The Palestine Question: The Two-State Solution

Throughout modern Israeli and Palestinian political history, there has been a realization that a balance must be struck between Palestinian aspirations for self-determination and Israeli legitimate security concerns. The Israeli settlements contribute to hardening the conflict and lessening the prospects for peace. Although international law prohibits moving one´s population to occupied ground, there are close to 620 000 Israeli settlers residing in the occupied territories today. 

This article was originally published by Tomas Nordberg via Global Bar Magazine. 

Throughout modern Israeli and Palestinian political history, there has been a realization that a balance must be struck between Palestinian aspirations for self-determination and Israeli legitimate security concerns. Palestinian leaders tend to argue that Israel has established a fait accompli since the 1967 Six-Day War. The Israeli settlements contribute to hardening the conflict and lessening the prospects for peace.

Lord Walter Rothschild announced in the Balfour Declaration of 1917 the British government´s support of the proposal to establish a Jewish homeland in Palestine, albeit under the condition that this would not encroach upon already existing non-Jewish societies civil and religious rights or the rights of Jews their political status in any other country.

A Truce Commission was established in 1948 to assist in the United Nations Palestine Commission in implementing the Partition Resolution. Count Bernadotte was able to accomplish a truce during the Arab-Israeli war of 1948. To comprehend what transpired during the previous decades, let us reexamine the League of Nations Mandate for Palestine and Transjordan of 1922 which entrusted Great Britain with the Mandate for Palestine.

Palestine and Transjordan had been yielded by the Ottoman Empire at the end of the First World War in 1918. The aforementioned Balfour Declaration provided the ideological underpinnings of the British rule which gave birth to both the Jewish and the Arab Palestinian nationalist movements. However, the Balfour Declaration failed to pronounce on how the rights of Palestinians and Israelis were to be protected.

Jordan annexed the West Bank after it had occupied the land during the Arab-Israeli war of 1948. The territory that was occupied is located to the west of the Jordan River and covers Hebron, Nablus, Bethlehem, East Jerusalem and the Old City, and Jericho. The land was returned in 1994 with the earlier discussed peace treaty between Israel and Jordan. Disputes over water rights over the Jordan River and water usage continue to this day.

The Two-State Solution
UN Security Council Resolutions 242 and 338 were the frameworks of the Camp David Accords that spelled out Palestinian autonomy. They do not require Israel to withdraw from all the land they occupied in 1967. PLO held their first consultations with the Israeli side in Lebanon in 1977. Israel invaded South Lebanon the following year and UNIFIL was created by the Security Council in resolutions 425 and 426. UNIFIL included 1000 Norwegian troops.

When Arafat expressed a wish for a secretive back-channel for negotiations in 1982, Thorvald Stoltenberg worked together with the Israeli Labour Party to set up one. The Amirab-Husseini Plan was the model for the Oslo Accords.

Resolution 242 was consented to by the PLO in 1982, who by doing so set question marks around the future of a Palestinian state. Sweden acted as a mediator six years later, in 1988, between the US and PLO during a meeting held in Stockholm. PLO representation was vetoed at the Madrid peace conference by Yitzhak Shamir in 1991. Instead, a joint Palestinian-Jordanian delegation participated. Then US Secretary of State James Baker remarked that the US wasn´t in support of an independent Palestinian state.

Haidar Abdel-Shafi, the Head of the Palestinian delegation was preoccupied by the issue of settlements. In 1991, there were already over one hundred thousand settlements in the West Bank and the Gaza Strip. PLO was the only possible representative of the Palestinian people. As a consequence, separate secret negotiations with Israel began. The parties had nothing to lose because they wouldn´t be binding.

Abu Alaa met Stoltenberg at the Foreign Ministry in Stockholm 1992. The advantage of involving Norway was that its foreign policy was independent given their position outside the European Union. For Israel, the timing was good since the PLO and Arafat were very weak at the time. Yair Hirschfeld who was an Israeli academic, and Israeli historian Ron Pundak were instrumental in laying the groundwork for the Oslo process. Hanan Ashrawi, the Palestinian peace negotiator who was the official spokesperson of the Palestinian delegation to the Middle East peace process, and Hirschfeld had been talking in secret to Faisal Husseini of the PLO since 1989. Hirschfeld contacted Ahmed Qurei, or Abu Alaa, who was the finance minister of the PLO. And Norway, through Deputy Foreign Minister Jan Egeland and Terje Rød-Larsen of the Norwegian Institute of Applied Social Sciences, met with Abu Alaa in London in December of 1992.

The International Court of Justice (ICJ) has declared the Israeli West Bank Barrier illegal. In its Advisory Opinion titled ”Legal Consequences of a Wall in the Occupied Palestinian Territory” of 9 July 2004, the Court found that the construction of the wall was contrary to international law. It is unilateral action of this kind that leads some academics to opine that Jerusalem should return to being a UN protection zone with free movement and safeguarding of Holy sites for Muslims, Jews, and Christians. Still, progress might be on the horizon.

Who Should Control Jerusalem?
The Jerusalem Law of 1980 says that ”Jerusalem, complete and united, is the capital of Israel”. The law has been described as largely symbolic. It was amended by the Knesset, however, in its Basic Law of 2000 to stipulate that Israel should have exclusive control over the city as defined by the boundaries spelled out by the government order of June 28, 1967. The Israeli Supreme Court has labelled it an effective annexation of East Jerusalem. Both the UN Security Council and the International Court of Justice have declared the 1980 Basic Law null and void.

West Jerusalem was overtaken by Israel during the 1948 war. The Holy Basin is key to settling the conflict This area is made up of the Old City and the circumjacent sections including Silwan, Mount Zion and Mount of Olives, most of which are located in East Jerusalem that Palestinians maintain is their capital. According to the International Crisis Group, US-led mediation should recommence with the objective ”to secure an agreement on several key principles if and when negotiations resume, to preserve Jerusalem as a city that respects the religious rituals of the three monotheistic faiths.”

There is disagreement over the Old City and the area surrounding it. It should be noted that East Jerusalem is a small area. But the Jewish people allege a 3,800 years old association with Jerusalem. Zionists assert that this is an important element of the so-called unfolding redemption process, the Zionist dream. The Jewish position is that an Arab or Palestinian state with Jerusalem as its capital has never existed. The Zionist movement also points out that there are 215,000 Jews living in East Jerusalem.

The Settlements
Israel has occupied the West Bank of the Jordan River, the Gaza Strip, the Sinai Peninsula, and the Golan Heights ever since the Six-Day war of 1967. Jewish settlement in the Occupied Palestinian Territories commenced the same year and the first settlement was Kfar Etzion. According to the Israeli government, the Judea and Samaria Area represents the administrative district that includes Israeli-occupied West Bank excluding East Jerusalem.

Although international law prohibits moving one´s population to occupied ground, there are close to 620 000 Israeli settlers residing in the occupied territories today. These settlements are contrary to international humanitarian law. And they repeatedly cause condemnation from the highest level in the diplomatic community.

Many legal experts contend that the settlements either contravene Article 49 of the Fourth Geneva Convention or that they fail to comply with international declarations. We should note here that human rights law has parallel application to the law of armed conflict in occupations that have been in place for a long period of time and that transform the society of the occupied.

It has been argued that the Trump Administration transgressed UN Security Council Resolutions 242 and 497 (from 1981) by recognizing the Golan Heights as part of Israel. The only real city in the Golan Heights is Katzrin, the so-called capital of Golan, with a population of around 7,300. The international consensus is that Israeli settlements in the Golan Heights are in violation of international law. Relevant UN SC Resolutions on settlements include 446 (1979), 452 (1979) and 465 (1980).

Recognition
In contemporary Palestine, Israel and the PA are supposed to be able to exercise effective territorial sovereignty over their land, but only Israel enjoys extensive recognition as a state. The UN General Assembly voted to recognize Palestine as a non-member observer state in 2012. And twelve European nations have recognized the Palestinian state.

UN Secretary-General António Guterres has voiced his support for the two-state solution based on mutual recognition. This past summer the SG expressed great concern over Israeli annexation plans of the West Bank, claiming that ”annexing parts of the West Bank will grievously harm two-state solution”. The SG has underlined the need for a will to peaceful co-existence and indicated that Palestine has been recognized as a state by over 130 other states after it declared independence from Israel in 1988.

The Abraham Accords do link to the suspension of Israel´s West Bank annexation plans. But they need to be coupled with stronger pressure on Israel to revisit its nation-state law, changing the status quo in the occupied territorism and reconsidering preferential treatment of Israeli Jews over non-Jewish citizens of Israel.

Ever since the First Intifada in 1987, a permanent status agreement has been sorely wanting. The Oslo Process was supposed to lay the foundations of such an agreement. Israeli Prime Minister Ehud Barak offered 92 percent of the West Bank to the Palestinians at the Camp David Summit in 2000 and 100 000 refugees to return to Israel, but Arafat turned him down. During the peace talks between Prime Minister Olmert and Abbas eight years later, it became clear that quality of life should be improved for both sides. Israel´s legitimate security concerns must be tackled by a combination of security-building measures and concessions. Israeli land confiscations in the West Bank coupled with the massive wall.

Borders
One of the main barricades to peace is the contested delineation of the borders of Israel and Palestine. The Palestinian area supposedly encompasses land inside East Jerusalem, the West Bank, and the Gaza Strip. The PA also argues that Israel should give back the land it won in the Six-Day War of 1967. The PA thinks that settlements on the West Bank are illegal and that Israel should retire to the pre-1967 borders and surrender to the Palestinian state the entire West Bank. The boundaries of the Palestinian state may be defined by looking to the relevant UNSC resolutions with Res 242 as the footing. Resolution 338 fortifies this viewpoint.

Israel is of the view that the borders of Palestine weren´t defined in 1967 and still are not defined. But many observers argue that the spirit of Res 242 should be respected. Resolution 338 called for the implementation of Resolution 242 which meant an obligation on the part of Israel to withdraw from the territories occupied in the Six-Day War. At stake is the principele of the inadmissibility of the acquisition of territory by war.

The long-serving Israeli Prime Minister, Benjamin Netanyau, has attempted to legally define Israel as a Jewish state. Learning from the Camp David Accords, and its peace-making between Israel and Egypt, Israel could replicate its strategies to achieve peace with a neighbour by relinquishing land areas that it took over during wartime. As a quid pro quo, Egypt recognized Israel. Israel also gave up settlements in the Sinai. Israel and Palestine should enter into diplomatic relations through a treaty and return settlers´ land. This treaty can incorporate information-sharing on terrorist-related topics. This is carried out between Israel and Egypt regarding ISIS. A demilitarized zone should be created. The peacekeeping force could be created by the General Assembly through a resolution that ensures global legitimacy for the force. Security agreements, mutual assistance concords and extradition treaties should be concluded between the parties.

Mahmoud Abbas sought UN backing for formal Palestinian statehood in 2011. Many states have recognized the Palestinian state, thus providing a ground for ascertaining the borders between it and Israel. Israel under its current leadership is however more interested in planning for new settlements and annexation on the West Bank. Such annexation plans risk the stability of Jordan, the occupied territories and Israel itself. The UN, the EU and others should not support these plans but rather use political, diplomatic and economic tools to persuade the Netanyahu regime to abolish these schemes.

The Case of the Bedouines
The UN Committee on Economic, Social and Cultural Rights has come up with guidance on the obligation of States parties to guarantee non-discrimination in the exercise of each of the economic, social and cultural rights enshrined in the International Covenant on Economic, Social and Cultural Rights. The International Covenant on Economic, Social and Cultural Rights states in article 2 (2) that “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The indigenous peoples of Palestine, the Bedouin Jahalin, al-Kaabneh, al-Azazmeh, al-Ramadin and al-Rshaida, are victims of house demolitions and property confiscations and limitations of their freedom of movement. They are tribes of semi-nomadic shepherds who fled from the Negev desert to the West Bank upon Israel´s declaration of independence in 1948. Nowadays they reside in surrounding areas of Hebron, Bethlehem, Jerusalem, Jericho and the Jordan Valley. Israel abstained from voting for the United Nations Declaration on the Rights of Indigenous Peoples in 2007.

The main humanitarian concern relates to the indigenous Palestinian Bedouins who are about 27,000 pastors subsiding under Israeli military authority. The 7,000 or so Bedouins residing in 46 minor neighbourhoods on the perimeters of Jerusalem are especially vulnerable. Some of the refugee Bedouins living in the occupied territories are land-owners. They have no legal rights, but could be entitled to greater protection under emerging laws and scholarly works dealing with the rights of indigenous people.

The Road Map
The Road Map aimed for a nonmilitarized and democratic Palestinian state. But Israel insisted on the annexation of Jewish settlement blocs in the West Bank and East Jerusalem. And it required that the PA recognize Israel as a Jewish state.

Palestinian authorities are attempting to spread information concerning, inter alia, the statistical aspects of the on-going situation. Around five million people, about half of the Palestinian people, are refugees. These people are living with the results of what Ian Shapiro labels an ossified conflict. Professor Shapiro describes how economic incentives can change the conflict realities. It is important, at the same time, to consider the historical background to this severe crisis.

There are those who claim that the withdrawal from the Gaza Strip in 2005 ended the peace process. This is clearly exaggerated. But the proponents of this line of reasoning argue more convincingly that there can be no Palestinian state with Gaza and the West Bank as separate territories. In today´s Israel, Prime Minister Netanyahu has stated that Israel wants a certain degree of Palestinian demilitarisation and a recognition of Israel as a sovereign state. The Prime Minister dutifully avoids mentioning an independent state because of the legal ramifications.

Post Oslo, sixty percent of the West Bank remained open for settlements. A by-pass system became commonplace, subsuming parallel road, water and electricity systems. Between 100,000 and 140,000 Palestinians from the West Bank and the Gaza Strip became legal residents of Israel and settled there. Jerusalem was placed under separate international management with the passing of Resolution 181 in the General Assembly. The Palestinians were worried about losing Islamic rights in Jerusalem´s Old City and areas around it. Jordan became the guardian of the Christian and Islamic sites of the city.

This has had repercussions up until the present time. Organisations such as the Israel Land Fund endeavours for Israelis to purchase all the land in Palestine. And orthodox Jews make it their life´s purpose to fulfil the 613 commandments. Access to the Temple Mount is particularly contentious issue. Time-sharing arrangements have been set up to take into account, for example, Yom Kippur, the Day of Atonement, on which only Jews are allowed to pray and corresponding feast-days for Muslims. In this vein, it seems necessary to consider aspects such as independence, freedom, equality, and end of occupation and to avoid defining the conflict by religious claims.

Who are the Leaders of the Palestinians?
The struggle between Fatah, which rules the West Bank, and Hamas, which controls the Gaza Strip, continues. In addition, there is the ever-present danger of violent conflict between Israel and Gaza. The Palestinian Legislative Council (the PA´s parliament) is inoperative. And parliamentary and presidential elections are long delayed. If the PA, which was created by the Oslo Accords, were to collapse, Hamas would fill the vacuum.

The last time elections were held for Parliament in Palestine was in 2006 when Hamas prevailed by a large margin.Agence France Presse (AFP) reported on September 25 that Fatah and Hamas have agreed to hold the first elections in Palestine in almost 15 years. Parliamentary and presidential polls are to be scheduled within six months and include legislative elections presidential elections and elections for the Palestine National Council. The Palestinian Legislative Council has been effectively suspended since 2007. The President issues laws by decree and Council committees keep working, albeit at a lower pace. Parliamentary panel discussions do take place.

Hamas is not likely to go away. The organisation survived Operation Cast Lead in 2008, which involved numerous strikes from Israel. Both at the Taba and Geneva negotiations in 2003, both sides agreed on territorial swaps and the two-state formula. But some experts on the conflict think that the basis of peacemaking efforts during this period of time, the Clinton Parameters, didn´t go far enough in recognizing the Palestinians´ right to sovereignty over all of the West Bank and Jerusalem, the right of return of Palestinians to the places in Israel they lived in before 1948, and dissolution of Israeli settlements on the West Bank.

Hamas appears ready to accept a two-state solution and a long-term ceasefire on the condition that it doesn´t have to officially recognize Israel. Incendiary balloons and the firing of rockets by Hamas seems never to cease. And the PA risks financial collapse. Over 70 per cent of the women in Gaza are unemployed. And poverty and harsh economic conditions lead to violence against women in Gaza. Egypt tried to reconcile the parties last year, to no avail. Now it seems concrete action is needed, for example, promoting intra-Palestinian reconciliation, expanding the fishing zone in Gaza, and lifting border closures.