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It's Just the Beginning

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Two events jolted the Israeli/Palestinian arena this past week: Secretary of State John Kerry's announcement that, after a three-year hiatus, Israeli and Palestinian negotiators will once again meet to begin peace talks and the European Commission announced guidelines that will ban European assistance to Israeli enterprises, institutions or individuals operating from the occupied Palestinian territories. There are those who see the two efforts at cross purposes with one another. The Israelis denounced the European stance as "interference," while the US termed the European action "unhelpful." In fact, it is quite helpful and can provide a useful assist to the negotiations.

It took Kerry six visits to the Middle East to secure the agreement of Palestinian Authority President Mahmoud Abbas and Israeli Prime Minister Benjamin Netanyahu to begin direct talks. Details of Kerry's strategy have not yet been made public but there have been some press reports which indicate that the Secretary utilized a combination of incentives and a bit of creative ambiguity in his efforts to finesse an agreement. The centerpiece of his approach appears to involve a statement that he will issue detailing the US's "terms of reference" for the negotiations. It will apparently be clear that this is the US position and will allow for the parties to raise objections.

Handling the "terms of reference" in this manner will provide the Palestinians the opportunity to agree with US insistence that the negotiations should be based on the 1967 borders with allowances for "land swaps," while the Israelis can claim that they are not bound by these terms. Additionally, the Israelis will latch onto the US's acceptance of the view that the outcome of the negotiations should include Palestinian recognition of Israel as a Jewish state, while allowing the Palestinians to insist that they have not so agreed. Despite the effort it has taken to get to this point, Kerry notes that now the hard work begins. This is an understatement, since the parties have, as yet, agreed to nothing other than meet.

All this reminds me of then Secretary of State James Baker's use of creative ambiguity back in 1991 to get Israelis and Arabs to attend the Madrid Peace Conference. Baker pushed and prodded, and, when needed, he threatened. Because the Israelis would not agree to even sit with the PLO or any "Palestinian" delegation, and because the Arabs, of course, insisted that the Palestinians be present, Baker cooked up a rather creative plan to include the Palestinians in the Jordanian delegation with no flags or signage present. This would allow the Palestinians and other Arabs to insist that there was the Palestinian delegation in attendance, while the Israelis would continue to refer to them as Jordanians.

It took two years and 11 rounds of failed negotiations before frustrated Israeli and Palestinian negotiators, on their own and in private, produced the Oslo Accords -- which was itself an exercise in creative ambiguity. In the agreement they signed, Israelis and Palestinians fudged or delayed action on most of the critical issues that divided them. They did agree to recognize each other -- but even this now appears to have been of limited value with Israelis upping the ante with the demand that they be recognized as a "Jewish State" and most members of the current government in Israel continuing to refuse to acknowledge the right of Palestinians to a state of their own.

Much the same problems exist on the Palestinian side. And while the terms of the Accord envisioned a five-year plan of implementation, the document stated that during this period both sides would agree not to take any unilateral steps that would prejudice the outcome of the negotiations. Even here there was no consensus as to what that phrase meant. For Palestinians, it meant that the Israelis would refrain from building any new settlements in the occupied lands since that would clearly prejudice the final outcome. For the Israelis, it meant no such thing. The result was that in the first 10 years of the Oslo process, the number of Israelis living in settlements in the occupied lands doubled to almost 400,000.

The problem, therefore, with creative ambiguity is that while it may get you to "Go," it doesn't necessarily get you past "Go."

Here is where the bluntness of European Commission's decision can be extraordinarily helpful. By reminding the Israelis that their settlement enterprise is illegal and not recognized by the international community they provide important balance to the negotiating effort.

Since the occupation of the territories in 1967, the Israelis have disregarded international law and conventions which specifically prohibit the acquisition of property and the settlement of people by the occupying power in lands seized in time of war. The Israelis have refused to acknowledge the applicability of these laws and conventions maintaining that it is their right to populate these lands. Over time, US objections to Israel's settlement policy have been frustrated and then muted by domestic pressures. As a result, the Israelis have ignored US appeals to end settlement construction.

It should be noted that despite the US acknowledgment that the negotiations would be based on the 1967 borders allowing for "land swaps" (implicitly giving the Israelis the opportunity to keep many of their settlements), the Israelis reject even that formula. And, as demonstrated by the reaction of the US Congress when President Obama articulated the same position two years ago, it is difficult to imagine how the Palestinians could have the confidence to proceed.

Hence the importance of the European position. While a letter sent to the EU by some Members of Congress criticizes the European position, arguing that it "will only serve as a disincentive for the Palestinian Authority to engage in serious final status negotiations," in fact, the impact of the European action will be the opposite. The Palestinians may now feel that while the Israelis have the US Congress in their corner, they now have someone supporting them, helping to balance the scales.

In the days to come we will learn more about the US "terms of reference," the incentive packages that will offered to advance the process, and the reactions of the deeply fractured Israeli and Palestinian publics to the effort itself. We will also learn the degree to which the US, the Europeans, and the Arabs will actively put their weight behind the effort. There will be difficult days ahead. Getting the parties to "Go" is just the start, since, as Secretary Kerry has noted, the hard work has just begun.