ACADEMIC PEACE ORCHESTRA MIDDLE EAST POLICY BRIEF FOR THE MIDDLE EAST CONFERENCE ON A WMD/DVS FREE ZONE

NO. 31 • MARCH 2014

Mediating the Israeli-Palestinian Peace Process Current Prospects and Alternative Frameworks Asaf Siniver

As one of the most intractable confl icts the confl ict itself. Accordingly in recent Abstract of our time, the Israeli-Palestinian confl ict years the growing disenchantment with the has invited more third party mediation notion of an America-mediated two state This POLICY BRIEF examines the reasons than any other confl ict since the end of the solution has led some, mostly in academic for the continued stalemate of the Israeli- Cold War. The historic 1991 Madrid Peace and activist circles, to campaign for a one Palestinian peace process, which started Conference was followed by a wide range of state solution (a binational state) as a more more than two decades ago. In particular, mediation initiatives, summits, frameworks, desirable and feasible solution. it assesses the ubiquity of American and back channels by various third parties. mediation as an integral part of the peace Some of the most notable mediation efforts The record of two decades of Israeli- process and its role in the evolution of the in this period include the 1993 Oslo Accord Palestinian negotiations suggests two strik- Israeli-Palestinian confl ict since the early between Israel and the Palestine Liberation ing lessons: the fi rst is the dismal record 1990s. By looking at the characters of Organization (PLO); the Oslo II Agreement of mediation success despite the enormous third-party mediation in the confl ict and the between Israel and Palestinian Authority; time and energy, as well as political and unique traits of past and present American the 1997 Hebron Agreement; the 1998 Wye fi nancial capital, which have been invested diplomatic efforts, this POLICY BRIEF suggests River Memorandum; the EU’s 1999 Berlin in the process by a multitude of third parties. that the current paradigm of American Declaration; the Camp David Summit and The second feature is the ubiquitous role of engagement, which has rarely been scruti- the Clinton Parameters of 2000; the 2001 the United States as the principal manager nised in the past two decades, may not be Taba Summit; the 2002 Arab Peace Initia- of the Israeli-Palestinian peace process. conducive to the achievement of Israeli- tive; the 2003 Quartet Roadmap; and the Notwithstanding the different tactics em- Palestinian peace. The current efforts of 2007 Annapolis Conference. Most recently, ployed by the administrations of presidents Secretary of State, John Kerry, indicate the indefatigable U.S. Secretary of State, Bush Sr., Clinton, Bush Jr., and Obama, the that American mediation is no more likely to John Kerry, has tried to revive the moth- resolution of the Israeli-Palestinian confl ict be successful in 2014 than it was ten or 20 balled peace process by proposing a new has remained throughout a strategic priority years earlier. framework of negotiations for an Israeli- for American foreign policy. Accordingly the POLICY BRIEF proposes alter- Palestinian settlement. native frameworks which may complement Outline of this POLICY BRIEF or supplant the current American approach Mediation and the Intricacies of to Israeli-Palestinian peacemaking. It thus the Israeli-Palestinian Confl ict Given the evidently inauspicious environ- provides essential conceptual and policy ment for a successfully mediated Israeli- tools to facilitate a deeper understanding None of these efforts have succeeded in Palestinian settlement, this POLICY BRIEF of the vagaries of the Israeli-Palestinian resolving the core issues of the confl ict: the highlights the conditions which, at least confl ict and the ways in which mediation status of Jerusalem, the Palestinian refugees, theoretically, are deemed both necessary and can be harnessed to mitigate some of Jewish settlements, borders, and water rights. essential to promote a peaceful resolution to its key intricacies. As a policy analysis Nor has there been a cumulative record of the confl ict. It then evaluates the key factors of confl ict resolution, the insights in this mediation success over the years to bring which determine the ongoing failure to arrive POLICY BRIEF also serve as important about a positive change in reciprocal trust and at the two state solution by emphasising the building blocks in the Helsinki process on empathy between Israelis and Palestinians. role of the disputants themselves as well establishing a WMD/DVs Free Zone in the More than two decades after the initiation of as American mediation in propagating the Middle East. n the Oslo peace process, Israeli-Palestinian stalemate. It concludes by suggesting alter- peace remains as elusive as it has ever been. native or complimentary methods to extract This POLICY BRIEF is based on the discus- One of the most disturbing consequences of the parties out of this destructive deadlock. sions of the ACADEMIC PEACE ORCHESTRA work- this stalemate has been the growing disillu- shop held in Frankfurt from November 9-11, sionment on both sides with the prospect of Observing these alternative frameworks of 2013, with participants from Israel, Iran, a peaceful settlement to the confl ict, which confl ict resolution is pertinent beyond the Germany, Palestine, United Kingdom, ipso facto perpetuates the intractability of immediate confi nes of the Israeli-Palestinian United States, and Yemen. ACADEMIC PEACE ORCHESTRA MIDDLE EAST – POLICY BRIEF NO. 31 • MARCH 2014

confl ict; a successful settlement to this the disputants and the mediator, the as a face-saving tool to buy time or confl ict has the potential to stimulate a historical trajectory of mediation in the defl ect external pressures. parallel process towards a zone free of confl ict, the timing of mediation in the 2. A grassroots/civil society-led change in weapons of mass destruction (WMD) and life cycle of the confl ict. how the parties perceive each other. Like their delivery vehicles (DVs) in the Middle 2. The mediator: the type of mediation in many other intractable confl icts, the East. This is especially true since some offered (Track I/II, multiparty, etc.), greatest obstacle is psychological, and conclude that any effort to make progress the status, knowledge, expertise and until visible signs of trust and empathy towards such a zone must fi rst address interpersonal skills of the mediator, as are developed on both sides, suspicion Israel’s long standing security concerns well as the mediator’s ability to exercise and belligerence will remain the key about its neighbors and the ongoing effective leverage on the parties (i.e., to drivers of the parties’ motivations to negotiations over Iran’s nuclear program. affect their bargaining position), and the negotiate. Only then, and after the advancement of mediator’s perceived impartiality. 3. Until both parties realise that they are comprehensive Arab-Israeli peace, could 3. The process of mediation: the objectives better off with a peaceful settlement the issues of Israel’s nuclear disarmament at the initiation of the process, the nego- than without one, they are unlikely to and the broader reduction in the regional tiation strategies which the parties bring make headway at the negotiation table. arms balance be advanced. However, these to the table and the tactics which they This is a particular area where an able two processes (peace and disarmament) do employ at the table, the visibility and mediator can change the bargaining not exclude each other and progress in duration of the process, the handling of process between the parties and affect one area may result in achievements in the the media and peace spoilers. their calculations of alternative negoti- other fi eld. Therefore, getting it right in the ation positions. context of mediating the Israeli-Palestinian In academic circles there is a propensity peace process may prove to be an important to portray an ‘ideal’ type of mediation or In light of these conditions, and based on step on the road envisaged in the Helsinki mediator to explain, always in retrospect, the historic record of (successful and failed) Conference. the success of an anecdotal mediation third party mediation in the Arab-Israeli effort. For instance, Jacob Bercovitch, one confl ict, it is possible to identify certain The Prerequisites of of the leading scholars on mediation, states scenarios where mediation is more likely to Successful Mediation the obvious when he points that “[o]nly an be successful. appropriate mediator is likely to be effective. Mediation is a distinct method of confl ict An appropriate mediator should possess Timing resolution, performed for the purpose of intelligence, tact, skills in drafting formal infl uencing or facilitating the settlement proposals, and a sense of humor, in addi- The timing of the mediation effort is in- of a dispute. It is essentially non-violent, tion to specific knowledge of the conflict trinsically linked to its chances of success, non-binding, and voluntary, which makes it at hand.”2 In reality, however, such formu- but determining the most propitious time far more attractive to the disputing parties lations are redundant as policy tools. The for mediation to take place is hard to do as a confl ict resolution tool than other history of Arab-Israeli diplomacy is littered without the benefi t of hindsight. To assess methods such as arbitration, adjudication with examples of appropriate mediators the ‘ripeness’ of the confl ict for resolution, or military intervention. Perhaps the most who ultimately failed in their mission the notions of a confl ict cycle and a mutually distinctive quality of mediation is that the (Bill Clinton is perhaps the most famous hurting stalemate are often used. A confl ict ultimate power lies with the disputants and example). This point only reinforces the cycle suggests that most confl icts are charac- not the third parties. Regardless of how abovementioned key weakness of mediation terized by sequential phases of escalation powerful or well-intentioned the mediator as a confl ict resolution tool: ultimately it is and de-escalation. For example a cease-fi re, is, the process of mediation can only be the good will of the disputants which deter- armed confrontations, civil war, and interim initiated, sustained, and indeed terminated, mines the success of the mediator. agreements are phases in a confl ict which the with the parties’ consent.1 Accordingly parties go through, and it is the task of the while it is tempting to lay the blame for The Conditions of mediator to identify which of these phases the failed peace process on certain mis- Successful Mediation has the most potential to be auspicious to conceived American mediation strategies, mediation. The notion of a mutually hurting or the American failure to act as an ‘honest The notion of ‘success’ in Israeli-Palestinian stalemate indicates a phase in the confl ict broker’ in the confl ict, it is worth remem- negotiations is neither readily apparent cycle where both parties feel suffi ciently bering that Israelis and Palestinians bare nor the only measurement of mediation burdened by the situation that they turn to the ultimate responsibility for the failure. effi cacy. To achieve this ultimate success external mediation. What matters is not that the mediator must fi rst succeed in changing the parties hurt in equal measures or for the The Occurrence of Mediation the parties’ motivations to negotiate as same reasons (for one party this may be the well as their perceptions of each other loss of lives while the trigger for the other In order to assess the likelihood of any and their cost-benefi t calculations of their may be intense international pressure), but mediator to bring about this sea change bargaining positions. In other words, a that they both come to the conclusion at in Israeli-Palestinian relations, it is fi rst two state solution – or indeed any solution the same time that the ongoing costs are necessary to outline some key antecedental to the Israeli-Palestinian confl ict – will not no longer justifi able. A mutually hurting factors which characterise most mediation emerge until both Israelis and Palestinians stalemate can only be reached when both efforts: reach certain milestones: parties accept that a peaceful settlement 1. The context of mediation: the nature of 1. Entering negotiations for the ‘right’ is the only viable option left for them to the confl ict and the relationship between reasons rather than treating the process pursue; this point was highlighted by Israel’s

2 Mediating the Israeli-Palestinian Peace Process Current Prospects and Alternative Frameworks legendary Foreign Minister, Abba Eban, in the midst of the Six Day War, when he Asaf Siniver is Senior Lecturer in International Security at the University shared his conviction that “men and nations of Birmingham, United Kingdom. He specializes in the politics, diplomacy, behave wisely once they have exhausted all and history of the Arab-Israeli confl ict, with particular emphasis on the other alternatives.” role of external actors in the confl ict and the Israeli-Palestinian peace process. He has published extensively on the international relations of Impartiality the Arab-Israeli confl ict, mediation and confl ict resolution, and contem- porary U.S. foreign policy. He holds a PhD from the University of Mediator’s impartiality is widely perceived Nottingham, UK. to be an essential perquisite for successful mediation; indeed observers and practi- tioners often view it as the single most parties from their initial positions towards an quintessential quality of mediation. It im- agreed middle way. Intuitively, the concept of plies an altruistic approach to the confl ict power is negatively correlated to the notion and the issues to be mediated, as well as a of impartiality – the more sources of power, balanced engagement with both parties. The leverage, and infl uence the mediator has on notion of impartiality is very much a matter the parties, the less likely it is to be perceived of perception: the parties’ perception of the as impartial. The degree of mediator’s power mediator as an ‘honest broker’ may breed will determine the resources and strategies trust and confi dence in the process and even it can bring to the negotiation table and the between the parties themselves. By the same means by which it can move the parties in token, if one party suspects that the mediator a certain direction. Accordingly, a useful dis- is overtly biased in favor of the other party’s tinction can be made here between pure/ interests, then trust and confi dence will low stake and power/high stake mediators. naturally be affected. In reality however, The fi rst type is more likely to be perceived truly impartial mediators are hard to fi nd – as impartial with low stakes in the outcome it can be argued that only those third parties of the ultimate outcome of the confl ict. Its with an interest in the confl ict or established choice of mediation strategies will hence be relations with at least one of the parties will placed at the lower end of the spectrum, and offer to mediate; third parties which possess will likely be limited to the provision of good neither will lack the required knowledge and offi ce or the opening of indirect channels expertise to do the job, and thus may be seen of communication between the disputing as less attractive mediators by the parties. parties. The second group of mediators [W]hile it is tempting to lay Moreover, third-party impartiality may in will likely be more directly invested in the » fact be detrimental, rather than benefi cial, to outcome of the confl ict and accordingly the blame for the failed peace the effectiveness of the mediation process: will enjoy a greater range of capabilities the lack of ‘special access’ to one of the and strategies. These may include, beyond process on certain miscon- parties may hinder the mediator’s ability to the facilitative services provided by pure/ ceived American mediation elicit information and gain insight into the low stake mediators, additional tools such inner circle of decision-making. Moreover, a as the authority to set agendas for nego- strategies, or the American third party that does not have an established tiations, dictate the location and environ- failure to act as an ‘honest interest in or knowledge of the confl ict ment of the talks, formulate proposals and may struggle to assert its authority on the drafting possible solutions, and in extreme broker’ in the confl ict, it is worth parties and formulate acceptable propo- cases, even the power to extract concessions remembering that Israelis and sals. Ultimately, the demand for impartiality from the parties and reward them for ‘good may be supplanted by the mediator’s ability behaviour’ via the use of political and diplo- Palestinians bare the ultimate to deliver a mutually satisfying agreement. matic carrots and sticks. Therefore impartiality may be more relevant responsibility for the failure.« in cases where the mediator does not possess The Reality of Third-party other relevant qualities, such as extensive Mediation in the leverage or experience. For mediators with Israeli-Palestinian Confl ict more extensive list of virtues, impartiality (or the lack thereof) will certainly not be The primacy of American diplomacy the most important factor determining the throughout the Israeli-Palestinian peace outcome of the process. process has its historical roots in the aftermath of the 1973 October War, where Leverage American post-war diplomacy under the leadership of Henry Kissinger orchestra- The mediator’s power, or leverage, in the ted an effective process of Arab-Israeli mediation process is derived from a range diplomacy. The starting point for a Middle of legal/political and historical sources, and East peace process can be traced back to the can be defi ned as the ability to move the 1973 Geneva Conference, held two months

3 ACADEMIC PEACE ORCHESTRA MIDDLE EAST – POLICY BRIEF NO. 31 • MARCH 2014

after the October War. It set in motion the geopolitical processes. Nevertheless, it is United States and Israel in its various pattern of American-led Arab-Israeli negoti- possible to draw some policy lessons from manifestations is unlikely to produce the ations which has remained largely unchal- these episodes. type of unbiased, ‘pure’ American medi- lenged in the succeeding four decades. ation in the foreseeable future. The conclusion of the Egyptian-Israeli Don’t Blame the Mediator Peace Treaty in 1979 under the auspices of Wither American Mediation? President Jimmy Carter cemented the role The most enduring reason for the failure of the United States as the indispensable of successive Israeli-Palestinian peace talks Given the omnipresence of American mediator of the Arab-Israeli confl ict, and has not been American mediation (though mediators in the Israeli-Palestinian confl ict effectively eliminated the prospect of other in some cases it exacerbated inherent over the past two decades, it is worth third parties acting as credible mediators. shortcomings), but the unwillingness or contemplating whether such presence is inability of Israeli and Palestinian leader- still needed in its current form. As the long- A decade later, against the slow demise of ships to honor previous commitments and standing chief Palestinian negotiator, Saeb the Soviet Union, a fragmented European proceed according to schedule with the Erekat, lamented to his American inter- policy towards the confl ict and the histori- implementation of further phases towards locutors in 2009, such conditions required cally ineffectual role of the United Nations, the ‘end game’ of the two state solution. decisions, not more mediation: “It is time and America’s diplomatic ascendancy in the The reasons for this include ideological for decisions. We have thousands of pages region in the aftermath of the Gulf War objection to the Oslo framework (e.g., of minutes on each issue. We are 19 years added more clout to the axiomatic myth during Netanyahu’s fi rst term in offi ce), into this peace process, and we don’t know that American diplomacy is a necessary and fi erce domestic opposition (e.g., the rise of any more where we are going.”4 Not only has essential ingredient in the advancement Hamas and Islamic Jihad in the Gaza Strip one of the primary functions of mediation – of the peace process. Testament to this and anti-Oslo protests in Israel), recipro- the facilitation of direct communication ubiquity was the signing of the Declaration cal disenchantment with the negotiations between the parties – has been achieved of Principles between Israel and the PLO in during period of intense violence on both some time ago, but the rough contours of September 1993 at the White House lawn, sides (especially during the second Intifada the fi nal settlement of the core issues have even though the agreement was the result of between 2000-2004), and unilateral actions also been common knowledge for at least the secret Oslo talks of which the Americans by one party which undermined the very a decade. Accordingly it could be argued were not aware, while in October 1994 essence of the Oslo process (e.g., Israeli that what is needed is not another round of President Bill Clinton participated in the settlement activity and Palestinian moves American shuttling of negotiations about signing ceremony of the Israel-Jordan Peace in the United Nations). negotiations, but a fi rm commitment from Treaty near the countries’ shared border, both parties to abide by previous agree- despite the fact that the agreement was the Blame the Mediator ments and to negotiate the fi ne details of product of direct negotiations between the an acceptable compromise on issues such as parties with minimal American assistance. It is nevertheless possible to point to the Jerusalem, refugees, settlements, security, ubiquity of American diplomacy, especially borders, and water. However, for such decla- Notwithstanding these two episodes, every when viewed through a pro-Israeli bias ration of intent to be sincere, it must be the single mediation effort beyond the decla- prism, as a contributing factor to the inability result of internal introspection on both sides ratory level (such as the EU’s Berlin of all parties concerned to ‘think outside the rather than external pressures. Declaration and the Arab Peace Initiative) box’ and develop alternative mechanisms to was led by four successive American ad- move towards a fi nal, peaceful settlement. Despite the Challenges, the Two State ministrations. However, none of the very As Aaron Miller, former Middle East advisor Solution Remains the Only Solution few limited Israeli-Palestinian agreements in the Bush Sr. and Clinton administration mediated by the U.S. in this period has stated in a Washington Post op-ed in 2005, The cumulative result of the above trends moved the parties signifi cantly towards the the almost-institutional bias towards Israel is telling. Neither Israelis nor Palestinian ultimate resolution of the confl ict. Oslo II, in certain circles in Washington had often display any faith in the process – show the Hebron Protocol, and the Wye River clouded the judgment of American diplomats surveys. Against this reality, it is necessary Memorandum were aimed primarily at about the synchronicity of American and to evaluate alternatives. As of January 2014, resuming stalled negotiations and resolving Israeli interests: “For far too long, many only 9 percent of Israelis polled in a survey some sticking points which had not been American offi cials involved in Arab-Israeli have faith in Secretary of State, John implemented in previous agreements. The peacemaking, myself included, have acted as Kerry’s ongoing mediation effort, while Camp David and Taba summits as well as Israel’s attorney, catering and coordinating a staggering 80 percent expect him to fail. the Clinton Parameters and the Annapolis with the Israelis at the expense of successful The reasoning is obvious: “It seems that the conference took place in the context of peace negotiations. If the United States public is tired, disappointed and doubtful ‘fi nal-status’ negotiations – though all ended wants to be an honest and effective broker after seeing scores of American envoys and in failure. on the Arab-Israeli issue, then surely it can mediators passing through and coming out have only one client: the pursuit of a solution with nothing.” Another telling fi nding from Some Policy Lessons that meets the needs and requirements the survey suggest that 53 percent of the of both sides.”3 Though such a poignant Israelis surveyed mistrusted Kerry, while These failed and quasi-successful cases rebuke from a Washington insider should less than 20 percent described him as an of mediation initiatives are not altogether serve notice to future American mediators unbiased mediator – another testament that comparable, for they encompass a diverse in the confl ict, the existence of a decades- impartiality is matter of perception.5 Such population of issues, personalities, and long special relationship between the scepticism is mirrored on the Palestinian

4 Mediating the Israeli-Palestinian Peace Process Current Prospects and Alternative Frameworks side: a December 2013 opinion poll indicates that 58 percent of Palestinians expected the Key Mediation Efforts in the Israeli-Palestinian Peace Process i talks to fail within a matter of months, while Oslo I Accord (‘Declaration of Principles’) – mutual recognition by Israel and only 20 percent have been declaring faith in Sep 1993 the negotiations. In addition, more than 55 the PLO percent of Palestinians said that they were ‘Gaza and Jericho First’ Agreement – fi rst partial Israeli withdrawal and May 1994 pessimistic about the success of the peace transfer of limited powers to the Palestinian Authority process, while less than 27 percent claimed Oslo II Accord – interim agreement on Palestinian self-government in the West to be optimistic.6 Sep 1995 Bank and Gaza Strip Hebron Protocol – agreement concerning the redeployment of Israeli forces in Importantly however, despite the pessi- Jan 1997 mism shared by Israelis and Palestinians Hebron in accordance with Oslo II Accord about the success of a mediated solution Wye River Memorandum – agreement regarding the resumption of Oct 1998 in the foreseeable future, there is solid and implementation of Oslo II Accord consistent support on both sides for the Camp David Summit – failure to reach an agreement on the fi nal settlement of two state solution. Support for the one state Jul 2000 the Israeli-Palestinian confl ict; the disenchantment which followed contributed solution, despite the high publicity it receives to the eruption of the second Intifada a few months later. in some academic and activist circles, is not shared by the majority of both societies.7 Jan 2001 Taba Summit – failure to agree on fi nal status negotiations. Recent opinion polls reveal that 63 percent of Israelis and 54 percent of Palestinians The Roadmap for Peace: a three-phase plan proposed by the Quartet continue to support the two state solution, Apr 2003 (US, EU, UN, Russia) to end the Israeli-Palestinian confl ict by 2005; the while an overwhelming majority of Israelis roadmap was deadlocked at the fi rst phase and was never implemented. (63 percent) and Palestinians (69 percent) Annapolis Conference – attempted to revive the peace process, subsequent Nov 2007 oppose the one state solution.8 The con- talks failed to reach an agreement. clusion from these and similar fi ndings Current efforts by John Kerry to reach a fi nal status agreement by the end has important policy implications: for Mar 2013 of 2014. most Israelis and Palestinians the two state solution remains the most acceptable i. All led by the U.S. with the exception of the Oslo I Accord, which was mediated by Norway. settlement, but they are disillusioned with the way their leaders go about achieving This sentiment is in line with the above- it. The recent trend to promote the one mentioned disenchantment with the peace state solution is thus misconceived and process shared by Israelis and Palestinian. misleading – attention should be focused Given the disillusionment with the process on alternative ways to reach the two state of American mediation against the broad solution rather than on securing the one support for the ultimate aim of a two state state solution via the existing paradigm of solution, what are the possible alternatives principal U.S.-backed mediation. to the current efforts led by John Kerry?

Assessing the Alternatives to the Extract, Don’t Interact Current Framework of Mediation Intractable confl icts are by defi nition more The current diplomatic mission of Secre- resistant to successful external intervention. tary of State, John Kerry, to reach a fi nal As a prime example of an intractable confl ict settlement by the end of 2014 represents per- which involves an enduring rivalry between haps the most committed, comprehensive, two groups, the failure of diplomacy to and ambitious mediation effort ever under- resolve it may not be so surprising. Studies taken by the Americans since the beginning of such enduring confl icts suggest that they of the Oslo peace process. Kerry has visited represent only 13 percent of all international the region no less than eleven times between confl icts, yet they account for more than March 2013 and January 2014. His team half of all mediation efforts since 1945, and includes up to a dozen experts – twice as are ten times more likely to attract third large as previous teams – and it has managed party mediation. On average such confl icts so far to maintain an almost unprecedented last nearly 38 years and attract at least 14 degree of confi dentiality and secretion. attempts at managing them by third parties, Sources close to the negotiations maintain though the rate of success is very low.10 that Kerry’s team has “learned more, in greater depth, and with greater intellectual In such an inhospitable environment, what honesty what it will take to address the core may therefore be required is less, rather than grievances than any effort previously in the more third party assistance. The two main American government [...] but they still only problems with the saturation of American have maybe 10% chance of success.” 9 diplomacy in this confl ict since 1993 are that

5 ACADEMIC PEACE ORCHESTRA MIDDLE EAST – POLICY BRIEF NO. 31 • MARCH 2014

Israelis and Palestinians have grown more of the disputants themselves to enter into 4.4 percent – during the negotiations which sceptical of its benefi ts after each failure, and ‘endgame’ negotiations, it may be useful to followed the 2007 Annapolis conference, at the same time, it has turned the United consider arbitration as an alternative method Israeli Prime Minister, Ehud Olmert, offered States into part of the problem rather than of resolving the confl ict, or at the very least to relinquish 93.7 percent of the West Bank solution. It could further be argued that the some of its core issues. and swap the remaining 6.3 percent, while confl ict is not less ripe for resolution than Palestinian President, Mahmud Abbas, de- it was two decades ago – both leaderships Arbitration has been used extensively in the manded to control 98.1 percent of the West seemed content with negotiating about past to settle territorial disputes, including Bank. The gap in the current talks stands negotiations and avoiding tough decisions the 1968 Rann of Kutch settlement between at least 10 percent. Referring the matter to under the fl exible and infi nite umbrella of India and Pakistan, the 1978 Beagle Channel an arbitration panel to decide the extent American mediation. arbitration between Chile and Argentina, of Israeli withdrawal from the West Bank the 1999 arbitration over the boundary of may be the most feasible way to extract the It may be in the interest of all the parties Brcko in Bosnia and Herzegovina, the more parties from this deadlock. concerned if Israelis and Palestinians recent Sudan-Abyei case from 2008, and were weaned off this comfortable setting most pertinent to this confl ict, the 1988 Listen to the European Union and forced to negotiate directly for an Taba arbitration between Egypt and Israel. extended period. Should they fail to do so Arbitration is a judicial method to settle The EU is possibly the most suited third and genuinely seek third party assistance to confl icts, and like adjudication it presup- party to mediate between Israelis and overcome the deadlock, then the prospect poses a commitment on behalf of the parties Palestinians, not least due to its normative of new and carefully-conceived mediation to accept the arbitration settlement (award), agenda, its favorable trading relations with framework can have an invigorating effect which is usually based on international Israel, and its generous aid to the Palestinian on the process. Such period of abstention conventions and past binding agreements Authority. It has also been consistently can also be useful for American diplomacy between the parties. However, whereas in ahead of the United States – and the parties as an opportunity to refl ect and think of adjudication the parties must refer the dispute themselves – in propagating a vision which different and imaginative ways to return the to established international courts (such as has later become an international consensus. peace process back on track. John Kerry’s the International Court of Justice), arbitration The fi rst attempt at collective European self-imposed deadline of the end of 2014 is more fl exible and provides the parties position came in the aftermath of the 1973 as a target date for a fi nal settlement (or more freedom in choosing the arbitrator or October War. Recognizing their vulner- at the very least an agreed framework of a arbitration panel, as well as in defi ning the ability to the emerging Arab oil embargo, comprehensive settlement) is unlikely to be boundaries of the judicial proceedings. the nine members of the European Council followed immediately by another round of called for a resolution of the confl ict based shuttling, not least because of the coming Unlike mediation, which is often an open- on UN Security Council Resolution 242, presidential elections in November 2015. ended process where the parties have the and, most signifi cantly and in a clear This should give much impetus to Kerry’s ultimate power to terminate it, arbitration departure from the American position, current efforts, however, in case they fail, a is legally binding. The great advantage of recognized the rights of the Palestinian period of American detachment from Israeli- arbitration over mediation is its relatively people. The European Council’s position Palestinian diplomacy may be benefi cial in expeditious and binding nature. It allows the on the confl ict was later crystallized in the the long-term to all parties concerned. parties to focus on one area of contention June 1980 Venice Deceleration, which and bring it to a peaceful settlement, which included an explicit call for Palestinian Arbitrate, Don’t Mediate can then create impetus for effective negoti- self-determination, the recognition of the ation on other issues either via third-party PLO as the legitimate representative of the Mediation has achieved one of its main mediation or bilateral talks. On the contrary, Palestinian people in future negotiations, and functions somewhere in the mid-1990s: successful arbitration depends on the good the denunciation of Israeli settlements in the it facilitated communication between the faith of the parties – they must accept the Occupied Territories as illegal and not just parties. Since then, security and intelligence judgement of the arbitration panel and illegitimate, as the American position had coordination between Israeli and Palestinian adhere to the award if they lose. However, stated. In its 1999 Berlin Declaration the EU forces has been developing steadily, and this challenge is not unique to arbitration further advanced its support for Palestinian despite occasional violent incidents and – it is for this reason that third parties are self-determination, calling for a viable and domestic opposition on both sides, both actively engaged in a range of peaceful and democratic Palestinian state alongside a governments are committed to peaceful non-peaceful activities, from mediation and secure Israeli state. In all three cases the negotiations within the two state solution conciliation via arbitration and adjudication European position was instantly rejected by framework. Nonetheless, in nearly two to the imposition of sanctions and military Israel, the PLO, or the United States, only to decades of direct negotiations and third- interventions.11 be endorsed several years later. party mediation, there is not a single issue – including the core ones – which has not been Arbitration may be particularly attractive as Despite the EU’s prescient vision and discussed, dissected, and debated by the two a means to bypass the territorial dispute over important fi nancial support for the peace sides. The pool of ingenious proposals to the extent of Israel’s withdrawal from the process, it nevertheless remains a marginal bring the parties towards settlement seems West Bank and the fate of the largest settle- actor in the context of Israeli-Palestinian to be exhausted. Further American shuttling ment blocks. The gap between the Israeli mediation. This modest involvement stems is unlikely to bridge the gaps in parties’ and Palestinian positions on this point has from external contexts (such as the primacy positions. Therefore, in the absence of a never been fully bridged by previous rounds of the United States and Israel’s anti-EU viable mediation strategy or the willingness of mediation. At its narrowest it stood at only bias) as well inherent defi ciencies in the

6 Mediating the Israeli-Palestinian Peace Process Current Prospects and Alternative Frameworks

EU’s working (structural and procedural blocks in any policy aimed at reducing the constraints, fragmentation of views). The security dilemma in the Middle East. The challenge for the EU remains how to leverage following key fi ndings of this POLICY BRIEF its declared commitments (mostly via support are particularly pertinent to policy makers: for institution-building in the Palestinian • Third-party mediation is by far the most Territories and its democracy promotion popular method of confl ict resolution. rhetoric), over the high diplomacy of confl ict Its key benefi ts lie in its fl exible, ad-hoc, management and peace negotiations, which non-violent, and non-binding nature. At remain largely an American prerogative.12 the same time however, these very traits can also be seen as the key limitations of The EU is unlikely to supplant the U.S. this approach. As more than two decades role in Middle East diplomacy in the of failed Israeli-Palestinian negotiations foreseeable future, but its recent decision suggest, the process of mediation may to prohibit the funding of or cooperation be so open-ended and protracted that with Israeli companies in the Occupied it becomes an issue of confl ict in itself. Territories provides a compelling case for Understanding when mediation is likely the use of sticks as well as carrots in the peace process. In this respect John Kerry’s recent reminder to Israel that international Endnotes sanctions may follow a failure in the current talks signifi es a break from tradition.13 1. For additional discussion of the themes presented in this section see for example Jacob There seems to be a growing realization Bercovitch (ed.)(2002) Studies in International Mediation, Basingstoke: Palgrave Macmillan; Asaf Siniver (2006) ‘Power, Timing and Impartiality: Three Hypotheses on Third Party Mediation among some circles in Israeli society that in the Middle East’, Political Studies, 54(4): 806-826; Thomas Princen (1992) Intermediaries in such moves are somewhat inevitable in the International Confl ict, Princeton, N.J.: Princeton University Press. current climate. In December 2013, Israeli 2. Bercovitch (2002). Justice Minister Tzipi Livni said that the 3. Aaron Miller (2005) ‘Israel’s Lawyer’, Washington Post, May 23. See also Asaf Siniver (2001) settlements were not part of Israel’s security, ‘Change Nobody Believes in: Obama and the Israeli-Palestinian Confl ict’, Diplomacy & but hurting it. Israeli business leaders too Statecraft, 22(4): 678-695. have pressed on the Netanyahu government 4. ‘Palestinians weak – and increasingly desperate’, The Guardian, January 23, 2011. Online, that it was imperative to make progress in available at http://www.guardian.co.uk/world/2011/jan/23/palestine-papers-power-weakness- the peace process with the Palestinians for negotiationsv (January 6, 2014). fear that further sanctions would cripple the 5. ‘Can John Kerry manage a Middle East miracle?’, BBC News, January 10, 2014. Online, Israeli economy. It is thus telling to note the available at http://www.bbc.co.uk/news/blogs-echochambers-25688569 (January 10, 2014). recent statements by President Obama and 6. ‘Poll: 57.7% Anticipate the Failure of the Palestine-Israeli Negotiations’, Palestine News Network, Secretary Kerry to Israeli leaders that time is December 16, 2013. Online, available at http://english.pnn.ps/index.php/politics/6388-poll-57- running out and that the United States may 7-anticipate-the-failure-of-the-palestine-israeli-negotiations (January 10, 2014). not be able to shield Israel from international 7. A recent example is Professor Ian Lustick’s op-ed in the New York Times: ‘Two-State Illusion’, sanctions if the current talks end in failure.14 September 14, 2013. While the U.S. government will not follow 8. ‘Kerry’s efforts’, Jerusalem Post, January 6, 2014; ‘Poll: 54% of Palestinians support two-state the EU example in action, the use of EU-like solution’, Jerusalem Post, May 11, 2013. Online, available at http://www.jpost.com/Middle-East/ rhetoric by Kerry against Israeli belligerence Poll-54-percent-of-Palestinians-support-two-states-330637 (January 6, 2014); ‘Joint Israeli is all the same telling; judging by history, Palestinian Poll, June 2013’, Palestinian Center for Policy and Survey Research. Online, available at http://www.pcpsr.org/survey/polls/2013/p48ejoint.html (December 15, 2013). however, the United States may eventually toe the European line, just as it eventually 9. ‘Secretary of state and elite team of US diplomats return to Israel as goals shift for the US’s once-ambitious peace plan’, The Guardian, January 30, 2014. did after the Venice and Berlin declarations. 10. Jacob Bercovitch and Paul Diehl (1997) ‘Confl ict Management of Enduring Rivalries: The Frequency, Timing, and Short-term Impact of Mediation’, International Interactions, 22(3): Conclusions and 299–320; Gary Goertz and Paul Diehl (1993) ‘Enduring Rivalries: Theoretical Constructs and Recommendations Empirical Patterns’, International Studies Quarterly, 37(1): 147-171. 11. For a comprehensive analysis of the potential of arbitration in the Israeli-Palestinian confl ict, While the Helsinki Conference is concerned see: Asaf Siniver (2012) ‘Arbitrating the Israeli–Palestinian Territorial Dispute’, International directly with the future of the Middle East Politics, 49(1): 117-129. as a WMD/DVs Free Zone, it seems unlikely 12. For a detailed study of the role the EU can play in the confl ict, see: Asaf Siniver and Luis that such an important goal could be realized Cabrera (2013) ‘”Good Citizen Europe” and the Middle East Peace Process’, International without addressing the key source of tension, Studies Perspectives. Online, available at DOI: 10.1111/insp.12037,http://onlinelibrary.wiley. confl ict, and insecurity in the region. Despite com/doi/10.1111/insp.12037/full (February 10, 2014). the many challenges and obstacles, mediation 13. Asaf Siniver (2013) ‘EU ban on Israeli settlements could be a game change’, The Conversation, remains the most likely confl ict resolution July 17. Online, available at http://theconversation.com/eu-ban-on-israeli-settlements-could- be-a-game-changer-16158 (January 10, 2014); ‘Israeli leaders cry foul over Kerry’s boycott tool in the quest for Israeli-Palestinian peace. warning’, The Washington Post, February 2, 2014. Understanding the benefi ts and limits of 14. ‘Israeli leaders cry foul over Kerry’s boycott warning’, The Washington Post, February 2, 2014. mediation, as well as the principal role of See also ‘Obama’s message to Netanyahu on peace with Palestinians: Time is running out’, American mediation in the Israeli-Palestinian Haaretz, March 2, 2014. confl ict, are therefore essential building

7 ACADEMIC PEACE ORCHESTRA MIDDLE EAST – POLICY BRIEF NO. 31 • MARCH 2014

to be successful requires familiarity with • The answer to the ongoing stalemate may Further Reading key concepts such as timing, or ripeness be found not in an alternative endgame of confl ict, leverage, and impartiality. such as the one state solution, but rather Ÿ Jacob Bercovitch (ed.) (2002) Studies As mediation is a process of social in an alternative framework to the current in International Mediation, Basingstoke: interaction with temporal and spatial paradigm of American mediation. Given Palgrave Macmillan. idiosyncrasies, it would be misleading the historical experience, American to generalize about the prerequisites for mediation may still represent the best Ÿ Daniel Kurtzer and Scott Lasensky successful mediation; nevertheless, the chance for Israeli-Palestinian recon- (2008) Negotiating Arab-Israeli Peace: rich history of (failed) Israeli-Palestinian ciliation; however, the record of two American Leadership in the Middle peacemaking provides perhaps the best decades of American diplomacy and East, Washington, D.C.: United States testing ground for hypotheses about the the current efforts of John Kerry may Institute of Peace. conditions in which mediation is likely point to a need to reassess the mostly- to succeed. unchallenged framework of American Ÿ William B. Quandt (2007) Peace Process: • American mediation is an integral engagement with the peace process. American Diplomacy and the Arab-Israeli fi xture of the Israeli-Palestinian confl ict As noted above, a period of extraction, Confl ict since 1967, Washington, D.C.: and peace process. It may be conceived the potentials of arbitration, and the Brookings. simultaneously as part of the problem experience of the EU, may represent as well as the key to its solution. At the three alternative prisms through which Ÿ Dennis Ross and David Makovsky (2009) same time however, it will be misplaced policy makers may wish to reassess Myths, Illusions, and Peace: Finding a to lay the blame for the continuous the chances and constraints of Israeli- New Direction for America in the Middle diplomatic failure on the shoulders of Palestinian peace. East, New York: Viking. American diplomats. Ultimately it is the disputants themselves who should be As noted above, while this confl ict may Ÿ Asaf Siniver (2006) ‘Power, Timing and held accountable for their unwillingness indeed be intractable and beyond resolution, Impartiality: Three Hypotheses on Third or inability to work together towards the application of mediation may be most Party Mediation in the Middle East’, resolving the confl ict. While mediators effective to manage the confl ict, if not Political Studies, 54(4): 806-826. can facilitate change in the perceptions resolve it altogether – and as such, mediation and motivations to negotiate, they are is one step forward in view of the Helsinki unlikely to succeed unless the disputants process on the establishment of a WMD/ enter the mediation process in earnest. DVs Free Zone in the Middle East. n

About the ACADEMIC PEACE ORCHESTRA MIDDLE EAST (APOME)

The ORCHESTRA is the follow-up project of the “Multilateral Study Group on the Establishment of a Missile Free Zone in the Middle East”. The ACADEMIC PEACE ORCHESTRA MIDDLE EAST is a classical Track II initiative: it consists of some 100 experts – mainly from the Middle East/Gulf, one of the most confl ict-ridden areas of the world. The ORCHESTRA is meeting regularly in working groups (CHAMBER ORCHESTRA UNIT s) on specifi c topics in the context of a workshop cycle from 2011-2014. The main goal of this initiative is to shape the prospective Middle East Conference on the establishment of a zone free of weapons of mass destruction and their delivery vehicles agreed upon by the international community in May 2010.

For this reason, these experts develop ideas, concepts, and background information in a series of POLICY BRIEFS which are the results of intense discussions within the CHAMBER ORCHESTRA UNITS . In this framework, the broader normative Cooperative Security Concept will be further developed, embedded, and institutionalized in the region. At the same time, the ORCHESTRA meetings serve as venues for confi dence building among the experts. The networking activities of PRIF’s Project Group are documented by the ATLAS on Track II research activities in or about the Middle East/Gulf region.

Editor/Project Coordinator: Adj. Prof. Dr. Bernd W. Kubbig The views presented by the Co-Editors: Dorte Hühnert, BA and Christian Weidlich, MA authors do not necessarily Peace Research Institute Frankfurt, represent those of the project

Baseler Straße 27-31, D-60329 Frankfurt am Main, the coordinator, editors, sponsors, or PRIF. Phone: +49-69-95910436, Fax: +49-69-558481, © 2014 ACADEMIC PEACE ORCHESTRA MIDDLE EAST . E-Mail: [email protected] All rights reserved.

Internet: www.academicpeaceorchestra.com Layout: Anke Maria Meyer

The Academic Peace Orchestra Middle East wishes to thank its generous sponsors, the Foreign Ministry of Norway, the Swiss Federal Department of Foreign Affairs, the Friedrich Ebert Foundation, and the Protestant Church of Hesse and Nassau.

Ministry of Foreign A airs