New Diplomatic Initiatives / The Repudiation of Violence and Terrorism: The Heart of the Oslo Process / Oslo Allows Israeli Right of Re-entry into Area A / Arafat´s Two-Stage Strategy / Settlement Activity Under Oslo / Settlements Less than 2 Percent of West Bank / Rewarding Violence / Rewarding Non-Compliance / Prejudicing Israel´s Claims to Secure Borders

New Diplomatic Initiatives

Israel has been increasingly facing new diplomatic initiatives that, in effect, call for a freeze in Israeli settlement activity in exchange for a cessation of the eight-month-old, low-scale warfare on the part of the PLO, which the Palestinians call the Al-Aqsa Intifada. This new linkage has arisen in two distinct forms. First, according to early versions of the Egyptian-Jordanian Initiative of April 2001, the Palestinians are called upon to end incitement to violence and guarantee security cooperation, but Israel is expected, inter alia, to freeze new settlement activity.1

Second, the Sharm el-Sheikh Fact-Finding Committee, headed by former Senator George J. Mitchell, adopted a similar approach in its initial report dated April 30, 2001. The Mitchell Committee accepted the PLO argument that the continuing growth of settlements served as a source of genuine popular anger that provided one of the roots of the current violence. Therefore, besides calling for an end to violence, the Mitchell Committee Report specifically includes in its recommendations that "The Government of Israel should freeze all settlement activity, including the ´natural growth´ of existing settlements."2 Palestinians understood that a direct trade-off is being suggested here: "Now the Mitchell Committee has presented a new equation for the restart of negotiations: Total freeze of settlement activity and the total cessation of Palestinian resistance."3

This implicit linkage between a cessation of Palestinian violence and a freeze on settlement growth raises serious questions. The employment of violence in any manner as a negotiating tool for settling Israeli-Palestinian differences is a violation of the Oslo Agreements. In contrast, settlement activity is specifically defined as an issue with which the parties are to deal in permanent status negotiations; in the interim, the Oslo Agreements do not prohibit the growth of settlements which remain under Israeli jurisdiction any more than they prohibit the growth of Palestinian towns and villages under PLO jurisdiction. Thus, the proposed linkage requires that Israel make a new concession to the PLO, beyond its Oslo responsibilities, in exchange for PLO compliance with the Palestinians´ Oslo responsibilities. Advocates of linkage, in short, seek to re-write the Oslo Accords.

Moreover, this proposed Israeli concession is being sought in the aftermath of more than half a year of Palestinian-incited violence against Israel. Clearly, under such circumstances, any new Israeli acceptance of a settlement freeze could easily be interpreted as a reward for violence, thereby undermining any future cease-fire between the parties over time; after all, violence will have demonstrably led to a tangible Israeli concession and thus have proven its utility. In order to better elucidate these points, the respective obligations of Israel and the PLO regarding violence in the Oslo Agreements are discussed in the analysis below. Secondly, the diplomatic record with respect to settlement activity is analyzed. Finally, the analysis will then turn to the full implications of the linkage between a cessation of violence and a settlement freeze. Should this linkage be accepted, it will be argued that remaining chances for a future negotiated settlement between Israel and the Palestinians could be seriously undermined.

The Repudiation of Violence and Terrorism: The Heart of the Oslo Process

The Oslo Process that began with the September 13, 1993, Declaration of Principles between Israel and the PLO was founded upon the renunciation of violence and terrorism by the Palestinian leadership. This explicit prohibition on resorting to violence ran throughout the various letters and implementation agreements that accompanied this entire Oslo process from 1993 through 1999.

Just before going off to the Washington signing ceremony with Prime Minister Yitzhak Rabin and President Bill Clinton, Yasser Arafat wrote a letter of recognition of Israel to Prime Minister Rabin on September 9, 1993, in which he stated: "[T]he PLO renounces the use of terrorism and other acts of violence and will assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators." Thus, the abandonment of terrorism and violence by the PLO served as the cornerstone of the mutual recognition between the two parties that was a pre-requisite for signing the first Oslo Agreement. Notably, Rabin´s reciprocal letter to Arafat was much shorter and only dealt with Israel´s recognition of the PLO as the representative of the Palestinian people, with no additional undertaking on the part of the State of Israel.

This built-in asymmetry had understandable historical reasons. The constituent organizations of the PLO previously had engaged in widespread international terrorism. Moreover, the PLO had once before renounced terrorism five years earlier in 1988, earning a political dialogue with the U.S. as a result, only to relapse into terrorism in 1990 which brought an end to its new relationship with Washington. In short, the PLO had a long track record of employing violence for political purposes. Thus, when Israel and the PLO signed their first Oslo implementation agreement in 1994, it included a specific Palestinian obligation to adopt "all necessary measures to prevent acts of terrorism, crime, and hostilities, and taking of legal measures against offenders" (Gaza-Jericho Agreement, Article XVIII).

Even when the Oslo II Interim Agreement was completed on September 28, 1995, it continued to make very specific security demands of the PLO, including the arrest and prosecution of individuals suspected of perpetrating acts of terror. At the same time, Oslo II detailed clear- cut limitations on the size (30,000 policemen), deployment, and weapons that would be permitted to the Palestinian police. In 1996 when Palestinian Authority security personnel opened fire on Israeli soldiers for the first time since the Oslo Agreement´s implementation, these restrictions on Palestinian capabilities to engage in such violence became even more important. The 1999 Note for the Record attached to the Hebron Protocol obligated the PLO "to systematically and effectively combat terrorist organizations and infrastructure in Palestinian-controlled areas," while the 1998 Wye River Memorandum contained a detailed work-plan for the implementation of this requirement. Wye also specifically required that "the Palestinian side will make known its policy of zero tolerance for terror."

Oslo Allows Israeli Right of Re-entry into Area A

To their credit, the negotiators of the Oslo Agreements did not curtail Israel´s legal rights to defend Israeli citizens from acts of violence and terrorism that might continue to transpire in the West Bank and Gaza Strip. Israel retained exclusive responsibility for defense against external threats -- i.e., the traditional Israeli concern over coalitions of Arab state armies to Israel´s east. Furthermore, no restrictions were placed on the size or character of Israel´s forces. The Oslo Agreements more generally entailed the gradual transfer of various powers and responsibilities from Israel´s military government in the West Bank and Gaza Strip to the Palestinian Authority.

However, residual powers, at every stage of implementation, were retained by Israel. As Oslo II stated, "Israel shall continue to exercise powers and responsibilities not transferred" (Article I, 1). Besides external security, these powers included Israel´s responsibility for "the overall security of Israelis." Article XII of Oslo II added that Israel would "have all the powers to take steps necessary to meet this responsibility." These included, according to Article XI of Annex 1, Israeli military engagement steps "within the territory under the security responsibility of the (Palestinian) Council." In other words, the Oslo Agreements did not even rule out Israeli military activities in Area A, the areas of full Palestinian security jurisdiction, for the defense of Israelis or for purposes of external defense. These powers were re-confirmed in the 1997 Hebron Protocol which entitled Israel "to carry out independent security activities for the protection of Israelis in H-1," which was the functional equivalent of Area A in Hebron.4

Arafat´s Two- Stage Strategy

These residual powers enjoyed by Israel proved to be vital precisely because the Palestinian Authority failed to comply with its Oslo commitments to combat terrorism in two distinct stages. Before 2000 the Palestinian Authority refused to effectively combat the Islamic fundamentalist armed opposition groups of Hamas and Islamic Jihad which engaged in a spate of highly lethal suicide bombings in the heart of Israeli cities. Their organizational infrastructure was never dismantled.

In early 1996, Major-General Moshe Ya´alon, then head of Israeli military intelligence, explained the Palestinian reluctance to dismantle these groups as a form of military pressure on Israel: "Arafat is preserving this situation for final-status negotiations with Israel."5 In other words, the continuation of bus bombing by Hamas, from Arafat´s perspective, would eventually soften Israel´s negotiating position. This situation essentially continued. Two years later, in 1998, Ya´alon concluded: "Sadly, I cannot say that at any point since it entered the territory, in May 1994, that the Palestinian Authority acted decisively and in a clear-cut way against the operational capability of Hamas and the Islamic Jihad."6 This analysis continued under Ya´alon´s successor, Major-General Amos Malka, who concluded at the end of 1998 that the Palestinian Authority had not made a strategic decision to combat terrorism or its infrastructure.7

With the outbreak of the current intifada in late September 2000, the main source of terrorism in this new stage of violence against Israel emanates not from Arafat´s Islamic opposition but from the Palestinian Authority itself. This time, however, Yasser Arafat´s own presidential guard, Force-17; the General Intelligence Apparatus in the West Bank of Colonel Tawfiq Tirawi; and Fatah´s militia, the Tanzim, are engaged in regular sniping, with automatic weapons, on Israeli road traffic, on neighborhoods in southern Jerusalem, on the Jewish community in Hebron, and on other Jewish towns on both sides of the pre-1967 line.8 Force-17 in Ramallah additionally formed joint units with Hamas for bomb attacks against Israeli neighborhoods in northern Jerusalem; there was also evidence that Force-17 had created a liaison relationship with Hizballah, which had begun to penetrate the Gaza Strip. Finally, Force-17 operatives were initially responsible for mortar attacks on Israeli settlements in Gaza, and on neighboring Israeli towns and kibbutzim in the Negev.9 Thus, Arafat may not have been directly in control of every instance of violence in the territories, but he certainly controlled his own presidential guard.

Thus, if in the first stage Arafat engaged in a form of proxy terrorism through other organizations, in the second stage he clearly decided that he could engage more directly in acts of terror against Israeli targets. Either way, the PLO was in total breach of its Oslo obligations to renounce violence and effectively combat terrorism.

Settlement Activity Under Oslo

Nothing in the Oslo Agreements specifically prohibits Israeli settlement activity in the West Bank and Gaza Strip; the whole question of the future status of the settlements was put off for permanent status negotiations. Of course, during the negotiations leading up to the signing of the 1993 Declaration of Principles (DOP), the PLO tried to obtain a settlement freeze. According to an internal memorandum dated March 18, 1996, by Yoel Singer, the Israeli legal advisor to the Oslo talks, which was made public some months later: "In the course of the negotiations on the DOP, the representatives of the PLO tried to obtain a clause prohibiting Israel from establishing new settlements. Israel rejected this demand." Nevertheless, while the Oslo Agreements still permitted settlement activity, the PLO signed the DOP and every successive Oslo implementation agreement that was reached.

Why Rabin insisted on resisting a settlement freeze in Oslo requires some interpretation. At the time he distinguished between "security settlements" that were located in parts of the West Bank that Israel might seek to retain for reasons of national defense, and "political settlements" that had been built on land Israel might eventually concede. According to this perspective, Israel had clear territorial claims in the West Bank and Gaza Strip, in accordance with its right to "secure and recognized boundaries" under UN Security Council Resolution 242. A blanket settlement freeze could have undermined Israel´s territorial claims, especially if the Palestinians did not undertake limitations on construction in areas that would come under their jurisdiction. In this sense, the struggle over settlements was a reflection of a far more fundamental dispute over territory between Israel and the Palestinians. Simply, the Palestinians sought a total freeze because they really sought a total Israeli withdrawal. Rabin had a different territorial formula.

Rabin himself actually gave pragmatic explanations for his refusal to agree to any settlement freeze: "I am not ready for there to be a law in Israel to forbid building houses in existing settlements, or a kindergarten or a cultural center in a place where people live today."10 Under Rabin, Israel continued to preserve its legal right to engage in settlement activity when it completed the Oslo II Interim Agreement on September 28, 1995. Seeking Knesset approval for Oslo II on October 5, Rabin stated before the vote:

I wish to remind you, we made a commitment, meaning we reached an agreement, we made a commitment to the Knesset not to uproot any settlement in the framework of the Interim Agreement, nor to freeze construction and natural growth.

Some Palestinians and their advocates have attempted to assert that the clause in Article XXXI of Oslo II that states, "Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations," entails a settlement freeze. The intent of the clause was to preclude the unilateral declaration of a Palestinian state or Israeli annexations. These actions would involve a "change in the status" of the territories. But given the entire Oslo negotiating history outlined above, it is clear that any attempt to read into this clause some form of settlement freeze involves ascribing an intent to the language that the negotiators did not have in mind.

In short, none of the Oslo Agreements placed limits on Israeli settlement growth, and no such limitation was added to either the 1997 Hebron Protocol or the 1998 Wye River Memorandum, and yet Yasser Arafat consented to all these agreements.

There is good reason to ask if the settlement issue is really as important for the Palestinians as their spokesmen state in the international media. After all, as noted above, Arafat conceded his demand for a settlement freeze in the 1993 Declarations of Principles and in successive Oslo implementation agreements. If it really was such a vital issue, perhaps Arafat would have been more insistent.

Settlements Less than 2 Percent of West Bank

Moreover, while the television pictures of settlement construction leave the impression that Israeli concrete is being poured over every inch of the West Bank, the amount of land involved is actually relatively minuscule. Using data from Peace Now, David Makovsky, writing in Foreign Affairs, reveals that settlements today take up only 1.36 per cent of the entire West Bank (excluding East Jerusalem and access roads).11 Clearly, the addition of a new row of houses in Maaleh Adumim or Givat Ze´ev involves an infinitesimal amount of additional land. True, the Jewish population in the settlements has grown appreciably since 1993; nonetheless, in a territorial dispute, what is significant is the amount of land displaced rather than the growth of the population.

In formal legal terms, the Israeli government certainly has the right to even build new settlements in Area C, where it still enjoys authority over zoning and planning. Nonetheless, the national unity government of Ariel Sharon has adopted as a matter of policy a more limited goal of allowing the natural growth of existing settlements -- in line with the settlement policies of past Labor governments. Thus, rather than violating any Oslo commitments with respect to settlement activity, Israel has actually unilaterally adopted limitations on its settlement policy, without seeking any quid pro quo.

Rewarding Violence

Linkage policies that seek to tie a cessation of Palestinian violence with a freeze on the natural growth of Israeli settlements pose three serious problems: a) rewarding violence, b) rewarding Oslo non- compliance, and c) prejudicing Israel´s claims to secure borders.

In a letter to U.S. Secretary of State Colin Powell, Foreign Minister Shimon Peres reportedly wrote that implementing a freeze on Israeli settlements would be "tantamount to rewarding Palestinian violence."12 Clearly, if the PLO gains a new Israeli concession that was not a part of the Oslo Agreements as a result of months of violence against Israel, then Yasser Arafat can only conclude that his use of violence as a negotiating tool has paid off.

The problem created by rewarding violence is not just a matter of principle. Any negotiations that follow a termination of Palestinian violence will be difficult, given the fact that even former Prime Minister Barak´s unprecedented concessions to the Palestinians were insufficient for Arafat. The critical question for the post-intifada period in the future will be what Arafat will do when he reaches the first negotiating deadlock with Israel.

Arafat´s behavior will largely be a function of his calculus of whether renewed violence could yield additional Israeli concessions. During the period from September 2000 to February 2001, Arafat could have concluded that his intifada violence was working since Israel continued to negotiate under fire and proposed additional concessions at Taba even greater than the concessions previously offered at Camp David. This undoubtedly made bringing about a termination of the violence more difficult. Now, if Israel were to concede a settlement freeze in exchange for a cease-fire from the Palestinians, it could be safely assumed that such a cease-fire would be highly unstable and, hence, break down the moment diplomatic disagreements emerged. Under such conditions, Arafat´s propensity to revert to violence as a negotiating tool would likely be reactivated.

Rewarding Non- Compliance

One of the glaring features of the entire period of Oslo implementation from 1994 through 1999 was the fact that the PLO completely failed to comply with its commitments to combat terrorism and violence. As noted earlier, this was repeatedly stated by the chiefs of Israeli military intelligence. The adoption of direct violence against Israel by the Palestinian Authority as a form of political pressure violates the core principles of the Oslo Agreement that were enshrined in the letters of mutual recognition between the parties, just before they signed the Declaration of Principles.

The formula of an Israeli settlement freeze in exchange for a termination of Palestinian violence essentially entails requiring that Israel undertake an obligation beyond the Oslo Agreements, in exchange for the fulfillment of central Palestinian responsibilities within the Oslo process. The Mitchell Report falls right into this trap when it asserts: "The kind of security cooperation desired by the Government of Israel cannot for long co-exist with settlement activity."13

In short, this formula requires Israel to pay an additional price for the security to which it is entitled under written agreements. Normally, a party that refuses to undertake its responsibilities under an international agreement finds itself penalized in some fashion. For example, other parties to the same agreement might not fulfill their undertakings, as well, under the doctrine of reciprocity. As a result, non-compliance can sometimes be corrected, and international understandings restored.

But in a case where the PLO massively violates the agreements it signed and then obtains additional, new concessions from Israel, it will prove to be increasingly difficult to assure PLO compliance in the future, whether with respect to an eventual permanent status agreement or even a more limited long-term interim agreement. Should any kind of agreement be reached in the post-intifada period, it is doubtful that it will be sustained, since the PLO will have understood that it faces no negative sanction for its violations of core elements of previous arrangements. This approach could particularly undermine any future peace process if Israelis and Palestinians decide to resume their diplomacy by first implementing all existing agreements. The PLO will assume that it does not really have to fulfill its obligations in such a situation. Such behavior could bring a resumed peace process to a quick collapse.

Prejudicing Israel´s Claims to Secure Borders

At the heart of the Israeli-Palestinian dispute over settlements are very different expectations between the parties over the territorial outcome of the peace process. At the United Nations, for example, Palestinian draft resolutions refer to the West Bank and Gaza Strip as "occupied Palestinian territory." Israeli settlement construction, despite its very limited magnitude, is viewed as the imposition of an Israeli presence on Palestinian land. This perception dovetails with the general Arab state interpretation of UN Security Council Resolution 242 as calling for a total withdrawal from all the territories Israel entered in 1967.

Israel views the West Bank and Gaza Strip as disputed territories, to which it has certain claims so that it can achieve "secure and recognized boundaries" under UN Security Council Resolution 242. Israel has been historically concerned with the threat of conventional war coalitions from its eastern neighbors, including large expeditionary armies from Iraq. British and American diplomats back in November 1967 intentionally omitted the definite article "the" before the word "territories" in the resolution´s withdrawal clause, for Israel was not expected to pull out of all the territories that it entered in a defensive war. In any case, Israel had legitimate territorial rights it could assert, derived from the British Mandate, which were never suspended because of the loss of these territories in 1948.

The U.S. certainly has supported Israel´s view that the West Bank and Gaza in their entirety should not be viewed as Palestinian land. When President Bush launched the peace process in Madrid during 1991, he spoke about the need for "territorial compromise." Equally, U.S. Ambassador to the UN Madeleine Albright stated in March 1994: "We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory."14

When elements of the international community insist on a freeze of the natural growth of Israeli settlements, while Palestinian Arab construction continues in Palestinian towns and villages, the foundation of the peace process -- particularly Resolution 242 -- is undermined. Palestinians will interpret this asymmetry as agreement with their view of the entire West Bank and Gaza Strip as Palestinian territory. This clearly pre-judges the outcome of eventual negotiations in the future. The Palestinian readiness to compromise over land, which was barely discernable in the Camp David-Taba period, will become even more negligible.

In summary, both the Egyptian-Jordanian initiative and the Mitchell Committee Report were undeniably motivated by good intentions. Both understand the urgency of ending the current wave of Palestinian violence which Israel now faces. But the suggested utilization of a settlement freeze as a quid pro quo for a cessation of these attacks can have further negative implications that must be considered prior to the eventual continuation of the peace process. The international community needs to make an unequivocal and unconditional demand from PLO leader Yasser Arafat to end the violence. Linking the cessation of violence to new Israeli concessions is the best prescription for assuring that a cease-fire will only be short-lived.

Notes

1. Aluf Ben, "Israel Seeks ´Improved´ Egypt- Jordanian Peace Plan," Ha´aretz, April 23, 2001.
2. 2. "The Mitchell Report on Israeli-Palestinian Violence," Ha´aretz, May 5, 2001; http://ww2.haaretz.co.il/breaking-news/kuku/362927.stm.
3. Daoud Kuttab, "Mitchell and Settlements," Jerusalem Post, May 10, 2001.
4. Daniel Reisner, "The Hebron Agreement," Justice, no. 12 (March 1997):14.
5. Dore Gold, "No Security, No Peace," New York Times, March 29, 1997.
6. Ma´ariv, April 16, 1998.
7. Gideon Allon, "Military Intelligence Chief: Palestinian Authority is Not Fighting Terror," Ha´aretz, December 16, 1998.
8. Ehud Ya´ari, "A Nuanced Approach: Some of the PA´s Security Agencies have Turned into Terror Organizations" in the Jerusalem Report. Tirawi´s organization was involved in repeated shooting attacks in the area of Ramallah and Qalqilyah, as well as the killing of an Israeli soldier, Tal Gideon; see Amos Harel, "The Palestinian Authority Leaves Fingerprints," in Ha´aretz, December 15, 2000. For example, Force-17 was responsible for the killing of Arye Hershkowitz on January 29, 2001. See "Sharm el-Sheikh Fact-Finding Committee: Second Statement of the Government of Israel," March 20, 2001, http://www.israel-mfa.gov.il/mfa/go.asp?MFA-H0jb0. A November 20, 2000, roadside bomb against a school bus in Kfar Darom that was filled with children, was detonated by Tanzim, as well, according to former Prime Minister Ehud Barak. See "Statement by Prime Minister and Defense Minister Ehud Barak on School Bus Attack," http://www.israel-mfa.gov.il/mfa/go.asp?MFAH0ifj0. Israel security sources accused Rashid Abu Shabbak, deputy to Gaza Preventive Security Chief Muhammad Dahlan, of actually preparing the Kfar Darom bomb. Dahlan´s headquarters was subsequently targeted by Barak. See Isabel Kershner, "One Step Away from Chaos," in the Jerusalem Report. Unfortunately, back articles of the Jerusalem Report are not dated on the magazine´s website.
9. Amos Harel, "Palestinians Fire Mortar Into Israel," Ha´aretz, March 19, 2001.
10. Associated Press, January 10, 1995.
11. David Makovsky, "Middle East Peace Through Partition," Foreign Affairs (March/April 2001):35.
12. Aluf Ben, "Sharon and Peres Mount Campaign Against Findings of Mitchell Report," Ha´aretz, May 10, 2001.
13. Mitchell Report; see note 1.
14. Cable News Network, "Text of Amb. Albright´s Speech to the UN on Mideast," March 18, 1994.

Dore Gold is President of the Jerusalem Center for Public Affairs. Previously, he served as Israel´s Ambassador to the United Nations (1997-1999). (JCPA.ORG © Copyright POSTED 10/15/01)