The Middle East Channel
Forget the old two-state solution: Tackling the hard stuff in Israeli-Palestinian negotiations
Nineteen years after President George Bush Sr. brought Israel and the Arab world together to negotiate an end to Israel’s occupations of Palestinian and Syrian territory, the United States is still at it. The current Palestinian-Israeli talks are still based on the original formula of creating two ethnic states without two exclusive populations. But perhaps ...
Nineteen years after President George Bush Sr. brought Israel and the Arab world together to negotiate an end to Israel’s occupations of Palestinian and Syrian territory, the United States is still at it. The current Palestinian-Israeli talks are still based on the original formula of creating two ethnic states without two exclusive populations. But perhaps it is time for the US (and the parties) to explicitly consider the creation of two multi-ethnic states, not just to respond to both sides concerns, but to create a better chance of creating a sustainable and less objectionable peace.
The need to reject ethnic "statelets" takes on added impetus in light of Israeli Foreign Minister Avigdor Lieberman’s speech before the United Nations General Assembly. Decades after the end of apartheid in South Africa and after the rejection of ethnic cleansing or population transfers in the Balkans, the Israeli Foreign Minister spoke approvingly of returning to policies that have led to war and international outrage.
There is an alternative.
Of the core issues standing in the way of resolving the Israeli-Palestinian conflict, borders, refugees, and settlers have emerged as intractable and zero-sum in nature. The key to peace is to transform zero-sum issues between the parties into workable solutions that address at least some of the concerns of all constituencies, while staying true to international norms. Negotiators have made little to no advances on key issues, including: where the border will be; what the final destiny of Palestinian refugees and their descendants will be; whether each side can recognize the others’ right to self-determination within only a portion of the land they both claim; whether the parties can reconcile their national narratives with international law; how each state can reconcile its nationalist nature with the rights of its significant minorities; whether Israel can be a Jewish state as defined by the Israeli right and still be a democracy; and what happens when the Arab minority in Israel grows closer to being a majority.
These problems have been made inexorable in part by an assumption of nationalist exclusivity and by the national narratives of both people. Most Israeli Jews do not recognize the need for a Palestinian state as one of Palestinian rights but as a necessity of Jewish demographics. The argument of Israeli leaders from Yitzhak Rabin to Ariel Sharon and Ehud Olmert has been that in order for Israel to maintain its Jewish character it must divest itself of non-Jews. The only internationally-acceptable way to do that is by creating a Palestinian state in parts of the West Bank and the Gaza Strip.
For their part, Palestinians do not recognize the right of Jews to self-determination in all of historic Palestine. Because of the balance of power heavily weighted in Israel’s favor, the majority of Palestinians choose to exercise their right to self-determination in only 22 percent of historic Palestine (the West Bank, including East Jerusalem, and the Gaza Strip). Many Palestinians may accept Israel’s right to exist, but they don’t accept a superior Jewish right to self-determination over Haifa than for the Palestinian inhabitants who lived there in 1947 or who live there today.
It is clear to anyone from Israel and Palestine that both peoples hold to a nationalist narrative tied to all of Eretz Israel/historic Palestine. The problem is not so much that their maps don’t acknowledge the other state – it is that they both have the exact same map (minus the Golan Heights for the Palestinians).
That fact cannot be discounted, nor should it.
There are ways for Israelis and Palestinians to have their cake and eat it too – still within the rubric of a two-state solution and still within the confines of their nationalist narratives. There are ways for settlers to maintain their ties to the "Land of Israel" and for Palestinian refugees to re-establish their relationship to "historic Palestine."
A Permanent Residency Status can help expand the pie by offering a new and creative solution that adds flexibility and space to final status issues. A Permanent Residency Status law can be composed of a set of mutually agreed upon arrangements between the state of Palestine and the state of Israel. It opens the space to separate the material livelihood and political aspirations of both peoples, leading to a sustained national majority in the political system of each state, while making the physical movement of people a matter of personal choice [i].
Israeli Jewish Attitudes
Ever since the construction of the barrier in the West Bank and the Palestinian and Israeli crackdowns on attacks on Israel from both the West Bank and the Gaza Strip, Israelis have lost their sense of urgency in resolving the Israeli-Palestinian conflict. They do not see Palestinians; they do not immediately feel threatened by them. Yes, a majority believes in a two-state solution, but they believe they have a hundred years to resolve this issue. Secretary of State Clinton unconsciously echoed this in her recent comments with Israeli President Shimon Peres in which she said the status quo was unsustainable – but could be continued for years. This lack of urgency is an illusion, of course, but nevertheless it is a dominant perception.
The real emerging question in Israeli society is not what to do with Palestinians in the West Bank who are cordoned off behind walls, fences, and checkpoints, but what to do with the Palestinian minority who live in Israel as Israeli citizens. This is what drove the accession to power of Lieberman and his party, Yisrael Beiteinu, on a platform of law proposals such as the "Loyalty Oath" and the "Nakba Law," both aimed at curbing dissent by Israeli-Arabs [ii] and enforcing restrictions that are presented as saving Israel’s nature as a Jewish state.
The Israeli Jewish fear of the potential emerging power of the Palestinian Arab minority in Israel is real. These Palestinians hold Israeli citizenship, vote in Israeli elections, speak Hebrew and Arabic, but are effectively second-class citizens demanding a fully equal voice in Israel.
The link between this fear and the two-state solution emerged in Prime Minister Benjamin Netanyahu’s speech at Bar Ilan University last year and continue to do so in his addresses in the United States. He demanded Palestinian and Arab state recognition of Israel as a Jewish state as if this would cement the nature of the state of Israel forever. On the surface, this is a moot demand, as every sovereign state by definition determines its own character. Only the most insecure government asks other states to recognize the nature of its state, but that is the point. Put in context of the Palestinian minority in Israel and the Palestinian refugees’ demand to return to the homes and towns they came from, the real essence of the demand becomes clear.
Since March 2002, Palestinian leaders have consistently and publicly advocated for a "just and agreed" resolution to the plight of Palestinian refugees. In private and in many second-track negotiations prior to this time, these same leaders have attempted to barter the return of East Jerusalem in exchange for an affirmation of Palestinian refugee suffering along with restitution and compensation. Yet, in a real-life situation where a full peace agreement is on the table, it remains unclear whether that bargain can stand, even if Palestinians were to somehow get Israeli leaders to actually agree.
In contrast to the negotiations, Palestinian rights-based activists around the world continue to demand the right of Palestinians to return to Israel with full citizenship rights.
The Palestinian refugee and Diaspora community was the core of the Palestinian nationalist resistance for decades before the first Intifada shifted its focus to the P
alestinian Occupied Territory. Without clear guidance from Palestinian leaders or realistic options, Palestinian demands for right of return remain easily manipulated by politicians or activists either as a politically correct way of arguing against a two-state solution or as a bargaining chip for territorial final-status issues.
The Palestinian citizens of Israel are ignored in this process. At this point, they neither want to be represented by the Palestinian leadership(s) in the West Bank and the Gaza Strip, nor to give up their Israeli citizenship, nor to remain second-class citizens. In many ways, they have become the most politically sophisticated Palestinians.
Breaking the Deadlock
Simply put, Permanent Residency Status will give the option for individuals to choose to live their material lives in one state: own land and property, pay taxes, abide by the laws of that state, enjoy equal rights and vote for their municipal leadership; while at the same time, exercising their ultimate political aspirations in their respective national government, even if they choose not to reside within its geographic boundaries. This would be a profound break from the zero-sum nature of the conflict.
This must be a tool of choice, not enforcement. The complexities and details of the Permanent Residency Status need to be negotiated and coordinated between the two national groups and the international community in a comprehensive peace agreement. In the context of two nation states with such intermingled communities and yet-to-be recognized borders, this tool creates enough space for both peoples’ needs and rights to be accommodated.
International Law Regarding Citizenship in the Context of State Secession
Unlike many proposals put forth to address refugee and residency issues in Israel and Palestine, Permanent Residency Status is in accordance with international law on citizenship. Under international law, a state has the authority to grant citizenship pursuant to its own individual criteria. Among those international organizations and institutions that have adopted non-binding declarations concerning citizenship within the context of state succession [iii], the declarations generally discourage discrimination in determining citizenship in the context of the break up of a state (state succession), and advocate for a system that provides individuals affected by the state succession with an option to freely choose their future citizenship [iv]. While these declarations can provide guidance for states addressing citizenship rights, it should be noted that there are no universally accepted international law norms or standards regarding citizenship within the context of state succession.
Following succession, states that gain independence generally confer citizenship on those persons who resided in the region prior to independence. Some states have additionally extended citizenship to nationals of the other neighboring state or states involved in the succession. Non-binding international declarations also presume that persons who have their habitual residence in the territory that secedes acquire the nationality of the new successor state, but indicate that principles of citizenship in state succession should be dictated by "respect, as far as possible, [for] the will of the person concerned [v]." Furthermore, with regards to the effect of an individual’s choice of citizenship after succession, the Venice Commission Declaration also counsels against attaching consequences to individuals or their property based on the individual’s choice of nationality [vi].
International Law Regarding Permanent Residency
Under international law, states also have the authority to define the right of foreign nationals to live, work and own property in the state pursuant to its own individual criteria. Some states have created restrictive permanent residency laws that limit the rights of foreign nationals to reside and work in the state. Common restrictions include quotas, work qualifications, proof of employment, and temporal limits on visits by non-nationals. Other states have entered into bilateral or multilateral treaties that grant certain foreign nationals the same rights as citizens of the state, with or without the exception of voting rights. Bilateral agreements between states granting full rights to permanent residents are common in the context of state secession and independence.
In the context of a future peace agreement between Israel and Palestine, the Permanent Residency Status choice can be offered to three existing communities: Jewish settlers in the West Bank, Palestinian refugees and Israeli-Arabs (Palestinians).
Jewish Settlers in the West Bank
The Jewish community residing in the occupied West Bank is diverse in its politics and religious beliefs. They are all citizens of Israel, with about half living outside the boundaries Israel recognizes as its own (the West Bank was never annexed by Israel) and the other half living in East Jerusalem (which Israel considers part of its legal boundaries). While many land-ownership issues must be resolved in negotiations, particularly around the confiscation of private property, the mere presence of Jews in the geographic boundaries of the State of Palestine should not impede peace.
It would be an attractive offer to many settlers to provide them with the opportunity to remain in their homes with Permanent Residency Status in Palestine. The opportunity to still remain physically tied to the land of Judea and Samaria, to own property, to enjoy religious freedom, to vote in local municipalities and to enjoy equal rights with Palestinian citizens of the state while retaining their Israeli citizenship and exercising their political aspirations in Israel might be an option taken by many. Many states have created similar permanent residency options in the context of state secession. For example, the Treaty between the Republic of Belarus and the Russian Federation on Equal Rights of Their Citizens [vii] guarantees citizens of either state a wide range of permanent residency rights if they chose to reside in the other state. These rights include the right to participate in economic activity, the right to own property, the right to all civil rights and freedoms as provided by the legislation of either state, equal access to social services, and the right to education and unemployment.[viii]
The Palestinian state could also offer settlers the opportunity to apply for Palestinian citizenship for those who wish to fully participate in Palestinian national life. After secession or independence, many states have given persons residing within their territory the option to apply for full citizenship. After Montenegro declared independence and withdrew from the state union of Serbia-Montenegro, the Serbian government amended its citizenship laws and allowed Montenegrins who had a registered residence in Serbia during the union to apply for Serbian citizenship [ix]. Palestinian citizenship has rarely been identified in exclusive ethnic terms and Palestinian leaders like Salaam Fayyad and Ahmed Qurei have repeatedly noted that Jews would be welcome to be Palestinian citizens.
There are an estimated 4.56 million registered Palestinian refugees (as of 2007) residing in the Middle East and elsewhere and more that consider themselves refugees but who are not registered with the United Nations. Of these, approximately 133,351 were born before June 1948. Because of the age of the first generation refugees, these numbers are now declining rapidly. The right of return is one of the main issues seen as a zero-sum game.
If you ask Israelis ‘why not right of return?’ they will tell you that the return of millions of Palestinian refugees into Israel is equal to the end of Israel as a Jewish state, as this will create a non-Jewish voting majority. They are c
When you ask Palestinians ‘why not give up the right of return?’ they will tell you that it is a basic human right, enshrined in UN resolutions and guaranteed to other refugees in other conflicts, that they be allowed to return from the land they grew up in and from which they were expelled or fled in wartime. They are also correct.
But what if, within a context of a peace agreement between the two states, and as part of a comprehensive peace with all the Arab states, Palestinian refugees wishing to exercise their right of return into Israel are granted Permanent Residency Status as a means of providing them with restitution and residency? This will be an implementation of their right of return; yet will not change at all the electoral demographics and future of the State of Israel as a Jewish State.
Israeli-Arabs/Palestinian citizens of Israel
Israeli-Arabs (Palestinians), a minority of about 23 percent in Israel, must conduct a difficult balancing act between respecting their citizenship in the State of Israel, and their common national and cultural heritage with the remainder of the Palestinian people. While subject to discrimination in Israel, they nevertheless enjoy rights most Palestinians elsewhere in the Middle East do not. They own property, vote and have national representation in the government. While struggling to overturn discriminatory practices, this community also protests the Israeli occupation of the Palestinian people and territories, in solidarity with their Palestinian brethren. It is no surprise then that many of the Jewish majority in Israel remain suspicious of their intentions and want them to demonstrate loyalty to the State. It is also no surprise that they in turn are suspicious of Israeli Jewish intentions.
If a permanent status agreement resulted in two nation states along the 1967 border with two intermingled populations and a Permanent Residency Status in both countries, a fair choice could then be offered to Palestinians in Israel. They could choose to maintain their citizenship in Israel and become full Israeli citizens with all the rights and obligations that entail to any Israeli citizen including military or national service. There is already precedence for this in the case of the Arab Druze community in Israel. If they choose to become Palestinian citizens, they could assume Permanent Residency status and they (and their offspring) would continue to live, work, and pray in Israel but would vote in Palestinian national elections.
Many states with common heritages and linked economies have reached bilateral or multilateral agreements allowing each state’s citizens the freedom to reside, own property and vote in local elections in one state while retaining citizenship and the corresponding right to vote in national elections in another state. The Scandinavian states of Sweden, Finland, Denmark, Iceland and Norway, through the formation of the Nordic Passport Union, allow citizens of any state to reside and work in another state while retaining their national citizenship [x]. Through domestic legislation, each state also allows residents who are citizens of another Nordic Passport Union state the right to vote in municipal elections while residing in the state [xi].
It has to be emphasized that contrary to the wishes of some right-wing politicians in Israel, it is absolutely prohibited in international law to forcibly de-nationalize the Palestinian minority or to create restrictive conditions that would ultimately serve the same purpose. This would have to be a genuine choice that would allow each individual to live in accordance with their own definition of identity.
In the case of both Jewish settlers and Palestinian refugees, the implementation of such a solution would need to be negotiated between the two states. In the case of Palestinians who are already citizens of Israel, their representatives will need to be brought into the discussion and have a determinative voice in any application of this principle as it directly impacts on their interests.
Moreover, in a regional context, the Permanent Residency Status offers a tool for treatment of Palestinian refugees in neighboring countries such as Jordan, Syria and Lebanon. Palestinian refugees, choosing to remain in their current locations can obtain Palestinian citizenship and also be offered permanent resident status in their host countries.
There are obvious challenges to such a model but also obvious benefits. The benefits include reinforcing international legal principles while remaining true to the concept of a two state solution. It provides two powerful constituencies (settlers and Palestinian refugees) options that take into account their concerns. It secures the interests of the often-ignored Palestinian minority in Israel and the Jewish majority at the same time. It overcomes deep-seated suspicions among the two communities of each other. It prevents forced population transfers. It strengthens both Israel and Palestine as multi-ethnic states even as they preserve their national identities. It reduces the complexities in negotiating any changes to the 1967 border. Finally, it builds in a necessary normalization component between the two states as they must interact with each other on a regular basis.
The challenges include overcoming the bigotry inherent in both communities in the short term. It will require Palestinians to acknowledge the emotional (if not legal) ties of the Jewish settlers to Palestinian land and requires Israelis to acknowledge the humanitarian and legal consequences to the Palestinian civilian population in the wake of the creation of Israel as well as their ties to Israeli land. It will also require front-loading more robust international security guarantees as was done by the international community for Bosnia and Kosova.
Granted, the Permanent Residency Status is a complex idea. Much in depth legal and practical analysis will be required in developing this tool. But an Israeli Palestinian peace must bring both states into the 21st century. French and German citizens today easily travel, work and live in both countries, enjoying equal rights, while remaining true to their mother country’s citizenship despite their far more violent and destructive history with each other. The idea of population transfers, colonization, and "pure" ethnic states belong to a disastrous by-gone era.
Mickey Bergman is the Director of Middle East Programs at the Aspen Institute. He is the Founder and President of Solel Strategic Group and a former officer in the Israeli Defense Forces.
Amjad Atallah is co-director of the Middle East Task Force at the New America Foundation and an editor of the Middle East Channel at ForeignPolicy.com. He was a legal advisor to the Palestinian negotiating team from 2000-2003.
[i] The authors wish to thank Meghan Stewart and Kerstin Mikalbrown of the Public International Law and Policy Group for their assistance with legal research for this paper.
[ii] Israeli Jews refer to the Arab minority collectively as Israeli-Arabs. The Arab minority often refers to itself as Palestinian citizens of Israel. The two expressions are used interchangeably in this article.
[iii] "The expression ‘State succession’ refers to the replacement of one State by another in its responsibility for the international relations of territory. It comprises, in particular, annexation, union, dissolution and separation." Declaration on the Consequences of State Succession for the Nationality of Natural Persons, European Commission for Democracy through Law Part I (1) (Sept. 13-14, 1996).
[iv] The European Commission for Democracy through Law, also known as the Venice Commission, is a body of independent senior legal experts established by the Council of Europe.
Their legal opinions are highly respected by governments and international bodies. In 1996, the Venice Commission adopted the Declaration on the Consequences of State Succession for the Nationality of Natural Persons (Venice Commission Declaration), which urges states to respect the principle that everyone has the right to a nationality. The Venice Commission Declaration urges successor states to grant nationality to everyone who meets its criteria, without discrimination based on ethnicity, race, religion, language, or political opinions. See Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons, European Commission for Democracy through Law Part III (8b) (Sept. 13-14, 1996). Similarly, the International Law Commission’s Nationality of Natural Persons in Relation to the Succession of States (ILC Draft Articles) provides that every individual holding the nationality of the predecessor state at the time of succession has the right to the nationality of at least one of the states concerned. The ILC Draft Articles further prohibit discrimination and arbitrary decisions concerning nationality, and presume that persons who have their habitual residence in the territory that secedes acquire the nationality of the successor state. See International Law Commission, Nationality of Natural Persons in Relation to the Succession of States arts. 1, 5, 15, 16 (1999), available here.
[v] Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons, European Commission for Democracy through Law Part II (5) & (6) (Sept. 13-14, 1996) (quoting Article 2.1(b) of the Vienna Convention of 1978 on Succession of States in Respect of Treaties and Article 2.1(a) of the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts)). See also Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons, European Commission for Democracy through Law Part V (15) (16) (Sept. 13-14, 1996), available here.
[vi] Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons, European Commission for Democracy through Law Part V (15) (16) (Sept. 13-14, 1996)
[vii] Treaty between the Republic of Belarus and the Russian Federation on Equal Rights for Their Citizens (Russian Federation, Belarus, 1998), available here.
[viii] The treaty specifically provides for the following rights:
Art. 2: The citizens of Belarus and Russia have equal rights to participate in economic activities in the territory of the Contracting Parties.
Art. 3: The citizens of Belarus and Russia enjoy equal civil rights and freedoms, as provided for in the legislation of the Contracting Parties.
Art. 4: The Contracting Parties shall ensure accessibility and equal rights for citizens in obtaining secondary, secondary vocational, higher and further vocational education. Applicants shall be admitted to educational institutions in accordance with existing entrance regulations.
Art. 5: The exchange of living accommodation between the citizens of Belarus and Russia shall be effected without impediment in accordance with national legislation and serve as grounds for issuing them with permits for permanent residence in the territory of the Contracting Parties.
Art. 6: The Contracting Parties shall ensure equal rights for their citizens in obtaining, owing, using and disposing of property in their territory. National legislation on privatization shall regulate how citizens can receive state and municipal property free of charge, or obtain it in accordance with benefits effective in the privatization process.
The Contracting Parties shall ensure guaranteed protection of their citizens’ ownership rights.
Art. 7: The Contracting Parties shall ensure that the citizens of Belarus and Russia have equal rights to employment, pay and the provision of other social and legal guarantees in the territory of Belarus and Russia. The citizens of Belarus and Russia have equal rights in pay, working time and rest time regulations, labour protection and working conditions, and in other matters pertaining to labour relations. Labour activities shall be regulated on the basis of labour agreements (contracts) in accordance with labour legislation. The contracting parties shall ensure mutual recognition of the length of service, including the length of service calculated on preferential terms and the length of service in a particular profession gained in connection with the citizen’s labour activities.
Art. 8: Equal rights to social provisions, medical help and access to services offered by medical and health care establishments in the territory of the Contracting Parties shall be ensured for the citizens of Belarus and Russia. There shall be no mutual settlements for the provision of urgent medical assistance and the treatment of illnesses of social significance.
Treaty between the Republic of Belarus and the Russian Federation on Equal Rights for Their Citizens (Russian Federation, Belarus, 1998), available here.
[ix] Serbian Government, Application of Montenegrin Citizens for Obtaining Serbian Citizenship Underway (Jul. 4, 2006), available here; see also Immigration and Refugee Board of Canada, Serbia: Rights of Montenegrin Citizens Who Live in Serbia Since the Independence of Montenegro in June 2006 (Dec. 16, 2006), available here.
[x] Protocol concerning the exemption of nationals of these countries from the obligation to have a passport or residence permit while resident in a Scandinavian country other than their own (Denmark, Finland, Norway & Sweden, 1954), available here.
[xi] See Harald Waldrauch, Electoral Rights for Foreign Nationals: A Comparative Overview of Regulations in 36 Countries, European Centre for Social Welfare Policy and Research, (February 2003), available here.