Palestinian statehood: Do it right

In April 2000, 23 years ago, I was invited to a meeting at the Office of the Prime Minister of Israel, Ehud Barak, to discuss a pressing issue: how to circumvent a unilateral declaration of Palestinian statehood by Yasser Arafat. The then-chairman of the PLO and of the Palestinian Authority threatened to declare Palestinian independence unilaterally without Israel’s agreement. The five-year Interim Period, which was launched by the Oslo Accords on May 5, 1994, ended in May 1999 without reaching an agreement on “Permanent Status,” which should have included the establishment of a Palestinian state. Hence, a frustrated Arafat intended to take diplomatic matters into his hands and create a new political reality. From the Israeli side, such a declaration was seen as a destabilizing, belligerent step that had to be prevented. Indeed, shortly thereafter Arafat was effectively deterred and postponed the declaration.

Twenty-three years later, nearly two weeks ago, a “new idea” captured the headlines regarding the “day after” of the Israel-Hamas war and its “political horizon.” Tom Friedman reported in the New York Times that President Biden was considering recognition by the US of the Palestinian Authority (PA) as a state without Israel’s consent and that the State Department was reviewing options in this regard. A couple of days later, Politico reported that David Cameron, the UK’s Secretary of State for Foreign Affairs said that the British government was considering a similar move, once a ceasefire between Israel and Hamas is reached.

Recognition of Palestinian statehood may easily seem a simple and straightforward diplomatic initiative. Since the PA has a designated territory, population and significant international recognition, it already fulfills most attributes of statehood according to international law. In fact, most countries have endorsed the Palestinian proclamation of independence delivered in Algiers in November 1988: Some 30 countries have diplomatic missions in Ramallah, and the UN already holds the PA to be a “non-member observer state.” Furthermore, the two-state solution provides a clear framework whereby two states, Palestine and Israel, would coexist, and the PA has been the Palestinians’ self-governing institution since 1994. Finally, in a post-Hamas era, the Palestinian polity would control nearly 95 percent of all its prospective citizens in nearly 40 percent of the West Bank, covering the so-called “Area A” and “Area B,” as well as all of Gaza.

What then is missing for Palestinian statehood to become a political reality? Why should the US and UK even consider an act of recognition instead of simply assuming that a Palestinian state already exists for all future purposes? Well, the Oslo Accords are explicit that the PA is not a state and therefore does not have critical attributes of sovereignty such as the power to sign international agreements. The accords make clear that Palestine’s final status will be negotiated with Israel so that the state of Palestine emerges in its permanent borders and with its full powers and responsibilities – all as agreed with Israel. Furthermore, Israel controls the PA’s external borders, airspace, water, customs, and external security, as well as “Area C,” which covers roughly 60 percent of the West Bank.

Theoretically, these shortfalls do not prevent statehood, and many peoples received or sustained international recognition of their “independence” even under the control of other powers. Alas, the key missing element denying the Palestinians their statehood is a recognition from Israel and the US that the PA is in fact the Palestinian state or destined to become one. In other words, the PA lacks a “critical mass of recognition” in its statehood, which is why President Biden’s recognition of the PA as a state, or even just as a “nascent state,” could be transformative for regional diplomacy in the Middle East and for Israeli-Palestinian relations. Mis-handled, such declaration could lead to a political quagmire. Well done, it could usher in a political breakthrough. Indeed, the following issues will determine the success of such an overture.

Territory

All states are associated with a territory. What should the US say about Palestine’s? If the US recognizes the Palestinian state only in the Gaza Strip and in Area A and Area B of the West Bank, the Palestinian side will reject such recognition out of hand. And if the US recognizes the Palestinian state in the entire West Bank and Gaza Strip as determined by the “1967 Lines,” Israel will unequivocally reject such a declaration. Luckily, there is a relatively simple solution to that conundrum, which is to hold that the borders of Palestine will be determined in negotiations with Israel based on United Nations Security Council Resolution 242, which all sides formally agreed to multiple times in the past. UNSCR 242 makes clear that both Gaza and the West Bank will be part of the future Palestinian state. Its French version calls for withdrawal from all territories taken in 1967, while its English version implies a possible withdrawal only from some of these territories. In other words, using UNSCR 242 as a guideline for future territorial arrangements creates a sense of direction about the permanent territorial arrangement without hampering the diplomatic process.

Powers

With territory and sovereignty comes power. The Oslo Process and all ensuing Israeli-Palestinian negotiations assumed that Palestine would come into being after and as an outcome of an agreement with Israel, thereby with its “permanent” economic, security and diplomatic powers. Palestine would then replace the current legal regime in the West Bank and Gaza, which is a mix of Israeli, Jordanian and Palestinian laws. Hence, recognizing Palestinian statehood before reaching an agreement on Permanent Status could create legal chaos. Therefore, an American recognition of Palestinian statehood should limit the practical implications of such recognition to an upgrade in the diplomatic stature of Palestine so that it can represent its citizens and residents in international fora and bilateral negotiations like any other state while acknowledging that its detailed security and economic powers will need to be negotiated with Israel over time.

The implications of such a recognition, coupled with inviting Palestine to establish embassies and represent itself in Washington and London and therefore in many other countries, would be profound. Palestine, in its provisional borders, would become the interlocutor of Israel in shaping their state-to-state relations through agreements on security, economics and other outstanding issues. Such a diplomatic engagement is likely easier to manage than a political process involving a state, Israel, and a non-governmental organization, the PLO, which claims to also represent Palestinians in Jordan, Syria and Lebanon.

Two nation-states for two peoples

Naturally, recognition in Palestinian statehood would “quantum leap” Israeli-Palestinian relations closer to a reality of two states for two peoples. But the long-term stability of Israeli-Palestinian relations will also depend on clarifying that both states are “nation-states,” namely that Palestine will realize the right of the entire Palestinian People and all Palestinians to self-determination, just as Israel realizes the right of the entire Jewish People to self-determination. This notion is the keystone of the so-called Clinton Ideas, which were presented by President Clinton at the end of the Camp David negotiations and should guide any future arrangement.

Such a declaration is essential for decreasing Israeli concerns about Palestinian irredentism, i.e. aspirations to incorporate Palestinian-Israelis into Palestine. Since as many as sixty percent of Jordanians have Palestinian ancestry, an ill-designed Palestinian state could spell political trouble for Jordan as well. In fact, it should be made clear that Palestine will only represent its citizens and residents. This means that eventually, the PLO would not represent Palestine, just as the Jewish Agency does not represent Israel. It also means that Palestine would not represent diaspora Palestinians, just as Israel does not represent world Jews. Naturally, all constitutional laws of Palestine must be clearly consistent with this logic.

Palestinian refugees

Acknowledging Palestine as the nation-state of all Palestinians creates an opportunity to begin to address the plight of Palestinian refugees. Naturally, once a Palestinian state is established, no Palestinian person should remain a refugee: UNRWA should be withdrawn and dismantled and all refugee camps may then be transformed into ordinary communities. This means that all Palestinians who choose to live outside of Palestine – including in Israel, Jordan, Lebanon, and Syria – would be represented by the governments where they reside, and not by Palestine or the PLO.

Such resolution of Palestinian refugee-ism should begin with those living in the West Bank, where the PA exists as a stable Palestinian government. In fact, immediately upon recognizing the PA as a state, the budget dedicated to UNRWA’s work in the West Bank can and should be transferred to the PA along with UNRWA’s responsibilities in that area, so a properly capitalized PA assumes UNRWA’s roles and replaces it.

The case for unilateralism

Since the beginning of the Oslo Process in 1993, the traditional view among Israeli negotiators has been that recognizing Palestinian statehood was a valuable “asset” that should only be “given away” during the final phase of the negotiations, when Israel’s interests and demands had been met, and in exchange for significant Palestinian concessions. Furthermore, conventional wisdom has held that Israel and the Palestinian side could either negotiate or act unilaterally. This approach makes unilateralism and negotiations mutually exclusive, with negotiations being the opening act and unilateralism being the fallback.

But successful negotiations require “ripeness” to reach a deal among all parties at the same time, which is an elusive quest that may take decades to achieve. Painful lessons have been learned in this respect since the launch of the Oslo Process nearly 30 years ago, which is why a robust diplomatic overture led by the US and backed by other world and regional powers, particularly Saudi, Egypt, the UAE, Bahrain and Jordan, may be the only way to achieve a political breakthrough, especially if it secures tangible achievements for both Israel and the Palestinians.

Nascent state

Since 2000, all Israeli premiers except Naftalie Bennett – namely Ehud Barak, Ariel Sharon, Ehud Olmert, Yair Lapid, and Benjamin Netanyahu, before his current tenure – explicitly acknowledged that there will be a Palestinian state. Even Bennett – by refusing to claim sovereignty over Area A and Area B of the PA in the West Bank, and by speaking about “a PA with augmented powers” – tacitly acknowledged that the political horizon of Israeli-Palestinian relations includes a Palestinian polity alongside Israel. Meanwhile, all American presidents since Clinton have endorsed the outcome of Palestinian statehood. In other words, the PA’s long-term stature as a state seems undisputed by the international community and by most Israeli governments.

Without getting too deep into the weeds of international law, this general agreement about the future of the PA as a state already qualifies it as a “nascent state,” which is a political entity whose future statehood is undisputed even though it doesn’t possess the full qualities of a state. For example, Israel was a “nascent state” from November 1947 to May 1948, as was East Timor in 2000. This means that by recognizing the future statehood of the PA, namely by recognizing the PA as a “nascent state,” the US and Britain would shift the debate from whether the PA would be a state to launching its path to statehood through essential reforms and capacity building.

In this context, it would be essential to make clear that as the Palestinian side coalesces its political system, the acceptance of the Oslo Accords and their overarching premise of two nation-states for two peoples must be a condition for participation in the Palestinian elections and in Palestinian government. In 2006, Hamas was allowed to be elected to the Palestinian Legislative Council without accepting the Oslo Accords, and many view that decision as the root cause of the current crisis. That mistake should not be repeated.

Nine Decades in the Making

Eighty-eight years ago, in 1936, the two-state solution was first introduced by the Peel Commission as a remedy to the Arab Revolt. Seventy-seven years ago, the two-state solution was endorsed by the United Nations to prevent an imminent Israeli-Arab war. The assumption that there would be a Palestinian state underlies the Israel-Egypt, Israel-Jordan and the Abraham Accords. Four times – in 1999-2001 under Barak, Arafat and Clinton; in 2002-2003 under Sharon, Bush and Abu Mazen; in 2007-2009 under Olmert, Bush and Abu Mazen; and in 2011-2014 under Netanyahu, Obama and Abu Mazen – Israelis, Palestinians and Americans put their heads together to realize the two-state solution, with each of these episodes taking place in hitherto unprecedented political circumstances. Against this backdrop, who could have imagined that the Hamas atrocities of October 7 and the ensuing brutal war in Gaza would reincarnate the issue of Palestinian statehood at the fore of diplomatic imagination? Indeed, if properly handled, upgrading the PA into a state could turn the current breakdown of Israeli-Palestinian relations into a breakthrough toward peaceful coexistence.

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Gidi Grinstein is co-author with Prof. Ari Afilalo of (In)Sights: Peacemaking in the Oslo Process Thirty Years and Counting. Grinstein served as secretary of the Israeli delegation for the Camp David negotiations (2000) and leads Israel’s Reut Institute. Prof. Afilalo is a professor of law at Rutgers University.