Divided They Stand
A complex business agreement will often be preceded by a so-called term sheet. The term sheet will outline points of agreement of major consequence to both parties that must be settled; lesser details, including troublesome ones, will be left for the definitive, massive agreement to follow. A term sheet of sorts for an Israeli-Palestinian peace treaty, with occasional parenthetical comment, is set out below, with some preliminary observations.
The Palestine Authority deserves, and is receiving, broad support as it tiptoes around negotiations with Israel. The risk, however, is that the Authority will again push its luck: it is notorious (as the late Abba Eban said) for missing opportunities. The current predicament arises from Palestinian insistence on a freeze of construction at Israeli settlements on the West Bank as a precondition of substantive negotiations (which the United States no longer supports). That is a miscalculation. If general agreement on a treaty is reached, the construction issue will vanish; it will be resolved perforce. If general agreement fails, the construction issue will become a minor matter in a major, dangerous confrontation in which Iran and Hezbollah will become players.
The real question for both parties is the disposition of West Bank settlements (including enlarged settlements) occupied by Israelis. Some settlers will depart willingly; others will refuse to evacuate. Prime Minister Benjamin Netanyahu will not permit repetition of the scenes of withdrawal of Israelis from Gaza, when forcible removal occasioned violence by Israelis against Israelis. The solution is to grant the settlers an option to be exercised by a stipulated date: they may return to Israel proper with their movable property, with economic incentives to do so, or they may remain in the new Palestine as unwelcome aliens or citizens of that country.
West Bank settlements in which stubborn Israelis remain must be assured protection, however, at least for a period of years. It is quite impossible to suppose (as some observers suggest) that the new Palestinian government would permit Israeli troops to enter their country for that purpose; Palestinian sovereignty cannot be compromised in that way. Fortunately, Palestinian police are demonstrating growing competence to do the job. An international force could serve as backup.
Similarly, to quell Israeli anxiety that a new Palestine would become a military platform for attacks on Israel proper, the neutralization of the country must be assured constitutionally and practically. Article 9 of the Japanese Constitution is the model: Japan “forever renounce[s]” war and the “threat or use of force as means of settling international disputes,” and “land, sea, and air forces, as well as other war potential, will never be maintained.” A national police force is another matter.
In the same vein, the Authority and its successor governments will not permit the country to be used by foreign military forces to threaten Israel. (Jordan, to the immediate east of Palestine, has recognized Israel and will cooperate.) Security may require international or U.S. forces on the Palestine-Jordan border for a time. Violation of those stipulations by Palestine would be understood to constitute a casus belli. (Nothing can be done in this treaty to protect Israel against direct missile attacks by Iran or Hezbollah.)
The boundaries of Israel proper and the West Bank before 1967 will serve as the template for the definition of the territory of the new Palestine. Several of the Israeli settlements, close to the border of Israel, will be incorporated into Israel. In exchange, parcels of Israeli land of equivalent size will be granted to Palestine. Jerusalem is a special case. It is of course the capital of Israel. But a district of East Jerusalem will be incorporated into Palestine as the capital of the new state. The free movement of people between the capitals will be arranged, with appropriate security arrangements.
An “effective date” for these and other changes will be stated—say, January 1, 2012. Until then, the Authority will govern putative Palestine. It will submit a constitution to a referendum of Palestinians. The form of the constitution must be approved by the United States, to ensure the protection of civil rights and the neutralization of the state. As of the effective date, the Authority will arrange for the election of executive and legislative officers of the new government and the appointment by them of a judiciary, conforming to the new constitution. On the effective date, each state will recognize the other in customary terms.
A very limited number of Palestinian refugees, or descendants of refugees, from the Palestine of 1948 may return to Israel under conditions that Israel may impose, including certification of their status by a UN agency. International financial assistance for such immigrants will be sought. After the effective date, trade between the two countries will be promoted by both, and Israel will continue to make available to Palestine such resources as had been previously supplied to the West Bank. Disputes arising under the treaty will be settled by arbitration.
One question is deferred: it is Gaza, a hotbed of anti-Israel sentiment now governed by Hamas. Once a new Palestine on the West Bank is seen as a success, a program for the legal incorporation of Gaza into Palestine may be pursued, binding that territory to the neutralization and other assurances given Israel, and granting Gazans controlled transit through an Israeli corridor to and from Palestine proper (recall the Danzig corridor).
About the Author
Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).