A Hamas-Israel Agreement?

In this article, I am going to explore the question of a possible agreement between Israel and Hamas for the release of hostages and a ceasefire. Many people on the Israeli side I know were hoping for the possibility that they would be able to secure an agreement between Israel and Hamas for a temporary ceasefire or pause in the fighting for Hamas to release all or most of the hostages and for Israel in exchange to release some Palestinian prisoners. 

I didn’t see this as likely to be agreed upon, as it seems to me that being that these remaining 100 or so hostages plus another 20-30 bodies of Israelis that Hamas is holding are the only bargaining chip that Hamas has. I think that either an agreement will be reached that will end the fighting altogether or Israel and Hamas will fight this out to the end, though it is not very clear to me exactly what this end is going to look like at this point. 

So, we seem to be at a crossroads here. Currently, negotiations are going on between Israel and Hamas, though indirectly through Egypt, Qatar, and the US. Hamas is calling for a permanent ceasefire, and Israel, committed now to the destruction of Hamas, is refusing. Maybe I am the only one who finds this all a bit ironic, maybe I am insensitive. But I feel that I must not be the only one thinking to themselves “Now they know how we feel.” The shoe has officially switched feet. 

The main issue that Israel has had with Hamas for the last 40 years was that they refused to agree to permanently stop the war against Israel. In its initial charter, it called for establishing an Islamic State in all of Palestine. In the 2017 updated version, Hamas still considers Israel, or the ‘Zionist Entity’ as they call it completely illegitimate and they called for nothing less than establishing Palestine from the river to the sea. See the 2017 Hamas Document of General Principles and Policies.

A few choice articles from the Hamas General Principles and Policies document:

Paragraph 18. “The following are considered null and void: the Balfour Declaration, the British Mandate Document, the UN Palestine Partition Resolution, and whatever resolutions and measures are derived from them or are similar to them. The establishment of “Israel” is entirely illegal and contravenes the inalienable rights of the Palestinian people and goes against their will and the will of the Ummah” 

Paragraph 19. “There shall be no recognition of the legitimacy of the Zionist entity.” 

Paragraph 20. “Hamas believes that no part of the land of Palestine shall be compromised or conceded, irrespective of the causes, the circumstances, and the pressures and no matter how long the occupation lasts. Hamas rejects any alternative to the complete liberation of Palestine, from the river to the sea. However, without compromising its rejection of the Zionist entity and without relinquishing any Palestinian rights, Hamas considers the establishment of a fully sovereign and independent Palestinian state, with Jerusalem as its capital along the lines of the 4th of June 1967, with the return of the refugees and the displaced to their homes from which they were expelled, to be a formula of national consensus.” 

(This last one is a bit confusing since it seems to be saying contradictory things. On one hand, saying that they would not compromise at all on any part of Palestine and at the same time seemingly accepted a two-state formula. The thing here is if you look closely they didn’t really, accept a Palestinian State in Palestine while simultaneously rejecting the internationally recognized State of Israel in its legal borders.)

Paragraph 21. “Hamas affirms that the Oslo Accords and their addenda contravene the governing rules of international law in that they generate commitments that violate the inalienable rights of the Palestinian people. Therefore, the Movement rejects these agreements and all that flows from them”

Paragraph 23. “Hamas stresses that transgression against the Palestinian people, usurping their land and banishing them from their homeland cannot be called peace. Any settlements reached on this basis will not lead to peace. Resistance and jihad for the liberation of Palestine will remain a legitimate right, a duty, and an honor for all the sons and daughters of our people and our Ummah. “

Paragraph 27. ”A real state of Palestine is a state that has been liberated. There is no alternative to a fully sovereign Palestinian State on the entire national Palestinian soil, with Jerusalem as its capital.”

This policy of refusing to recognize the fact that Israel is a legitimate country is the main issue here. Regardless of what claims Hamas or the Palestinians have against Israel for historic injustices, these issues need to be dealt with diplomatically and peacefully. There is no way Israel is going to accept a threat from Hamas, certainly not anymore, not after October 7th. Hamas has been asking for a permanent ceasefire, but how can Israel grant a ‘permanent’ ceasefire to an organization that doesn’t believe in permanent ceasefires?

On February 7th Hamas publicised a version of a ceasefire proposal. According to the Hamas proposal, all Israeli women hostages, males under 19, the elderly, and the sick would be released during the first 45-day phase in exchange for the release of Palestinian women and children from Israeli jails.

The remaining male hostages would be released during the second phase and human remains would be exchanged in the third phase. By the end of the third phase, Hamas would expect the sides to have reached an agreement on an end to the war. 

Hamas also said in an addendum to the proposal that it wished for the release of 1500 prisoners, a third of whom it wanted to select from a list of Palestinians handed life sentences by Israel. The agreement would also increase the flow of food and other aid to Gaza’s civilians who are facing hunger and shortages of supplies.

In response, Israeli Prime Minister Benjamin Netanyahu called these demands ‘delusional’. If this were a ‘normal’ war, that is just a dispute over territory then maybe these demands would not sound so crazy. But for Israel this war is existential, Hamas doesn’t just want some land, it wants all the land that is Israel. The ‘crazy’ part here from the Israeli perspective is that Hamas thinks that Israel would agree to end its war of destruction against Hamas. 

In a normal negotiation to end a war, the bare minimum would usually be to agree to end the war, but as long as Hamas wants to reserve the right to go back to war against Israel sometime in the future again, then it is not an end to the war. That is the catch-22 that Hamas finds itself in here. 

So, it sounds pretty simple right, either Hamas agrees to accept Israel or Israel will destroy Hamas. Well, not so fast, as usual, there are a few more factors to consider here. First of all, there are around 120 Israeli hostages still presumably held in the Gaza Strip by Hamas. It is not likely that Israel will be able to get them all out alive unless there is an exchange agreement with Hamas. According to another poll by The Jewish People Policy Institute, more Israelis would rather defeat Hamas, even if it meant sacrificing the hostages, than would be willing to give up the goal of defeating Hamas. However, there was also a large undecided group in the poll, and the issue is highly contentious in Israel. 

But there are other factors to consider that have more to do with Palestinian public opinion than Israeli. According to a recent poll by the Palestinian Center for Policy and Survey Research taken in December, the majority of Palestinians would vote for Ishmael Haniyeh, the leader of Hamas over current Palestinian Authority head Mahmoud Abbas. So if Israel were to depose Hamas in the Gaza Strip, put in a ‘revamped’ Palestinian Authority in its stead. It could be a very short time until new elections were held and Hamas would return to power in democratic elections. 

Oddly enough, Hamas, in their policy manifesto seems to be pretty committed to the principles of democracy, at least for Palestinians. See the following sections:

Paragraph 28. “Hamas believes in and adheres to, managing its Palestinian relations based on pluralism, democracy, national partnership, acceptance of the other, and the adoption of dialogue. The aim is to bolster the unity of ranks and joint action to accomplish national goals and fulfill the aspirations of the Palestinian people.” 

 Paragraph 29. “The PLO is a national framework for the Palestinian people inside and outside of Palestine. It should therefore be preserved, developed, and rebuilt on democratic foundations to secure the participation of all the constituents and forces of the Palestinian people, in a manner that safeguards Palestinian rights.”

Paragraph 30. “Hamas stresses the necessity of building Palestinian national institutions on sound democratic principles, foremost among them are free and fair elections. Such a process should be based on national partnership and under a clear program and strategy that adheres to the rights, including the right of resistance, and fulfills the aspirations of the Palestinian people.”

All of that considered, it might also be just as difficult to somehow get to a lasting peace even if Hamas was deposed and somehow Israel and the international community were able to set up a caretaker government that would make way for eventual new elections. 

As long as Hamas, or an equivalent that their large Palestinian voting base would accept as legitimate, was banned from participating, then it would be difficult to see a binding peace agreement forged between Israel and a future Palestinian government.

This is precisely the issue that while it may be possible to defeat the Hamas military in Gaza, it would be much more difficult to defeat the idea of Hamas, the Islamic Resistance Movement, from the Palestinian political sphere. 

This brings me, to the main point of this article, which is that I believe that the best option, both to save the hostages and to be able to move towards a stable peace, would be to get to an agreement with Hamas. As crazy as that sounds, even for me. Several Palestinian friends have been telling me for a long time that there would need to be some kind of agreement here. 

I was very much in agreement with the Israeli consensus that the answer was the destruction of Hamas for quite some time. But the more I analyze the situation, I think that both for the issue of the hostages as well as the long term, a deal is our best option. However, I am fully aware that a deal is not very likely to happen, but I think it is worth exploring the topic to see what kind of deal would be possible, or at least desirable from the Israeli perspective and the perspective of those who would like to see peace in the Middle East. 

So, the question I have is what would that deal look like? I think that in some ways this deal needs to look like Hamas reframing surrender as a ‘historic compromise’ much like the one that Yasser Arafat made with Israel when acknowledging the right of the state of Israel to exist. But also Israel, for its part, would need to accept Hamas as a legitimate political party. Hamas would need to agree to give up armed resistance as a method to resolve its disagreements with the State of Israel. They would have to give up their weapons. Perhaps their light arms could be transferred to the Palestinian Authority, while their heavy weapons, like rockets and grenades, might be transferred to a third party. 

The main issue from the Israeli point of view is going to be giving up armed resistance. So what is armed resistance? Armed Resistance in this context is a principle in international law, based on the idea that all peoples have the right to self-determination and therefore it is legitimate for them to defend or achieve this self-determination even by force if necessary. In practice, this usually means internationally recognized legitimate states, since the world has well over 600 ethnicities or people groups and there are only about 200 recognized states. Since the Palestinians are in a territory that is not part of any state the Palestinian people have been recognized as therefore deserving of self-determination in their independent state.  

The most commonly cited source for this regarding the case of Palestine is the UN General Assembly Resolution 38/17 (1983)

This resolution focuses on several countries in Africa that were still under colonial rule at the time as well as the situation in Palestine particularly surrounding the events of the first Israel-Lebanon war of 1982. Here are some important parts of this resolution for our discussion here:

“ Recalling the Geneva Declaration on Palestine and the Programme of Action for the Achievement of Palestinian Rights, adopted by the International Conference on the Question of Palestine, held at Geneva from 29 August to 7 September 1983,5/

Considering that the denial of the inalienable rights of the Palestinian people to self-determination, sovereignty, independence, and return to Palestine and the repeated acts of aggression by Israel against the people of the region constitutes a serious threat to international peace and security,

Deeply shocked and alarmed at the deplorable consequences of the Israeli invasion of Lebanon and recalling all the relevant resolutions of the Security Council, in particular resolutions 508 (1982) of 5 June 1982, 509 (1982) of 6 June 1982, 520 (1982) of 17 September 1982 and 521 (1982) of 19 September 1982,

1. Calls upon all States to implement fully and faithfully all the resolutions of the United Nations regarding the exercise of the right to self-determination and independence by peoples under colonial and foreign domination;
2. Reaffirms the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity, and liberation from colonial domination, apartheid, and foreign occupation by all available means, including armed struggle;
3. Reaffirms the inalienable right of the Namibian people, the Palestinian people, and all peoples under foreign and colonial domination to self-determination, national unity, and sovereignty without foreign interference;
4. Strongly condemns those Governments that do not recognize the right to self-determination and independence of all peoples still under colonial domination and alien subjugation, notably the peoples of Africa and the Palestinian people;”

The idea of the right to armed resistance is generally qualified to only legitimate when absolutely necessary and in a situation where armed resistance is the only way to achieve legitimate self-determination or other freedom from subjugation. For example, in a case where there is a path to a non-violent negotiated solution to resolve the issue. From the Israeli perspective, this process should have been achieved with Israel agreeing to enter the Oslo Peace Process beginning with The Declaration of Principles on Interim Self-Government Arrangements also known as the “The Olso Accords (1993)“ 

“Declaration of Principles on Interim Self-Government Arrangements:

The Government of the State of Israel and the PLO team (in the Jordanian/Palestinian delegation to the Middle East Peace Conference) (the “Palestinian Delegation”), representing the Palestinian people, agree that it is time to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process.”

It would seem to me that this question of armed resistance should have been settled right there in the opening paragraph of the Oslo Accords. However, Hamas didn’t seem to get that memo and for that matter, the Israeli right didn’t seem to agree to the whole ‘recognizing their mutual legitimate and political rights’ part either. It kind of looks like the whole Oslo Accords was an agreement between the Israeli left and the Palestinian Left and when it didn’t pan out the Israeli right and the Palestinian right came to power and now the war in Gaza we see today is the playing out of the refusal of these two parties to accept that first paragram written 30 years and one day before the current war broke out, on October 8th, 1993.

The concept of legitimizing armed resistance has also been adopted to some extent by the Palestinian Authority as I have discussed at length in a previous article about their ‘Pay for Slay’ policy.

In more recent years the Israeli left had also stopped focusing on the importance of resolving the Israeli-Palestinian Conflict and instead focused on the price of cottage cheese and other important subjects. 

So, what would need to be the agreement, with or without Hamas, is that both sides go back to that first paragraph of the Oslo Accords and “ agree that it is time to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security and achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process.”

The first part of this agreement needs to be that Israel and Palestine both agree to stop confrontation and conflict. That means that Palestine and any party that gets to participate in the politics of Palestine needs to agree to resolve the conflict through dialogue and not through violence, or ‘armed resistance’.  

The second part here is that Palestine and Israel both need to recognize each other as legitimate states. For those who don’t think that this part was agreed to in the Oslo Accords, I recommend the second paragraph, the one labeled ‘Article 1’, “ It is understood that the interim arrangements are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council resolutions 242 (1967) and 338 (1973). For those who don’t understand the subtext here, that means that the peace agreement would be based on the the Pre 1967 lines, also known as the ‘Green Line’. This is the crux of UNSC Resolution 242 which calls for peace based on Israel returning to those borders. 

Everything else will flow from these two principles here. So now let’s do this and include Hamas in this agreement.

1. Hamas agrees to recognize Israel as a legitimate state and renounce the use of violence or armed resistance to resolve any political disputes with Israel. 

2. Israel would recognize Hamas as a legitimate political party and cease to attack Hamas or try and prevent them from participating in Palestinian politics. 
3. Hamas would give up their light arms to the Palestinian Authority, which they may participate in as a legitimate political party. 
4. Hamas would give over their heavy weapons to a responsible third party, perhaps the Egyptian Army. 
5. Hamas will release all hostages. 
6. Israel can release all Palestinian prisoners that are minors, those being held for non-violent crimes, and those being held without charges. While technically as an occupying power, Israel can use administrative detention, this is not conducive to peace. 
7. As part of a full peace process, Israel may be able to release more serious security prisoners as part of an amnesty program involving a sincere truth and reconciliation process where Palestinian prisoners who are being held for murder and other violent crimes can show sincere remorse and perhaps do some community service and apologize to the community that they hurt. 
8. Hamas will agree that the State of Palestine would be based on the pre-1967  lines with minor adjustments and special arrangements for Jerusalem. This principle should be a binding policy in the State of Palestine and incumbent on all political parties allowed to participate in the Palestinian political process. This doesn’t mean that there will be no Palestinians allowed in Israel. On the contrary, 20 of the population of Israel are Palestinian Arabs (by some definitions) and in theory, many Israelis would be open to the idea that more Palestinians would like to come to Israel as guests or as loyal citizens of Israel. 

If Hamas wants to go on advocating non-violently for the rights of Palestinians to immigrate to Israel that is fine. As long as they accept that they cannot force Israel’s immigration policy through violence. I also support the right for Israeli Jews to live in Palestine, but I certainly don’t think that attacking Palestinians is a way to advocate for Jewish rights in Palestine. 

9. Israel will agree that there will be no tolerance for any political parties advocating for the removal of Palestinians from either Israel or Palestine and there is no room for parties denying the self-determination of Palestine.  
10. Hamas will agree that there will be no tolerance for any political parties advocating for the removal of Israeli Jews from either Israel or Palestine and there is no room for political parties denying self-determination to Israel. 
11. Israel will agree that the borders of Palestine would be based on the pre-1967 lines with minor adjustments and special arrangements for Jerusalem. This principle should be a binding policy in the State of Israel and incumbent on all political parties allowed to participate in the Israeli political process.
12. Hamas will agree that Palestine must be a democracy and they will commit themselves to a democratic process and the peaceful transfer of power over election cycles. Democratic countries don’t go to war with one another. The one thing that can maintain the peace between Israel and Palestine, in the long run, is a deep commitment to the democratic process. 
13. Israel will also commit itself to the Democratic process and perhaps even write a constitution that guarantees the peaceful transfer of power.

These in my opinion are the fundamental points in the agreement that needs to happen with or without Hamas, before the war is over or after, as soon as possible, or maybe someday if we ever hope to have peace here. //////************