According to international law, it is the Israeli authorities that must convince the Palestinians to allow them to exist, not the other way around, writes Curtis Doebbler* The Israeli-Palestinian talks taking place under the auspices of the United States highlight a denial of reality and a shocking ignorance of international relations by the parties involved. More than providing any chance of a just solution to the Palestinian problem, the talks offer an opportunity to evaluate the credibility and legitimacy of the various actors in the process. They are an opportunity for the Palestinian people, the Arab community, the Islamic community, and the international community at large to review the integrity of participants and to learn lessons that might make a solution possible in the future. Some of these lessons are already apparent. ISRAEL WILL NOT ACT IN GOOD FAITH: The first lesson to be learnt is that Israel is ruthlessly committed to perpetuating its own existence as a state without regard for international law or the views of the rest of the international community. This is troubling to anyone who respects the rule of international law. It is also a strong indication that the type of action needed to sway Israel will not be negotiations, but will need to include effective enforcement measures. Israel emphasised its intransigence last week in the context of negotiations around the UN Human Rights Council by calling for removal of consideration of the situation of Palestine from the council's agenda. This was an attempt by Israel to avoid criticism from a body that has frequently been critical of Israel and has attempted to apply international law. Rather than acting in accordance with any of the numerous resolutions of the UN that call on Israel to respect international law, Israel focused on killing these calls by removing the item concerning Palestine from the agenda of the council. Israel's contempt for international law has even reached the state of its most respected leaders apparently encouraging the perpetration of the crime of genocide. Israel's former Chief Rabbi Ovadia Yosef recently stated about Palestinians that, "all these evil people should perish from this world." Israel's intransigent refusal to respect international law is manifested in so many ways that they are hard to count. Most notably it continues to deny Palestinians their right to self-determination by continuing an occupation that the UN has repeatedly called illegal. Israel has taken so much land from the Palestinians that there is no longer enough land for a viable state. In undertaking its land grab in 1948 and 1967, borders have been ignored, as has been the will of the Palestinian people, which is a condition of international law applying to the creation of any state in the region long before Israel was created. On a daily basis Israel has intentionally created conditions of life that are intended to destroy all or at least a significant part of the Palestinian people living in Gaza. These conditions included daily violations of the human rights to food, to health, to education, to security of person, and even to life. They also include the wilful killing of dozens of Palestinian women and children. Even in the West Bank, as they talk with the Palestinian president, Israel is continuing to build settlements to confiscate Palestinian land, to destroy Palestinian homes, and violate rights to health, to education, to freedom of movement, to participate in government, to fair trial, and to life. Any international negotiations, especially those about such a weighty matters, must be based on international law. Israeli's disrespect for law has made it painfully clear that this cannot be the case. The international community must learn the lesson that they need to move to dealing with Israel through enforcement measures. THE US IS NOT A NEUTRAL PARTY: While most Palestinians learned the lesson that the US is not a neutral negotiating party long ago, many others in the international community have not learned this lesson. President Obama still pranced down the red carpet leading the parties into negotiations as if he were a neutral party. To most Palestinians and Arabs this was merely a display of an arrogant leader leading the humbled and obedient Palestinians to the gallows. The US remains the main funder of Israel's occupying military and the main champion of Israel while it continues to oppress the Palestinian people. At the same time the United States continues to keep both the Palestine Liberation Organisation (PLO) and Hamas on its list of terrorist organisations. Such differences in treatment show a bias so extreme that one should wonder if any right-minded Palestinian politician would ever even talk to the United States. In any event, most certainly under such circumstances, it is impossible for the United States to be an impartial actor or a mediator in peace talks. THE TALKS ARE NOT REALLY SUPPORTED BY PALESTINIANS OR THE INTERNATIONAL COMMUNITY: While Washington seeks to claim that it is convening peace talks that are widely supported, the opposite is more likely true, based on statements of Palestinians and other prominent actors in the international community. Despite PLO allegations that polls showed support for direct talks before they began, among prominent Palestinians the reaction to talks inside and outside of Palestine has been overwhelmingly negative. The PLO Arab Liberation Front's Ibrahim Az-Zaaneen called the talks a waste of time. Former legal advisor to the PLO Diana Buttu referred to the decision to enter talks as being "incredibly unpopular with Palestinians". Palestinian National Initiative leader Mustafa Barghouti implored Abbas to reconsider his decision to enter into direct talks. Hamas spokesman Sami Abu Zuhri called the talks a "conspiracy against the cause". And Miftah.org reported on 1 September that based on a recent poll less than 25 per cent of all Palestinians believes that peace talks can succeed. Outside of Palestine, the resentment and scepticism of Palestinians is equally growing. Almost 50 prominent Palestinians, mostly living outside Palestine, signed or endorsed a letter on 22 July criticising Abbas for caving into demands from the United States and Israel. The letter to Abbas stated that as Palestinians the right to self-determination and other rights under international law "inhere in us as a people; they are not yours to do with as you please." It went on to call for a "legally and democratically elected leadership that is responsible, capable and committed to the fulfilment of our national rights and aspirations to live in freedom, dignity and just peace in our ancestral homeland," and called upon Abbas "to immediately revive the democratic processes" so that Palestinians "can designate leaders with an effective vision and strategy for achieving our rights as a people." The lack of legitimacy of the current Palestinian leadership has also been apparent to outside observers. Hizbullah leader Hassan Nasrallah criticised the talks as a sell out of the Palestinian people. And Iranian President Mahmoud Ahmadinejad referred to the talks as "doomed to failure" and questioned the legitimacy of Abbas to speak for the Palestinian people. Indeed, Abbas's term in office expired more than year ago but he has continued to be an unelected president until he authorises new elections to be held. Even Palestinian strongman Mohamed Dahlan, who is widely credited with having instigated the Hamas crack down in Gaza by threatening to overthrow the elected government, was reported by The Jerusalem Post on 9 September as saying that the "negotiations [are] doomed to fail because the US is biased in Israel's favour." This is a significant statement coming from a "love child" of the Americans, but it also shows the delusions harboured by Dahlan's own Fatah Party in entering into negotiations under American auspices. YOU CAN'T NEGOTIATE PEACE WITHOUT ONE OF THE PARTIES: The absence of Hamas is perhaps the biggest single handicap to the peace talks. Excluding this actor is apparently a concession to the arrogance of the Americans and the pride of the Ramallah based Palestinians. There are few examples in international history of a lasting peace being imposed on parties. Those examples that do exist are based on large-scale enforcement efforts that usually are wars. The first and second world wars were attempts to impose peace. Both these wars were allegedly fought on a foundation of justice. To impose peace on the Palestinians by force would be to impose injustice. A peace imposed by coercion and threats, including implicit threat of use of force, and in which Hamas has not participated, is likely not to be accepted by the majority of Palestinians. It may even create a greater divide between Israel and Palestinians. A just peace could perhaps be achieved by the collective use or threat of force to require Israel to recognise the Palestinians' right to self-determination. But this type of action is unlikely under the current circumstances. It would also require that Israel and the United States put such faith in international law and processes that they could accept that this might mean that the State of Israel would cease to exist. The second best alternative would be to make the peace process more transparent and inclusive. This would require involving Hamas. ONLY A REAL INTERNATIONAL INITIATIVE MIGHT WORK: If it is recognised that the United States is not a neutral broker, then a search can begin for a more appropriate forum. For such a forum to work it will either have to be an inclusive regional forum, or an international forum. This conclusion is not surprising given that it is exactly the solution initially proposed by the United Nations acting with the emotional and intellectual intensity generated by a horrendous world war. When the victors and a few friends got together to create the United Nations they opted for international dispute settlement mechanisms based on law, on regional authority, and international authority. The ultimate international actor was intended to be the UN General Assembly. Although the Security Council was given the primary -- not exclusive -- responsibility for peace and security, this was conditioned on its ensuring prompt and effective action by the United Nations. To date the Security Council's action has been anything but prompt or effective. As a consequence the General Assembly has the responsibility to take over the resolution of "The Question of Palestine," as it is generically called in UN jargon. This responsibility is not met by the UN secretary general's involvement in "the Quartet" with Russia, the United States, and the European Union. In fact, this involvement would seem to contradict the responsibility that rests squarely on the shoulders of the United States government. Rather than promoting peace, the Quartet has merely fomented resentment and caused the parties to move further apart. This is not surprising given what has already been said about the United States, which is the leading actor in this forum. While a regional mechanism might also have been possible, the Arab League, despite its good intentions has shown itself to be both inadequate and to be perceived as biased by the Israeli authorities. Despite the good intentions of its secretary general, former Egyptian Foreign Minister Amr Moussa, the League has proven itself to be inappropriate for the task. WHAT IS NEEDED? According to Marwan Barghouti, the jailed Palestinian activist who would have likely been elected president instead of Mahmoud Abbas had he not been imprisoned, unity must be the primary concern of the authorities in Ramallah and in Gaza. Indeed, Hamas leader in Gaza Ismail Haniyeh has said the same thing. This meeting of minds of Palestinians, however, has not been reciprocated by President Abbas. Instead, Abbas has refused repeated invitations to meet his Gaza counterpart. Palestinian diplomats in New York and Geneva have constantly discouraged such meetings, usually attaching statements of animosity towards Hamas to their dismissals. The Holy Quran requires Muslims to work for unity (48:29). This would seem to be common sense. Even a small town American lawyer who became president recognised almost 150 years ago that "[a] house divided against itself cannot stand." While the American experience of disunity led to the most bloody war in which the United States has ever been involved, the disunity between Palestinians threatens the very existence of the Palestinians people. If Abbas wants to show courage and that he really cares about the wishes of the Palestinian people he should enter into direct face-to-face talks with Haniyeh and continue those talks until Palestinian unity has been restored. It was the commitment to unity of all Palestinians that endeared his predecessor to the Palestinian people. It is Abbas's lack of commitment to unity that has characterised his administration. Only after Palestinians have been unified can they begin to discuss their strategy for peace with Israel. At this point the Palestinians should go back to the most fundamental basics. They should recognise that Palestinians have had their right to self-determination denied since their occupation by the British in the 1920s. According to international law, as interpreted by the overwhelming majority of international jurists, the indigenous people of Palestine had the right to decide their own fate at the end of their mandate. They have never been allowed to exercise this right, but they still firmly possess it under international law. The right to self-determination does not mean that the State of Israel that has been recognised by the United Nations must be dissolved, although it does not exclude this possibility either. What it does mean is that any decision on what state or states are formed in the region must be made in full consultations with the broader Palestinian community. Stated in this manner, as international law requires, it is the Israeli authorities that must convince the Palestinians to allow them to exist, not the other way around. It is also Israel that must make significant concessions, not the Palestinians. Considered in this light, it is quite possible that the UN General Assembly could propose a just solution for "The Question of Palestine" that would meet the expectations of the parties in so far as these are in conformity with international law. And in so far as they are not, the General Assembly might have to show that it has the courage to act on the principles upon which the UN as founded and take measures to ensure respect for international law. Such solutions, of course, depend on leaders who have integrity, a sense of purpose, courage, and a healthy respect for international law. Only such leaders are up to such a daunting and world changing task. Barack Obama, Mahmoud Abbas, Ban Ki-Moon, and Binyamin Netanyahu have yet to exhibit these qualities, but it may still not be too late. * The writer is a prominent international human rights lawyer.
