THE BLOG
08/07/2013 10:40 pm ET Updated Oct 07, 2013

Israeli-Palestinian Negotiations: The Least Bad Deal Is a Good Deal

The troubles have begun. Israeli/Palestinian negotiations as expected won't march along nicely.

First was the good news. Prime Minister Benjamin Netanyahu's cabinet announced Israel would release 104 long-serving Palestinian prisoners. Yesterday chief Palestinian negotiator Saeb Erekat said four groups of prisoners would be released, beginning with 26 on August 13, depending on progress in the talks.

In between, however, Netanyahu announced Cabinet approval of a range of subsidies and loans for 600-plus Israeli communities listed as "national priority areas," of two kinds: poor, outlying Israeli towns and -- the provocation -- many illegal settlements in the West Bank set for evacuation if a Palestinian state is created. It's no consolation to Palestinians, who immediately condemned the move, that any settlement housing or infrastructure subsidies will need separate Cabinet approval.

This first go-around makes the relation of forces very clear. Once again in almost all respects Israel holds the high cards. Palestinians react. Provocations on the ground from their side are dangerous because they are in the weaker position. The main Palestinian negotiating weapons are to propose or to "demand," but mainly to resist and refuse, as PA leader Mahmoud Abbas did in walking away from the last negotiation three years ago.

But over the longer term, the situation is more complex. Israel must be careful not to overplay a strong hand, if it is prepared this time to get to yes. Palestinians must not sign just any piece of paper but, if they want a deal their side must redefine dignity and reparations to what is both acceptable and possible.

Three points will define a successful negotiation:

  • First is tacit recognition that the least bad deal for both is a good deal for both. Bargain hard but don't insist on concessions that are deal-breakers.
  • Second, the justification for figuring this way is that any gains and losses for either side will in the end be minimal departures from the almost-agreements of the past: Yassir Arafat and Ehud Barak in 2001 at Taba; Olmert and Abbas privately over several months in 2008.
  • Third, implementing a new agreement will inevitably go up and down and sideways, but a signed accord that "ends the conflict" with guarantees in principle and in practice by outside powers will be historic.

Palestinians must sign up to ending overall demands on Israel beyond the agreement, whether for territory, right of return, greater sovereignty, Jerusalem or other. Israelis would formally accept a Palestinian State, promising no more settlements or territorial expansion of existing settlements, and to removing settlements they and Palestinians specify by mutual accord.

What is fundamental here is that, politically and ideologically, such an agreement amounts to a mutual endorsement of each side by the other as a people and as a state. (How Gaza and Hamas are treated could be specified as a work-in-progress.) In a small geopolitical miracle, a Palestinian state would be created not against Israel's will but godfathered by it. Israel's existence and right to exist will be formally recognized on paper by the Palestinians. (This is a mismatch bargain but everyone understands it).

A potential deal-breaker could arise if Israel were to insist that the Palestinian side explicitly, in writing, recognize Israel as a Jewish State, not just a state. This seems to be a zero-sum dilemma. Solving the problem however could be blindingly simple: leave it out of the agreement.

Every state has the right to define itself (even a bad state). Other governments can agree or object (Arab governments here are crucial. Iran is not). So long as they don't declare war or jihad, time will do its work. Not all problems can be solved immediately.

A new Israeli constitution in its preamble could then declare it a Jewish state (for complicated reasons Israel functions only with Basic Laws, not a written constitution) with equal rights and respect for all non-Jews (no need to privilege the Palestinians). But depending on methods of ratification, this constitution might for this very reason not even pass ratification because Israelis in parliament and in public opinion don't agree among themselves on the principle of a Jewish State or whether it should be included in a constitution. Palestinians might decry a constitutional declaration but they wouldn't have been asked to sign on to it. Moreover, Palestinians might then write their own constitution declaring the new Palestine a Muslim State. Israel could hardly object to this.

Another apparently thorny issue: Would a written agreement be a "peace treaty"? This depends on how the term is defined.

For one thing, peace already exists in the minimal sense of no war (negative peace) and no attacks (currently no terrorist bombings, no rockets and no Israeli military actions). Negative peace would become permanent (not just a hudna, a cease-fire or truce, as Hamas declares).

Second, an agreement need not be called a treaty (that ups the stakes for no good reason). A "final status agreement" or some other ambiguous term will do. During implementation over several years, and absent some unforeseeable disaster, negative peace will have a chance of becoming positive peace: states living side-by-side and together well enough that life, liberty and dignity are guaranteed, as is the pursuit of happiness in one's own way.

Remember that Arab Israelis are already 20 percent of the Israeli population and some modest number will gain admission on the right to return. Any Jews choosing to live in the new Palestine are likewise guaranteed all rights and protections. (There wouldn't be many. In practical terms this would be complicated. There are some small number of Jews who already live there in settlements outside those Israel would annex and would want Palestinian citizenship. There are other Jews, a miniscule number, who might apply to immigrate to Palestine for one reason or another.)

The trend to positive peace would need enhancements, first of all jobs and prosperity. This means outside investment beginning with large economic infrastructure and technology programs linking the Palestinian economy even more with Israel's, later adding ties to the Jordanian economy.

But the fundamental principle remains the same: the least bad deal for both sides is a good deal. Palestinians should conceive the least bad deal as a strategy of cutting losses. Their situation in terms of territory and life chances has continuously degraded since 1948. Their own historical errors (wars, terrorism, anti-Semitic culture) are at the root of their troubles because they and Arab states threatened Israel's existence for decades. Palestinians did badly until the 1967 war; then, unlike Egypt and Jordan which made peace with Israel, they did even worse. Cutting losses means above all else reversing the blight on the lives of Palestinians today and tomorrow, beginning with ending Israeli occupation of the West Bank.

Israelis should conceive of their goal as getting what they absolutely need but not more, limiting their goals, restraining their power, for a historic settlement. First, they would end their enduring, nerve-wracking worry of new violence threatening society (not a nuclear attack but rockets with sufficient range to wreak havoc widely over Israel's territory). Second, reduce bloated military budgets when social and economic problems at home are at critical levels, putting massive numbers of Israeli citizens in the streets a few years ago. Third, reverse Israel's isolation in the international community, boycotts and perceptions of "apartheid" behavior.

Israel's strategic problem is, in other words, how to win a war well. The Palestinian problem is, ultimately, how to lose a war well. For Israelis victory should imply -- finally -- some degree of magnanimity. For Palestinians, finally accepting the consequences of defeat means, after decades of resistance they settle, having put up a good fight and maintained their dignity: in defeat, defiance but even defiance must have its end.

A crucial concern for Palestinians is not that they have no valid claims to make on Israel but that they need outside pressure on Israel, but all outside powers except one are tired of the conflict, have no national interest at stake, and cannot in any case broker a deal. Arab brother governments long ago abandoned them, the Europeans are interested in Middle East oil (but Palestinians have no oil) and in Palestinian human rights in a general sense. Only the U.S. still has the conflict on its foreign policy agenda, even if its importance has declined. (Keeping the issue on the U.S. foreign policy agenda is a major triumph for the American Jewish community. Palestinians should be grateful tacitly to American Jews for this.)

Israel with its strengths could soldier on in status quo, especially if the word is that the Palestinians missed another opportunity. But if a deal is not made this time, the Palestinians would be in a situation of terminal neglect. Enough would have been enough. The moral calculation is put the future of young Palestinians and those still to come above contestable, sometimes vain demands of the Nakba ("catastrophe") generation of seven decades past.

It's a good sign that both sides have promised a referendum in the case of an agreement, as if they intended to have an agreement to vote on. This would not be a deal only among governments. Voters would be committing themselves.

Washington should commit to greater practical guarantees (e.g. Israel can take care of its own security but the U.S. could lead a joint military force to keep the Jordan Valley peaceful), an effective security presence that would pressure both sides to implement. An Arab League endorsement, perhaps a signature with the U.S. and others, would tamp down doubts that Palestinians will really end demands.

Each side would have rejectionists to deal with and this will not be easy. The Israeli government would face a bitter settler movement and a right-wing national security opposition, whether Biblical or foreign policy realism. The Palestinian side would face the threat of jihadist violence from outside the new state, Al Qaeda or other, but also from within. The Israeli government would need to take painful action against some of its own people, those in settlements to be given up. Since everything in the end depends on the people, the pro-agreement majorities on both sides must be prepared to be active. This will need leadership and organization to be firm but keep things calm.

Great are the peacemakers. But they must be willing to sign even the least bad deal, and then to shoulder the consequences of their signature.