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The Hidden Dilemma of Final Status Negotiations

Currently, the issue of negotiations with the Palestinians is not at the forefront of diplomatic activity and there is no indication that negotiations are imminent. PA President Abbas has set preconditions for talks which are unacceptable to Israel and this makes PM Netanyahu’s offer of talks without preconditions unacceptable to the Palestinians.

But neither party can be confident that this diplomatic limbo will last forever. Outside pressures will once again provide the key impetus to renewed talks. Israel will then be subject to a major hidden obstacle that will completely nullify any diplomatic advantage expected by its participation.

The hidden obstacle is that years of peace talks, interim agreements, on-off negotiations, recriminations over settlements, disputes over land-swaps, prisoner releases, and so on, have all reinforced the idea that a win-win approach to resolving the conflict is normal and possible. As a result, the Palestinian rejection of Israel as the nation-state of the Jews is obscured from view. Yet this is the rock against which all peace attempts crash.

Therefore, by participating in final status talks as if the PA, or any other Palestinian body, were willing or able to agree to the necessary compromise to end the conflict, Israel’s diplomacy has the disastrous effect of hiding the Palestinian zero-sum approach behind the appearance of a win-win process. This conceals from the international public that the Palestinian/Arab rejection is the driving force of the conflict and the insurmountable obstacle to a genuine 2-state solution (see The Israeli Demand That Palestinians Accept Israel as a Jewish State).

This appearance is compounded by the inevitable failure of the fake final status talks. Without producing an agreement for a full Israeli withdrawal from the West Bank or an agreement for a Palestinian state, the widespread belief is reinforced that Israel is to blame for denying Palestinian self-determination. As a result, Israel is viewed as the obstacle to peace. This solidifies international hostility, fosters criticism of Israel from the Jewish diaspora and fuels BDS activities.

The case for preconditions to final status negotiations

All this presents Israel with significant problems of international and public diplomacy. Firstly, it does not want to be seen as an obstacle to final status negotiations – even though it knows they are nothing of the kind for the Palestinians. Secondly, Israel does not want to prevent genuine final status negotiations. Both considerations are under-pinned by Israel’s insistence that the only way to solve the conflict is by direct negotiations rather than attempts to utilize international institutions to impose a Palestinian state. Therefore, it would be diplomatically hazardous if not impossible for Israel to refuse negotiations. As a result, Israel has to appear willing to participate in a charade.

For Israel, this is a cleft-stick dilemma. It will be blamed if it refuses talks and if it accepts it will be blamed for their failure. As a possible escape from this dilemma, previous articles suggested that Israel should demand Palestinian acceptance of Israel as the nation-state of the Jews as a precondition for future substantive talks (for example, The Folly of ‘Co-ordinated’ Unilateral Withdrawal). This would place the core issue at the center of diplomatic and public attention in a way that nothing else could. However, many reject the notion that Israeli preconditions will aid Israel practically or diplomatically. These opinions warrant review.

The case against preconditions

Essentially, there are four objections. The first is that setting preconditions will make it appear that Israel is attempting to escape the negotiations it says it desires. The second is that it may well provoke an unproductive ‘war of preconditions’ as the Palestinians respond with their own counter-preconditions. This will also be seen as an Israeli attempt to sabotage the talks.

A third objection is largely a strategic question in any negotiations. For example, in the context of the negotiations with Iran, Deepak Malhotra characterized the setting of preconditions as follows:

Preconditions are appropriate only when . . . the opponent is capable of meeting them, and doing so will not weaken its future leverage. Otherwise, they will serve no purpose except to create the impression that the other side has thwarted diplomatic efforts. Demands that ignore these criteria suggest either a flawed strategy or an attempt at political gamesmanship–or perhaps both.
(Without Preconditions, Foreign Affairs, Sep/Oct 2009)

A fourth concern was expressed by Herbert C Kelman in his critical remarks on the preconditions set by Israel for negotiations in 2007 (Palestinians to accept Israel as a Jewish state, renounce violence and stick to previous agreements). He found that although these points were not unreasonable, they were not helpful. His reasoning was that:

if the goal is to promote negotiations, application of these conditions must be guided by the principles of flexibility and reciprocity.

As a result, he maintained that it would be:

counterproductive to impose conditions on Palestinian negotiation partners that are unbalanced, unrealistic and unnecessary.

But having introduced the idea of flexibility and reciprocity, as distinct from the imposition of a precondition, he concluded:

the principle of reciprocity provides a sound basis for assessing the reasonableness and appropriateness of preconditions.
(30 March 2007 The Boston Globe)

The case against the objections

Malhotra’s qualification for preconditions is deficient. He does not consider the possibility that if an opponent is not capable of meeting preconditions necessary to resolve a conflict, it means that the conditions are not present for its resolution on a win-win basis. If so, it is not a matter of political gamesmanship to establish this. Instead, the absence of the crucial building block for an eventual settlement is identified. Therefore, the precondition provides essential knowledge regarding what is possible and what is not.

Likewise with Kelman’s objections, if preconditions are designed to establish whether or not there is the shared objective of a win-win agreement, then they are a useful tool. If this shows that there is no shared objective, it makes it transparent that there is no basis for win-win negotiations. This is again important knowledge.

Kelman recognizes that preconditions should not be unbalanced or imposed but they should obey the principle of reciprocity. In fact, PM Netanyahu has repeatedly linked the twin ideas for mutual acceptance. For example:

There will be no Palestinian state before the state of Israel is recognized as the Jewish people’s state, and there will be no Palestinian state before the Palestinians declare an end to the conflict.
( 02/12/2012)

Although expressed slightly aggressively, the meaning is clear. Given that the ostensible aim of negotiations is to establish a Palestinian state alongside Israel, and that Israel has agreed in principle to this, then reciprocal acceptance is imperative as a prerequisite for a genuine settlement.

Recognition of reciprocal national rights is thus not an attempt to wrong-foot an opponent with demands that are unbalanced and unnecessary. Nor is it an attempt to escape negotiations or part of a war of preconditions. Consequently, it does not fall-foul of the above objections. But whether it is unrealistic or not is precisely the point that needs to be established. Reciprocity signals that the negotiations really are in pursuit of a win-win solution and not again a disguise for the standard Palestinian zero-sum approach.

Inappropriate preconditions

By contrast, Palestinian demands fall completely outside the framework set out by Deepak Malhotra in his ‘Foreign Affairs’ article quoted above:

Preconditions are appropriate only when . . . the opponent is capable of meeting them, and doing so will not weaken its future leverage.

A clear example is the recent statement by Mahmoud Abbas in his interview with the Egyptian newspaper ‘Akhbar Al-Yawm’:

There are six million refugees who wish to return, and by the way, I am one of them.

Abbas knows that Israel is incapable of accepting this and remaining the nation-state of Jews. It thus violates the principle of reciprocity. This is explicitly expressed in his statement in the same interview:

We cannot recognize a Jewish state.
(MEMRI 05 Dec 2014, Special Dispatch 5898)

An appropriate precondition

On the other hand, Israel’s ‘precondition’ that Palestinians accept the legitimacy of Jewish nationalism and Israel as the nation-state of the Jews is not an equivalent threat to the existence of a Palestinian state. Therefore, if the achievement of a Palestinian state is the chief aim of the Palestinians, rather than the elimination of Israel, then the Palestinians are capable in principle of agreeing to it.

Their political capacity or willingness to agree is, of course, an entirely different matter. Certainly, the Palestinian narrative is threatened by the Jewish state. But this has no more significance than that the Jewish narrative is threatened by the existence of a Palestinian state. They are both hard to swallow but are part of the compromise necessary if the conflict is to be settled on a win-win basis.

In sum, the precondition of Palestinian/Arab acceptance of Israel as the nation-state of the Jewish people is less of a demand or condition for negotiations, but more of a prior understanding necessary for successful negotiations. It is also indispensable if Israel is to avoid the diplomatic dilemma of previous negotiations where the winner-takes-all aims of the Palestinians were disguised by the win-win framework of negotiations.

Therefore, it is crucial for Israel to know if a win-win understanding exists. It is also diplomatically vital for Israel that if it does not exist the international public is able to see that this means there is no basis for an agreement irrespective of where the borders might be. This is why Israel must make this issue the central point of its Palestinian diplomacy. None of the objections deal with this issue or propose an alternative solution.

A missed opportunity?

During a recent visit to Israel by the French FM Fabius (July 2015), PM Netanyahu countered the French threat of taking a timetable for establishing a Palestinian state to the Security Council by repeating Israel’s willingness to negotiate without preconditions. Whereas it was a valuable diplomatic triumph to avoid such a resolution, it was nevertheless insubstantial and will be short-lived.

This is because there was no diplomatic acknowledgment that PA intentions are totally at odds with the aims that Fabius and others say they want and claim that the Palestinians want.

An indication of this is that Palestinian preconditions have not produced a backlash of criticism. Instead, their use of preconditions has been ignored or mildly categorized as a mistake of negotiation strategy. What is never considered is that the mistake is not due to a faulty understanding of negotiation theory, but is a deliberate ploy to avoid negotiations. Abbas knows that in negotiations supposedly for a final status peace agreement, the issue of acceptance of Israel as the nation-state of the Jews will be central. This threatens to expose the Palestinian zero-sum strategy and risks the loss of international sympathy.

The French and many others maintain the diplomatic posture that the PA is a genuine partner for achieving a 2-State Solution. This is the standard assumption of the bulk of negotiation theory: that the parties seek a mutually acceptable agreement based on a mutually understood framework and conclusion (for example, Getting To Yes by Roger Fisher & William Urry). As an illustration, the preconditions for a sale/purchase negotiation are that a vendor has something to sell that a buyer wishes to purchase. This is usually known at the outset. Indeed, in one way or another both the vendor and buyer advertise their intentions.

Negotiations are not always about reaching an agreement

The problem is that this assumption does not apply to the quite different circumstances of the Arab/Palestinian-Israeli conflict where the Palestinians deny Jewish national rights. Therefore, the trusting assumption of a mutual search for a win-win solution is dangerously misleading. In reality, there are many other reasons for embarking on negotiations. For example:

  1. to look amenable and reasonable before powerful and influential onlookers and to purchase public good-will;
  2. to buy time to improve one’s position;
  3. to check on the other party and avoid surprises;
  4. to test how far the other side can be pushed to surrender.

The latter approach masks a winner-takes-all aim behind the appearance of accepting a win-win solution and process. Many can see or sense this with regard to Hamas. Its explicit aim of dismantling Israel leaves no room for the compromise of the 2-State Solution. A win-win final status agreement with Hamas is thus impossible. Regrettably, many in the international community do not see, or purport not to see, that the PA rejection of Israel as the legitimate expression of Jewish national self-determination is the equivalent of the overt Hamas rejection.

Turning the diplomatic tables

Yet if it is accepted that the only conceivable win-win solution that can end the conflict is the 2-State Solution in the sense of 2-states for 2-peoples, then mutual acceptance is necessary. On the other hand, if mutual acceptance is denied, the win-win solution is not available. Given the exclusive claims of the PA and Hamas to the land of Palestine, this means that there is currently zero chance of negotiations that can settle the conflict on this basis.

This will be apparent again whenever the PA is bribed or maneuvered into what will again be fake final status negotiations – billed again as the last chance for the 2-State Solution. Possibly the eventual arrival of a more left-leaning government in Israel would also tempt the PA back into negotiations. But this will not be to undertake serious final status negotiations; it will be to test the positions and resolve of the new government.

Normal Palestinian practice is to make demands and concede nothing. Without strong indications otherwise, it can be expected that they will once again require acceptance of their own rights of self-determination but refuse acknowledgement of equivalent Jewish rights or even legitimate historical connections to the land. Once again, they will not commit to a final status peace agreement. Once again, they will walk away rather than accept 2-states for 2-peoples.

In essence, this stance is unchanged since the Three No’s declared by the Arab League in 1967:

  1. no peace with Israel;
  2. no recognition of Israel;
  3. no negotiations with Israel.

International appreciation of the substance and significance of these positions would open the way for Israel to urge other states to pressurize the Palestinians publically into accepting Israel as a Jewish state, rather than the standard international practice of a directing all demands at Israel. It would also make possible an effective diplomatic counter to PA attempts to enforce a Palestinian state by the back-door of international institutions.

But for this to happen, Israel must stop its participation in charades that cover-up the Palestinian denial of the legitimacy of Israel as the nation-state of the Jewish people. In its place, the center of Israel’s diplomacy needs to focus on the Palestinian denial as the core obstacle to the solution that so many claim to favor. Therefore, Israel needs to be open and purposeful with its own test and exposure of Palestinian intentions. These should be repeated ad nauseam at every opportunity to place the ball and the blame fairly and squarely in the court of the Palestinians.


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