The Jewish State Issue and the Kerry Principles

By Jerome M. Segal
University of Maryland

When the Oslo peace process was inaugurated at the signing ceremony on the White House lawn in September 1993, Prime Minister Rabin and PLO Chairman Arafat exchanged two letters of fundamental importance. Arafat’s letter stated, “The PLO recognizes the right of the State of Israel to exist in peace and security.” Rabin’s letter stated, “the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and to commence negotiations with the PLO within the Middle East peace process.”

While this was wildly celebrated as a breakthrough for peace, there were some critics who noticed the imbalance. Here was the PLO conceding, in advance of negotiations, the most fundamental issue of the conflict. Up until May 1948, Palestinian nationalism had been about preventing a Jewish state from emerging in historic Palestine. After Israel’s 1948 Declaration of Independence proclaiming a Jewish state, Palestinian nationalism was dedicated to eliminating that state. Now the PLO was recognizing Israel’s right to exist. In exchange the Palestinians did not get Israeli recognition of the right of a Palestinian state to exist. All they got was Israeli acceptance of the PLO as a negotiating partner. To some, both inside the PLO and out, it seemed the PLO had given away its best card, just to get into negotiations.

Nonetheless, over the years, there were some Israelis who maintained that PLO recognition of Israel’s right to exist was not enough, that Israel should have demanded PLO recognition of Israel’s right to exist as a Jewish state. To other Israelis, this seemed superfluous. Israel had declared itself a Jewish state and its right to live in peace and security had been recognized. It did not need from the PLO some assent or validation of its character. To some it even seemed unseemly to ask for such a thing.

In recent years, Prime Minister Netanyahu has elevated this demand for Palestinian recognition of Israel as a Jewish State, or alternatively, “as the nation-state of the Jewish people,” to a level of importance it has never had in the entire history of the conflict. With great regularity he maintains that the central reason the conflict continues is because of the Palestinian refusal to confer such recognition.

And on the Palestinian side, the more Prime Minister Netanyahu has demanded such recognition, the more forcefully the PLO has said “Never.” In support of their refusal the Palestinians have offered multiple justifications. Palestinian President Abbas has said that Israel can name itself “The Jewish State of Israel,” if it wishes; that that is an internal Israeli matter and will not affect Palestinian recognition. On the other hand, he refuses, himself, to confer this “Jewish-state” recognition. Three reasons have been given. First, that it would undercut the claims of the Palestinian refugees. Second, that it would be used against the Palestinian citizens of Israel. And third, that it calls on the Palestinians to deny their own narrative of the conflict, their basic sense of the injustice of the establishment of a Jewish state on land that they quite reasonably experienced as their own.

All of these points have some merit, but there are also counter arguments to be made, and the matter can go back and forth indefinitely. Though they might not be correct, the cynics have the most straight-forward explanation: Prime Minister Netanyahu’s demand is part of an effort to block a peace agreement, since he is certain the Palestinians will never accept this new claim, and President Abbas’s refusal to accept it, is a way to re-establish a major end-of-negotiations card to replace what Arafat gave away in 1993.

In laying out a framework for permanent status negotiations, Secretary Kerry had three ways to approach the issue. One option was to take it as a legitimate demand, not as a pre-condition to negotiations, but rather as an identified outcome of successful negotiations. For instance, addressing the issue of Palestinian citizens of Israel as well, he might have proposed, “At the end of the negotiations, the Palestinians will recognize Israel as the nation state of the Jewish people and of all of its citizens, and the Israelis will recognize Palestine as the nation state of the Palestinian people, and of all of its citizens.” It is uncertain that the Palestinians would have agreed to this as a basis for the negotiations, as it would depreciate the value of their final card if they committed in advance to ultimately playing it, and it may seem to them to be betraying the claim of injustice at the heart of the Palestinian narrative.

A second option would be to ignore the issue entirely. While this would have been unacceptable to Prime Minister Netanyahu, it would have been consistent with the underlying judgment of the Obama Administration that a permanent status agreement, in any event, is impossible so long as Mr. Netanyahu is Prime Minister. In support of this option, Secretary Kerry would have taken note of the fact that the Jewish state issue was not part of the understanding on terms of reference for negotiations secretly explored in 2014 by Palestinian President Abbas and the Israeli leader of the opposition, Isaac Herzog. If he had gone this route, Secretary Kerry would have been trying for a framework that would be agreed to by the PLO and the Israeli opposition, and thus would, hopefully, contribute to political change within Israel. Either because he believes in dealing only with present governments and not potential future ones, or because he did not believe it would work, (or both) he did not go this route.

The third approach is to try to square the circle. To try to find a way of characterizing the negotiations in relation to the Jewish state issue that would be acceptable to both Prime Minister Netanyahu and to President Abbas. And this is what he chose to do. The principle that was crafted is more complex than it seems. It is offered as an up-front way of characterizing what the negotiations should accomplish. It reads: “Fulfill the vision of UN General Assembly Resolution 181 of two states for two peoples, one Jewish and one Arab, with mutual recognition and full equal rights for all their respective citizens.”

There are several elements here that are in need of explication.

1. The wording is that the negotiations would “Fulfill” the vision of Res. 181. By using the term “Fulfill” it speaks of what would be accomplished. It does not actually commit the parties to currently having this vision. Thus the Palestinians do not have to embrace the vision of “Two States for two people, one Jewish and one Arab.” They have to accept that this is what the outcome will be. Since there already is a Jewish state, this it doable.

2. Along these lines, the principle says the fulfillment will be “with mutual recognition” but it does not say by whom, nor does it specify the exact form of recognition. One reasonable interpretation is that the two states would provide each other with mutual recognition. In that case, the Palestinians can argue that the Kerry Principles only committed them to providing the kind of recognition that Jordan and Egypt provided: recognition of Israel, but not necessarily of Israel as a Jewish state. At the same time, within the negotiations, Israel is free to seek from the Palestinians this unique form of recognition; but there is no advance commitment that it will get it. They will bargain over it.

3. The characterization of the vision of United Nations Resolution 181 (the Partition Resolution) is of “two states for two peoples, one Jewish and one Arab.” This exact phrase is not itself in the Partition Resolution. Resolution 181 does focus on the creation of two states, one is identified as “Jewish” and one is identified as “Arab.” On this there is no question. However, it does not speak of “two states for two peoples” even if this seems the implication. But because the PLO’s original Charter, which rejected the Partition Resolution, also denied the existence of a Jewish people, this way of characterizing the Partition Resolution, gives it added significance to Israeli ears.

4. Finally, and this is the real innovation, in dealing with the current Jewish State issue, Kerry reached all the way back, some 69 years (almost to the day) to the November 1947 resolution. But why? The answer can be found in his speech, when he reminds the Palestinians (and informs the Israelis, who seem not to have ever noticed) that “both Israel and the PLO referenced Resolution 181 in their respective declarations of independence.” Indeed, so important is this point that the Secretary said it a second time a few paragraph’s later: “And Resolution 181 is incorporated into the foundational documents of both the Israelis and Palestinians.” Essentially the Secretary is saying to the Palestinians: “Look, I have structured this Jewish State issue in a way that conforms to an approach you have already taken in your Declaration of Independence. Own it!”

From a Palestinian point of view, one of the strengths of going back to their Declaration of Independence (written by Palestinian national-poet Mahmoud Darwish and proclaimed the Yasser Arafat) is that its authors found a way to, on the one hand, preserve the Palestinian sense of the injustice of the partition of Palestine and at the same time to affirm the legitimacy of that very partition. They did this, essentially by distinguishing between moral discourse and legal discourse. Thus the Declaration stated:

Despite the historical injustice inflicted on the Palestinian Arab people resulting in their dispersion and depriving them of their right to self- determination, following upon U.N. General Assembly Resolution 181 (1947), which partitioned Palestine into two states, one Arab, one Jewish, yet it is this Resolution that still provides those conditions of international legitimacy that ensure the right of the Palestinian Arab people to sovereignty.

Thus, while partition was pronounced unjust, the creation of the Jewish state was done pursuant to what the Palestinians now accepted as international legitimacy, (Res. 181) and cited as their own basis for statehood, thus tying their own international legitimacy to that of Israel.

Secretary Kerry speech marked the first time, in the twenty-nine years since it was issued that a high ranking American official has ever spoken positively about the Palestinian Declaration of Independence. Because it was a unilateral declaration, it was largely unread, and assumed to have been one-sided. In fact it was a remarkable peace initiative. While both the Israeli Declaration and the Palestinian Declaration cited the Partition Resolution as a basis in international law for their announcement of statehood, it was only the Palestinian Declaration that mentioned the other state.

Also not mentioned in the Secretary’s speech, but of considerable future relevance, is the fact that when the Palestinians applied for membership of Palestine in the United Nations, they identified the state seeking admission, as the state proclaimed by this very Declaration.

Nonetheless, it was a master-stroke. Secretary Kerry has reformulated the demand for recognition of Israel as a Jewish state in a way that cannot be dismissed by serious Israelis, and yet in a way that is eminently doable by the Palestinians. For future negotiations, this may be a critical breakthrough.

Jerome M. Segal is President of the Jewish Peace Lobby. In 1988 his writings were a catalyst for the Palestinian Declaration of Independence, and he is presently completing a book on the declaration and Palestinian strategy.

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