The Israeli-Palestinian conflict has worn everyone out, not just among the parties but also among those who want to help the parties find a solution. The briefs by Khaled Elgindy and Natan Sachs illustrate that sense of exhaustion and hopelessness that so many feel. So why not wave the white flag and let the parties do what they will? There is a fear that surrendering means resigning to something that will be far worse than the current situation, and so everyone keeps pedaling. It doesn’t matter where the bicycle goes, it just needs to stay upright. The continuous act of pedaling is not necessarily a bad thing unless, of course—doing so masks the fact that the parties are drifting into a far worse situation. The question is: what is the alternative to the continued focus on finding a two-state solution? If not the two-state solution, then what? Is there something else that might be a more productive use of the considerable energy, time, and resources that are being wasted on trying to find something that so many believe is unobtainable?
I suggest that we shift our focus from trying to create a two-state solution to trying to secure the basic rights and improve the welfare of the Palestinians. Before making the case for this shift, I want to emphasize what this proposal is not. It is not another way of extinguishing the goal of Palestinian self-determination and statehood; trying to improve their rights and circumstances does not have to come at the expense of these goals. It does mean, however, slightly reordering the priorities. Nor am I proposing a stealth method to legitimate Israel’s hold over the territories; improving the rights of the Palestinians does not necessarily translate into making the occupation more justifiable or sustainable. Indeed, as I will suggest below, the improvement of Palestinian rights has a better chance of improving the lives of the Palestinians, providing them more options for protecting themselves against state oppression, and halting Israel’s creeping annexation of the territories.
[T]oo much of the discussion of Palestinian rights is focused on the right to national self-determination.
There are two chief reasons why the continued occupation and the search for a non-existent two-state solution has silenced a serious discussion of Palestinian rights. First, too much of the discussion of Palestinian rights is focused on the right to national self-determination. The right to self-determination is an important right. But it is not the only right. We should be as concerned with the panoply of other basic human rights—including political, civil, social, and economic rights. Indeed, one of the reasons why the right of self-determination has become such a focus of attention for over a century is because of the understanding that it will help achieve these other basic human (as opposed to group) rights. Rather than talking about self-determination, we should be discussing the economic rights of the Palestinians, including property rights, access to water, and so on. Rather than talking about self-determination, we should be discussing how Palestinians can achieve their political rights, and whether that means making the Palestinian authorities more accountable through elections (which have been delayed for over a decade), allowing Palestinians to vote in Israeli elections, or creating some mechanism that gives the Palestinians greater say over Israeli policy in the territories. The point is simple: the focus on rights will necessitate a conversation on how to improve the welfare and dignity of the Palestinian population.
Second, there is continued ambiguity over the ruling legal regime. To enter into a discussion among international legal experts about which laws do and do not apply to the territories is to dive into the proverbial rabbit’s hole. Does Ottoman law apply here, and for what? What about British mandatory law? What about Jordanian law, and the Jordanian law from the pre-1967 or post-1967 period? What are the laws of occupation? The debate over the law is, in many ways, a ridiculous conversation that serves the status quo. It masks the insanity of debating whether laws of two dead empires are relevant to the lives of millions of Palestinians. It hides how Israeli authorities choose whatever legal rules serve their immediate interests and the Palestinian authorities operate inside the law as they define it or choose to enforce it. It pretends as if the “occupation” is temporary when in fact it is nearly permanent; after all, the occupation is now approaching its half-century mark. Laws of occupation were not intended for these quasi-permanent arrangements.
Rather than talking about self-determination, we should be discussing the economic rights of the Palestinians, including property rights, access to water, and so on.
Any discussion of human rights must address who is violating which human rights and who should be responsible for enforcing these rights. For the Palestinians, there are two authorities that threaten their lives, dignities, and welfare: Israel, and the Palestinian Authority and Hamas. In international political circles, the focus on the occupation has the unintended result of directing all the attention to the conduct of the Israeli authorities toward the Palestinians and neglecting the everyday human rights violations committed by the Palestinian authorities. No one has ever argued that the Palestinian leadership has clean hands, but its crimes are hardly ever addressed, much to the detriment of the Palestinian population.
There also is the question of enforcement, which is probably the trickiest issue of all. We have to begin with the assumption that the Palestinian leadership and Israeli government, who are often the chief violators of Palestinian rights, cannot be trusted to enforce basic rights. If local authorities cannot be trusted, then the international community must have a role.
The debate over the law is, in many ways, a ridiculous conversation that serves the status quo.
Although the Israelis will obviously resist this internationalization, it is worth noting that this is exactly what Jewish leaders proposed after World War I, when they were a beleaguered minority attempting to survive in the new ethno-national states of Eastern Europe. Specifically, because they could not rely on the new Eastern European governments to recognize and protect the basic rights of the Jews, Jewish organizations helped to create the first international minority rights treaties and looked to the League of Nations to provide minority protection. Although widely viewed as something of a radical innovation in world affairs, the minority treaties failed at their protection mission for reasons that Jewish delegations understood at the time: without credible enforcement mechanisms these guarantees would be nearly worthless. Because of this failed experiment, after World War II many Jewish leaders looked first and foremost to creating a Jewish state, while others directed their attention to the need for the United Nations to make human rights part of its core mission and have an effective enforcement machinery. Human rights governance has evolved considerably over the decades, and now there are many states and international bodies, public and private, that seek to enforce regimes designed to protect minorities. As a result of the combination of the heightened international focus on Israel and the new kinds of sanctions that are in place regarding human rights, Israeli and Palestinian authorities can expect to suffer considerable costs for their failure to protect the basic rights of the Palestinians.
Shifting the focus from a two-state solution to Palestinian rights will not magically improve the lives, circumstances, and welfare of the Palestinians. There are, in many respects, nearly as many loose ends with this proposal as with the lingering desire to work for a two-state solution. But expanding the narrow focus on the right to national self-determination to include the need to observe the other basic human rights might have various positive effects. It might have a better chance of improving the lives of the Palestinians. It would more fully recognize that Palestinian lives are being harmed by both Israeli and Palestinian leaders. It might force the Israelis to consider sooner rather than later the implications of an occupation that has now achieved near permanency. It might also help ensure that any future Palestinian state will be respectful of basic human rights and the rule of law.
Would a change in the conversation, from creating a Palestinian state to safeguarding Palestinian rights, help or hurt the causes of justice and stability for future generations of Israelis and Palestinians? I am not sure, but a little more focus on rights and a little less focus on the two-state solution couldn’t hurt, and it might help the Palestinian cause.