With Israeli Prime Minister Benjamin Netanyahu’s governing coalition in peril, U.S. President Donald Trump’s administration must carefully consider whether and when to release its parameters for Israeli-Palestinian peace. Netanyahu, who is critical to selling the plan, is in no rush. Those to his right think it’s a waste of time and the vast majority of Israelis don’t believe it will lead to peace. On this, most Palestinians agree. Over time, U.S. peace parameters have moved further away from international law and a peace agreement Palestinians could accept.

The last iteration of U.S. parameters came two years ago, during the waning days of president Barack Obama’s administration. Then secretary of state John Kerry’s aim was to contextualize the president’s decision not to veto a UN Security Council resolution that reaffirmed the illegality of Israeli settlements in the occupied Palestinian territories, and to preserve the possibility of a two-state solution. Though largely a restatement of the previous administration’s parameters, there was an innovation: a call for Palestinian recognition of Israel as a Jewish state.

By contrast, Trump’s reported plan will depart from long-standing U.S. policies on several points. On the negotiating table that Trump is setting, the status of Jerusalem and refugee claims have been removed, and with those files, Palestinians argue, any possibility of an agreement they could sign. Trump’s Middle East peace team is moving forward with a Gaza-plus plan: a statelet in Gaza enlarged by annexing part of the Sinai. U.S. General David Petraeus has described the idea as a “Sinai Riviera.” The apparent aim is to coax Palestinians into swallowing the bitter pill of indefinite Israeli occupation and eventual annexation of the West Bank. In exchange for Gaza-plus, Palestinians must accept what Netanyahu has dubbed “a state-minus.”

Zaha Hassan
Zaha Hassan is a human rights lawyer and a fellow at the Carnegie Endowment for International Peace.
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With a healthy infusion of donor money and the easing of movement and access restrictions, Trump and Netanyahu believe that Palestinians can be lulled into trading sovereignty or political and civil rights for an upgrade to their quality of life. While not an entirely novel approach, the administration’s new parameters seem likely to further push the idea that Palestinian agreement to any plan is optional.

Israel’s recent passage of the Basic Law: Israel as the Nation-State of the Jewish People, together with U.S. parameters requiring Palestinians to recognize Israel as a Jewish state, has now foreclosed any chance for a negotiated two-state solution. The U.S. Middle East peace team appears to understand this and is moving on. But U.S. negotiators might not grasp that requiring Palestinian recognition of Israel as an ethno-religious state guarantees that the Israeli-Palestinian conflict will be transformed into a potentially lengthy anti-apartheid struggle.

Ever-Evolving U.S. Parameters

Regardless of which political party has held the presidency, U.S. engagement on Israeli-Palestinian peace since the Oslo Accords has tended to weaken the Palestinian negotiating position by moving away from the requirements of international law. Though the United States can neither unilaterally change Israel’s legal obligations as an occupying power nor erase decades of UN Security Council resolutions that make Israel’s acquisition of territory by force inadmissible or its settlements illegal, almost every new U.S. pronouncement of parameters has chipped away at international resolve in ways detrimental to Palestinian rights and sovereignty.

Netanyahu appears to be betting that might can make right, in the absence of international enforcement mechanisms and with the passage of time. As he stated recently at a Likud Party meeting: “Occupation is bull. There are countries that have conquered and replaced entire populations and the world keeps silent. Strength is the key.” Netanyahu has a point: with the Trump administration solidly in Israel’s corner and the international community unwilling to respond in meaningful ways to the creeping annexation of the West Bank, the dispossession of Palestinians has become normalized.

Ahead of the unveiling of the new U.S. peace plan, it is worth reviewing what international law says about a just resolution of the Israeli-Palestinian conflict and how far U.S. policy has strayed. On territory, borders, and settlements, the UN Security Council has been consistent, reaffirming most recently in Resolution 2334 that Israel’s acquisition of territory by force in 1967, including East Jerusalem, is without legal validity. This makes all settlement construction in occupied territory illegal and requires Israel’s withdrawal to the 1949 armistice lines.

On the question of Palestinian refugees who fled in 1948, UN General Assembly Resolution 194, consistent with long-standing legal principles and precedent, provides that those forced from their homes are entitled to reparations as well as the choice to return to their places of origin. Return is the only solution to which refugees have a legal right. The UN required Israel to accept the principle of refugee return as a part of its admission to the UN. Resettlement in a third state depends on that state’s willingness. Arab countries hosting Palestinian refugees have specifically precluded absorption in their states as the solution. Instead, the Arab Peace Initiative, unanimously adopted by the Arab League in 2002 and last reaffirmed in 2017, provides for a just resolution based on Resolution 194.

The Security Council affirmed the two-state solution over a decade ago and endorsed the parameters for an Israeli-Palestinian peace agreement proposed by the United States, Russia, the EU, and the UN (known as the Middle East Quartet). The Quartet’s parameters, contained in “A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict,” largely tracked international law by calling for an “end to the occupation that began in 1967,” “an agreed, just, fair, and realistic solution to the refugee issue,” and “a negotiated resolution on the status of Jerusalem” that “fulfills the vision of two states.” As a vital part of a comprehensive peace, it also endorsed the Arab Peace Initiative, which offered Israel full normalization with the Arab world following its withdrawal from the occupied territories and a just resolution to the status of Palestinian refugees.

Despite existing law and consensus, the United States has repeatedly sought to modify these parameters in an effort to cajole Israel toward a peace agreement. As the number of Israeli settlers doubled and tripled in the occupied territories during the peace process, the U.S. response was to accommodate Israel’s domestic political and demographic concerns. Under president Bill Clinton’s peace parameters, Palestinians were called on to cede “neighborhoods” in East Jerusalem where Israeli settlers had been transplanted and to limit expectations on the number of Palestinian refugees who would be allowed to return to Israel.

President George W. Bush went further. In his exchange of letters with then Israeli prime minister Ariel Sharon, he stated that “new realities on the ground” (that is, the continuing expansion of illegal settlements in the West Bank) meant that it was “unrealistic” to expect Israel’s complete withdrawal from the occupied territories. In addition, Bush called for all refugees to be resettled in a Palestinian state.

Obama and Recognition of Israel as a Jewish State

Pressure on Obama to recalibrate U.S. parameters came from Netanyahu. In his 2009 Bar Ilan speech, Netanyahu stated that “the fundamental condition for ending the conflict is the public, binding and sincere Palestinian recognition of Israel as the national homeland of the Jewish People.” Netanyahu said that he told Obama that “if the Palestinians recognize Israel as the Jewish state, [Israelis would be] ready to agree to a real peace agreement.”

Netanyahu’s demand was not new. The idea originated with Sharon, who included it as one of his fourteen reservations to the Quartet Road Map. Sharon was explicit about what he wanted: waiver of Palestinian refugees’ right to return to Israel.

Israeli prime minister Ehud Olmert reasserted Sharon’s demand on the eve of the 2007 Annapolis peace talks with the Palestine Liberation Organization (PLO), at a time when Palestinian citizens of Israel were calling for equal rights, recognition of their indigeneity, and an end to Israel’s military occupation over Arab lands. Olmert intended recognition of Israel as a Jewish state to evidence Palestinian renunciation of refugee rights and acceptance of Israel’s discriminatory treatment of Palestinian citizens.

Against this backdrop and following unsuccessful attempts to rein in Israeli settlement construction, in 2011, Obama became the first U.S. president to adopt Palestinian recognition of Israel as a Jewish state as a U.S. parameter for peace. He argued that “everyone knows . . . a lasting peace will involve two states for two peoples: Israel as a Jewish state and the homeland for the Jewish people, and the state of Palestine as the homeland for the Palestinian people, each state enjoying self-determination, mutual recognition, and peace.”

The “two states for two peoples” formula, Kerry later explained, is based on UN General Assembly Resolution 181, the UN Partition Plan, which required mutual recognition and full equal rights for all the respective citizens within the Arab and Jewish state. “Recognition of Israel as a Jewish state has been the U.S. position for years,” he said.  

Each state’s affirmative recognition of the ethno-religious identity of the other was never part of the UN Partition Plan, however. In fact, under the plan, Palestinian Arabs would have been almost equal in number to the Jewish population inside the territory allotted for the Jewish state. What the plan required was that each state uphold democratic principles and protect the civil and political rights of all its citizens. Forced population transfer to alter the demographic makeup of either the Arab or Jewish state was prohibited. Yet this is exactly what the pre-state Israeli government and the state of Israel did in the period immediately before and after the state of Israel was declared in May 1948 and what it has been doing in the occupied territories since 1967.

The Obama administration apparently hoped adopting Palestinian recognition of a Jewish state as a peace parameter might encourage Israel to end settlement expansion and accept Palestinian statehood. Though no Palestinian leadership could ever survive conceding refugee return and equality for Palestinian citizens of Israel, this was the price the administration believed Palestinians would have to pay if they wanted sovereignty. Aside from the legal invalidity of compelling such concessions from an occupied people, adopting the recognition of Israel as a Jewish state as a parameter produced the opposite effect. Settlement building accelerated during the Obama administration’s tenure, and the Israeli government is now laying the foundation for the annexation of the greater part of the West Bank.

The Jewish Nation-State Basic Law

In July 2018, the Israeli legislature, the Knesset, passed the Jewish nation-state basic law. The aim of the quasi-constitutional legislation is to “prevent even the slightest thought, let alone attempt, to transform Israel to a country of all its citizens,” said Member of the Knesset Avi Dichter, the law’s sponsor. The implications, however, go beyond legalizing ethno-religious discrimination. The law forecloses the possibility of refugee return and sanctions Israeli annexation of the occupied West Bank.

Three provisions work together to achieve this. One states that only Jewish people have a right to national self-determination within the “state of Israel,” though Israel has never declared its borders. An exclusive legal right of self-determination to Jews ipso facto means Palestinian citizenship is vulnerable to revocation and Palestinian refugees have no right to return. A second provision declares that the “land of Israel” is the historic homeland of the Jewish people. Though undefined, the term “land of Israel” refers to biblical Israel including “Judea and Samaria,” that is, the occupied West Bank. Palestinians are not recognized as having any equivalent claims on the land. A third provision identifies the establishment and consolidation of Jewish settlement as a national priority.

Because the basic law does not recognize Palestinians as having a historic homeland or a right to self-determination in any part of the land or state of Israel, the three provisions read together support an exclusive right of Jewish self-determination anywhere Israel extends its sovereignty. So not only do Palestinian citizens lack equality in the state of Israel, and not only are Palestinian refugees without a legal right to return, but even those Palestinians living in the occupied territories are not entitled to self-determination in a separate state or to claim citizenship in the state of Israel. Thus, the Jewish nation-state basic law provides constitutional imprimatur for the complete displacement of Palestinians from historic Palestine.

The threat of mass displacement is real. For years, Israeli political leaders have advocated transferring Palestinians citizens out of the country. According to former Israeli foreign minister Tzipi Livni, a state of Palestine should be the “full and comprehensive solution” to the refugee issue and to the claims of the “entirety of the Palestinian people,” including those “citizens of other states.” Thus, during peace talks, Livni proposed that Israel cede towns where some 300,000 Palestinian citizens reside to a future Palestinian state. The basic law now allows Israel to strip Palestinians of their Israeli citizenship, obviating the need for transfer in a peace agreement.

Though Livni presented the proposal to U.S. officials and though a draft of the Jewish nation-state basic law had been before the Knesset during the Obama administration, in December 2016, Kerry reiterated the president’s call for Palestinians to recognize Israel as a Jewish state, listing recognition as the second parameter for a negotiated, two-state resolution. Had Palestinians succumbed to pressure to accept the parameter, they would have acquiesced to Israeli colonization in what remains of their homeland as well as validated ethno-religious discrimination against Palestinian citizens of Israel and refugees.

Prospects for Peace

The Trump administration does not appear to support Israeli withdrawal from any part of the occupied territories, making a negotiated solution impossible. U.S. Ambassador to Israel David Friedman, a member of Trump’s Middle East peace troika—which also includes his son-in-law Jared Kushner and his special adviser on international negotiations Jason Greenblatt—has referred to Israel’s presence in the West Bank as an “alleged occupation.” In a 2016 campaign position paper, Friedman and Greenblatt asserted that, because the West Bank is part of the historic Jewish homeland, Israel as an occupier is a “false notion.”

Little daylight exists between the U.S. Middle East peace team and Israel’s right wing. Trump’s policy toward Israel is informed by an evangelical base and pro-Likud campaign donors that view the Israel-Palestine conflict through a biblical prism in which only one side has legitimate claims. He has relocated the U.S. embassy to Jerusalem, has closed the PLO office in Washington, will close USAID offices in the West Bank and Gaza by 2019, and has defunded UNRWA (the UN agency responsible for Palestinian refugee relief). But, in doing so, the United States has forfeited its role as a neutral peace broker in favor of a policy of maximum pressure on Palestinians to accept the U.S. plan.

More problematic than the loss of U.S. leadership is the extent to which U.S. foreign policy is incorporating Israel’s demographic concerns, which associates Americans with Israeli laws and actions that the UN describes as fitting the definition of apartheid. Trump’s national security adviser, John Bolton has even threatened to arrest and sanction the prosecutor and judges of the International Criminal Court should they pursue war crimes charges against Israel. With security assistance to Israel approaching $4 billion per year, the United States appears to be backing Israel’s military occupation and its discriminatory treatment of Palestinians. Extremist groups have attempted to exploit this in the past to the detriment of U.S. interests, and are likely to do so again.

Palestinians will not accept another initiative that effectively calls on them to renounce their claims to their homeland. A Gaza-plus/Palestinian state–minus plan is not the making of a just and durable solution. Offered to an occupied people living for decades without hope for a political horizon, it may seem like the deal of the century to some. But it will mean perpetual conflict that is likely to spill beyond Israel and the occupied territories. The search for a political solution will inevitably lead back to where it began: international law, which requires an end to occupation, a just resolution for refugees, and equal citizenship under law. No other solution is credible.