[Editor’s Note: Neither of these positions below represent Tikkun’s position.  We call for a focus on healing the PTSD on both sides while simultaneously calling for a campaign for “One Person/One Vote” in an Israel/Palestine with a new constitution that would guarantee without possibility of change through any future democratic process that both Jews and Palestinians would forever have the Right of Return in this new entity. And while we think that formulating it that way might reassure both peoples that their concerns are heard, we put it forward also with the hopes that Israelis would find that growing support for that alternative might produce an Israeli majority for the 2 state solution which we think the best path but politically distant in 2018. –Rabbi Michael Lerner ]

Ending the Occupation is the Path to Peace

By Jeff Warner and Yossi Khen, Feb. 27, 2017

Peace has eluded the parties in Israel-Palestine for decades.  Israel, the stronger party economically, militarily, and diplomatically, has effectively prevented peace from emerging.  That sad fact has not changed, even though Palestinian nationalism is stronger than ever and the Palestinian cause is gaining international recognition.  In frustration, some Palestinian solidarity advocates are pursuing desperate but futile paths.

An example was promulgated by Richard Falk in a public speech in Los Angeles on February 7, 2018, while discussing his well-researched U.N. report on Israeli apartheid.  Falk said that to end the occupation is not good enough; the proper goal should be to end the structure of apartheid.

The Falk-Tilley Report

“Israeli Practices towards the Palestinian People and the Question of Apartheid” by Richard Falk and Virginia Tilley was published by the U.N. Economic and Social Commission for Western Asia in 2017.  The report examines the lives of Palestinians who live under four legal domains, and shows that each constitutes apartheid, a crime against humanity, according to the 1973 United Nations Convention on the Suppression and Punishment of the Crime of Apartheid and the 2002 Rome Statute of the International Criminal Court.

In summarizing the report in The Nation, Falk wrote (https://www.thenation.com/article/the-inside-story-on-our-un-report-calling-israel-an-apartheid-state/), “that Israel has deliberately fragmented the Palestinian people in relation to these four demographic domains, relying on systematic discrimination, including ‘inhuman acts,’ to maintain its control, while continuing to expand territorially at the expense of the Palestinian people.”

In discussing the report in the above cited speech, Falk went beyond the report’s conclusion that Israel has imposed apartheid on the Palestinian people to discus how, in light of the report’s conclusion, peace must be pursued.  He said that the Palestinian side could not fairly negotiate with Israel it was under apartheid.  He said that the path to peace starts with ending the structure of apartheid.

That is an idealistic goal, but it is impossible.  The only path to end apartheid is through negotiations between Israel and the Palestinians.  Falk did not suggest how to end apartheid without negotiations.  South Africa provides a counter example—the ANC and the government negotiated while the blacks, who the ANC represented, were still under apartheid

When questioned, Falk said that just ending the occupation is not good enough because we (civil society) cannot allow Israel to fragment the Palestinian people. To understand what Falk meant, we turn to the Falk-Tilley report that examines the condition of the Palestinian people in four demographic groups, each living under a different legal domain:  The domains are:

1. [Israeli] civil law with special restrictions [discrimination] applies to (~1.8 million) Palestinian Israelis.
2. Permanent residency laws apply to (~320 thousand) Palestinians living in East Jerusalem.
3. Military law applies to (~4.5 million) Palestinian living under belligerent occupation in the West Bank and Gaza Strip, including those living in refugee camps in those areas.
4. [Israeli] policy to preclude the return of Palestinians, whether refugees or exiles, living outside of Israel control applies to (~3 million) Palestinians mostly in refugee camps in Jordan, Lebanon, and Syria, and others in the world-wide diaspora.

Falk seems to worry that ending the occupation will focus solely on Palestinians living under direct occupation (domain 3), while abandoning the majority of the Palestinians people living under other domains.

The Way Forward

By advocating that position, Falk is rejecting the stated positions of almost all major Palestinian political organizations which is to end the occupation and seek a Palestinian state alongside Israel.  These include the PLO (the sole legal representative of the Palestinian people), the Palestinian Authority, the Palestinian Israeli Joint List (representing 87% of Palestinian Israelis in the Knesset), and likely even Hamas (https://www.ynetnews.com/articles/1,7340,L-3972646,00.html) if supported by a consensus of the Palestinian people (https://www.ynetnews.com/articles/1,7340,L-3972646,00.html).  Falk is abandoning the international consensus to end the occupation which includes almost every state in the United Nations and international organizations including the Arab league, the United Nations, and the European Union.  Even after Trump’s Jerusalem decision, the United States is still part of this international consensus.

While the international consensus has not stopped Israel from deepening its apartheid control over the Palestinian people, it has stopped Israel from annexing large sections of the West Bank.  More important, the international consensus, through government sanctions, will surely be the agent that eventually pressures Israel to make peace.

Falk did not specify or even hint at what is required to end the structure of apartheid.  Maybe because it is fairly obvious.  For Palestinian Israelis (domain 1), it means ending the de jure and de facto discrimination.  For Palestinian residents of Jerusalem (domain 2), it means citizenship.  For Palestinians under direct occupation (domain 3), it means ending the occupation.  And for diaspora Palestinians, mostly refugees in Lebanon, Syria, and Jordan (domain 4), it means the right of return.

The most straightforward of the above is ending the occupation.  We suggest that ending the occupation is key to bringing relief to the groups of Palestinians not under direct occupation.

When the occupation eventually ends, it will be via a formal, bilateral agreement between Israel and the PLO that creates a Palestinian state alongside Israel (2SS).  The agreement will be based on the 1967 Green line likely modified by land-swaps.  It will specify the pace and extent of the withdrawal of the Israeli army and police, and the future of the Israeli settlements and settlers that will end up in the Palestinian state.

Proponents of a single democratic or bi-nation state (1SS) suggest the occupation would end with an agreement that specifies the characteristics of the unitary government and the pace and character of a transition from separate to unified security and other civic services.

If we thought any of these 1SS were possible, we would work hard to make it happen because they will promote Jewish-Arab cooperation.  But considering the strong nationalism of Israelis and Palestinians, the lack of any significant political support for a single democratic state among Palestinians (except in the far diaspora), and the fierce opposition of Israelis (likely even with a guaranteed Jewish homeland rule), a 1SS seems less likely to emerge than a viable Palestinian state.

Michael Lerner proposed (https://www.tikkun.org/newsite/still-immoral-still-stupid-lets-end-50-years-of-israels-occupation-of-the-west-bank-one-personone-vote) a type of 1SS he calls the One Person/One Vote strategy (1P/1V).  He sees it as a temporary transition from the present intransigent Israel to a 2SS.  1P/1V is similar to the Scottish situation in which Scots are voting citizens of the United Kingdom, up to the time they vote for separation.  This has been discussed in the Israel-Palestine context by Tony Klug (https://read.dukeupress.edu/tikkun/article-abstract/32/2/41/129722/It-s-the-Occupation-Stupid-If-that-is-the-answer).  Lerner’s version is based on a constitution that that guarantees the 1P/1V state will be a homeland for any Jew who is under anti-Semitic threat.

1P/1V would require a Knesset vote to grant citizenship to Palestinians in the occupied territory, and that seems impossible given the political positions of the several parties.  The Jewish parties, from Meretz on the left to Jewish Home and Yisrael Beiteinu on the right, are Zionist and committed to a Jewish state; the Joint List Arab coalition opposes anything that would promote the occupation of annexation.

The 2001 Israel-PLO Taba summit (http://www.pij.org/details.php?id=32) is instructive in anticipating that an end of occupation agreement will include all aspects of the Israel-Palestine issue, including:

• Creation of a Palestinian state that will end the structure of apartheid for Palestinians living under direct occupation in the West Bank and Gaza Strip.
• Right of return for Palestinian refugees (who constitute the bulk of the Palestinian diaspora) to the Palestinian state or generous monetary compensation, with a modest to symbolic qualifying for return to their original land now in Israel.
• Citizenship for Palestinian residents of Jerusalem by incorporating much of East Jerusalem into the Palestinian state.

Such an end of occupation agreement would end apartheid for all Palestinians except Palestinian Israelis.

Palestinian Israelis will still have their lives constrained by tens of laws that discriminate against them—what Falk calls apartheid.  But the Palestinian Israelis are not abandoned.  The Joint List (the united Palestinian political parties that were supported by about 87% of the Palestinian Israeli electorate in the last election) support a 2SS as the first step to a more egalitarian Israeli society.  They believe that once there is peace, Palestinian Israelis will no longer be seen as a potential fifth column that is sympathetic to the enemy.  They believe that peace will create a different environment in Israel where reforms will be easier to enact.

We understand that eliminating the 50 plus Israeli laws that discriminate against Palestinian Israelis will take many years.  That said, we note that Palestinian Israelis, even under discrimination, are integrating themselves into Israeli’s academic, medical, commercial, technical, and entertainment life, and anticipate that as integration expands, repealing discrimination laws will be easier.

Can it Happen?

Some might say that assuming that an agreement will be as comprehensive as outlined here is unrealistic.  They would say that Palestinian leaders will capitulate to Israeli dictates under pressure from the United States.  But the history of Palestinian-Israeli negotiations is that Palestinian leaders have not agreed to sub-standard agreements.  Two examples are the 2000 Camp David and the 2008 Olmert-Abbas talks.  In neither case, or any other, has a Palestinian leader sold-out the Palestinian people.

Others might say that Israel will act unilaterally, withdrawing its army and police with no coordination with the Palestinians.  This is what happened during the 2005 disengagement from Gaza when Israel removed its settlers and army and essentially threw the keys on the ground.

But Israel will not unilateral withdraw from the West Bank and East Jerusalem without making arrangements for its 550,000 settlers.  Even if Israel annexes the land between the 1967 Green Line and the separation wall, it must still make arrangements for 100,000 settlers living east of the wall, many of whom may want to remain living in the biblical West Bank.

Another factor is that even though many Israelis blame the post disengagement unrest with Gaza completely on Hamas, there are key Israelis who understand that it was withdrawing from Gaza without coordination, opened the door for Hamas’ takeover.

We think Richard Falk created a strawman when he said that ending the occupation is not enough.  In fact, ending the occupation goes a long way to ending the structure of apartheid.  By saying ending the occupation is not enough, Falk is destroying the international political movement that unifies world-wide opinion to end Israeli oppression of Palestinians by ending the occupation and promoting a Palestinian state alongside Israel.

 

Author bios:

Jeff Warner is the Action Coordinator for LA Jews for Peace; he visited the West Bank and Gaza Strip as part of four humanitarian missions, most recently the 2017 Jewish Center for Nonviolence 9-day mission to Bethlehem and Hebron.

Yossi Khen is an Israeli-born, long-time citizen of the United States. He was a Refusenik in the 1970s to avoid serving in the occupied territories and has consistently worked for a Palestinian state alongside Israel, first in Israel and for almost 35 years in the United States.

Response by Richard Falk 

Response to “Ending the Occupation is the Path to Peace” by Jeff Warner and Yossi Khen” (5 March 2018)

 

Richard Falk

 

Jeff Warner and Yossi Khen have written a sharp critique of a talk that I gave at a United Methodist Church in Los Angeles on February 7, 2018, sponsored by several groups including the LA Branch of The Jewish Voice for Peace. They object most strongly to my insistence that the only path to peace between Israel and Palestine involved ‘ending apartheid’ as imposed upon the Palestinian people as a whole. It particularly disturbed Warner and Khen that an acceptance of my line of advocacy meant abandoning the international consensus to the effect that the only key to peace remains ending the occupation as the essential feature of any realistic prospect of peace, consisting of establishing a Palestinian state alongside Israel.

 

Let me say at the outset of my response that debate and discussion of these fundamental issues of peacemaking is constructive, even vital, considering that the Palestinian search for some kind of just and sustainable peace has been stymied for decades, and in fact has lost ground due to settlement expansion, construction of the separation wall, the consolidation of Israeli control over Jerusalem, adverse shifts in regional politics, and the advent of Trump and Trumpism. Despite these developments, Warner and Khen continue to believe that the international two-state consensus on peace diplomacy remains the only realistic approach, offering cogent criticisms of my support for an alternative understanding of a peaceful future based on ending apartheid.

 

As I read their critique, it does not challenge the allegations of apartheid contained in our controversial ESCWA Report to the effect that the policies and practices of Israel toward the Palestinian people appear to be a criminal violation of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and an instance of a Crime Against Humanity as delimited in the Rome Statute governing the International Criminal Court. Their main contention is rather that my views are politically impossible to implement, and for this reason alone, are irrelevant, and hence, an irresponsible from any serious effort to end the conflict.

 

Warner/Khen believe it fanciful to think that Israel would ever dismantle its apartheid regime prior to engaging in a comprehensive diplomatic process that established peace between these long embattled peoples. In their view, if I understand them correctly, the gradual elimination of apartheid by Israel will occur, if at all, in the aftermath of a carefully coordinated process of ending Israel’s occupation of Palestine in a manner that raises Israeli confidence in their future security as well as their trust in the good faith of Palestine in following through on their acceptance of Israeli sovereignty and legitimacy. Their criticism of my approach also suggests that I misinterpret the way in which apartheid was ended in South Africa, not as a precondition preceding diplomacy, but as the core of what was being negotiated between the two sides.

 

 

 

 

Acknowledging Political Impossibility

 

On the issues of ‘political impossibility’ I essentially agree with Warner and Khen, but I would also suggest that their analysis applies as strongly to ending the occupation, a position that they endorse as the best way forward. Ever since 1967, despite the existence of UN Security Council Resolution 242, Israel has given every indication of a deeply embedded refusal to follow the central imperative of withdrawal from the territories occupied. It is hardly news that the settlement phenomenon initiated almost at soon as the occupation began 51 years ago sent a clear message of Israel’s intention to pursue expansionist territorial and security goals that could not be convincingly reconciled with 242. Beyond this, the West Bank and Jerusalem were treated in Zionist ideology as forming an essential part of the promised land, a biblical mandate as to the enlarged scope of Israel that took precedence over contemporary international law for many Israelis and in Zionist thought, and was reflected in the internal discourse in Israel that invariably refers to the West Bank as ‘Judea and Samaria.’ Israel’s political will to withdraw even partially has never been really tested, despite some intimations to the contrary in the course of the peace diplomacy associated with the 1993 Oslo Framework of Principles.

 

My point is this—that political impossibility applies across the board when it comes to peacemaking between Israel and Palestine. But additional to this, I believe that even should conditions drastically change in the future, ending the occupation would not produce peace, but would be much more likely to initiate a new cycle of Palestinian frustration and disappointment.  With such a mood, renewed violence and oppositional politics would return, producing a total disillusionment on both sides as to achieving peace. I believe that peace cannot come to either Israelis or Palestinians without dismantling the existing structures of subjugation, and repudiating their ideological infrastructure, that currently affect, and afflict, those Palestinians living in refugee camps, as a minority in Israel, and enduring involuntary exile, as well as those who have endured an oppressive occupation since 1967.

 

Here, I do have an analytical disagreement with Warner and Khen, assuming that I have understood their position correctly. I read them as arguing that the best way to eliminate the discriminatory structures affecting those Palestinians not living under occupation is to first end the occupation, and then work and hope for a gradual softening of other forms of Israeli control. In their words, “[w]e suggest that ending the occupation is key to bringing relief to the groups of Palestinians not under direct occupation.” Their underlying belief seems to be that as peace between the two peoples becomes more firmly grounded it will dissipate Israeli fears, and create an atmosphere more conducive to creating conditions of equality and peaceful relations between Israelis and Palestinians. I find this line of reasoning to be unconvincing for two major reasons: first, any peace diplomacy that achieves an Israeli withdrawal (even if partial) will almost certainly be accompanied by an unconditional Israeli demand that the Palestinians explicitly pledge to give up any further claims as to grievances or rights, that the peace agreement is the absolute end of the conflict, and no subsequent or unresolved grievances will be admissible; secondly, if Israel retains its identity, as would certainly be the case, of being ‘a Jewish state’ it would, in effect, reaffirm the basis for discriminatory laws designed to ensure a permanent Jewish majority population and a dualist regime that grants Jews an unrestricted ‘right of return’ while denying the Palestinians any such right.

 

What I am arguing is that given the political impossibility of any path to peace at the present time, it is desirable to opt for a solution that is at least capable of removing fundamental grievances. In this regard, ending the occupation does not even pretend to do this. It basically ignores the plight of those millions of Palestinians who are not living under occupation, and thus almost certainly sows the seeds of future conflict. Ending apartheid is, of course, not a guaranteed solution, but at least it purports to address the entire agenda of Palestinian grievances, and is premised on the resolve to reach political outcomes that give expression to the formal and existential equality of the two peoples.

 

Warner and Khen criticize me for supposing that Israel would ever agree to eliminating apartheid structures as a precondition to peace, and point to the fact that the even ANC in South Africa was forced to negotiate the dismantling of apartheid in the course of their peace diplomacy. I admit to being unclear on this point in my oral presentation. I agree that ending Israeli apartheid, unless undertaken unilaterally, would almost certainly, require extensive negotiations and a phased plan of implementation. To the extent that I implied that ending apartheid was a precondition for credible peace negotiations, I acknowledge that such a formulation is misleading. Nevertheless, I would assert that the question of ending apartheid must be understood by both parties to be at the center of any future credible diplomatic effort that seeks a sustainable peace, likely constituting the most challenging aspect of such a peacemaking process as undertaken by Israelis and Palestinians.

 

By unexpectedly releasing Nelson Mandela in 1990, the symbol of the anti-apartheid movement led by the ANC, the white governing elite of South Africa sent a clear signal of their readiness to negotiate the end of legalized racism. This is instructive, suggesting that Israel must also signal its change of heart toward the subjugation of the Palestinian people before a real ‘peace process’ can go forward. In this sense, returning to the Warner/Khen criticism, it is the signal of Israel’s altered outlook on peace, not the dissolution of apartheid, which should be regarded as a precondition for an authentic peace process.

 

A final question seems to be whether ‘ending apartheid’ is more ‘politically impossible’ than ‘ending occupation.’ I believe the honest answer is that we cannot know. Given this circumstance of radical uncertainty my view is that it is preferable to be committed to a path to peace that both ends the conflict and embodies relevant precepts of international law and morality. As should be obvious, I believe ending the occupation would be, at best, nothing more than a somewhat more politically acceptable and inevitably temporary reframing of subjugation and victimization, while ending apartheid would be a decisive move toward adopting a law-based solution to the conflict responsive to contemporary standards of international human rights and consistent with the expectations of global justice.

 

 

Debating Solutions

 

Warner and Khen suggest their own view of political prospects and preferences by their strong endorsement of a two-state solution, and corresponding rejection of a one-state solution. In effect, Zionism can live, in theory at least, with an independent Palestinian sovereign state as a neighbor, but would lose its ideological birthright as a biblically entitled state beholden to the Jewish people, if it accepted to become a single binational state based on the equality of Jews and non-Jews. I appreciate the coherence of their position, but feel that it inscribes an inherently unjust solution based on an unwarranted deference to the underlying Zionist project. The claim to be a Jewish state, however justly and understandably motivated by the Jewish experience, was flawed from the outset due to its disregard of the rights and wellbeing of the majority non-Jewish population residing in Palestine up to the time of the Partition War in 1947-48.

 

What kind of polity can we expect to emerge if Israel were to dismantle the apartheid structures that now oppress the Palestinian people? It is here that Warner and Khen assume that the outcome would be a single, secular, binational state, and are critical of my failure to offer a clear idea of what such a post-apartheid Palestine and Israel would be.

 

While we are in the domain of the impossible, it seems more useful to imagine the unimaginable than to project what seems obvious. In this regard, I would not prejudge the political sequel to a process that effectively dismantled Israeli apartheid structures of control. Such a context would be so different than what seems presently plausible that we should indulge visions of the desirable rather than be confined to what seems from the outlook of the moment to be most plausible, which is a single secular state that reestablished Palestine as a state with the borders possessed before the British mandate, although possibly with a new, neutral name.

 

What if we are daring enough to envision and propose ‘a stateless Middle East’ that involved a reversal of the Sykes/Picot imposition of Westphalian territorial states on the region a hundred years ago to satisfy the anachronistic colonial ambitions of Britain and France? Instead of European style states with arbitrary and artificial boundaries held together by a strongman, the new political framework of the region would be constructed of political communities that better reflect natural ethnic, religious, and historical affinities, resembling in some ways the Ottoman system of governance based on the millet system, in other ways, the idea of ethnic self-determination as envisioned by Woodrow Wilson, and in still other ways the unified Arab nation that the British misled Arab leaders to believe would be allowed to happen in exchange for their support in opposing the Ottoman Empire in World .

 

The Ottoman political framework was discarded after World War I, Wilson’s vision overridden by European colonial maneuvers, and the wartime pledge to the Arabs cynically broken. As a result the peoples of the region have endured conflict, corruption, chaos, and coercion over the course of the last century, and have been a site of geopolitical rivalry and neoliberal exploitation since 1945. I realize that it must be strain credulity to place any hope whatsoever in a political process that yielded a stateless Middle East.

 

In contrast, I would suggest that only the articulation of utopian aspirations offer the only constructive refusal to accept the strictures imposed on creative thought when speculating about the future of the politically impossible.  That is, we are trapped in the vortex of the impossible, but to yield to its logic is to give up the quest for true peace altogether. 

Richard Anderson Falk  is an American professor emeritus of international law at Princeton University. He is the author or co-author of 20 books and the editor or co-editor of another 20 volumes, In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.”