Nathan J. Brown
FEBRUARY 4, 2015
The United States and Europe should encourage Israeli and Palestinian leaders to use international organizations and law as an alternative to violence.
There is little argument among Palestinians that they are in the midst of a political turning point. It is clear to all what they are turning away from: the Oslo era in which they were governed by a series of makeshift structures that many vainly hoped would end the Israeli occupation and deliver a Palestinian state. Those hopes—and corresponding Israeli hopes for a negotiated end to the Israeli-Palestinian conflict—faded long ago for most Palestinians. But many of the governance structures set up in the wake of the 1993 Oslo Accords were kept alive because senior leaders on both sides, as well as critical international actors (chiefly the United States and Europe), still clung to elements of the interim arrangements and showed strong signs of tactical partnership.
Now, however, Palestinian and Israeli leaders appear to be making different calculations. With the Palestinian leadership having taken the initial steps to file a complaint against Israel at the International Criminal Court (ICC) late in 2014, and Israel moving toward parliamentary elections in March 2015, most are positioning themselves for a post-Oslo era in which they no longer depend on Oslo’s structures. At the same time, the international sponsors of what a few diehards continue to call the peace process seem to be running out of patience, ideas, and perhaps even funds.
In Defense of U.S. Funding for Area Studies It is only inertia that keeps the basic structures established under Oslo operating today; both Palestinians and Israelis are profoundly ambivalent about them, and the international institutions designed to support them are fraying. In this setting, they may decay or collapse as various actors blunder ahead, displaying thoughtlessness, frustration, and exhaustion rather than strategy and purpose, all undermining the interim arrangements that Oslo promised would be steps toward a permanent solution. Worse, current trends risk entrenching only the worst aspects of the status quo—the denial of Palestinian rights and the continuation of Israeli long-term existential fears—while adding paroxysms of violence and outbreaks of uncontrollable spirals of hostility.
Indeed, the contained arenas of rivalry and conflict (and negotiation) that characterized the Israeli-Palestinian conflict over the past two decades are being replaced by a new kind of conflict. In it, leaders and their allies are seeking advantage by pressing their case in a variety of new venues, and unofficial groups on both sides are increasingly setting the agenda.
For now, international actors have only been reacting to the consequences of this shift. Some continue to suggest an immediate return to conflict-ending diplomacy. That quixotic quest should be replaced by one in which international players work to steer Palestinians and Israelis to less violent forms of conflict and rivalry through existing international institutions and legal frameworks. This means encouraging some of their recent tactics that are nonviolent in nature, tolerating the invocation of international law and multilateral structures, developing arrangements that alleviate short-term suffering and avoid violence, and opening the field to new political actors both within Israel and Palestine and internationally.
The Real Oslo Era
Large parts of the Oslo Accords were never implemented; others have been a dead letter for more than a decade. But even as both sides (especially the Israelis) imposed unilateral changes in the operation of these arrangements, the basic working relationships among leaders set out in the accords continued, and leaders were committed, however reluctantly, to dealing with each other. The outbreak of the second intifada in 2000 put severe pressure on the Oslo structures. But, faced with the possibility of a total collapse of the structures in 2002, Israeli and Palestinian leaders renewed their commitment to them, helped by external donors, especially from Europe, who sponsored and financed the reconstruction of Oslo governance structures.
It is remarkable how much has been forgotten about what Oslo hoped to achieve. A few puzzling road signs near the archeological site of Lachish (not far from Kiryat Gat, well within Israel’s 1967 boundaries) point the way to Tarqumiyah, a Palestinian village on the West Bank, west of Hebron. During the Oslo haggling, Palestinian negotiators stressed the need to be able to move between Gaza and the West Bank. Because Israel had been sealing off Gaza even before the agreements, the safe passage from Gaza to Tarqumiyah proved difficult to navigate in practice and operated only briefly before the eruption of the second intifada. The closure that Israel clamped on Gaza in 2000 has left the brief corridor a distant memory; what had been steadily growing zones of Palestinian autonomy have also been shrinking.
But if many critical steps were either reversed or never implemented, there are four important areas in which arrangements laid down in the accords have continued on, and it is in that sense that Palestinians still live in an Oslo era.
First, the Palestinian Authority (PA) continues to administer the civil affairs of most Palestinians in the West Bank and Gaza. It educates children, collects taxes, adjudicates disputes, registers marriages—and continues to pay the salaries of more than 150,000 employees.
Second, the Paris Protocol—the economic framework for the Oslo Accords—remains largely intact, enforcing an effective customs union, governing pricing of some commodities, and providing for Israeli collection of the value-added tax on goods destined for Palestinian markets.
Third, security coordination with Israel (which Palestinians regard as a euphemism for PA suppression of groups and individuals that Israel views as threatening) is very much alive in the West Bank.
Finally, the idea that the Oslo Accords are interim agreements designed to operate only until a final Palestinian-Israeli deal is concluded has spawned an ongoing variety of (generally U.S.-led) mediation efforts, international conferences, and portentous policy statements. This collectively amounts to the peace process that neither side trusts, but that both are hesitant to repudiate.
To talk of the end of the Oslo era does not mean that these elements will suddenly evaporate. But the political foundation for them is gone. What does the post-Oslo order look like from within Palestinian society?
Palestinian Governance After Oslo
While Palestinians do not have a state in the practical meaning of the term, they have realized a variety of institutional achievements over the years: the building of political movements from the 1950s until the 1980s (when the Islamist Hamas emerged); the construction of the Palestine Liberation Organization (PLO) from the 1960s on; and the construction of the PA in the 1990s.
But any kind of organic Palestinian institutional development seemed to come to an end with the 2007 split between a Hamas-ruled Gaza and a West Bank ruled by rival Fatah. And the old institutions no longer seem to serve Palestinians well, nor do they seem as important to defend as they once did.
The PLO has been hollowed out and lives on mainly as a symbol. The Palestinian Authority began with hope under Oslo, but it is now regarded with deep ambivalence, even by officials at its highest levels. The current leadership of the PA—a body in which decisionmaking is increasingly centralized in the hands of President Mahmoud Abbas—appears to be adopting the view that the negotiation process with Israel is in hibernation at best and that the PA is a mixed blessing not worth preserving at all costs.
Most parts of Palestinian society have long been overtaken by disillusion with Oslo diplomacy. That view finally appears to have been embraced by those who run the PA and the PLO. This can be seen in the decision by the Ramallah leadership to activate multilateral diplomacy at the United Nations and other fora, and, notably, in December 2014, to sign the Rome Statute and formally request membership in the ICC, a potential path to investigations of alleged war crimes in the Palestinian territories. Palestinian leaders took those steps fully mindful of Israeli threats of retaliation and deep U.S. opposition to the moves.
Below that level of leadership, talk of popular resistance has been the coin of ordinary conversation for years. But the absence of viable tactics and the exhaustion and disorder of the second intifada have largely contained that resistance to channels that are barely noticed by Israel.
More notable has been the deep disillusion with the movements, ideas, and slogans that motivated past generations. Even the idea of a Palestinian state no longer seems to excite those who saw how truncated, dysfunctional, and disappointing the PA’s kernel of statehood could be.
The despair has led to only limited political action thus far. Since the summer 2014 war in Gaza, many Palestinians in the West Bank have avoided buying Israeli products and have pressured their grocers to stock alternatives. They have also shown increasing interest in finding alternative strategies to deal with the current diplomatic impasse that exposes West Bankers to severe restrictions on travel and movement and Gazans to much worse.
But this revival of a more activist spirit, borne of frustration, has not generated alternatives to Fatah and Hamas, the two main factions that have dominated Palestinian political life for a generation.
Hamas has been suppressed in the West Bank since 2007, when Fatah’s Abbas dismissed the Hamas cabinet and his security forces began repressing the movement. Fatah has tried to use that vacuum, and the fall of technocratic former prime minister Salam Fayyad in 2013, to reestablish itself as Palestinians’ sole political option.
Fatah has never been a coherent organization, divided as it is among local leaders, large egos, and internal fiefdoms. But its formal procedures live on, as seen in the expulsion of former Gaza strongman (and Abbas rival) Mohammed Dahlan from the movement in 2011 and a party congress slated for 2015. Fatah’s last party congress in 2009 provided an opportunity for widespread debate and the next one will likely see the same, with activists again discussing the meaning of resistance, electing the leadership, and arguing over governance structures. The question of who will succeed Abbas will not be far from people’s minds (though it will not necessarily often be on their tongues). But there is no disguising the fact that the movement cannot marry its strong claims to leadership with any clear strategy or even set of tactics.
Hamas, for its part, similarly combines self-confidence in its current standing in public opinion with deep confusion over what direction to take. The war in Gaza left Hamas feeling that it speaks for Palestinians in viewing Israel as belligerent, negotiations as useless, and resistance as a necessary option. The war seems to have led to a feeling of vindication for Hamas in another sense as well. While its leaders acknowledge that being bottled up in Gaza has not always served the movement well, at least Hamas’s control of the enclave allowed it to build itself up militarily. As one movement supporter in Nablus recently argued in a conversation with me, had Hamas surrendered control of security in the Gaza Strip or disarmed before the 2014 fighting, it would have been powerless to defend itself.
Thus, recent events have led both movements to dig themselves in deeper: Fatah continues to suppress Hamas in the West Bank, while Hamas remains unwilling to give up security control in Gaza. But both factions also show declining interest in a few of the trappings of political authority. Some influential leaders of Fatah and Hamas would like to shift a portion of their attention from administration to resistance. So far, they appear not to know how to do so, and neither group seems to have much of a strategy for Palestine’s current predicament. But that should not obscure a dangerous development for those wedded to the status quo: For the past decade, both Fatah and Hamas generally acted fairly conservatively because they felt they had a lot to lose if they disrupted prevailing arrangements. Now, there are voices in both movements that are in a bit more reckless mood.
On the Israeli side, too, there are now influential voices that are more tolerant of risk and of disrupting the status quo. Some Israeli leaders also speak in a manner that devalues the Oslo framework. They see Abbas as an adversary, U.S. activism on a final settlement as an annoyance, revenue transfer as a spigot to turn on and off in order to make the PA behave, pugnacious Palestinian rhetoric as an incitement to violence, the technocratic PA cabinet as one that embraces Hamas, and the PA leadership as deserving of punishment. Some of this sharp discourse is misleading, and other remarks are countered by voices more supportive of the surviving elements of the Oslo order. But there is always the possibility that some Israeli leaders believe what they say—and even if they do not, an Israel in the midst of an election campaign may induce them to act on their harsher words.
The Unbounded Rivalry of the Post-Oslo Order
In early January 2015, in response to the Palestinian bid to join the ICC, Israel announced that it was halting the monthly transfer of tax funds it collects on behalf of the PA. A Palestinian supportive of Hamas told me that he doubted that the Israeli cutoff would continue for long. When I suggested that Israeli leaders might get so caught up in their own rhetorical commitments to punishing the Palestinian leadership that they follow through on their threats, he replied with a proverb: “Don’t lift the rock lest you uncover a scorpion.”
It is surely correct that the fear of consequences will cause some hesitation. But the uncoordinated unilateralism of the post-Oslo phase also can lead to a logic in which leaders are no longer dissuaded from acting on their impulses. Cooler heads in Jerusalem, Ramallah, Washington, and Brussels may wish to protect revenue transfer, coordination, and the PA more generally, but hotheads and loose tongues may undermine them. Most ominous for the survival of the shreds of the Oslo order, perhaps, is the decreased commitment that various leaders have to those remnants.
Indeed, leaders in several countries may be initiating processes they can no longer control. The most obvious reckless actor here is the United States, whose legislative branch has threatened a Samson option to quit any UN organization that admits Palestine. In February 2015, a House of Representatives subcommittee signaled its skepticism by holding a hearing entitled “The Palestinian Authority’s International Criminal Court Gambit: A True Partner for Peace?” The U.S. Congress has also enacted antiterrorism legislation that allows for a form of legal warfare by Israeli opponents of the Oslo framework that is designed to bring the PA down fiscally. Aslawsuits proceed against a leading Arab bank, the PA, and the PLO—each accused of helping to finance and carry out terrorist attacks—the success of such a strategy will partly be in the hands of juries in U.S. federal court.
This so-called lawfare is not the only potential source of instability. An atmosphere in which Palestinians cheer on individual attempts to target Israelis and Israel responds sharply can easily spiral out of the control of either side and render security coordination between Israelis and Palestinians unfeasible or politically unpalatable for the Palestinians. Another round of fighting in Gaza seems likely at some point, even though it does not appear to be in the immediate interest of either Israel or Hamas. The 2014 war should have destroyed any faith that Israel (or Hamas for that matter) can carefully calibrate its use of force or remain unaffected by its own violent rhetoric. When the Hamas cabinet governing Gaza resigned in 2014, the movement freed itself from the heavy weight of formal responsibility. But it did not give up an ounce of practical control, leading it into the uncharted territory of running things without formal authority.
Such violent breakdowns have occurred in the past, but they have generally been held in check by Palestinian and Israeli leaders who felt that existing arrangements served their interests. The purpose was often to teach the other side a lesson rather than launch an all-out conflict. International actors have also routinely stepped in to restrain the two sides, coordinating with each other in order to mediate, mollify, and subsidize contending parties. But several factors will make that more difficult, including a United States that is diplomatically weaker, an Egyptian regime that is facing its own insurgency in neighboring Sinai and apparently unrestrained in its own hostility to Hamas, and a European Union that is beginning to feel (admittedly mild thus far) public pressure and growing professional frustration with its seemingly endless financial support for a situation that its political leaders keep on sustaining, even as they decry it as unsustainable.
Nonetheless, the post-Oslo era looks less like an eruption of unconstrained violence and more like a contest on a variety of legal, political, and diplomatic fronts, with sporadic outbreaks of violence. Palestinians have spoken of an intifada in Jerusalem for months, with a host of small-scale, individual attacks fueled by a collective sense of grievance and despair. The violence of Israeli settler groups in the West Bank receives only occasional attention, but it seems to have been growing, with the atmosphere perhaps returning to that of the 1980s and Israeli vigilantism treated far more leniently than comparable Palestinian actions.
The fields of struggle are also multiplying: Israelis and Palestinians already seem to be engaging in what is known in the legal world as forum shopping, scouring the globe for courts that might give them a leg up. That battle might soon widen to more pugnacious media and public relations campaigns, with Palestine’s supporters reaching for victories through a global boycott, divestment, and sanctions (BDS) movement and Israel’s enthusiastic boosters reacting by dragging BDS supporters into court.
The latest improbable scenes of conflict have involved the U.S. Presbyterian Church—which moved to divest from companies that it said supply equipment used in Israel’s occupation of the Palestinian territory—and the U.S. Internal Revenue Code. Shurat HaDin, a deep-pocketed legal advocacy organization anxious to take action against those it deems hostile to Israeli interests, accused the church of violating the tax code by having contact with Hezbollah, which Washington has designated as a terrorist organization. Earlier in 2014, it was the turn of Ivy League dining halls and actress Scarlett Johansson, which faced criticism for using, and being a spokesperson for, SodaStream, an Israeli water machine company whose main factory is in the West Bank.
In this new kind of struggle, Israel would still likely be dominant in most fields. It is a state with a powerful military, overwhelming superiority in the intelligence and security realms, and fiscal resources. It also has enthusiastic backers who are willing to act in the courts and other venues in ways that the state itself might not embrace. Existing laws (at least in the United States) are often written and rewritten specifically to provide support to Israel.
Palestinians are not necessarily seeking to move to a more favorable field—no field is favorable for them. But they are seeking to resist in every field at once, bursting out of the constrained ways of the past. The result will be difficult for any party to manage— and it will provide clear evidence that the close if unacknowledged cooperation among top leaders on both sides has evaporated.
Some of Israel’s victories, while assured, might be Pyrrhic. The possibility that individual Israelis might be exposed to threats at home and litigation abroad, and that Israelis in international settings will be pelted with questions about the occupation even while on vacation or at professional conferences, is one that exerts a powerful force on Israeli thinking; in Prime Minister Benjamin Netanyahu’s 2014 address to the American Israel Public Affairs Committee, he devoted as much attention to the BDS campaign as he did to Iran.
Making the Post-Oslo Order Livable
Palestinians have been governed by a series of political regimes over the past century: the Ottoman Empire, the British Mandate, Jordanian annexation and Egyptian administration, Israeli occupation, and the Palestinian Authority. Each of the earlier regimes ended quite dramatically, in a fit of military conflict and international diplomacy. Oslo structures, by contrast, are fading not with a military bang or an international agreement but instead with the slow deterioration of mutually agreed arrangements and international distraction and frustration.
How can international actors—chiefly Europe and the United States—respond to the new, post-Oslo environment?
Already in 2014, European actors betrayed deep diplomatic frustration and fiscal shyness. The United States increasingly faced the limits of its influence, and diplomats ran into a series of legal restrictions inspired more by petulance than prudence. Potentially influential Arab actors were distracted by other concerns or satisfied only with tightening the screws on Gaza. And, for their part, the Palestinian and Israeli leaderships showed signs of having lost any shred of confidence in each other.
That does not mean that various leaders have come to full grips with the realities of the post-Oslo era. The U.S. leadership is resisting the trends, holding Palestinians responsible for exiting the Oslo framework, and, at times, whistling past the graveyard by talking about a return to the negotiating table. European impulses are not always different, but there is greater sympathy for Palestinian tactics that are legal, diplomatic, and peaceful in nature. Neither the United States nor Europe has shown much interest in exploring alternatives to a two-state solution.
Yet it may finally be time to stop using the promise of negotiations about a two-state solution to justify the exclusion of all international organizations and any international legal framework from involvement in the conflict, as has long been Washington’s practice. Indeed, there are two encouraging elements of the shift to international organizations and legal fora. First, while the moves make many lose their tempers, none would lose their lives if lawsuits, reports, and resolutions were the only weapons of conflict. Second, one of the real impediments to any resolution of the conflict has been the gross power imbalance between Israel and the Palestinians. Many Palestinians speak of “international legitimacy,” convinced that there is a framework of international legal norms and structures that should offer them protection—but to which they have been denied access. They probably overestimate their legal position (and Israelis probably excessively fear it). But in these new environments, the field may be a bit more even.
The real risk with fighting the battle in courts and in media all over the world is that these struggles will only entrench the parties more deeply in their mutual suspicions and augment a turn to violence rather than prevent it. This is a significant danger, but it is better met by attempts to manage the internationalization of the conflict than by efforts to combat it at all costs.
Up until now, Washington’s attitude has been clear: any move outside of U.S.-sponsored negotiations undermines peace. Europeans have been more tolerant of a role for international organizations and international law, but they have not felt comfortable challenging the U.S. attitude directly. But an international consensus that encouraged the use of such structures for as long as they provide an alternative to unilateral use of force, armed struggle, and the creating of facts on the ground might help produce a healthier environment in which the generation of post-Oslo leaders can find a solution.
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