The Palestine Papers and the 2008 Olmert Offer

By Staff, Christians for Fair Witness on the Middle East March, 16 2011

Executive Summary

Earlier this year Al Jazeera released the “Palestine Papers” -- nearly 1,700 files of documents authored by Palestinian negotiators and advisors, memorializing a decade of Israeli/Palestinian peace talks.1 Christians for Fair Witness on the Middle East has carefully reviewed the Palestine Papers, including those documents concerning the comprehensive peace offer Israeli Prime Minister (“PM”) Ehud Olmert made in 2008.

There has been a good deal of “hype” and sensationalism surrounding the media coverage of the Palestine Papers. Therefore, it is important for the public to read the documents for themselves when making any assessment of the course of the actual negotiations.

Some news reports and articles about the Palestine Papers have “fail[ed] to differentiate between official positions and explorations or polemical rhetoric during the course of negotiations . . .” as former chief Palestinian negotiator Dr. Saeb Erekat wrote in a recent article.2 In the words of Dr. Erekat, the “‘Palestine papers’ have not revealed a single official agreement or document that offers concessions.” (Id.) We agree.

In spite of claims by some commentators that there were “far reaching proposals” on each side,3 the Palestine Papers indicate that Palestinian Authority (“P.A.”) President Mahmoud Abbas did not make a counter-offer to Olmert’s “package offer” and so ultimately the possibility of a final status agreement in 2008 was allowed to die.

1 The “Palestine Papers” as published by Al Jazeera represent only a relatively small number of the Palestinian Authority (“P.A.”) documents that exist on the peace process. As Khaled Elgindy (an advisor at the Palestinian Negotiations Support Unit from 2004 to 2009 and a key participant in the Annapolis negotiations) stated when he spoke at the Palestine Center in Washington D.C. on February 11, 2011, “it is a useful but limited snapshot of what actually occurred.” http://sabbah.biz/mt/archives/2011/02/17/the-palestine-papers-fallout/.

2 www.maannews.net/eng/ViewDetails.aspx?ID=364221; http://www.aljazeerah.info/Opinion%20Editorials/2011/March/8%20o/Till%20September,%20Ar e%20the%20PA's%20Deadlines%20Meaningless,%20A%20Reply%20By%20Saeb%20Erakat.ht m.

3 E.g. Bernard Avishai, “A Plan for Peace That Still Could Be” (New York Times, February 7, 2008). I. According to the Palestine Papers, PM Olmert’s Initial Offer was Presented to President Abbas on August 31, 2008

An August 31, 2008 memo entitled “Summary of Ehud Olmert’s ‘Package’ Offer to Mahmoud Abbas - August 31, 2008” is described as a:

Summary on Israel’s package offer to the Palestinians, including detailed maps of land swaps in Israel and Jerusalem. The summary includes offers on territory, Jerusalem, refugees and security. Israel would annex 6.8% of the West Bank, and safe passage between Gaza and West Bank would be under Israeli sovereignty. Sovereignty over the Holy Basin would be delayed to a later stage. On refugees, Israel would acknowledge the suffering of – but not responsibility for – Palestinian refugees. No mention is made of security. http://transparency.aljazeera.net/en/document/4736

With regard to the refugees:

Israel would take in 1,000 refugees per year for a period of 5 years on “humanitarian” grounds. (Id.)

This memo indicates the Palestinians were aware of the details of Ehud Olmert’s “package offer” for a final status agreement including detailed maps, on August 31, 2008.

For the most part, this version of the offer is in agreement with details released by Olmert, the only real distinction being the status of the Holy Basin. According to Olmert, he proposed (on September 16, 2008) that, as part of his package offer, while Jewish neighborhoods in Jerusalem would be under Israeli sovereignty and Arab neighborhoods under Palestinian sovereignty, the Holy Basin would be under some sort of international control -- Israeli, Palestinian, U.S., Saudi and Jordanian.4 But according to the Palestinian memo, “The issue [of the Holy Basin] would continue to be negotiated bilaterally between Israel and Palestine with the involvement of the United States, Saudi Arabia, Jordan and Egypt, but without the ability of these third parties to force an agreement on the parties.” http://transparency.aljazeera.net/en/document/4736.

4 E.g. http://www.theaustralian.com.au/news/opinion/ehud-olmert-still-dreams-of-peace/story-e6frg76f- 1225804745744; http://www.haaretz.com/print-edition/news/haaretz-exclusive-olmert-s-plan-for-peace-with-the-pa lestinians-1.1970.

2 II. Once PM Olmert Revealed his Package Offer to President Abbas, Lower Level Negotiations Become Irrelevant to that Offer

Israeli/Palestinian negotiations took place on two tracks. One was meetings among senior negotiators and aides to the leaders. The other track was private one-on-one meetings between Abbas and Olmert.

Under the terms of the Joint Understanding on the Negotiations at Annapolis (November 27, 2007), Prime Minister Ehud Olmert represented the Government of the State of Israel and President Mahmoud Abbas in his capacity as Chairman of the PLO Executive Committee and President of the Palestinian Authority represented the Palestine Liberation Organization (PLO).

Therefore, only Olmert and Abbas had the authority to bind the respective parties whom they represented and once an offer was made by one, only the other had the authority to respond by accepting or rejecting it or issuing a counter-offer.

III. The Only Meeting that President Abbas had with PM Olmert Subsequent to August 31st was on September 16, 2008

According to the Palestine Papers, subsequent to receiving the “package offer” memorialized in the August 31, 2008 memo, Abbas only met with Olmert one more time -- on September 16, 2008. http://transparency.aljazeera.net/en/document/4106. This is also in agreement with details offered by Olmert.5

A. The Palestinians Appear to have Decided Prior to the September 16th Meeting that Abbas would Not Issue a Counteroffer at that Meeting

In a memo dated September 9, 2008, containing a string of emails between Saeb Erekat6 and members of the Palestinian Negotiations Support Unit ( “NSU”), Hala Rashed7 wrote:

5 “Ehud Olmert Still Dreams of Peace,” The Australian, September 28, 2009 (http://www.theaustralian.com.au/news/opinion/ehud-olmert-still-dreams-of-peace/story-e6frg76f -1225804745744).

6 Saeb Erekat was the head Palestinian negotiator until his resignation in February 2011.

7 Hala Rashed is identified in the memo as a Legal Advisor to the NSU.

3 It is not clear when AM 8 will meet EO9 to give him AM’s response to the proposal. They might meet before or after UNGA.10 EO may not end up attending the UNGA. SE11 thinks there are three ways AM could respond: (1) give EO our FAPS, 12 (2) issue general communiqué about Annapolis progress, (3) simply say “no” to offer. He wants us to think up other ways to respond. Whatever we propose, he wants to make sure that: (a) we are not blamed, (b) negos are uninterrupted, and (c) no submission is made that we cannot retract. We will have a mtg with SE on Tuesday at 10am to discuss our thinking on this and other issues. http://transparency.aljazeera.net/en/document/424013

What these proposed responses reveal is that the Palestinian thinking about the Olmert proposal, at least on the Erekat/NSU level, appeared not to have been focused on developing a serious counter- offer. Rather, it sought to avoid making any binding commitments as well as being “blamed” for the failure to reach an agreement or for disrupting the negotiations process.

A September 10, 2008 memo memorializing a meeting between Saeb Erekat and Udi Dekel14 says that

8 Abu Mazen ( Mahmoud Abbas).

9 Ehud Olmert.

10 United Nations General Assembly.

11 Saeb Erekat.

12 FAPS is an acronym for Framework Agreement on Permanent Status. The FAPS goes back to the Oslo/Camp David era. The objective of concluding an FAPS was agreed upon by Israel and the PLO in the Sharm El-Sheik Memorandum (September 4, 1999). It was agreed that the FAPS would facilitate the eventual conclusion of the Comprehensive Agreement on Permanent Status (CAPS). It was further agreed that these two documents, FAPS and CAPS, would constitute the Permanent Status Agreement between Israel and the Palestinian Authority.

13 This same memo also states that prior to the 9th, but after August 31st, “SE met with Saudis and asked them to tell the US that they could not live without the holy basin/Old City.” It further states “Mubarak said that he dares any Arab leader to advise Pals to accept Olmert’s proposal,” and that “At the Arab FM mtg, Pals did not share specifics, percentages or numbers about Olmert proposal. However, they secured agreement from Arab states on a communique about (1) nothing is agreed until everything is agreed, (2) no interim agreements, (3) no partial agreements.” http://transparency.aljazeera.net/en/document/4240

14 Brig. Gen. Udi Dekel was the head of the Israeli negotiations team post-Annapolis.

4 with regard to the “AM-Olmert meeting”:

SE noted that the next meeting was not likely to be one where AM gives a decision because he doesn’t have enough information. Udi said if AM needs more information he should ask Olmert in the next meeting.15 http://transparency.aljazeera.net/en/document/4050

The document then contains the following notation:

[WE MAY WANT TO SHAPE THE QUESTIONS AS ONE POSSIBLE RESPONSE] [sic] (Id.)

A memo dated September 16, 2008 entitled “Talking Points and Questions,” is self-described as having been “prepared for Abbas’ Meeting with Olmert.” http://transparency.aljazeera.net/en/document/3294. The memo consists primarily of a long list of questions mostly about the specifics of Olmert’s “package offer.”

Some of the questions in the September 16 memo appear to be aimed at clarifying Abbas’ understanding of the terms of the offer. If these questions had been posed to Olmert and if he had given forthright answers, they could have helped move the peace process forward. Others, however, appear to be more along the lines of general argument. For example, with regard to Olmert’s offer on territory:

What is the basis of this demand? What interests are you trying to achieve? How do you see it addressing our interests . . . (Id.)

Some questions just reiterate points that Olmert had already made clear. With regard to refugees for example, in spite of the fact that Olmert’s proposal clearly stated “1,000 refugees per year for a period of 5 years on ‘humanitarian’ grounds,”16 the September 16th memo poses the following question:

Regarding the 1000 annually for 5 years: . . . are you proposing this will be under the right of return, or on humanitarian grounds under your discretion? http://transparency.aljazeera.net/en/document/3294

Some questions in the memo actually do not appear related to Olmert’s offer. For example, in spite of the fact that the Palestine Papers clearly reflect that the Palestinians understood that “‘safe passage’ (i.e.,

15 The “next meeting” is an apparent reference to the September 16, 2008 meeting between Olmert and Abbas.

16 http://transparency.aljazeera.net/en/document/4736. (emphasis added)

5 territorial link) between Gaza and the West Bank would be under Israeli sovereignty with Palestinian control . . .”,17 the September 16th memo poses the following question:

“If you are proposing a territorial link, under whose sovereignty would it fall? Under whose control?” http://transparency.aljazeera.net/en/document/3294.

Accordingly, the September 16, 2008 memo seems not to have been prepared as a serious or final list of questions to clarify Olmert’s “package offer,” but rather some sort of internal working document with some questions possibly taken from old discussions with negotiators. In any event, there is no indication in the Palestine Papers that Abbas posed these or any other questions to clarify Olmert’s offer at the meeting. 18 http://transparency.aljazeera.net/en/document/3294. If the meeting was merely “ceremonial” as the Papers indicate (see Section III(B), below), then it seems likely he did not.

Moreover, a memo dated September 22, 200819 (see Section IV, below) contains many of the same and similar questions as the September 16th memo. This indicates that the questions had not been presented to Olmert as of September 16 but rather were still being formulated six days later.

What also seems clear from the Palestine Papers is that Abbas and Olmert never met again after September 16, 2008 and that Abbas never proffered a counter-offer to Olmert’s “package offer.” There is not one document indicating a subsequent meeting and not one document outlining a counter-offer or indicating that one was ever worked on or proposed in writing or verbally.

B. The NSU Notes from Abbas’ Morning Meeting Clarify that Abbas Did Not Intend to Make a Counter-Offer at the September 16, 2008 Meeting with Olmert

17 http://transparency.aljazeera.net/en/document/4736 (emphasis added)

18 While there are later claims to U.S. officials that questions were presented to Olmert and/or the Israelis for clarification: (i) there are no internal memos documenting this; and (ii) there are no similar claims made to the Israelis -- i.e. there is no document indicating that the Palestinians ever said to the Israelis “Abbas submitted questions to Olmert where are the answers?” The Israelis, of course, would have known if the questions had actually been presented to them. See Section VII (D), below.

19 http://transparency.aljazeera.net/en/document/3328.

6 An email from Wassim Khazmo20 to other NSU members memorializes President Abbas’ morning meeting on September 16, 2008. It discusses the 8 p.m. meeting Abbas was to have (later that day) with Olmert to discuss the “package offer,” refers to “Olmert’s media stunts” and makes very clear that Abbas did not intend to propose a counter-offer at that meeting. It also makes clear that the Palestinians considered this a final and “ceremonial” meeting only and with regard to the Olmert offer did not want to be blamed for the failure to reach a final agreement:

The assessment is that the meeting will be a ceremonial meeting; since this will be their last meeting before Olmert leaves office. I raised the issue of the leaks again, and how event [sic] the JPost article has leaked the 98.1% offer. There was an agreement that the article was not very credible, and even though, Olmert tenure is over, and the percentages are deceiving. In order to avoid the blame game, the President today is going with a positive attitude, where he will ask more questions from Olmert on his offer, and he will tell him that the Palestinians will respond later. http://transparency.aljazeera.net/en/document/4106

There is a very detailed map dated September 16, 2008 in the Papers which is the Palestinian “Projection of Israeli Proposal for Territory,” indicating a fairly good understanding of what Olmert’s proposal on territory was. http://transparency.aljazeera.net/en/document/3301. There is another detailed map also dated September 16, 2008 which is the Palestinian projection of Olmert’s proposal specifically for Jerusalem, again indicating a good understanding of the proposal. http://transparency.aljazeera.net/en/document/3299.

IV. According to the Documents in the Palestine Papers, the Palestinians Did Not Consider Olmert’s “Package Offer” a Proposal that Required a Response

A September 22, 2008 memo entitled “Palestinian Talking Points Regarding Israeli Proposal” indicates that the Palestinians took the position that Olmert’s “package offer” was not an actual proposal to which they had to respond:

Given the significant gaps in what Israel has presented so far in terms of meeting the interests of both sides, and the lack of completeness in what we have seen, we cannot say honestly that we have received any real consider it a “proposal”. [sic] Therefore we having nothing to accept or to reject. , and should not be expected to either accept or reject what we don’t know.

20 Communications advisor at the NSU.

7 Therefore, we need to know more, particularly on the key core issues, from Israel in order to assess their proposal and give our response to it. http://transparency.aljazeera.net/en/document/3328

The September 22 memo contains a list of general requirements the Palestinians would have for a final status agreement. For the most part it is a conglomeration of previous positions the P.A. had held on core issues. At times it is vague and in draft form. For example, on the issue of refugees:

An international mechanism should be established [bold this language: after a detailed agreement is reached on the above elements. The mechanism will serve to manage the implementation of refugees’ rights: to assist in the movement and rehabilitation of refugees and to process their restitution and compensation claims. (Id). (emphasis in original)

In some cases, requirements were left uncompleted -- for example, the reference to refugees lacked any specific numbers:

[including ______refugees per year for a period of ______years to Israel.] (Id.).

Certain points are clearly meant not as proposals to the Israelis, but rather as starting points or terms of reference for negotiations:

Even if the 1967 line may not be the end point to the territorial negotiations, it must be the basis of all claims addressed in the agreement (refugees, compensation, etc.). (Id.)

Thus, all of the requirements listed in the September 22 memo put together would not amount to a counter-offer even if they had been presented to Olmert, although the memo may reflect efforts to produce an initial working document from which Abbas might have developed a serious counter-offer.

The memo also contains a long list of questions “for clarity on many of the ideas that have been put forward so far . . .” (Id.) As with the September 16th memo, (see Section III(A), above), some are questions which would have been useful to clarify Olmert’s offer. Many others, however, are merely argumentative and cannot be characterized either as questions which could be used to clarify the package offer or as counter-offers. E.g.:

How does Israel propose to reach an agreement on the end of conflict without addressing the right of return, as well as the right to restitution? ” and “If the suffering of the refugees is recognized,

8 why does Israel refuse to deal with compensation for non-material damages? (Id.)

Again, some questions in the memo do not seem to be connected to, or to take cognizance of, Olmert’s offer. For example, the following question is listed under “Issues that require response by Israel”:

If Israel is proposing a territorial link, Under whose sovereignty would it fall? Under whose control? (Id.)

Yet, according to the Palestinian memo dated August 31, 2008, the issue of territorial link from the West Bank to Gaza had been made very clear to the Palestinians in Ehud Olmert’s package offer:

The “safe passage” (i.e., territorial link) between Gaza and the West Bank would be under Israeli sovereignty with Palestinian control, and is not included in the above percentages. http://transparency.aljazeera.net/en/document/4736.

There are no maps drawn to go along with the September 22 Memo. In fact, while the Palestine Papers include detailed maps depicting Olmert’s 2008 offer on territory, nowhere in the Palestine Papers is there a map -- detailed or otherwise-- depicting a Palestinian counter-offer.

Thus, it is very clear that whatever this memo is, and however it was put together and for whatever purpose, it was not a counter-offer.

And just like the September 16, 2008 memo, there is no evidence in the Palestine Papers that this memo was ever finalized into the form of a counter-offer, or delivered to Olmert in any form. In fact, after September 2008, the Palestinians continued to take the position that the Olmert “package offer” was not a proposal that warranted a counter-offer.

An October 5, 2008 email from Zeinah Salahi21 summarizes a meeting between Saeb Erekat and Udi Dekel wherein the two discuss the Olmert package proposal. http://transparency.aljazeera.net/en/document/4115. Erekat made reference to a Palestinian “proposal on territory,” and noted that this was “the first time they showed flexibility on the majority of the Jerusalem settlements,” but Udi Dekel pointed out that this was not a counter-proposal offered by Abbas to Olmert’s package proposal, but rather positions that had been previously taken by the Palestinian negotiators. According to the email, Dekel told Erekat:

What you’ve [i.e. palis] [sic] put forward are just your positions repackaged and not reflective of the negotiations. (Id.)

21 PLO legal adviser and member of NSU.

9

According to Mr. Salahi’s email “UD [Udi Dekel] clearly thinks that most of the substance was happening between AM and Olmert.” (Id.)

And when Erekat argued that Olmert had not given Abbas anything in writing and noted that “it was ridiculous to think any decisions could be made with nothing submitted in writing,”22 Mr. Dekel’s response was “‘This is the leaders not the NSU” they don’t need details. They need to agree in theory and then get the details . . .’” (Id.) Saeb Erekat also argued that “Constructive ambiguity gets you no where” and gave as an example “How do you expect palis [Palestinians] to make a decision if we have no idea how you define the holy basin.” (Id.)

An internal Palestinian memo dated December 22, 2008, which describes meetings with various U.S. officials refers to “Olmert’s purported ‘offer,’” indicating that by the end of December the Palestinians were still not characterizing Olmert’s comprehensive proposal as a legitimate offer. http://transparency.aljazeera.net/en/document/3664

V. The Palestine Papers Reveal that Abbas was Being Advised Not to Respond to Olmert’s Offer

Khaled Elgindy23 wrote an advisory email dated October 6, 2008 which included “potential recommendations for AM.” Mr. Elgindy’s advice was for Abbas to delay negotiations until George Bush was out of the White House. http://transparency.aljazeera.net/en/document/4113.

First Elgindy notes that:

It is now clear that the Bush Administration does not expect an agreement before Jan. 09, and that the goal between now and then is to maintain momentum and a proper transition to the next Admin. (Id.)

Elgindy goes on to explain that because Condoleeza Rice wanted an Israeli-Palestinian final status agreement before the end of Bush’s term she would have to be “neutralize[d]”:

22 A comprehensive package proposal need not be in writing. When Bill Clinton issued the “take it or leave it” Clinton Parameters to Yasser Arafat and Ehud Barak in December 2000, they were not in writing. (See Clinton, Bill, My Life (Vintage Books. 2005) at pp. 936- 937 ; Dennis Ross, A Missing Peace: The Inside Story of the Fight for Middle-East Peace (Farrar, Straus and Giroux - June 2005) at pp. 809- 813.)

23 Mr. Elgindy was an advisor at the Palestinian Negotiations Support Unit from 2004 to 2009 and a key participant in the Annapolis negotiations.

10 We can therefore conclude that Rice is basically alone in thinking an agreement can be reached by Jan. 09. This is consistent with what I heard from CM, who confirmed that “Rice does not have the support of her senior staff”. However, the fact that Rice is alone does not mean she can’t still do damage, even after Jan. 09. In which case, it will still be necessary to neutralize (though not necessarily block) Rice on some level. (Id.)

Elgindy apparently did not want Abbas to have any further meetings with PM Olmert, advising instead to:

Continue to engage at the Abu Mazen-Livni level at the current pace (1 mtg/month = ~3 meetings by Jan. 09). (Id.)

Elgindy made the following specific recommendations for how the Palestinians should proceed:

Allow Technical committees to engage as needed (i.e., at the discretion of the committee heads), but without forcing them to do so (e.g., Territory has nothing to discuss without being allowed to see the Israeli map).24 Intensify diplomatic outreach efforts both domestically and abroad, particularly with key governments (US, Europe, Arab states), highlighting: (a) facts on the ground (settlement expansion, closures, etc.), as well as (b) the problematic nature of Israeli “proposals” (delaying Jerusalem, Ariel/Maale Adumim, etc.). Develop a comprehensive media/PR strategy in parallel with the above (including more op-eds interviews by AM and other senior Pals with major US/European media, etc). Immediately initiate contacts with both the Obama and McCain camps (i.e., before Nov. 4) in order to brief them on the negotiations and begin preparing them for the transition (obviously, this will intensify with the winning camp after Nov. 5). (Id)

In essence, according to the documentation available in the Palestine Papers, Mr. Elgindy’s advice as of October 6, 2008, was focused on managing public opinion and moving towards a new U.S. administration, rather than getting back to PM Olmert with a counter-offer that could conceivably have resulted in a final status agreement in late 2008/early 2009.

24 This appears to be a reference to the territory negotiating committee and Mr. Elgindy appears to be taking the position that because PM Olmert did not give President Abbas a copy of the Israeli-drawn map depicting Olmert’s offer, there is “nothing [for the Palestinian negotiators] to discuss,” presumably including trying to develop a counter-offer for the territory portion of the “package offer.”

11 VI. By September 16, 2008 the Palestinians Appeared to be Thinking Beyond Olmert and Excluding Him From any Serious Negotiating “Action”

One very interesting line in the October 5, 2008 email says “SE noted [in the meeting with Udi Dekel] that once there is one track (TL with AM) much of the confusion over positions etc. will be harmonized.” http://transparency.aljazeera.net/en/document/4115.25

This is a very strong indication that by October 2008 the Palestinians were no longer interested in engaging PM Olmert in serious peace talks and instead were looking ahead to an Israeli leadership that would follow Olmert. In fact, however, Olmert was not out of office until March 31, 2009.26

Repeated subsequent internal Palestinian documents reinforce the impression that from this point forward, the P.A. was looking beyond Olmert and not making any serious attempt to fashion a final status agreement out of his offer. E.g. Draft NSU Memo Re: NAD/NSU Visit to Washington, D.C. (December 1-5, 2008) http://transparency.aljazeera.net/en/document/3664 (“all parties now understand that there is no chance of concluding a peace agreement before the end of Bush’s term”).

VII. There is No Indication Anywhere in the Palestine Papers that President Abbas ever Made a Counter-offer

After Khaled Elgindy’s October 6, 2008 memo, the record in the Palestine Papers pretty much falls silent on the Olmert “package offer.” Internal memos (including those summarizing morning meetings with President Mahmoud Abbas) after October 6, 2008 do not reference it at all, except when it is raised by U.S. officials and the Israelis.

An October 7 memo entitled “Recommendations on Negotiation Process ”(marked “confidential” “Not for Distribution”) drafted by the NSU contains no reference whatever to Olmert’s proposal and the list of recommendations for “negotiations Process Immediate” [sic] (emphasis in original) contain no reference to a possible counter-proposal.27 In fact, in spite of the fact that Olmert remained in office for almost six additional months, the entire memo looks right past both Olmert and his proposal and instead recommended:

25 “TL” is Tzipi Livni.

26 See, e.g., http://worldnews.about.com/od/israel/p/ehudolmert.htm;

27 The memo did contain a recommendation suggesting that a “comprehensive media/PR strategy . . .” be developed taking into consideration, among other things, the fact that Israeli journalists have blamed “the Palestinians who ‘keep saying no to Israeli offers because they know that they will be offered more the next time around.’” http://transparency.aljazeera.net/en/document/3391

12 In the short term, it may be constructive to continue to engage at the Abu Mazen - Livni level at the current pace. http://transparency.aljazeera.net/en/document/3391

A. From the Palestinian Perspective Abbas and Olmert were Not Close to an Agreement

The Palestinians continued to perceive the Olmert proposal as lacking viability and the gaps between the two parties as “wide.” http://transparency.aljazeera.net/en/document/3493.

A November 9, 2008 internal Palestinian memo containing talking points for Mahmoud Abbas’ upcoming meeting with the Quartet acknowledges that “Due to political developments and the wide gaps, it is clear that an agreement by the end of 2008 is unlikely.” http://transparency.aljazeera.net/en/document/3493

Repeated documents dated after Olmert’s offer had been delivered, refer to the fact that “there remain many gaps and difficulties.” E.g. http://transparency.aljazeera.net/en/document/3637.

B Bridging Proposals from the U.S. or any Third Party were Expressly Rejected

Recent statements by commentators to the contrary,28 there are repeated places in the post-Olmert offer Palestine Papers where it is expressly stated that both the Palestinians and the Israelis had agreed that they did not want “bridging proposals from any third party. [They] need[ed] political decisions on both sides.” November 9, 2008 Talking Points for President Mahmoud Abbas Re: Upcoming Quartet Meeting http://transparency.aljazeera.net/en/document/3493.

See also e.g. October 8, 2008 NSU Email Re: Heads of Committee Meeting, http://www.ajtransparency.com/en/document/4096 (“Saeb confirmed there should be no partial or bridging agreements and proposals.”); Talking Points - Post-Annapolis Process, December 2008, http://transparency.aljazeera.net/en/document/3637 (“In addition, we have agreed with the Israeli side on the following principles: We do not need bridging proposals from any third party, but rather political decisions by both sides.”).

C. While the Palestinians told U.S. Officials that Abbas Made a Counter-Offer, Every Indication in the Palestine Papers is that He Never Did

28 In his article entitled “A Plan for Peace That Still Could Be,” Bernard Avishai wrote that with regard to the 2008 proposal, “Abbas, in particular, was counting on American ‘bridging proposals.’” Mr. Avishai may not have been familiar with the contents of the Palestine Papers at the time he wrote this article. (New York Times, February 7, 2011).

13 In a December 2, 2008 memo memorializing a briefing Saeb Erekat gave to U.S. officials:

Erekat expresses his concerns about a recent proposal from Olmert and the ultimate viability of such a proposal. http://transparency.aljazeera.net/en/document/3610 .

This December 2, 2008 memo indicates that in response to David Welch’s 29 question “What do you think of Olmert’s presentations?”, Erekat complained that the proposal had been verbal and not in writing. http://transparency.aljazeera.net/en/document/3610. Erekat further informed Mr. Welch that “We offered 2% swap that would allow 70% of settlers to remain.” (Id.)

Offering a “2% swap,” however, would not have constituted a counter-offer to a comprehensive package deal. Not unless the Palestinian Authority is ready to take the position that it otherwise accepted the elements of Olmert’s proposal including a cap on 5,000 Palestinian refugees “returning” to Israel. This is clearly not the case.30

Moreover, nowhere in the Palestine Papers is there any indication that Abbas ever communicated this “counter-offer” of “2% swap” -- or any other -- to PM Olmert. And while the Palestinians had memos and maps outlining the Israeli offer in detail,31 there is no documentation in the Palestine Papers of the parameters of a counter-offer designed to respond to this offer.

According to the memo, Saeb Erekat told David Welch that “We asked Olmert to respond to the questions32 and explain in writing what he is proposing but he didn’t respond. I asked him again on November 16 there was no response, no map.” http://transparency.aljazeera.net/en/document/3610.

29 David Welch was, at the time, serving as Assistant Secretary of State for Near Eastern Affairs in the United States Department of State.

30 E.g. The September 22, 2008 internal memo apparently drafted in part in response to the Olmert Package Offer states: “Regarding the 1000 returnees annually for 5 years: while we agree to negotiate the number of returnees in consideration of Israel’s capacity of absorption, this particular offer cannot be taken seriously.” http://transparency.aljazeera.net/en/document/3328

31 [http://transparency.aljazeera.net/en/document/4736; http://transparency.aljazeera.net/en/document/3299) http://transparency.aljazeera.net/en/document/3301;

32 While there is this record of Saeb Erekat telling U.S. officials that the Palestinians had submitted questions to Olmert for clarification of his proposal, there is no record of any Palestinian negotiator saying this to any Israeli negotiator. (See Section VII (D), below)

14 A December 22, 2008 memo memorializing meetings in Washington D.C. between Palestinian negotiators and U.S. officials notes that “Current administration officials continue to have a very limited understanding and appreciation for Palestinian interests and needs as they relate to current negotiations. Indeed, several NSC and DOS officials are still inquiring about Olmert’s purported “offer”, some of whom apparently had not seen Abu Mazen’s list of questions seeking clarification from Olmert.” http://transparency.aljazeera.net/document/3664.

In a February 27, 2009 meeting between Saeb Erekat and George Mitchell, Mr. Erekat took the position that because there was no written proposal from Olmert they could not counter-offer, but that they had submitted questions for clarification. http://transparency.aljazeera.net/en/document/4449 (“if Olmert had offered AM in writing, things would be different. Instead he refused to hand him the map. We prepared questions for Olmert to clarify what he was offering [SE discussed several examples of the questions, notably on Jerusalem and the so-called holy basin”].

Mr. Erekat tells Mr. Welch at the December 2 meeting that on the one hand the Palestinians “offered [a] 2% swap,” and on the other hand “We need something [sic] writing with such sensitive issues. Otherwise how can you say we have an offer?” and “Olmert wants to lock in that Palestinians agreed to his proposal. But what this proposal is we don’t know.” http://transparency.aljazeera.net/document/3610.

These are seemingly contradictory positions. Either Olmert’s proposal was too vague to be responded to because it was not in writing or a “2% swap” was the Palestinian response.

There is a history in the Israeli/Palestinian peace negotiations of serious and comprehensive offers being made verbally so that neither party could walk away from the offer without making a counter-offer and then return to it at a later date as a starting point for future negotiations.33 Since there are multiple documents within the Papers outlining the proposal with explicit language identifying it as the Israeli proposal and there are maps of the proposal, the Palestinians seemed to have understood the contours well enough certainly at least to fashion a counter-offer. A Palestinian counter-offer could have supplied whatever details they thought necessary to close gaps.

There are no documents showing the questions that were supposed to have been submitted to Olmert; no documents memorializing that Erekat asked Olmert about those questions on November 16; no internal memos referencing any questions that had been posed; no internal memos indicating that Abbas was waiting for clarifying answers from Olmert; no documents outlining a counter-proposal; no memos indicating that Abbas or the negotiators were working at drafting a counter-offer; and no documents memorializing the fact that a counter-proposal was ever written or otherwise fashioned or submitted.

Although there are memos memorializing the fact that Palestinian negotiators told U.S. officials they had submitted questions for clarification to Olmert, there are no internal memos specifying which questions

33 See Clinton, Bill, My Life (Vintage Books. 2005) at pp. 936- 937 ; Dennis Ross, A Missing Peace: The Inside Story of the Fight for Middle-East Peace (Farrar, Straus and Giroux - June 2005) at pp. 809- 813.

15 had been sent and when or complaining that they had not been responded to or indicating that the Palestinians were waiting for a response from Olmert before making a counter-offer.

D. As of December 2008 the Israelis Were Still Asking for a Counter-Offer

According to the Palestine Papers, the topic of a Palestinian counter-offer to Olmert’s proposal also came up at a December 14, 2008 meeting of Palestinian and Israeli negotiators on the Refugee Committee.34 This meeting and the conversations among the negotiators is memorialized in considerable detail in an internal memo. http://transparency.aljazeera.net/en/document/3651.

Unlike the position he took with U.S. officials, when speaking with the Israelis, Saeb Erekat does not claim that the Palestinians submitted questions for clarification of Olmert’s “package offer.” If in fact Abbas had submitted these questions, why didn’t Erekat ask the Israelis where the answers were? When Udi Dekel pointed out that Abbas had not made a counter-offer to Ehud Olmert’s “package offer,” why didn’t Erekat tell him that Abbas could not make a counter-offer because he was still waiting for answers to his questions? Instead Saeb Erekat responded to Dekel only by saying “On territory, we have offered 1.9% of the WB.” (Id.).

It is not clear here what Saeb Erekat is referring to here. The 1.9% figure pre-dates the Olmert offer and goes back to at least June 15, 2008 in the Palestine Papers, where it is shown in a “Matrix of Israeli and Palestinian Positions” chart as having been presented to Udi Dekel in a negotiating committee meeting. http://transparency.aljazeera.net/en/document/2722. See also June 30, 2008 “Matrix of Palestinian-Israeli Positions,” http://transparency.aljazeera.net/en/document/2819.

The 1.9% figure is not mentioned at all in either the September 16, 2008 memo of “talking points” for Abbas at his final meeting with Olmert,35 or the September 22, 2008 memo of “Palestinian Talking Points Regarding Israeli Proposal.”36 Therefore, it appears that the 1.9% figure did not play a part in the Palestinian thinking about possible responses to Olmert’s package offer. Moreover, there is no indication whatever of this figure having been presented to Olmert post-September 16, 2008.

34 Palestinian negotiators at the meeting included Dr. Saeb Erekat, Zeinah Salahi and Ziyad Clot. The Israeli negotiators present were Tal Becker, Udi Dekel , Kamil Abu Rukun, and Lee Arad. http://transparency.aljazeera.net/en/document/3651

35 http://transparency.aljazeera.net/en/document/3294.

36 http://transparency.aljazeera.net/en/document/3328

16 In response to Erekat’s reference to “1.9%,” Dekel says “this is not a counter offer to our ‘“package’”. It deals only with territory.” http://transparency.aljazeera.net/en/document/3651. Erekat then said: “But we have made detailed offers on refugees, territory, Jerusalem etc. We have submitted detailed papers on all issues.” (Id). Dekel then makes the point that:

“There is difference between offering a ‘package’ deal and our discussions on territory. You have not presented a counter offer to us.” (Id.)

Udi Dekel’s reference to “our discussions on territory” appear to refer to the negotiators’ meetings which were separate and distinct from any meetings (held on a higher level) between Abbas and Olmert. This is an important point because while myriad ideas on all of the core issues had been presented by mid- and lower-level negotiators before, during and after Annapolis, none of this is a “counter offer” to the comprehensive peace deal proposed by PM Olmert in the fall of 2008. To use the words of Dr. Erekat in his recent article, this is the distinction “between official positions and explorations or polemical rhetoric during the course of negotiations . . .”37 “Explorations or polemical rhetoric” exchanged between negotiators in their committee meetings did not constitute a specific counter-offer from Abbas.

Moreover, once the Israeli Prime Minister presented a comprehensive offer to President Abbas, only President Abbas had the authority to respond in a binding manner. (See Section II, above). And there is no record in the Palestine Papers that this ever happened.

37 www.maannews.net/eng/ViewDetails.aspx?ID=364221; http://www.aljazeerah.info/Opinion%20Editorials/2011/March/8%20o/Till%20September,%20Ar e%20the%20PA's%20Deadlines%20Meaningless,%20A%20Reply%20By%20Saeb%20Erakat.ht m.

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