new facts on the ground. There are about 600,000 settlers, with their entire legal, administrative, political, and economic infrastructure, virtually impossible to remove, and dividing Palestinians into cantons, all of which makes 2SS no longer possible, even if Israel were fully committed to it, which if truth be told, it is not. Secretary of State Kerry recently was the latest of those acknowledging that time is fast running out on this proposed compromise.
The Thinking Behind 2SS No Longer Fits the Facts on the Ground
At the time it was first suggested, 2SS was vehemently condemned by sizable populations on both sides, but slowly gained majority support, and became the official platform of both communities, because it was an eminently reasonable compromise that reflected both the balance of power at the time and the majority interests of both protagonists. It did not require the repudiation or radical rethinking of any of the ideologies involved, but merely limited the application of such ideologies to a geographic portion of the contested land.
2SS was consonant with International law, which prohibited the acquisition of land through armed conflict and proclaimed the status of the acquired territories to be "occupied." Even the Israeli High Court supported this legal classification, and does so to this day, in accord with numerous pronouncements of the UN Security Council and that of the near-unanimous decision of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004) (holding that Israel's policy of establishing settlements in that territory is a “flagrant violationof the Fourth Geneva Convention[,]” and observing that it was “tantamount” to “de facto annexation” which entailed “further alterations to the demographic composition of the Occupied Palestinian Territory” which “severely impedes the exercise by the Palestinian people of its right to self‑determination.”).
This is the position of all the countries of the world today, including the United States. It was reaffirmed by the Saudi Initiative, which promised full normalization with all the Arab and Moslem countries in the region in return for full Israeli withdrawal from lands occupied in 1967.
The goal of pro-Palestinian activism (and its Arab and international support) changed from "liberation of Palestine" to "ending the occupation," which was a slogan and program acceptable to many good faith activists who cared about peace and justice, but who were reluctant to take positions that were perceived as anti-Israeli. The presence of a sizable 'peace movement' inside Israel that supported 2SS solution contributed to this.
Indeed, the alternative to the 2SS, the one-state solution (one person-one vote), was rejected by many as a repudiation of Zionism and the destruction of the concept of a Jewish state, which in the minds of many was akin to calling for expulsion of Jews from Palestine, and possibly a second Holocaust. The prospect was so unthinkable that in many venues, no serious discussion of a one-state solution was tolerated.
The fly in the ointment of 2SS was the settler project, and the settlers themselves. Introducing into the occupied territories hundreds of thousands of Jewish settlers, claiming the privileges of Israeli citizenship, directly contradicted the entire logic of the proposed compromise, by proclaiming Israeli dominion over all the contested area of Palestine. Each additional settler, and confiscation of each dunom (a dunom is 1000 square meters, or ¼ acre) for settlements, and the exclusively Jewish roads, courts, laws, infrastructure and regulations that came with them, put the lie to claims of Israeli governments to support a 2SS and reaffirmed Zionist claims to all of Palestine for the Jewish people. Genuinely supporting 2SS would have required opposition to, or strict limitation of, the settlement enterprise.
Israel continues to mouth support of the 2SS because it permits the status quo to continue as settlements expand and Palestinian lands are slowly but inexorably taken, while the failure to achieve 2SS can be blamed on a variety of excuses, such as the absence of a unified and effective Palestinian leadership willing to negotiate a final 2SS solution, or the continuation of armed resistance or (differently framed) acts of terrorism. In endless negotiations over the last 25 years, modifications to the 2SS have been proposed, such as "settlement blocks" and exchange of territories, while Israeli control of the occupied territories has continued to expand and harden and Palestinian resistance to it ineffectively ebbs and flows. Inertia is a powerful force. With no effective outside pressure from the international community, it is no wonder that intelligent Israeli politicians, and even some in AIPAC itself could deceptively claim to support the 2SS while effectively working to make sure it would never be implemented.
Time for a New End Game?
The belief that Palestinian lives and rights matter is gaining new currency in the United States and around the world, among Jews and non-Jews, as the harsh reality of Palestinian life under occupation is made manifest by the ubiquity of smartphone cameras and the increased willingness of the media to explore that life. For the first time, there appears to be the prospect that outside pressure on Israel may build, in the form of boycott, divestment and sanctions, and otherwise. But if 2SS is dead, what is the alternative? What is the end game that would guarantee a future for Israeli Jews and Palestinian Arabs in a shared Land? We believe that some out- of- the box thinking is required to provide peace and justice, some measure of stability and an end to the conflict. Such new thinking, and an articulation of what form it would take (totally apart from the question of how to achieve it), requires some radical reformulation of both the language, assumptions, and orientation of people on both sides, as well as their outside supporters and the international community itself.
We start by rejecting two prominent mutually incompatible ideologies: To have a Jewish state dedicated exclusively to the interests of its Jewish citizens, and which serves the interest of all Jews worldwide, whether by divine right or historical connection, would necessarily require the elimination or subjugation and repression of the indigenous non-Jewish population. Insisting on an Arab Palestine as part of the Arab world, and treating Zionists, other than the original Palestinian Jews, as foreign invaders with no rights and connection to the Land would similarly call for the elimination or forced expulsion of most Israelis as recent immigrants, and a denial of their Jewish religious and cultural aspirations and requirements. What is needed is for each group to understand the hopes, fears, interests, and aspirations of the other, empathize with them, and to sufficiently alter and moderate its own ideology to accommodate the other group rather than seek to vanquish and dominate it and deny it any legitimacy.
We therefore need to ask Israeli Jews, "what do you really need to live free, secure, and culturally and religiously Jewish lives here in Palestine/Israel, and how can those needs be fulfilled without negating the ability of Palestinians to live equally free, secure, dignified lives? We also need to ask the Palestinians what they need to live such lives in a state where they are not dominant, and where Israeli Jews are the majority, or perhaps as time goes on, a substantial minority.
Implicit in both questions is a belief that while democracy requires one-person-one-vote, a state that encompasses and belongs to more than one major ethnic/religious group cannot afford to ignore any of them, but must find a formula that accommodates all and contains sufficient iron-clad legal and institutional guarantees that each individual and group is, and feels, fully protected against the caprice of the majority so that all can exercise the full panoply of human rights and live with human dignity. This is particularly true where genuine differences and recent enmities appear to control and restrict present realities. New structures must be created. Guarantees must be firmly established in constitutions and laws that cannot be altered or overturned by numerical majorities that permanently and significantly disadvantage minorities.
Yugoslavia had a tri-cameral constitution under Marshal Tito, carefully balancing Serbs, Muslims, and Croats, before that system collapsed after his death. Lebanon also has a system, which for all its faults, allows the government to accommodate different religious groups, none of which can be ignored or slighted. Other countries have either found a way to make significant minorities feel a sense of belonging to their country, or have suffered the consequences of internal conflict, civil strife and calls for secession. In our situation, in addition to internal legal and other controls, a high level of international support, guarantees, and legitimacy will be required in light of the extensive interest and involvement of significant outside actors. In particular, the religious importance of the Land, and of Jerusalem, to all three monotheistic religions, gives the international community a significant stake in the governance of the whole country and good reason to insure open access and non-exclusive control over its destiny. Christians have largely ceased, since the times of the Crusaders, to make exclusive claims to Jerusalem. In order to insure security, peace and tranquility, neither Jewish nor Muslim claims of exclusivity can be tolerated.
For a solution to commend itself to people of goodwill on both sides and to the international community, it must address the major needs of Jews and Palestinians as identified by each side as bottom line irreducible requirements, as opposed to desired or demanded outcomes. These needs must be met and addressed by a new order and governing structure regardless of which group is in the numeric majority or minority, now or in the future.
Essential Elements of the New Order:
1. Equality and Non-discrimination: The State of Israel has failed in law and in practice to provide full equality even to its own Arab citizens. While Palestinians recognize that the new state will likely continue in the foreseeable future to be dominated by Jews for a number of reasons, Palestinians will require that equality be strictly applied, particularly in the public sphere. Public institutions, lands, funds, and resources, including water and public education, must be utilized equally in the interest of all citizens. Discrimination must not be tolerated. Arabic, which is currently formally recognized as an official language in Israel, will need to be deliberately incorporated into public life, on a par with Hebrew. While it was important for Jews to revive and promote Hebrew in Israel after centuries of non-use, there can be no excuse for the deliberate downgrading of Arabic (Arabic signs, where they exist even in the West Bank appear to be deliberately misspelled, and it is easier to find government documents in Amharic (the language of the recent Ethiopian immigrants) than in Arabic.
2. Freedom of Movement: Freedom of movement within the new state must be guaranteed. Restrictions of travel between the West Bank, Gaza, Jerusalem, the settlements and pre '67 Israel must be removed, as well as the Wall and the checkpoints. Discretionary (administrative) restrictions on travel within as well as to and from the new state must be removed. Security forces claiming the need for the restriction of the movement of any person must be required to obtain judicial orders, subject to the legal presumption in favor of freedom of movement that needs to be overcome when incarcerating a person.
3. Right of Return: Jews have insisted on a Right of Return to Israel as a fundamental right for any Jew throughout the world, particularly if he or she feels persecuted or endangered as a Jew. As it stands now, this right is not qualified by the need to show persecution or fear of a tangible threat, and the institutions of the State actively promote aliyah and incentivizes Jews to come to Israel. The availability of this right seems to be a serious requirement for Jewish Israelis which Palestinians must accept. However, Palestinians, who have been forcibly denied access to their homeland, must also have a right of return (Awdah). Had there been a 2SS, this right of return could have been limited to a new Palestinian state in the West Bank and Gaza. But it is a right which can and must be accommodated in a new governing structure in Israel/Palestine.
4. Relations with the Arab world. Israeli Jews feel a great connection to diaspora Jews, obtain much support from them, and advocate that they have a legitimate stake in, and responsibility for, Israel. Palestinian Arabs also feel they are an integral part of the Arab world and get, or at least expect, support from them. The new state will have to deal with both these inclinations. Palestinians will need to re-evaluate their pan-Arab identity, and adjust it to reflect that their state now is both Jewish and Arab to its very core.
5. Defense: For a number of reasons, primarily the trauma of the Holocaust, and the bitter experience of anti-Jewish anti-Semitism in the West (Palestinians are Semites, too), Israelis have a heightened sensitivity to control of the army and the defense establishment. The new State may require that the Minister of Defense as well as a majority of the top brass in the army be Jewish as a matter of permanent constitutional law. Palestinians, however, must be free to join the army on an equal basis, while all citizens must be able to demand exemption from military service for reasons of conscience.
6. Legal Protections: In addition to a constitution that embodies strict guarantees that safeguard the fundamental political interests of both groups, these “Protection Clauses” must be safeguarded from alteration except by large majorities (e.g., 80% of the Parliament) and approval by a super majority of a special constitutional court (e.g., 4 out of 5 judges where each group has at least 2). In other significant ministries and public bodies, quotas must dictate the minimum number of representatives at the highest level, while all other positions are filled on a merit, non-discriminatory basis. In government ministries, the deputy for each Ministry must belong to the other major group. (If the Minister is Jewish, then the deputy must be Arab). In this manner the fear that a high level public servant who belongs to one group will be oppressive to those in the minority group will be eliminated. In addition, this and other similar “Protection Clauses” will remove the ‘demographic threat’ and ensure that a group which has a numerical majority will not be able to oppress the minority, and that a future change in the numerical balance between the two communities will not render the new minority vulnerable to oppression by the majority.
7. Ministry of Tolerance: Out of a recognition that the security of citizens is a vital interest of the country, and in appreciation of the past experience of both peoples, the country should invest at least 10% of its defense budget in programs to promote tolerance and understanding of the history, culture and language of each community by the other, supervised by a government ministry conducting joint activities and programs intended to heal the hurts of the past.
8. Civil Law: while personal status matters are currently handled by the religious courts of the different communities, new progressive and liberal civil laws must be promulgated that will ensure the rights of secular individuals, mixed marriages, and religious communities that are not currently recognized, including Reform and Conservative Jews, and evangelical Christians. Without derogating the existing rights of religious courts, individuals who choose not to be governed by them should be allowed to follow their conscience, and not be forced to submit to religious courts as a matter of law. This system could be a model for other nations in the Middle East, currently governed by the Millet System.
9. Name/ Character/ Public holidays / Symbols and flag: Careful thought and creativity with input from both sides is required to have these elements reflect the desires of both communities without exclusivity or discrimination against the other. Click here for a survey of selected plans incorporating some of these elements.