The UN and the assualt on Israel's Legitimacy : Implications for the road map
Professor Anne Bayefsky-
Friday 15th Aug 2003
- The roadmap has significant roots in the UN, an organization long understood as biased against Israeli interests and Jewish well-being in general.
- Examples include the work of the UN "Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories," established in 1968, and the UN "Committee on the Exercise of the Inalienable Rights of the Palestinian People," created in 1975.
- There is a pressing need to clarify with the American administration what attributes of sovereignty will not be accorded a Palestinian state with provisional borders prior to final status negotiations.
- Israel must reassert that its consent is necessary for any decision affecting its essential interests. An American commitment to object to any unilateral declaration of independence should be immediately forthcoming and clearly understood by the parties.
- The UN and the European Union must be kept out of any monitoring and assessment function. Recognition of a fundamental breach, and the ability to apply the necessary consequences, require that precise and public monitoring by Israel start now.
From a political perspective, many in Israel view the roadmap as another irrelevant piece of paper in a long line of musings or written agreements between Israelis and Palestinians, or among Israelis, Palestinians, and Americans over the past decade. Although the spirit of the document has significant UN roots, an organization long understood as biased against Israeli interests and Jewish well-being in general, the prevailing view is still a strong skepticism about the possible harm the UN can do in the Arab-Israeli conflict. A sense of control over Israel's destiny is firmly entrenched in the minds of Israelis and the current Israeli government.
This analysis of the roadmap as a non-legal, non-paper with non-status, a marginal UN, and a firm Israeli grip on Israel's future, is seriously flawed and even dangerously inaccurate.
The United Nations and Israel
Consider first the character of the roadmap's parentage. Human rights may be the most highly-rated political currency in modern times. This is exactly why the criminal state or political actor has sought to appropriate it. The United Nations, as the pre-eminent guardian of human rights, has been the staging ground for this subversion. The body erected upon the rejection of anti-Semitism now perversely serves as a major international vehicle for anti-Semitism. It is anti-Semitism that to a large measure drives the effort at the UN to demonize, isolate, and ultimately destroy the Jewish state.
According to the UN, Israel is the archetypal human rights violator in the world today, while recognition or condemnation of anti-Semitism is highly controversial. For example:
- Almost 30% of UN Commission on Human Rights resolutions over a thirty-five year period have been on Israel.
- Israel is the only state to have been the subject of an entire agenda item of the Commission for the past thirty-three years.
- The General Assembly has had only ten emergency sessions in its history and six of them focused on Israel.
- From 1975 to 1991, the self-determination of the Jewish people was called racism by the infamous Zionism is Racism resolution of the General Assembly.
- In 2002 alone, the UN General Assembly produced twenty-two reports and formal notes on "conditions of Palestinian and other Arab citizens living under Israeli occupation."
The UN record is clear also from the following instances. The "UN human rights organizational structure" on the UN website lists only one country-specific mandate, the "Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories." Established in 1968, it is the only country-specific UN human rights investigative mechanism that is not comprised of independent experts, but state representatives.
There is another "Committee on the Exercise of the Inalienable Rights of the Palestinian People." Established in 1975 on the same day as the Zionism is Racism resolution, it still produces annual reports and sponsors meetings, conferences, and various publications, year round.
In 1993 the UN Commission on Human Rights created the role of Special Rapporteur on the "Palestinian territories." The Rapporteur's mandate is to investigate only "Israel's violations of...international law," and not to consider human rights violations by Palestinians in Israel.
At the 1993 Vienna World Conference on Human Rights (only the second world conference on human rights in the history of the UN), efforts to place "anti-Semitism" into the Vienna Declaration failed because, in the words of the Chair of the Drafting Committee, it was too controversial a subject.
In October 1995 the UN General Assembly adopted a Declaration in Connection with the Fiftieth Anniversary of the End of the Second World War. Specific efforts to include the Holocaust were rejected, on the grounds that the resolution could not otherwise have been adopted by consensus, the text had to be universal, and it could not single out any particular horror.
At the UN Durban World Conference Against Racism in September 2001, only one country situation was criticized as racist in the world today - Palestinians living under Israeli occupation. The NGO Forum, immediately preceding the government conference, adopted a document that equated Zionism with racism. In the government conference the drafting committees discussed whether Holocaust had a capital 'H' or an 's' on the end, whether anti-Semitism also meant discrimination against Arabs, the legitimacy of referring either to anti-Semitism or the Holocaust at all, and the legitimacy of mingling Moslems and Jews on Arab soil. In the end, almost all references to anti-Semitism and the Holocaust, particularly in sections requiring specific actions in the fields of education, political parties, and the judicial function, were deleted. The outcome reflected a consensus by all but the United States and Israel, the only two states to walk out.
In April 2002 UN behavior was a major contributing factor to an atmosphere of hysteria over an alleged Israeli "massacre" in Jenin, labeled even in a Fatah-authored report as "the suicide bomber's capital." Terje Larsen, UN Special Coordinator for the Middle East Peace Process, told the world the scene in Jenin was "horrific beyond belief," "totally destroyed...like an earthquake; we have expert people here who...say they have never seen anything like it." Peter Hansen, Commissioner General of UNRWA, called it "a human catastrophe that had few parallels in recent history." UN press releases blazed: "End the horrors in the camps." Buried in paragraph 57 of a report issued by the Secretary General in the summer, was the fact that the Palestinian death toll had been fifty-two, more than half of whom were armed combatants. The impression of a massacre at Israeli hands is what remains in the public consciousness.
Israel is the only UN member state denied full and equal membership in one of the UN's five regional groups, specifically in any UN body elected in Geneva. Israel therefore cannot stand for election to WIPO (the World Intellectual Property Organization) and the International Labor Organization's governing body, or participate in the consultations of regional bodies at the United Nations Conference on Trade and Development, the World Health Organization, and the Commission on Human Rights.
The 2002 General Assembly adopted for the first time a new resolution on Palestinian children. It is now one of only three General Assembly resolutions on children - the other two are on the rights of the child and the rights of the girl child. It was adopted in committee in the same week that a gunman from Arafat's Al-Aqsa Martyrs Brigade broke into a home in a kibbutz in northern Israel and shot to death a four- and five-year-old at close range while their mother tried to hide them beneath her body. Although in the past two years over one hundred Israeli children have been murdered, and one thousand wounded or maimed, the UN resolution made no mention of Israeli children. Only the United States, Israel, the Federated States of Micronesia, the Marshall Islands, and Palau voted against.
In December 2002 the Security Council passed a resolution on the November 28th terrorist attacks in Kenya which were directed at Israelis. In October a hostage-taking incident in Moscow and a terrorist bombing in Bali resulted in Security Council resolutions within twenty-four and forty-eight hours respectively. But it took the Council two weeks of intensive negotiation to adopt the resolution concerning the attacks in Kenya because of a struggle over references to Israel and Israeli victims. Eventually omitted from the final draft is a reference to "Israeli civilians" and to any cooperation with "Israeli authorities" in order to bring the perpetrators to justice.
In 2002 there were twenty General Assembly resolutions directed at Israel. They include claims that Israeli sovereignty over any part of Jerusalem is null and void, all persons displaced as a result of June 1967 and subsequent hostilities have a right to return to their homes, and that "the problem of the Palestine refugees" must be resolved in conformity with resolution 194(III) of 1948.
The most recent report of the Special Rapporteur on Israel, by South African John Dugaard, to the 2003 Commission on Human Rights says: "Both Palestinian and Israeli children have been exposed to threats of personal safety, while Palestinian children have, in addition, felt the breakdown of family life." He could not conceive of the breakdown of the family life of the Israeli child whose parent is murdered or maimed in a suicide bombing. Says Dugaard of suicide bombings, on the one hand, and civilian deaths that result from military action by Israel (he labels "reckless"), on the other, "from a moral perspective both are reprehensible."
The Palestinian representative told the Commission on Human Rights in March 2003: "The world condemned the old Nazism in the past...during the Second World War....The world also condemned Zionist Israel for the same criminal crimes it has been perpetrating against the Palestinian people...for over fifty years now, starting...in 1948....[T]he world...has not yet eliminated the New Zionist Nazism."
In recent years, Jewish non-governmental organizations, such as the International Association of Jewish Lawyers and Jurists, Hadassah, and the Simon Weisenthal Center, have been singled out for differential treatment by the UN's Economic and Social Council NGO accreditation committee, which has attempted to impede their UN accreditation (and, by implication, access).
Durban is now the centerpiece of the UN anti-racism agenda. Every time follow-up to the Durban conference has come to the General Assembly or Commission on Human Rights, an assault on the legitimacy of UN concern with anti-Semitism has occurred. Both in the Fall 2002 General Assembly and the 2003 Commission, anti-Semitism was deleted from the explicit terms of reference of the UN investigator on racism.
The 2003 Commission on Human Rights adopted a resolution which specifically affirms (through incorporation by reference of an earlier General Assembly resolution) the legitimacy of suicide-bombing - or, in UN-language, "all available means including armed struggle" - in order to resist "foreign occupation and for self-determination." The only states to vote against were Australia, Canada, Germany, Peru, and the United States. The United Kingdom and France, for example, merely abstained.
UN Regard for Human Rights
The UN's regard for human rights conditions in other states is instructive. To give only a few examples:
- There has never been a UN Commission on Human Rights resolution on countries like China, Syria, Saudi Arabia, or Zimbabwe.
- The Special Rapporteur on the Independence of the Judiciary, in a special report on Saudi Arabia to the 2003 Commission, found: "Saudi Arabia does not permit women judges....It was believed that women were unlike men physically, emotionally, and in thought, and that only a small number of women had shown the intellectual maturity to become a judge." No comment was made by the Commission.
- There was no report to the Commission in 2003 on human rights violations in Iran, for the first time in seventeen years. This is because the 2002 Commission deleted the post of UN Special Representative on Iran. In April 2002 the Commission had before it a report expressing concern with such problems in Iran as: the failure to comply with standards in the administration of justice, the absence of due process of law and respect for religious minorities, systematic discrimination against women, and the killing of intellectuals and political activists. Iran had also refused to cooperate with the representative and denied him entry into the country for the previous six years. The Commission responded by removing the representative.
- At the 2003 Commission, members had before them the report of the UN Special Rapporteur on Torture. He told them about the articles of the Sudanese penal code making the punishment for armed robbery "cross amputation" - the amputation of the right hand and left foot. He told them about various cases of women being stoned to death for alleged adultery after trials denying them legal representation that were conducted in a language they didn't understand, and cases of "death by hanging with crucifixion." The Commission also had the report of the Special Rapporteur on human rights in Sudan, a position created in 1993. He informed them that "women cannot travel unless they get a travel permit from their 'guardians'," and "overall, the human rights situation has not yet changed significantly." The result? Pakistan, on behalf of the Organization of the Islamic Conference, vehemently objected that the draft resolution's condemnation "of cruel, inhuman, and degrading treatment or punishment such as cross amputation" was "an offense to all Muslim countries." The resolution was defeated and the Commission thereby terminated the position of the Rapporteur on human rights in Sudan.
The UN and the War on Terrorism
The UN's role in the war against terrorism is equally pernicious. The UN has no definition of terrorism. The members of the Organization of the Islamic Conference (OIC) and the League of Arab States continue to block consensus on any common understanding of terrorism and prevent the adoption of a comprehensive convention against terrorism. Across UN bodies, including the Security Council's Counter Terrorism Committee, they continually invoke the Arab Terrorism Convention and the Terrorism Convention of the OIC, according to which "armed struggle for liberation and self-determination" does not count as terrorism (unless "prejudicing the territorial integrity of any Arab state").
At the same time, the UN seeks to deny Israel the necessities of a right to self-defense. UN officials often misstate international humanitarian law. High Commissioner for Human Rights Sergio Vieiro de Mello said in March (following the failure of the effort to hold a special session of the Commission on the war in Iraq): "Parties must never direct attacks against the civilian population...even if the purpose is to strike a military target. This is true even if human shields are being used....The precision of modern weapons...is not reliable, not least in densely populated urban areas....Do not attack that particular target." The Geneva Conventions say no such thing. They do not grant immunity to military targets or terrorists using civilians as human shields. They prohibit the disproportionate use of force, that is, an attack on a military target "which may be expected to cause incidental loss of civilian life" when "excessive." The Convention is clear that the presence of "civilians shall not be used to render...areas immune from military operations...in attempts to shield military objectives from attack."
In summary, one birth parent of the roadmap - the UN - serves as a breeding ground for anti-Semitism, where Jewish victimhood is routinely denied and displaced by the Palestinian victim said to be living under racist, Nazi-like oppression. The UN goal is to minimize the role of negotiations, intervene on behalf of the Palestinian victim on the grounds that the root cause of the dispute is the Israeli occupation, and to impose pre-determined right answers on the Israeli culprit. The roadmap now serves as its plan of action.
Strictly-speaking, the roadmap is a creation of the Quartet, composed of the United Nations, the European Union, Russia, and the United States. UN officials say the Quartet was an initiative of Secretary-General Kofi Annan who brought the group together in the fall of 2001 with the expressed interest of becoming directly involved in the Arab-Israeli conflict. The initiative took root. Although late in 2001, American and Russian counterparts were still referring to themselves as "co-sponsors of the Middle East peace process," by 10 April 2002 Annan was able to declare, together with Secretary of State Colin Powell, that the Quartet was "going to remain consistently seized of the problem [of the Middle East]." The European Union, which had been clamoring for an inside role for years, shared UN enthusiasm for the Quartet. By 29 April 2002 German Foreign Minister Joschka Fischer was insisting on behalf of the European Union that the Quartet "stick together." Mr. Powell called for an international conference at the beginning of May 2002. The summer of 2002 saw a proliferation of Quartet bureaucrats in working groups and task forces, with certain U.S. officials such as David Satterfield, Deputy Assistant Secretary of State for Near Eastern Affairs, and Flynt Leverett, Senior Director for Middle East Initiatives at the National Security Council, actively pushing the drafting process. On 17 September 2002 European Union President Per Stig Moeller announced (while issuing a Quartet communique) "the quartet has to be the focal point" of the peace process. During the fall of 2002 the roadmap took shape. Satterfield and Leverett had key roles from the American side, while UN officials attribute significant input to Terje Larsen. According to some participants, the major rough points arose while American representatives from the White House and the State Department negotiated in the Quartet with each other. Israeli officials maintain they were always in the loop, but one early fall version came into Israeli hands only via an Arab newspaper. Expressions of concern by Israelis at various points to American officials were not taken seriously, while at the same time, Israeli input was minimized by a tendency to downplay or ignore the impending threat. Various versions passed through the parties' hands until the roadmap was eventually published with the President's approval in March 2003.
American endorsement of the roadmap's orientation represents a seismic shift in the United States' attitude towards the Arab-Israeli conflict. The long-standing UN policy that pushes imposed solutions rather than a negotiated settlement has been swallowed almost whole. Adjudication of the process is also no longer in the hands of the parties. Consider the change from the fall of 2001 to the end of 2002:
- On 19 November 2001 Mr. Powell said in a Louisville speech: "Palestinians must accept that they can only achieve their goals through negotiation. That was the essence of the agreements made between Israelis and Palestinians in Madrid and again in Oslo in 1993. There is no other way but direct negotiation in an atmosphere of stability and non-violence."
- On 24 April 2002 Mr. Powell told a Senate subcommittee: "First, security and freedom from terror and violence...second, serious accelerated negotiations; and third, economic humanitarian assistance."
- On 16 July 2002 Mr. Annan and the European Union's Danish president insisted that progress on all tracks be "side by side."
- On 17 September 2002 Mr. Annan, with Mr. Powell at his side, declared a three-phase program: "The first phase will see Palestinian security reform, Israeli withdrawals, and...Palestinian elections...the second phase...the option of creating a Palestinian state with provisional borders...the third phase...Israeli-Palestinian negotiations."
- On 3 December 2002 the American Ambassador to the UN, John Negroponte, told the General Assembly: "The centerpiece of our current objectives is a roadmap designed to help promote practical efforts to achieve four objectives: 1) implement the strategy of promoting Palestinian institutional and security reform; 2) ease the humanitarian situation inside Palestinian areas; 3) end violence and terror and restore security cooperation; and 4) restore a political dialogue."
The roadmap itself drops the word "option" before the creation of a Palestinian state in the later parts of Phase II, calls for the creation of such a state prior to negotiations between Israelis and Palestinians, and mentions "negotiation" only in the second to the last paragraph in the final phase.
It seems paradoxical that at the very time in which the United States has a much more direct, hands-on approach in the region by way of Iraq, it has ceded significant control in the Arab-Israeli context to the Quartet and its UN-inspired agenda. The picture fits together, however, as follows. American interest in the Quartet coincides with what might be called a UN-ization of American foreign policy. Between 12 March and 19 April 2002 the United States permitted or actively promoted four Security Council resolutions concerning Israel. The Quartet blossomed at the same time that the United States refused to exercise its Security Council veto to shield Israel from the UN's highly selective concern with human rights, even in the midst of a particularly vicious point in the terrorist campaign directed at the Jewish state. This culminated on 19 April 2002 with the United States becoming the sole sponsor of Security Council resolution 1405, a resolution that voiced concern only with a dire situation among Palestinian civilians and supported the production of a UN report on events in Jenin. The resolution proved to be a complete fiasco, its implementation eventually foundering over UN chicanery relating to the mandate and composition of the investigative team. Four resolutions in thirty-eight days had the predictable effect, not of mollifying the Arab group, but of whetting their appetite. The Arab group waited two weeks before seeking the next UN resolution, reconvened an emergency session of the General Assembly, and only then got a negative vote from the United States in response to a General Assembly resolution on 7 May 2002.
On 24 September 2002 the United States failed to veto yet another one-sided Security Council resolution concerning Israel. UN-ization was in full swing. Instead of using the President's General Assembly speech in September 2002 to justify a coalition assault on Iraq based upon past Security Council resolutions, the United States sought further UN approval for an Iraq war. American officials obviously thought that serving up Israel via yet another Security Council resolution would smooth the way on the Iraq resolution. Instead, more clamoring for the next condemnation of Israel over non-compliance with the previous resolution revved up, and it took the United States another six weeks to achieve a resolution on Iraq. By that time, on the bottom line, American negotiators could only manage a resolution requiring them to go back to the Security Council for further supplication. Months of coddling UN investigators, Security Council, and other UN members coincided with active American participation in the preparation of the roadmap. UN-ization intensified as the President was convinced to go back to the Security Council in February, not only for discussions, but for additional approval. This culminated in the serious embarrassment to the President from publicly announcing that he would insist Security Council members lay their cards on the table by forcing a vote on a resolution. Very shortly thereafter, he was forced to slink away from the table without a vote when it became obvious that he could not muster enough support for a win (even without a veto).
At bottom, the stumbling block over Iraq was its incompatibility with UN priorities, which are clearly an "Israel-first" agenda. Consequently, British allies demanded compensation for the marginalization of the organization over Iraq by rendering it front and center in the Arab-Israeli conflict. Remarkably, the extraordinarily poor advice the President had received on the glories of UN-ization still registered. The British request was deemed acceptable and the roadmap, a UN-inspired trojan horse moving into the Israeli heartland with the United States at the reins, was born.
There is no doubt that antipathy for the UN in the Bush administration remains high. Concern about the International Criminal Court, continued reluctance to ratify various UN-sponsored treaties, and disgust with the behavior of the Commission on Human Rights are widely shared by the White House and Congress. Despite the obvious inconsistency between American values and the UN "human rights" agenda, or the war against terrorism and the UN promotion of Palestinian terrorism, the siren call of significant UN participation is proving irresistible. Colin Powell is said to spend more time speaking to Kofi Annan in a month than any other Secretary of State ever did in an entire term in office. The pressure of multilateralism, defined as UN-engagement, is unremitting, particularly in the case of Israel which dominates so much of UN business. At the same time, there is no doubt that UN representatives found willing partners not only in the European Union, but among various like-minded American officials. They believed, for example, that the President's 24 June 2002 speech was too heavily weighted on the Israeli side and sought a means to recast American policy in the opposite direction. It may also be that American officials calculate that the Quartet may be useful in any future good cop-bad cop routine. A bad cop Quartet would strengthen an American "we have your best interests at heart" story-line. Similarly, there is nothing like dangling an international conference (now entrenched in the roadmap), outnumbering the Jewish state 192-1, to rattle an Israeli cabinet.
Landmines in the Roadmap
All of the indicators surrounding the roadmap's birth should arouse in Israelis every defensive instinct. Seven major landmines are immediately apparent.
1. The Israeli cabinet signed onto the steps in the roadmap with the promise that fourteen "comments" or "remarks" would be seriously addressed by the United States administration. Senior Israeli officials tell local audiences that American assurances are rock solid. They have even produced a so-called consolidated version of the roadmap with the Israeli comments inserted. Interestingly, senior UN officials say they have never seen a copy of a consolidated roadmap. They claim, on the contrary, that they have been given assurances by the White House that the fourteen comments have no status and are not binding in any way.
2. Israeli officials stress that the roadmap is not a legal document, and that items like dates, which were obviously unrealistic, were deliberately left unchanged upon publication so that no one would think it was intended to be strictly implemented. UN officials also say that the White House insisted on vague language in various places. However, a seven-page, single-spaced document that purportedly requires in its opening provisions "good faith efforts of the parties and their compliance with each of the obligations outlined below" suggests future responses such as "we didn't mean it" are unlikely to be effective. As a senior Israeli judge recently expressed it, of course the roadmap has legal implications.
3. All parties agree that no attempt was made to ensure any consistency between the roadmap and the prior Oslo or interim legal agreements. There is no phrase preserving prior rights or neutralizing prejudicial results prior to final status negotiations. By contrast, for example, Article XXXI(6) of the Interim Agreement says "Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status to be conducted pursuant to the Declaration of Principles. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims, or positions." Hence, regardless of the legal status of prior agreements versus the non-legal status of the roadmap, it is not clear that the former will prevail in case of an inconsistency.
Since there are clear inconsistencies with the interim agreements and an obvious intention to override them to some extent, any attempt to turn back the clock on other elements will not be straightforward. For instance, the roadmap's creation of a Palestinian state prior to final status negotiations is inconsistent with the interim agreements. Clearly overridden is Article XXXI(7) of the Interim Agreement which states that "Neither side shall initiate or take any step that will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations." Furthermore, Article XVIII of the Interim Agreement contemplates legislation of the Palestinian Council which is inconsistent with the provisions of the interim agreements but permissible by "any agreement that may be reached between the two sides during the interim period" - thereby apparently giving legal effect to the non-legal provisions of the roadmap.
4. While detractors of the Oslo agreements may prefer to ridicule any lingering emotional attachments, the sentimentality may not seem quite so frivolous when it comes to defining the roadmap's "attributes of sovereignty." Such attributes are to be accorded the Palestinian state in the interim phase. The interim agreements carefully delineate attributes of sovereignty not to be transferred prior to final status negotiations. For instance, Article VIII of the Declaration of Principles and Article XII of the Interim Agreement preserved Israel's continuing responsibility "for defending against external threats." Article XIII(4) of the Security Annex to the Interim Agreement makes clear that control over airspace is not transferred to the Palestinian Authority. Article XVII(1)(a) of the Interim Agreement provides that jurisdiction of the Palestinian Council will not cover such items as "foreign relations and Israelis." Not a single one of these items is mentioned as excluded from the attributes of sovereignty that the roadmap purports to transfer upon the creation of a Palestinian state with provisional borders. Even the fourteen elements on Israel's wish list exclude in vague terms "all other matters whose substance relates to the final settlement" (following a small number of specified items). One of the fourteen wishes speaks about the limitations to be imposed on a "provisional Palestinian state." The claim to specific limitations is undercut by the fact that this paragraph totally misstates the content of the roadmap. The roadmap does not speak of a provisional state, but of a state with provisional borders. No half pregnancy here. It therefore appears that Israel may well have to renegotiate limitations on the attributes of sovereignty it seeks to withhold from the new state. So far, American officials are reportedly uninterested in any such definitions or detailed thinking, leaving Israel wide open to a Palestinian power grab that will be difficult to control.
5. This brings us to the question of identifying the decision-maker. Without a doubt, bilateralism has been seriously undermined. The cornerstone of all previous Israeli and American policy has been that negotiations between Israel and the Palestinians were the only way forward to a durable peace. Negotiation would test recognition of Israel's permanency. It was the necessary alternative to violence, and it meant compromises with which the parties determined they could and would live. In the roadmap, the word "negotiation" between the parties does not appear anywhere until the end of the final phase. In many places in the roadmap, progress between steps or phases is specifically not dependent upon the parties' agreement, but upon consensus decisions of the Quartet made only "in consultation with the parties."
Israeli officials now place their faith on avoiding imposed results on the following words at the end of Phase II: "creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement" and the words in Phase III describing a second international conference as "convened by the Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders." By contrast, UN officials interpret the roadmap to mean that Israeli consent is not required for the establishment of a Palestinian state. The latter interpretation may be more consistent with the actual language of the text. "Engagement" does not necessarily mean "negotiation." The "agreement" endorsed in phase III does not specify an Israeli-Palestinian agreement, and it is located in the context of a conference that can be convened without the parties' consent after mere "consultations."
When pressed on this issue, Israeli officials have a number of responses:
(a) First, it is argued that in effect there is already a Palestinian state; it makes no practical difference if one is created now.
Israeli officials of all kinds are likely to think otherwise after the first case is put before the prosecutor of the International Criminal Court - quite likely to be the first neighborly act of the new state - and the ability of significant numbers of Israelis to travel to many countries without the threat of arrest evaporates. Furthermore, international pressure to refrain from crossing international borders in order to pursue terrorists operating from the new state - whether or not they act with the approval or acquiescence of the government - will be much greater than the international condemnation Israel currently experiences. It may also attract serious saber-rattling from members of the Arab League's Defense Pact, with concomitant pressure all round to desist from acting. Finally, the inevitability at this point of a Palestinian state does not mean that timing is irrelevant. The roadmap represents a fundamental shift in favor of the Palestinian bargaining position. The Palestinians succeeded in loading the deck by making a cessation of their violence Israel's major issue for which statehood became the quid pro quo. But granting statehood prior to any resolution of Israel's fundamental issues, such as the firm recognition of the Jewishness of the state, and closure on any right of return, obviously reduces Israel's bargaining chips and weakens its hand in final status negotiations.
(b) Second, in response to the "imposed solutions - lack of consent" scenario, senior officials are convinced that the United States will not permit the creation of any Palestinian state under interim conditions with which Israel does not agree. By contrast, UN officials do not agree with such an assessment. The UN view may prove more accurate, particularly in light of the substantial changes between President Bush's 24 June 2002 speech and the roadmap, and the UN-ization of American Israel policy over the past year.
The roadmap is not consistent with the President's 24 June 2002 speech in a number of basic respects:
(i) The roadmap moves from sequentialism to parallelism, from the necessity of ending Palestinian terrorism first to the performance of "obligations in parallel."
(ii) The roadmap dilutes the principle of a performance-based process by setting timelines and target dates, and by designing a monitoring process that in theory could push the process along regardless of non-compliance.
(iii) The roadmap does not insist on a completely new Palestinian leadership.
(iv) The roadmap dilutes details of counter-terrorism requirements. It creates the potential of satisfying its conditions merely by legalizing illegal weapons and putting current combatants on the Palestinian Authority payroll.
(v) The roadmap introduces a moral equivalence between Palestinian and so-called Israeli incitement.
(vi) The roadmap moves from conditional future American support for the creation of a Palestinian state, to a firm commitment to create such a state as part of an agreed-upon series of steps.
Although the non-non-paper containing the fourteen Israeli remarks twice speaks of the future "in accordance with the 24 June 2002 speech," the inconsistencies remain and there is no indication that the Bush administration is looking backwards.
(c) Finally, Israeli officials believe that the creation of a Palestinian state with provisional borders without Israeli consent, for example, by way of a unilateral declaration of independence, would not be in Palestinian interests. The argument goes that Israel would simply pick up its marbles and go home and the Palestinians would be stuck with those provisional borders forever. But it seems just as likely that Palestinian success in garnering international pressure to create the state under interim conditions would be repeated when it came to expanding their sovereignty. Their claim would be similar and resonate with the same audiences - the refrain: Israel is responsible for continuing Palestinian suffering and economic hardship resulting from unsatisfactory borders, as well as Palestinian humiliation over lack of control over matters of any kind. The predictable continuation of international pressure is also clear from the myriad numbers of UN resolutions that proclaim "the United Nations has a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy." Israel's inability to say no to the roadmap belies such bravado about withstanding future pressure to engage with its new neighbor and fellow UN-member state.
6. Any ability to halt progress along the roadmap depends on the assessment of the satisfaction of the steps along the route. Monitoring is the key. In theory, the roadmap calls for Quartet monitors, which of course includes the UN. The roadmap says: "the Quartet will meet regularly at senior levels to evaluate the parties' performance on implementation of the plan." In Phase I, "Quartet representatives begin informal monitoring and consult with the parties on establishment of a formal monitoring mechanism and its implementation." "Progress into Phase II will be based upon the consensus judgment of the Quartet of whether conditions are appropriate to proceed, taking into account performance of both parties." Phase II includes "enhanced international role in monitoring transition, with the active, sustained, and operational support of the Quartet." Language such as "taking into account performance" deliberately diminishes the status of conditions for pressing on, and is quite different than the so-called "zipper" approach of earlier agreements which required steps to be matched all along the way, with movement stopping in the absence of genuine compliance by either side. Furthermore, realization of non-American Quartet players monitoring and assessing progress and determining the timing of subsequent moves would represent no less than a serious surrender of the hitherto untouchable American domination of the Middle East peace process. As well, the bias of UN judges, the loss of Israeli control in assessing the adequacy of implementation along the way, and the enormously increased Israeli reliance on American willingness to withhold consensus within the Quartet is a profound problem.
The fourteen non-comments on the non-paper therefore include the following plea: "The monitoring mechanism will be under American management....Verification will be performed exclusively on a professional basis...without the existence of a combined or unified mechanism. Substantive decisions will remain in the hands of both parties." Unfortunately, the actual roadmap says no such thing. While at the moment the United States is the primary adjudicator and for all practical purposes currently retains control over the monitoring process, Israel is now dependent on American resistance to the continual hounding of Quartet partners to increase their participation. A UN paper on every Quartet member's future monitoring functions is already making the rounds. The coming General Assembly and many other UN-hosted meetings on Israel will ensure it gets continued attention. Of course there is nothing to prevent Israeli monitoring of the extent to which Palestinians meet their roadmap commitments. However, although regular reports are sent to the Americans on instances of non-compliance, a public and official scorecard is not yet being produced. There is some suggestion that this is a deliberate omission on the grounds that it would alienate Israeli public opinion against the roadmap. Such an attitude is diametrically opposed to the lessons learned from Oslo, and also undercuts any future ability to stop the clock should circumstances warrant it.
7. Even when it comes to final status negotiations, the roadmap prejudices Israel's case. The roadmap maintains that final status negotiations must result in an agreement that "ends the occupation that began in 1967." It also requires that the resolution of the status of Jerusalem must "take into account the political and religious concerns of both sides, and protect the religious interests of Jews, Christians, and Muslims worldwide" - an obvious effort to undermine Israeli control over its capital city as purportedly incompatible with global interests.
The realities of continuing deep-rooted UN hostility to the State of Israel, the incorporation of UN ideology in the roadmap, and the current UN-ization of American foreign policy in the case of the Arab-Israeli conflict should suggest some immediate measures on the part of any Israeli government.
1. There is a pressing need to be clear both publicly and with the American administration about what attributes of sovereignty will not be accorded a Palestinian state with provisional borders prior to final status negotiations. This means clarifying what aspects of the Oslo agreements have not been overridden by the roadmap. It necessitates taking steps to preserve prior rights. It also means formulating shared American-Israeli particulars on what needs to be withheld from the initial state in the interests of the war against terrorism.
2. Israel must reassert that its consent is necessary for any decision affecting its essential interests. If the legal argument is that "engagement" means "negotiation" and endorsement of agreements reached about a Palestinian state means Israeli agreement, or perhaps just the demands of attributes of Israeli sovereignty, that case must be made constantly and forcefully. In particular, the American administration must be under no illusions about Israel's expectations in this regard. An effort should be made to extract from the American administration now a commitment to object to any unilateral declaration of independence, and to prevent any Security Council recommendation of UN membership following a unilateral declaration of independence.
3. Keeping the UN and the European Union out of any monitoring and assessment function ought to be an unwavering Israeli stance. In the recent past, there are various indications that the bias and resulting threat from such parties is not always understood. A little more than one year ago Prime Minister Sharon seemed to suggest he would welcome an international conference. Furthermore, Israel initially said yes to a UN-led Jenin investigation.
At the same time, if a Quartet monitoring role were to become inevitable in a limited context, concessions should be extracted for such participation. Israel has some bargaining power here, since the use of Israeli territory or impositions on Israeli jurisdiction will likely be required by monitors. To take an obvious example of a bargaining chip, Israel wants to be a full member of the Western and Others regional group (WEOG) throughout the UN system. Recently this past April, European Union members in particular prevented Israel from joining in WEOG meetings at the Commission on Human Rights. There are other similar configurations for UN-based Geneva bodies whose membership is largely controlled by the European Union. Israel could insist that full and equal Israeli participation in all UN bodies within every Western democratic regional group or sub-group be a sine qua non of UN or European Union participation in monitoring the roadmap.
4. Ultimately, monitoring compliance should be done publicly and professionally by Israel itself. Such a monitoring function should be established without delay. It is not a matter of quietly keeping a scorecard with "the Americans." This is particularly important because the Administration is not monolithic, and a scorecard with the White House does not necessarily translate into a hammer in the hands of the State Department or a serious lever between the Powell-Annan chums. Recognition of a fundamental breach, and the ability to apply the necessary consequences, require that precise and public monitoring by Israel start now. Furthermore, monitoring of politically sensitive subjects - like the requirement that "Arab states cut off public and private funding and all other forms of support for groups supporting and engaging in violence and terror" - may otherwise not occur.
5. The limitations upon the subject matter of the two international conferences anticipated by the roadmap should be clearly set out now. Rumblings about the scheduling of such a conference have already begun. It must be made clear what will be off the table at any substantive international conference. An international conference by virtue of numbers alone - let alone the current dynamic of UN-led multilateralism - ought to be anticipated as a nightmare scenario for Israel.
6. The threat posed by the International Criminal Court to Israelis should not be underestimated. Harmonious relations between Israel and a future Palestinian state will be constantly undermined if such a sword of Damocles is continually present. On the grounds of furthering peaceful coexistence, there is no reason why an Israeli government should not begin to insist that a future state - including the one with provisional borders - must be conditioned on mutual agreement not to sanction or support any claim before the International Criminal Court concerning any acts predating the creation of a Palestinian state.
The roadmap represents a serious degradation of Israel's rights in both legal and political terms. While ideally the American administration might be convinced to rethink its support for the roadmap, in the immediate future concrete steps to protect Israel's interests are essential.
* * *
Professor Anne Bayefsky is an international lawyer, adjunct professor at the Columbia University Law School in New York, professor of political science at York University in Canada, and a member of the governing board of UN Watch. This Jerusalem Viewpoints is based on her presentation at the Jerusalem Center for Public Affairs on 10 July 2003.
VIEW MORE ARTICLES >>