PEOPLE WITHOUT BORDERS FOR BORDERS WITHOUT PEOPLE:LAND, DEMOGRAPHY, AND PEACEMAKING UNDER SECURITY COUNCIL RESOLUTION 242

JAMIL DAKWAR

UN Security Council Resolution 242, drafted to deal with the conse- quences of the 1967 war,left the outstanding issues of 1948 unresolved. For the first time, new Israeli conflict-resolution proposals that are in principle based on 242 directly involve Palestinian citizens of . This essay explores these proposals, which reflect Israel’s preoccupation with maintaining a significant Jewish majority and center on popula- tion and territorial exchanges between Israeli settlements in the West Bank and heavily populated Arab areas inside the . After tracing the genesis of the proposals, the essay assesses them from the standpoint of .

UNITED NATIONS SECURITY COUNCIL Resolution 242, adopted unanimously in the aftermath of the 1967 war, did not deal with unresolved issues relating to the 1948 war except through its reference to the refugee problem and border is- sues. With regard to the latter, the resolution states that the “establishment of a just and lasting peace in the Middle East” should include, inter alia, the “termination of all claims or states of belligerency and respect for and acknowl- edgement of the sovereignty, territorial integrity, and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.” The border disputes between Israel on the one hand and Egypt and on the other were largely settled in peace agreements signed between the parties in 1978 and in 1994, respectively. Final borders with and have yet to be negotiated. What concerns us here are the borders between Israel and the promised Palestinian state, which under the Oslo agreements (themselves based on Resolution 242) are to be negotiated between the parties as one of the final status issues. Yet almost immediately after the 1967 war, and even before the signing of Resolution 242, the Israeli government unilaterally altered the established border—the “green line”—by annexing and an

JAMIL DAKWAR, staff attorney with the American Civil Liberties Union in New York, was formerly a senior staff attorney at Adalah—The Legal Center for Arab Minority Rights in Israel. This paper was part of the IPS panel at the 2007 Middle East Studies Association conference.

Journal of Palestine Studies Vol. XXXVII, No. 1 (Autumn 2007), pp. 62–78 ISSN: 0377-919X; electronic ISSN: 1533-8614. C 2007 by the Institute for Palestine Studies. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, at http://www.ucpressjournals.com/reprintInfo.asp. DOI: jps.2007.XXXVII.1.62. LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 63 extensive hinterland of West Bank territory. Soon after, it set about “creating facts on the ground” through the establishment of settlements. Today, these settlements, together with military and other infrastructure, account for almost 40 percent of the territory of the West Bank.1 Israeli leaders from across the political spectrum have been explicit not only about their intentions to ignore the green line, but also about their determination to permanently annex the large West Bank settlements and their 450,000 illegal residents. U.S. President George W. Bush explicitly endorsed this intended annexation in his April 2004 exchange of letters with Israeli Prime Minister Ariel Sharon.2 Furthermore, President Bill Clinton implicitly supported this idea during the final status talks that took place under his auspices in 2000. Under Clinton, the notion of “territorial swaps” to compensate the for the planned annexations came into the picture, as his December 2000 proposal for a final Israeli-Palestinian settlement called for the Israeli-annexed West Bank settle- ments to be compensated for by handing “territories within Israel proper”3 over to the Palestinians. Since that time, the swap idea has evolved, with the (un- inhabited) territories within Israel now becoming populated territoires within Israel—specifically, an area near the green line known as the “Triangle,” which is heavily populated by Palestinian citizens. While the territorial/population exchange has not to date been formally proposed, it has been openly endorsed by Likud, Kadima, and Labor leaders alike. It is within this context that negoti- ations for a Palestinian-Israeli final settlement—still ostensibly based on Resolu- tion 242—has come to involve, at least potentially, Palestinians who remained in what became Israel in 1948.

THE POLITICS OF DEMOGRAPHICS Despite the exodus of some three-quarters of the Arab Palestinian popula- tion of what became the State of Israel in 1948—the result of clear and long- standing policies of population transfer and dispossession4—successive Israeli governments have maintained an obsession with demographic balance (or im- balance) between Jews and in historic Palestine.5 Even with large waves of Jewish-only immigration to Israel, Palestinians in Israel continue to consti- tute about one-fifth of the total population. Demographic considerations have thus become a primary strategic concern of the Israeli government, as its overt and covert acts of discrimination against and collective dispossession of the Palestinian minority are habitually justified on national security grounds and within the context of preserving Israel’s Jewish character. Because Israelis take great pride in their state’s democratic image, mainstream Israeli politicians have generally avoided voicing concerns about the demographic threat posed by its Palestinian citizens. Public statements on the “demographic problem” have for the most part been carefully vetted to exclude any pronouncements that might suggest that Israel’s treatment of Palestinians in Israel is racially motivated. Though population transfer has a long pedigree in Israel,6 the idea lay dormant—or at least outside the bounds of public discourse—for some years. (Its revival in the wake of the 1967 war mainly concerned the Palestinian 64 JOURNAL OF PALESTINE STUDIES

population of the newly occupied territories,7 not the Palestinian citizens of Israel.) Within Israel proper, population transfer ideas were generally proposed by right-wing politicians such as Meir Kahane in the mid-1980s and Rahvaam Zeevi in the 1990s. Their ideas were publicly rejected by the so-called liberal Zionist left in Israel, which did not, however, take issue with the ultimate aim of these ideas: the preservation of Israel as a Jewish state in which Jews enjoy not only numerical advantage but also political and economic privileges not given to non-Jews. Nevertheless, the idea of population transfer was muted in mainstream circles for many years. There were several reasons for this. First, it was assumed that Israel’s laws prohibiting the return of Palestinian refugees, coupled with continuing Jewish immigration, would maintain a ratio in the population where the Jews would vastly outnumber the Palestinians. Second, the international community has become less tolerant of forced transfer and displacement (as witnessed in the Bosnian case in the 1990s), and international law has become more rigid in this area. Third, the Palestinian citizens of Israel have largely been law-abiding and for the most part quiescent, despite Israel’s discrimi- natory and draconian policies. Fourth, the fact that the Israeli liberalism long held Palestinian minority has voting rights (however blatantly that drastic measures such second-class their actual status) has been of use to Is- as population transfer raelis in showcasing their democracy compared to the were unnecessary and that undemocratic regimes in the Middle East. As a result of the state could afford to these factors, Israeli liberalism long believed that dras- provide civic equality to tic measures such as transfer were unnecessary and that the Palestinians. the state could afford to provide civic equality to the Palestinians. Over the past decade, however, two of the main assumptions have been overturned, giving rise and legitimacy to the call to find “legal” ways to reduce Israel’s Palestinian population, particularly within the “respectable” framework of a future political settlement with the Palestinians of the West Bank and . The first assumption to be overturned was that Jewish demographic su- periority would continue indefinitely. Recent demographic studies have shown that by the year 2020, Palestinians will outnumber Jews in historic Palestine. For example, Sergio DellaPergola of Hebrew University, Israel’s foremost de- mographer, found in 2003 that according to the medium projection, the total population of Israel and the Palestinian territories would be about 14.35 million by 2020, including 6.7 million Jews; in other words, Jews would comprise 44 to 47 percent of the total population. By 2050, again according to the medium projection, the combined total population of Israel, the West Bank, and Gaza would reach 26.58 million, including 8.78 million Jews, or about 33 percent of the total population.8 According to Israel’s Bureau of Statistics, the number of Jewish immigrants arriving in Israel in 2006 was the lowest since 1988, a decrease of 9 percent from 2005.9 Confirming this demographic trend is the Jerusalem-based Jewish People Policy Planning Institute (JPPPI), chaired by none other than former longtime LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 65

U.S. chief envoy for peace in the Middle East Dennis Ross. In its most recent annual assessment, JPPPI noted that “Demographic trends among Jews and Palestinians, combined with the rapid spread of ideas that undermine Israel’s legitimacy, threaten the nature of Israel as a Jewish state and homeland for the Jewish People and its centrality to the Jewish People.”10 The organization also notes that “Most Jews have already left the countries where their conditions, economic and political, were less attractive, and the vast majority reside today in fairly developed and democratic societies where the pressures to leave are not overwhelming.” The second assumption to have been called into doubt concerns the con- tinuing “quiescence” of Israel’s Palestinian citizens as a result of what Israeli Arabists and security officials call increasing “radicalization” and “Islamic and national militancy,” especially in the last decade, and in light of the outbreak of the second intifada. Since the mid-1990s, the Palestinians have been more focused on their future status within Israel and have begun to challenge sacred cows such as Israel’s self-definition as a Jewish state and its ramifications for their status. Today, the demand that Israel should become a “state for all its citizens” has become so mainstream that Israel’s head of General Security Ser- vices, Yuval Diskin, warned Prime Minister Ehud Olmert that the radicalization of Israel’s Arab citizens constitutes a ”strategic threat to the state’s existence.” Diskin added that ”the proliferation of the visionary documents published by the different Arab elites in Israel is particularly worrisome, [because] the documents are united by their conception of Israel as a state for all its citizens and not a Jewish state.”11 The documents referred to by Diskin, essentially a series of political manifestos, actually represent quite a mainstream political consensus among the Palestinians in Israel. Above and beyond recognition as a national homeland minority with collective rights and self-administration in their own community affairs, the basic demand is for a genuine, inclusive, consensual democracy with equal rights for all citizens of the state. These documents represent a resounding confirmation of the passage from reactive to proactive political action, and of the growing trend within the Palestinians in Israel to “get their house in order” and to press ahead with a clear agenda for change.12 Over the years, Israel has managed to build considerable international sup- port for its “concerns” about demographic changes that threaten its structure as an ethnic-religious Jewish state with exclusive privileges for Jews. These privileges most prominently involve access to (the ); land and housing (under the colonial land regime); and economic and political power. All U.S. presidents, including Jimmy Carter, have expressed unques- tioned support for Israel’s wellbeing as a Jewish state.13 Even the late Palestinian leader Yasir Arafat found it expedient to write in a 2002 op-ed in the New York Times, “We understand Israel’s demographic concerns and understand that the of Palestinian refugees, a right guaranteed under international law and United Nations Resolution 194, must be implemented in a way that takes into account such concerns.”14 66 JOURNAL OF PALESTINE STUDIES

TRANSFER TALK:SAME LADYINANEW DRESS Israeli plans and policies regarding the transfer of Palestinian populations have changed over the years. Israel’s founder, David Ben-Gurion, had said that accepting the 1947 partition plan was only a first step toward gaining full control over greater Israel. It was at his insistence that Israel’s Declaration of Independence did not define the borders of the newly declared state so as to keep the option for future expansion open.15 By the time statehood was declared on 14 May 1948, Israel had already expanded well beyond the boundaries of the Jewish state allotted by the 1947 UN partition plan, and by the time the Armistice Agreements were signed in the first months of 1949, it had expanded even more. To this day, Israel has not legally set its borders. The new territories occupied during the 1967 war, while bringing new op- portunities, also brought challenges. In fact, months before the war, the Israeli military and political leadership had discussed the scenario of what to do with the population of the West Bank and Gaza should Israel go to war with its neighbors and occupy the rest of the territory between the Jordan River and the Mediterranean Sea.16 Though more than 300,000 Palestinians left the West Bank and Gaza (most under strong “encouragement”) during and in the imme- diate wake of the war, it was not enough to make a real difference. If Israel were to remain “democratic,” outright annexation of the West Bank and Gaza would have had to entail voting rights for the Palestinian residents. This was out of the question, because it would jeopardize Israel’s structure and composition as a Jewish state. Thus, over time, Israeli leaders have come to resign themselves to making future territorial concessions both in response to international pres- sure after the passage of Resolution 242 and because some concessions would be necessary if ever they wanted the Arab states and the world to recognize Israel’s legitimacy. (Even Ariel Sharon eventually conceded what Yitzhak Ra- bin had come to understand in the early 1990s: that the choice was between “completeness of the land without a Jewish State” and a “Jewish State without the completeness of the land.”17) Whatever territorial concessions would have to be made, however, Israel was determined from the outset to retain control. Yigal Alon, a leader of the Labor party and Israel’s deputy prime minister in 1967, came up with a plan (known as the Alon Plan) in the months following the war that essentially carved up the West Bank into two zones surrounded by Israeli controlled “buffers.” Not surprisingly, today the West Bank is divided into three main zones surrounded by Israeli settlements and the segregation walls and barriers. Israel was not as successful as it would have liked in transferring Arabs out of the newly occupied territories in 1967. Where it did succeed was in designing a policy of population transfer into the occupied territories—moving Jewish citizens from Israel itself to the territories as settlers. As noted above, this policy—a clear violation of international law and the Geneva Conventions, and a war crime under the Rome Statute of the International Criminal Court— began almost immediately. Today, the population of those settlements is close LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 67 to 450,000, living mainly in settlements in East Jerusalem and three large set- tlement blocs: Ma’ale Adumim, Gush Etzion, and Ariel. Israel’s contention is that the large settlement blocs must be annexed to make a deal with the Palestinians acceptable to the Israeli public; the annexations would also serve, it is claimed, as security buffer zones. The construction of the “separation barrier,”whose stated rationale was security, was in fact engineered to conform to the so-called “reality on the ground.” Indeed, Olmert promised before the elections that made him prime minister that Israel’s borders with the Palestinians would be finalized by 2010, and that “the course of the fence— which until now has been a security fence—will be in line with the new course of the permanent border.”18 The result is that Israel’s borders are being demarcated on the basis of a unilateral land grab and the contours of illegal settlements rather than in accordance with Security Council resolutions, in particular Resolution 242.

POPULATION EXCHANGE RESURFACES Clinton’s December 2000 proposal for resolving the Israeli-Palestinian conflict—which became the basis for the subsequent PLO-Israeli negotiations at Taba in January 2001—contained the first formal written reference to the territorial swap idea in connection with Oslo final status negotiations. The Palestinian negotiating position at the failed Camp David summit in July 2000 had clearly been the evacuation of the settlements, which are illegal under international law. In the face of a solid wall of opposition, the Palestinians re- luctantly accepted the idea of swapping settlements Israel planned to annex for territory in Israel. In the follow-up talks at Taba, as reported by EU special representative Miguel Angel Moratinos, the only “outsider” present,19 the two sides agreed that “in accordance with the UNSC Res. 242, the 4 June 1967 lines would be the basis for the borders between Israel and the state of Palestine.” The document notes that “both sides accepted the principle of land swap but the proportionality of the swap remained under discussion,” and specifies that the Israelis were proposing a 6 percent annexation in exchange for 3 percent of Israeli territory20—the outer limits mentioned in the Clinton proposal. The paper goes on to state that the Palestinians “stress[ed] the importance of a non-annexation of any Palestinian villages and the contiguity of the West Bank and Jerusalem. [Their maps] were predicated on the principle of a land swap that would be equitable in size and value and in areas adjacent to the border with Palestine, and in the same vicinity as those annexed by Israel.” The issue, then, was very clearly the exchange of populated territory in the West Bank (i.e., the settlement blocs) for empty Israeli territory in the Naqab (Negev). As the al-Aqsa intifada heated up, the original swap idea began to take a new turn, and the territorial exchange came to involve Palestinian citizens of Israel living in the areas close to the green line. The idea found support with individual politicians of the Right and the Left, including prominent Labor leaders, who removed their “politically correct” masks for the occasion. One of the first 68 JOURNAL OF PALESTINE STUDIES public statements regarding possible land and population swaps as part of a final status agreement came from Labor party member and former minster of transportation Ephraim Sneh. In an April 2002 symposium at the Washington Institute for Near East Policy, Sneh said:

Since Israel has to annex a certain part of the West Bank as part of a final settlement, the idea is to have a land swap. If we are speaking about territories adjacent to a future border, they may include populated areas. Of course, I do not mean areas with Jewish populations. This is an idea that must take place under consent; we cannot impose it. According to in- ternational law, we cannot deny anyone his Israeli citizenship unless he, himself, wants to give it up.21

It is worth noting that in his address, he referred to the transfer idea as a “technical item.”22 Also in 2002, former Israeli Prime Minister Ehud Barak, the man behind the “generous offers” made to the Palestinians at the Camp David summit of July 2000, raised the possibility that a future Israeli-Palestinian deal could involve the transfer of the town of Um al-Fahm inside Israel to the emergent Palestinian state. According to Barak, “such an exchange makes demographic sense and is not inconceivable.” Like Sneh, he stressed that this “could only be done by agreement” and added that he does not “recommend that government spokesmen speak of it [openly].”23 In December 2003, Likud party leader said: “If there is a demographic problem, and there is, it is with the Israeli Arabs who will remain Israeli citizens.”24 Netanyahu’s closest advisor, Uzi Arad, former director of in- telligence in Mossad, wholeheartedly supported the idea of territorial and pop- ulation swaps. In an article published in The New Republic in 2005, Arad wrote:

The various land-swap plans proposing a tradeoff of territo- ries aim to increase ethnic homogeneity and to preserve each side’s basic territorial reach. In this context, land swaps al- low an exchange of sovereignty over contiguous population blocs—Jewish population blocs in the West Bank proximate to the armistice line and Arab population blocs west and north of the armistice line. For example, the Gush Etzion and Ariel blocs and towns in the Jerusalem district could be exchanged for the towns and surroundings of Um El Fahm, Arara, Bartaa, Qalansuwa, Taybe, Tira, and Kafr Kassim. A land-swap plan must be part of a final status agreement between Palestine and Israel. Indeed, it appears that, without such territorial exchanges, a final agreement may not be reachable.25

For some time, support for the new version of territorial swap had been publicly expressed by political leaders outside government. This changed in LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 69

November 2006, when prime minister Olmert appointed Avigdor Lieberman as minister of strategic threats and deputy prime minister.26 Lieberman has never hidden his political agenda and openly advocates ridding Israel of its indigenous citizens, who lived in the country centuries before he himself moved to Israel from the in 1978. Lieberman had originally called for the forcible transfer of Palestinian citi- zens of Israel from their land. (In April 2002, he said that there was “nothing undemocratic about transfer.”27) But with more respectable forms of the idea on the table, he “moderated” his stance. In May 2004, he proposed a plan that called for the transfer to the Palestinian Authority of Israeli territory populated by Palestinians, while Israel would annex the major Jewish settlement blocs on the Palestinian West Bank. If applied, his plan would strip roughly one-third of Israel’s Palestinian citizens of their citizenship. Lieberman’s ideas were echoed by former U.S. Secretary of State Henry Kissinger, who wrote in December 2004 that Israel should return most of the West Bank, except for 5–8 percent, and in return, “Israel would transfer some of its current territory to the Palestinian state. It would be best to transfer territory with significant Arab population from the northern part of Israel to improve the demographic balance.”28 Lieberman elaborated on his plan, a two-part “solution,” in a March 2006 interview with Ha’Aretz:

One, I would forfeit all of the settlements on the seam between us and the Palestinian Authority—Um al-Fahm, Bahan Baka al- Garbiya, Taybe—and exchange them with Jewish settlements such as Ma’ale Adumim and Gush Etzion. The second part is a new citizenship law, according to which before the individual receives an identity card, he will sign a declaration of loyalty to the State of Israel as a Zionist Jewish state, to the flag, to the national anthem, to the Declaration of Independence, and commit to performing military service or alternative service.29

Recently, in September 2007, Israel’s new deputy prime minister told the Quartet’s Middle East envoy, former British Prime Minister Tony Blair, that “any attempt to deal with the core issues [borders, refugees, Jerusalem] at the An- napolis conference will result in the breakup of the coalition and the govern- ment in Israel.” He stressed that the solution to the Israeli-Palestinian conflict ”must include the Israeli Arabs, in which the basis for a settlement is the ex- change of territory and populations.”30 Olmert himself has not publicly endorsed the swap, but in April 2007 a close associate of his within the Kadima party, Member of (MK) Otinel Schneller, came out with his “Hong Kong initiative” calling for the transfer to Palestinian control of Arab villages in the Triangle area in return to the annexa- tion of largest settlement blocs in the aim of preserving a strong Jewish majority within Israel’s final borders. His plan, named in reference to Britain’s gradual transfer of Hong Kong to China, would take up to thirty years to implement 70 JOURNAL OF PALESTINE STUDIES

and would involve allowing Palestinian citizens to maintain their citizenship and other social benefits, but would require them to obtain permits to work in Israel and would not allow them to relocate to other parts of the country.31 More significantly, Ha’Aretz reported in August 2007 that Olmert was exam- ining a new framework for peace put forward by Israel’s new president Shimon Peres when he was still vice premier that included “various options of exchang- ing settlement blocs with Arab community blocs within Israel, in agreement with the residents.”32 According to the report, the Peres plan calls for a territo- rial exchange where the amount of land in Israel to be traded would be equal to that of the annexed settlements. Under the plan, “areas in Israel heavily populated by Israeli Arabs—such as the region around Um al-Fahm—would be transferred to the PA.”33 The article precipitated a fury among Israel’s Palestinian citizens, prompting MK Muhammad Baraka, chairman of the Hadash party, to go to Ramallah to confer with Mahmud Abbas on the matter. Following the meeting, Abbas declared that he opposed a land swap involving any territory inhabited by Palestinian citizens within the framework of a peace deal.34 The area of Um al-Fahm, also known as the North Triangle, has a population of over 200,000 Palestinian citizens. During the 1948 war, the area was held by the Iraqi forces, who turned it over to King Abdallah of Jordan, whose forces controlled the rest of the West Bank, when they withdrew after the fighting ended. Abdallah in turn surrendered the area to Israel after massive diplomatic pressure and threats to use force if the area were not ceded.35 Under the terms of the Israel-Jordan 1949 Armistice Agreement (Article 6), Israel would receive a territory in the area known as Wadi Ara and the Little Triangle in exchange for territory in the southern hills of Hebron in the West Bank, which remained under Jordanian control. The idea of population exchange between Palestinian citizens of Israel and Jewish citizens in the blocs close to the 1967 green line will likely enjoy wide support from almost the entire Israeli political spectrum. According to 2006 opinion poll conducted by the Israel The idea of population Democracy Institute, 62 percent of the polled Jewish exchange between citizens want the Israeli government to encourage Palestinian citizens of Palestinian citizens to leave the country.36 In December Israel and Jewish citizens 2005, the Peace Index of the Tami Steinmetz Center in Israeli settlement blocs for Peace Research found that 48 percent of the Jewish close to the green line will population supported the idea of territorial and pop- likely enjoy wide support ulation exchange in the framework of the Permanent from almost the entire Status Agreement, with only 37 percent opposed.37 To Israeli political spectrum. the question “What if it turned out that the who live in the Triangle oppose the transfer of their communities to Palestinian sovereignty?”, 33 percent of all interviewees answered that they would nevertheless support the territorial exchange, while 45 percent responded that in this case they would oppose it, and 21 percent had no opinion on the matter. Among the Arab interviewees, 21 percent supported territorial exchanges of the kind described, 68 percent opposed them, and the LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 71 rest had no opinion. Only 12 percent favored such an exchange if the residents were against it, while 81 percent opposed it. Population exchange within the framework of a peace settlement serves a number of Israeli objectives. First, annexing the main settlement blocs to Israel (thereby avoiding forced evacuation of the illegal settlements) would assure the Israeli government the political support it needs to conclude a deal with the Palestinians. Second, by transferring close to 200,000 Arab citizens to the control of the Palestinian Authority, Israel would temporarily ease its demo- graphic problem.38 Third, making the population swap part of a peace agree- ment would almost certainly soften international criticism or condemnation that would normally attend the revocation of citizenship. Finally, the exchange would send a clear message to the Palestinian minority, reminding them of their conditional status and legitimizing such innovations as loyalty tests. Palestinian citizens would be forced to choose between living as second-class citizens in a state officially defined as the state of the Jewish people, or becoming stateless people—or at best, residents of the new Palestinian entity in the West Bank. This last point was clearly articulated by Israel’s foreign minister, Tzipi Livni, one week before the Annapolis conference:

It must be clear to everyone that the State of Israel is a national homeland for the Jewish people....Thefuture Palestinian state should be the response to the national aspirations of the Palestinian people wherever they are—even those who chose to be citizens with equal rights of the Jewish and democratic state that will respect their individual rights, while their na- tional rights will be expressed by the Palestinian state.39

The proposed population swap differs in one major respect from earlier examples of population exchange such as the 1923 Exchange Convention be- tween Greece and Turkey concerning their respective nationals residing in the other’s country. Whereas in the Greek-Turkish exchange, the affected popu- lations were uprooted, forced to leave behind their homes for a country that in most cases they had never seen, the current proposal does not involve the actual physical displacement or deportation of the Palestinian citizens in ques- tion, who would remain in their homes and lands. Rather, it is the border that would move westward, putting them under the control and legal jurisdiction of the Palestinian Authority. Nonetheless, as will be discussed below, such a deal raises serious legal problems and demands heightened scrutiny, as the ultimate result of the border change would be to strip those who live in the affected area of their Israeli citizenship.

PEACE AGREEMENTS AND POPULATION EXCHANGES Population exchange treaties are naturally suspect and have little place within the post-World War II international human rights system, which places far greater emphasis on the rights of individuals. Moreover, the discretion of 72 JOURNAL OF PALESTINE STUDIES parties to conclude such agreements is not unlimited. Such agreements be- come even more problematic when they address a situation of faits accomplis, where established facts on the ground (e.g., the settlements, infrastructure, and separation wall) dictate the agreement rather than good-faith negotiations.40 The overwhelming asymmetry of power between the negotiating parties—the fact that one is a powerful state (largely backed by Western powers) and has been the occupying power for past forty years, while the other is basically a non-state actor that has been exercising certain functions under the direct control of the occupying state41—also raises serious questions concerning the validity of any agreement reached. Thus far, no proposal has been made public, and the details of the various plans for population swaps have not been fully disclosed. What the various plans seem to share is a scenario in which the Arab citizens of the Wadi Ara area lose their Israeli citizenship. The feasibility of such a proposal is contingent on two main factors. First, there is the consent of the Palestinian negotiators, who have expressed opposition to (or at least misgivings about) the idea, but who may in the end be incapable of resisting the swap if Israel makes it a condition for reaching a peace deal that the Fatah-led Palestinian leadership is determined to conclude. Second is the informed consent and support of the affected collective, namely the Palestinians citizens of Israel who live in these areas. A 2004 opinion poll among Arab residents of the Triangle region found high levels of opposition to the idea of population and land exchange. The survey results showed that 96 percent of the respondents were aware of the plans and that 91 percent opposed them, 67 percent “strongly.”42 Israelis, whether for or against the plans, are quick to interpret this opposition as an indication that the Palestinian citizens realize they are better off in Israel. As Amnon Rubenstein put it, “It may not be easy being a minority, especially an Arab minority in a Jewish state. But it is still possible that Israel—despite all its liabilities—has proven [sic] to the Arabs who live here that is preferable to be a minority in a democracy—even an imperfect one—than to be a majority in a dictatorship.”43 But the choice suggested by Rubenstein is false. The choice is not between living in a democracy (even as second-class citizens) and living in a “dictatorship” (for the Palestine Authority, “despite all its liabilities,”has never been one), but between second-class citizenship in Israel and living in an entity that may be called a state, but which is in fact a modified form of Israeli military occupation. What would be offered under such a plan is not citizenship in an established state with functioning laws, but “citizenship” in a truncated entity without real sovereignty (including control over vital natural resources such as water), access to the outside world, or even secure passage between the various parts of the entity. It is interesting to note that if the Palestinians were to advocate for territorial autonomy or were to endorse a separatist agenda, they would immediately be called by a majority of Israelis as traitors and disloyal to their state. While the consent of the affected residents is paramount, it should be noted that a territorial/population exchange affects the entire Palestinian community LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 73 in Israel. The Palestinian leadership in Israel has expressed outrage at the idea, considering it a new scheme to further delegitimize the status of the commu- nity and its struggle for equal rights in Israel. The leadership’s opposition is shared by the majority of Palestinians in Israel: In a 2005 poll of Arab citizens, 68 percent of the respondents opposed territorial exchange, while 21 percent supported the idea; a more recent poll found that 73 percent think that the Palestinian side in the negotiations has no right to agree to annex towns and villages in the Triangle to the Palestinian Authority in exchange of annexation of the settlement blocks to Israel, while 17.5 percent believe it does have that right.44 The rejection involves important matters of principle. A settlement on this basis by no means constitutes anything approaching a just solution to the Palestinian question, and it does not address the Palestinian minority’s concerns, such as the right of Palestinian refugees (including those internally displaced within Israel itself) to return. The equation implicit in the exchange— law-abiding citizens of one state traded against illegal settlers on usurped land imposed by an illegal occupier, whose immunity and protection they enjoy— is morally repugnant. Most important, such a deal would make the position of the remaining community even more insecure, underlining the precarious- ness of their situation as conditioned citizens and in the shadow of threat of transfer.

BORDER ALTERATION AND REVOCATION OF ISRAELI CITIZENSHIP Even in the unlikely event that a land swap along the lines discussed would pass a local referendum, the agreement of which it would be part would raise a host of problematic moral and legal issues. The fact that previous agreements negotiated between the PLO and Israel failed to incorporate human rights pro- tections and international humanitarian standards—and failed to guard against their rampant abuse45—raises important concerns. Another problem pertains to those citizens of the affected area who would both oppose the revocation of their citizenship and refuse to leave their communities to physically relocate to Israel. Although Israel has never defined its own legal borders, the green line has been considered its de facto border ever since 1967. Indeed, Resolution 242 recognized and confirmed the green line as Israel’s frontier.46 This recognition effectively ended the unresolved status of the armistice cease-fire lines (which had left room for Arab claims), Israel having conquered more than half the territory allotted to the Arab state by the UN partition resolution. The July 2004 advisory opinion of the International Court of Justice regarding the con- struction of the wall in the West Bank also confirmed the green line as the internationally recognized border under Resolution 242.47 In the view of the ICJ, the tragic situation in the region can be brought to an end only through implementation, in good faith, of all relevant Security Council resolutions.48 Therefore, to be acceptable under international law, any alteration to the 1967 borders has to be approved by the Security Council and—some would even 74 JOURNAL OF PALESTINE STUDIES

argue—by the General Assembly, which has inherited the authorities of the League of Nations which created the British Mandate in Palestine.49 The consequence of the border change, as noted, is that tens of thousands of Palestinian citizens included in the land swap would have their citizenship revoked. Although sovereign states normally enjoy a great deal of freedom in formulating their own immi- Tens of thousands of gration and policies (including the revoca- Palestinian citizens tion of citizenship), international law does establish cer- included in the land swap tain limits. Under international law, it is unequivocally would have their prohibited to make a person stateless as a consequence citizenship revoked. of revoking citizenship. International law is particularly International law relevant when the act of revocation or deprivation of unequivocally prohibits citizenship is arbitrary, collective, discriminatory, and making a person stateless affecting a specific national, religious, or ethnic group. as a consequence of In most countries, revocation of citizenship is tolerated revoking citizenship. under very limited circumstances—for example, when naturalization has been obtained by fraud. International human rights law provides special protection from discrim- ination. For example, under the International Covenant on Civil and Politi- cal Rights (ICCPR), every state is “to respect and to ensure to all individu- als within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social ori- gin, property, birth, or other status.” States cannot derogate from their obli- gation to protect everyone from discrimination, even in times of declared emergency.50 Moreover, Article 9 of the UN Convention on the Reduction of provides that “A contracting state may not deprive any person or group of persons of their nationality on racial, ethnic, religious, or political grounds.”The International Convention on the Elimination of Racial Discrimination further links the right to nationality with the right to equal treatment for all people and the prohibition of discrimination. The right of option and opting out should be respected and exercised at all times, regardless of whether the negotiating parties agreed to the population exchange, and regardless of whether it was approved in a referendum.51 Moreover, the proposed population and territorial swaps raise other general human rights concerns in relation to the effect of such an exchange on the Palestinian population. A number of specific rights— above all, the right to self-determination, the right to vote and to be elected, freedom from discrimination, equality before the law, equal protection by the law, and the right to social security and adequate standard of living, health, and education—are protected under several international human rights treaties that have been ratified by the State of Israel.52 Under the Israeli Citizenship Law of 1952, the interior minister enjoys un- fettered authority to revoke someone’s citizenship under three circumstances: (a) illegally—without official permission—leaving the country to an enemy LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 75 state;53 (b) commission of an act constituting a breach of loyalty toward the state; (c) naturalization obtained by fraud. Although this law was rarely used54 and the interior minister’s authority was determined by the as drastic and extreme and thus to be avoided, revocation of citi- zenship under remains viable and plausible, especially when the Palestinian Authority or any future Palestinian entity can easily be reclassified as an “enemy state.”55 Not coincidentally, in October 2007 a new bill pre- sented by Likud MK Gilad Erdan that would allow courts to strip Israelis of their citizenship for committing “an act that constitutes a breach of loyalty to the State of Israel” passed the first reading. The Israeli government had expressed its support for the bill, and the Justice Ministry was asked to formu- late a comprehensive government bill that will be attached to Erdan’s private bill.56 In July 2003, in what appeared to be a complementary step in response to the demographic hype, the Knesset enacted the Citizenship and Entry into Israel (Temporary Order) Law, which categorically prohibits the minister of the interior from granting any kind of residency in and citizenship of Israel to Palestinians from the occupied territories who are married to Israeli citi- zens or have Israeli children.57 Despite world condemnation and very strong opposition from the Palestinian minority, the temporary order, with minor amendments, was renewed several times and has been approved by the Israeli Supreme Court.58 In conclusion, the Israeli obsession with demography has made Israeli lead- ers from the Left and the Right active in seeking ways to separate from the Palestinians in order to maintain a state with a solid Jewish majority over more than 80 percent of historic Palestine. Resolution 242 has been significantly weakened and materially violated by Israel’s creation of facts on the ground, in- cluding the creation of settlements, the confiscation of property, the unilateral annexation of land, and, more recently, the construction of the separation wall. That said, Resolution 242 remains the baseline for the future borders between Israel and the Palestinians as affirmed by the ICJ advisory opinion, and any alteration to the green line border, whether in terms of territory or population exchange, will have serious ramifications. Territorial swap, especially of land that has been acquired in violation of international law, is already problematic, but its consequences can be dealt with in a justly concluded peace agreement. However, population swaps are inherently flawed and legally suspect and raise grave concerns under international law—especially if they are racially moti- vated by the demographic interests of the stronger party. Although at present an imposed and involuntary territorial and population swap might be legally and politically inconceivable, the very fact that it is on the table and endorsed by the Israeli political mainstream clarifies the underclass status of the Pales- tinians. Palestinian citizens will be forced to choose between two evils: living as second class citizens in a state officially defined as the state of the Jewish people, or becoming stateless people—at best residents of the new Palestinian entity in the West Bank. 76 JOURNAL OF PALESTINE STUDIES

NOTES

1. See this issue’s Settlement Monitor. Hijab, “Why Does Bush Talk About Israel’s 2. See “Special Documents: The Negev and Galilee?” Institute of Palestine Sharon Unilateral Disengagement Plan,” JPS Studies Briefing Note no. 18 (July 27, 33, no. 4 (Summer 2004), pp. 85–107. 2007). 3. See Doc. D1, JPS 30, no. 3 (Spring 14. Yasir Arafat, “The Palestinian 2001), pp. 171–75. Vision of Peace,” New York Times,3 4. See Ilan Papp´e, The Ethnic February 2002. Cleansing of Palestine (Oxford, England: 15. Avi Shlaim, The Iron Wall: Israel Oneworld, 2006). and the Arab World, (New York and 5. For a detailed discussion of Israel’s London: W.W. Norton and Company, demographic policies, see Jonathan Cook, 2000), p. 33. Blood and Religion: The Unmasking of 16. Tom Segev, 1967, pp. 184–87. the Jewish and Democratic State (London: 17. Aluf Benn, “Israel’s identity crisis,” Pluto Press, and Ann Arbor: University of Salon.com, 16 May 2005. Michigan Press, 2006), pp. 97–133. 18. Harry de Quetteville, “Israel’s 6. See Nur Masalha, Expulsion of the borders finalised ‘by 2010,’” Telegraph,10 Palestinians: The Concept of “Transfer” in March 2006. See also Greg Myre, “Olmert Zionist Political Thought, 1882–1948 wants to set Israel’s borders,” (Washington, DC: Institute of Palestine International Herald Tribune, 7 February Studies, 1992). 2006. 7. See Tom Segev, 1967: Israel, the 19. The Moratinos “nonpaper,” widely War, and the Year that Transformed the seen as credible and accurate, was first Middle East (New York: Henry Holt & published in Ha’Aretz on 14 February Company, Inc., 2007), chap. 21; a modified 2002. It was reproduced as a special version of this chapter was published as document in JPS 31, no. 3 (Spring 2002), “The June 1967 War and the Palestinian pp. 81–89. Refugee Problem,” JPS 36, no. 3 (Spring 20. The percentages do not take into 2007), pp. 6–22. account the greater Jerusalem area, already 8. Sergio DellaPergola, “Demographic annexed. Trends in Israel and Palestine: Prospects 21. “Pursuing Democracy and Peace in and Policy Implications,” American Jewish the Middle East,” Soref Symposium, Year Book 103 (2003), pp. 3–68. Washington, D.C., 8 April 2002. 9. Central Bureau of Statistics, “In 22. Soref Symposium, 8 April 2002. 2006, 19,264 New Immigrants Arrived In 23. Benny Morris, “Camp David and Israel—The Lowest Number Since 1988” After: An Exchange (1. An Interview with (February 2007). Ehud Barak),” The New York Review of 10. Background Policy Documents Books, 13 June 2002. (Provisional Edition) for the 2007 24. Aluf Benn and Gideon Alon, Conference on the Future of the Jewish “Netanyahu: Israel’s Arabs are the real People (July 2007), online at www.jpppi. demographic threat,” Ha’Aretz,18 org.il/. December 2003. 11. Neve Gordon, “Israel’s Strategic 25. Uzi Arad, “Trading Land for Peace: Threat,” The Nation, 30 April 2007. Swap Meet,” The New Republic,18 Diskin’s statements were first reported by November 2005. the Israeli daily Ma’ariv in 14 March 26. One Labor party minister (Ophir 2007. Pines) resigned to protest the 12. See “The Status and Future of appointment. He was quickly replaced by Israel’s Palestinian Minority,” JPS 36, no. 4 Galeb Majadle, an Arab Zionist citizen, the (Summer 2007), pp. 73–103. first Arab Muslim cabinet minister, who 13. In a July 2007 White House was thus able to sit at Israel’s cabinet table address, President Bush stated: “[T]he with a minister who calls for his people’s United States will never abandon its expulsion from the country. commitment to the security of Israel as a 27. “Avigdor Lieberman: Olmert’s Jewish state and homeland for the Jewish newest colleague,” The Institute of people.” President Bush Discusses the Middle East Understanding, 12 November Middle East, July 16, 2007. See also Nadia 2006. LAND,DEMOGRAPHY, AND PEACEMAKING UNDER 242 77

28. Henry Kissinger, “A New Opening 40. Christa Meindersma, “Population for Mideast Peace,” Washington Post,3 Exchanges: International Law and State December 2004. Practice,” International Journal of 29. “Where’s the Jewish-Arab Conflict Refugee Law 9, no. 4 (1997), p. 652. Headed? Israel Before and After Elections 41. This article does not address 2006,” Du-Et, no. 9 (Spring 2006). whether the emergency government of the 30. Barak Ravid, “Israel: Gaza Arms Palestinian Authority has the mandate to Smuggling Could Nix Annapolis Meet,” conclude an agreement. Ha’Aretz, 14 October 2007. 42. Mada al-Carmel, “Land and 31. Attila Somfalvi, “New Plan Population Exchange Survey,” February advocates Land Swap between Israel and 2004, online at www.mada-research.org. the Palestinians,” Yedi’ot Aharonot,29 43. Amnon Rubinstein, “The April 2007. Ambivalence of Israel’s Arab Citizens,” 32. Akiva Eldar and Barak Ravid, Ha’Aretz, 4 June 2002. “Peres’ Aides Confirm Plan for PA State on 44. Efraim Yaar and Tama Hermann, Land Equal to 100% of West Bank,” 7 August “Peace Index: December 2005,” Tel Aviv 2007. Conspicuously, the Associated Press University, The Tami Steinmetz Center for reported that “a spokesman for Peres did Peace Research. See also: Mada al-Carmel, not deny the existence of a land swap “Public opinion poll, in light of the proposal, and said Ha’Aretz incorrectly Annapolis Conference” November 2007, reported that the president has proposed online at www.mada-research. org/. giving up land where Israeli Arab 45. Christine Bell, Peace Agreements communities stand”: “Israel Considers and Human Rights, (Oxford University Offering Land to Palestinians in Exchange Press, 2001). See also: Jamil Dakwar, for Settlements,” AP, 7 August, 2007. “Roadmap Without Rights,” Al-Ahram 33. Yoav Stern, “Abbas Opposes Weekly, 19–25 June 2003, and “The Exchange of Populated Territory with ‘Roadmap’: Repeating Oslo’s Human Rights Israel,” Ha’Aretz, 26 August 2007. Mistakes,” Human Rights Watch 34. Stern, “Abbas Opposes Exchange.” backgrounder, May 2003, online at www. 35. Avi Shlaim, TheIronWall, p. 44. hrw.org. The Armistice Agreement was signed on 46. In December 2006, Israel’s the Greek island of Rhodes on 3 April 1949. education minister, Yuli Tamir, caused a 36. Neta Sela, “Poll: 62% Want Arab political controversy when she decided Emigration,” ynetnews.com, 5 September that new geography textbooks ordered by 2006. the Education Ministry will include the 37. Efraim Yaar and Tama Hermann, green line in their representations of the “Peace Index: December 2005,” Tel Aviv map of Israel. This triggered condemnation University, The Tami Steinmetz Center for from right-wing Israeli politicians. Ehud Peace Research. Available in English at Olmert was reported to support Tamir’s www.spirit.tau.ac.il/. decision yet was quick to clarify that “there 38. A 2006 study by the Israeli is an obligation to emphasize that the Floersheimer Institute for Policy Studies government’s position and public found that the demographic advantage consensus rule out returning to the 1967 from a population exchange is marginal. lines.” See Akiva Eldar, “PM Olmert The study contends that even without Backs Tamir Proposal to Add Green Line the transfer of populated territory and to Textbooks,” Ha’Aretz, 5 December without separation from East Jerusalem, 2006. the Jewish majority is set to stand at 74 47. “Legal Consequences of the percent in 2050. The study makes this Construction by Israel of a Wall in the assessment based on balancing the Occupied Palestinian Territory (2004),” annexed Palestinian population in East Advisory Opinion, ICJ Rep. 131. Jerusalem (230,000) with the Palestinian 48. “Legal Consequences,” ICJ Rep. population of the Triangle (150,000), 131. which would be transferred to the 49. Anthony D’Amato, “The Legal Palestinian state. Boundaries of Israel in International Law,” 39. Barak Ravid and Yoav Stern, “Livni: Public Law & Legal Theory Series no. 6–34 Palestinian State Will Benefit Israeli Arabs,” (April 2002), Northwestern University Ha’Aretz, 20 November 2007. School of Law. 78 JOURNAL OF PALESTINE STUDIES

50. See Article 4 of the International had been involved in the abduction of Covenant on Civil and Political Rights. Israeli businessman Elhanan Tennenbaum. 51. United Nations, “Nationality of In November 2002, the Tulkarm resident Natural Persons in relation to the Nihad Abu Kishak, who was married to a ,” UN General Assembly Palestinian Arab citizen of Israel, was Official Records, 54th Sess., Supplement stripped of his citizenship for being a No. 10, UN Doc. A/54/10, 1999. senior member of Hamas’s military wing. 52. See the International Covenant on 55. On 19 September 2007, the Israeli Civil and Political Rights (entered into government declared the Gaza Strip to be a force on 23 March 1976; Israel ratified 3 hostile territory; see “Israel Declares Gaza October 1991); International Covenant on Strip Hostile Territory,” The Guardian,20 Economic, Social and Cultural Rights September 2007. In 2002, Sharon’s (entered into force on 3 January 1976; government declared the Palestinian Israel ratified 3 October 1991); Convention Authority a “terror-supporting entity.” See on the Elimination of All Forms of Racial also Jonathan Cook, “Forecasts on Israel,” Discrimination (entered into force on 4 published in Znet on 21 January 2007, January 1969; Israel ratified 3 January online at www.zmag.org. 1979); and the Convention on the Rights of 56. Shahar Ilan, “Bill to Revoke the Child (entered into force on 2 Citizenship for Suspected Traitors Passes September 1990; Israel ratified 3 Oct First Reading,” Ha’Aretz, 18 October 2007. 1991). 57. Yoav Peled, “Citizenship Betrayed: 53. The following countries are Israel’s Emerging Immigration and formally classified as “enemy states”: Citizenship Regime,” Theoretical Inquiries Lebanon, Syria, Egypt, Jordan, Saudi in Law 8, no. 2 (2007), p. 603. See also Arabia, , and . Nadim Rouhana and Nimer Sultany, 54. Israeli citizenship has been “Redrawing the Boundaries of Citizenship: revoked for breach of loyalty in only two Israel’s New Hegemony,” in JPS 33, no. 1 cases. In September 2002, the citizenship (Fall 2003), pp. 5–22. of Kais Obeid was revoked because he was 58. See Adalah’s Web site at www. a senior Hizballah militant in Lebanon and adalah.org.