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CONFIDENTIAL Prepared by the Negotiations Support Unit

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CONFIDENTIAL Prepared by the Negotiations Support Unit CONFIDENTIAL MEMORANDUM To: Dr. Saeb Erekat From: Negotiations Support Unit Subject: 1967 border, land swaps and Hillary Clinton’s parameters Date: 23 December 2009 This memo provides analysis on three related issues that have arisen in recent discussions on the peace process: 1. Reference to the “1967 border with agreed swaps” in a UNSC resolution; 2. Requesting US determination of a percentage for land swaps, and; 3. Hillary Clinton’s “parameters”. 1. Reference to the 1967 border with agreed swaps in a UNSC resolution At least two potential benefits may exist in seeking a United Nations Security Council Resolution that re‐ affirms the Palestinian people’s right to a state of their own in all of the West Bank and Gaza Strip, including East Jerusalem. First, such a resolution can reinforce the illegality and illegitimacy of Israeli claims over all of the oPt as delimited by the 4 June 1967 line. Second, such a resolution can reaffirm the continued applicability of international humanitarian law, namely, the Fourth Geneva Convention and the Hague Regulations, to all of the territory occupied by Israel in 1967. One risk in pursuing such a resolution, however, is that it may either directly or indirectly dilute UNSCR 242 and universally recognized Israeli obligations under IHL, specifically the requirement that Israel withdraw fully to the June 4 1967 line. This risk would arise, for example, if the resolution refers to potential land swaps, even if the resolution specifies that such swaps must be ‘mutually agreed.’ The mere introduction of the option of swapping territory in a UNSC resolution can, and likely will, be used by Israel and others to argue that the international community no longer views the 4 June 1967 line as sacrosanct. Additionally, given that UNSCR 242 formed the basis of prior Egyptian and Jordanian territorial settlements with Israel in which both Arab states recovered 100% of their territory, a UNSC resolution that opens the door to the option of land swaps could be used to distinguish the application of UNSCR 242 in the Palestinian‐Israeli context from these two crucial precedents. Nonetheless, if a UNSC resolution that includes a reference to land swaps is sought by the leadership, there are measures that may be taken to attempt to lessen the risks involved in such a move, including: Prepared by the Negotiations Support Unit, Negotiations Affairs Department, PLO 1 CONFIDENTIAL ‐ Ensure that the UNSC resolution explicitly reaffirms the continued application of IHL, specifically the Fourth Geneva Convention and the Hague Regulations, to all of the territory delimited by the 1967 line, including East Jerusalem, until the termination of Israel’s occupation by full withdrawal from the occupied territory as required by UNSCR 242 and subsequent resolutions. ‐ Limit references to the “1967 border with agreed land swaps” to a Terms of Reference (ToR) resolution for a permanent status agreement, which ToR is made without prejudice to UNSCR 242, its progeny and the Madrid principles (i.e., the ToR should state that the land swap option has no binding force except with respect to a specific proposed negotiation round within a specific time frame). Two difficulties with this approach, however, are that: (1) all of the Palestinian requirements for a ToR would need to be specified in such a resolution, potentially compromising the Palestinian position on refugees and other final status issues, and; (2) attempts to limit the effect of including a land swap option by making it “without prejudice” is unlikely to prevent future attempts by Israel and the international community to treat land swaps as a principle to which Palestinians have unequivocally agreed; ‐ Specify that potential land swaps must be minor, mutual and reciprocal modifications to the 4 June 1967 line that are equal in size and value and that are to be agreed bilaterally by the parties in the framework of a comprehensive permanent status agreement; 2. US determination of a percentage for land swaps In various meetings with the US, the leadership has expressed an interest in having the US determine a percentage for swaps between the Palestinian offer (1.9% of the OPT) and the Israeli offer (6.5%1) for swaps. Arguably, this approach may serve to: (i) convince the US to commit to the 1967 border as the baseline; (ii) limit the extent of swaps, and; (iii) break the deadlock between the parties. However, the NSU has consistently advised against referring to swaps in percentage terms because: • The parties have never agreed upon the baseline for swaps. Specifically, Israel’s baseline does not include Israeli‐defined East Jerusalem or the No Man’s Land. When Israel refers to 6.5% of the West Bank, it is actually talking about 8.7% of the OPT. • Percentages undermine the importance of the quality of the territory swapped. In this particular context, there are additional compelling reasons not to refer to percentages and not to invite the US to settle on any percentage between the Palestinian and Israeli offers: • If the percentage of swaps is increased from 1.9%, Palestinians will be forced to agree to swap either: (i) additional, extremely damaging settlements (the five red line settlements), or; (ii) vacant land. 1 We understand that you keep the reference vague for strategic purposes. Bear in mind, however, that the Israeli offer was 6.5% of the West Bank as defined by Israel (not counting Israeli‐defined East Jerusalem plus the No Man’s Land. The Israeli offer was actually 8.7% of the OPT. Prepared by the Negotiations Support Unit, Negotiations Affairs Department, PLO 2 CONFIDENTIAL Either of these choices will transgress long‐held Palestinian negotiating positions on swaps: • No swapping of Ariel, Efrat, Giv’at Ze’ev, Har Homa or Ma’ale Adumim. • No swapping of undeveloped Palestinian land. There are no other realistic permutations for swaps if the swap percentage is increased from 1.9%. • Because so much of the land on the Israeli side of the 1967 border is already built up, Palestinians will be forced to accept land that is not equal in quality and value, which would also transgress a long‐held Palestinian negotiating position on swaps. • The likely consequence of inviting the US to determine a percentage for swaps is that the US will “split the difference” between the two positions. However, such an outcome would be unacceptable to many Palestinians, because it will be arbitrary and may entail heavy Palestinian loss. Palestinians have long‐held that swaps may only transpire according to certain objective criteria and in a way that meets Palestinian interests. For these reasons, we recommend the following: Best option i. Ask the US to recognize the 1967 line as the border (without conceding anything on swaps, which includes not asking the US to determine a percentage for swaps); or Alternative ii. If you think it necessary or advantageous to have the US refer to the principle of swaps, then ask the US to recognize the 1967 line as the border, subject to mutually agreed, minor mutual swaps equal in size and value, provided such swaps do not unduly compromise Palestinian water rights, contiguity, viability, etc.; or Lesser alternative iii. If you think it necessary or advantageous to have the US determine a range for swaps, then ask the US to recognize the 1967 line as the border, subject to mutually agreed, minor mutual swaps equal in size and value, not to exceed ___ km2, and provided such swaps do not unduly compromise Palestinian water rights, contiguity, viability, etc. The US should determine the ceiling on swaps only after it has considered the interests of both parties. Lesser alternative iv. If you think it necessary or advantageous to have the US determine a percentage for swaps, then ask the US to recognize the 1967 line as the border, subject to mutually agreed, minor mutual swaps equal in size and value, not to exceed 1.9% of the entirety of the oPt including Prepared by the Negotiations Support Unit, Negotiations Affairs Department, PLO 3 CONFIDENTIAL East Jerusalem, and provided such swaps do not unduly compromise Palestinian water rights, contiguity, viability, etc. The US should determine the ceiling on swaps only after it has considered the interests of both parties. 3. Hillary Clinton’s parameters On November 25, following Israeli Prime Minister Benjamin Netanyahu’s announcement on restraining some aspects of settlement activity, US Secretary of State Hillary Clinton stated: We believe that through good‐faith negotiations, the parties can mutually agree on an outcome which ends the conflict and reconciles the Palestinian goal of an independent and viable state, based on the 1967 lines, with agreed swaps, and the Israeli goal of a Jewish state with secure and recognized borders that reflect subsequent developments and meet Israeli security requirements. We note that the US has been pushing to use this statement as parameters/principles for negotiations. Pros • “independent and viable state, based on the 1967 lines, with agreed swaps” Cons • “Jewish state” with no reference to the Palestinian goal of a solution for Palestinian refugees; • “subsequent developments” – reminiscent of Bush letter of assurances; • “meet Israeli security requirements” For these reasons, we recommend that the leadership not welcome or endorse the Hillary Clinton parameters, especially in light of the fact that the EU and other members of the Quartet clearly have not endorsed them (see the most recent GAERC conclusions). Prepared by the Negotiations Support Unit, Negotiations Affairs Department, PLO 4 .
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