Hard Questions, Tough Answers with Yossi Alpher: March 31, 2014

This week, Alpher discusses what Olmert's conviction for receiving bribes means for the peace process; why Netanyahu refuses to release veteran terrorist prisoners who are Arab citizens of Israel; how this issue jibes with a new Israel Foreign Ministry document that appears to find legal justification for Avigdor Lieberman's proposal to transfer Arab-populated parts of Israel to Palestinian sovereignty under a two-state redrawing of borders.

Q. Former Prime Minister Ehud Olmert was convicted on Monday of receiving bribes. What does this mean for the peace process?

A. Over the past years of his legal tribulations--since resigning from the premiership because of them in 2009--Olmert had been hoping for exoneration by the courts and a return to politics. Now that hope appears to have been dashed by his conviction. He can still appeal his conviction to the Supreme Court, but the last-minute decision by his long-time aid Shula Zaken to testify against him as a state's witness appears to damn even that prospect.

In 2008, Olmert led the most far-reaching attempt to date by an Israeli leader to reach a final-status two-state agreement with the Palestinians. His ultimate proposal, presented to Palestinian leader Mahmoud Abbas in September, included borders based on the 1967 lines, West Bank security arrangements without Israeli forces, a Palestinian capital in Arab East Jerusalem, a five-nation consortium to manage the Jerusalem Holy Basin including the Old City and Temple Mount, and a limited, symbolic refugee return to Israel. In describing this offer in May 2009, Abbas declared that he rejected it, arguing that "the gaps were too wide".

But by September 2008 Olmert had announced that he would not seek reelection due to the gathering criminal charges against him, and was considered a lame duck leader--a factor that may have influenced Abbas' rejection of his peace plan. Within a year, both sides began insisting that given more time they could have reached an agreement. Hence Olmert's conviction will be seen by some activists in the peace camp as a setback for the two-state solution.

Others argue that Abbas' rejection of Olmert's offer should be seen as a turning point in the peace process. If such a far-reaching proposal was not embraced enthusiastically by the Palestinians, perhaps a different format and different objectives for negotiations have to be developed. Perhaps unilateral Israeli withdrawal must again be considered. Certainly the current Israeli leadership under Prime Minister Binyamin Netanyahu is offering the Palestinian leadership far less than Olmert offered and Abbas rejected. Even Justice Minister Tzipi Livni, currently chief Israeli negotiator and under Olmert, as foreign minister, in charge of a separate peace negotiating track, is currently offering far less.

The Olmert conviction is not only significant for the peace process. It presumably allows us to summarize Olmert's tenure as prime minister. Undoubtedly, the Olmert-Abbas peace track was the strategic high point, while stumbling into the Second Lebanon War in 2006 was the strategic low point.

At the political level, Olmert could never rise above the repeated suspicions of corruption that eventually damned him. Indeed, he now joins a long and depressing list of convicted Israeli politicians, led by former president Moshe Katzav, who is currently serving a term for rape. We can rejoice that justice has been served, even at the highest political level. But we certainly cannot find solace in the low level of Israeli political life.

Despite his service to the cause of Israeli-Palestinian peace, Olmert must now be ranked worst among Israel's prime ministers.

Q. Apropos the cause of peace, the American-led negotiations over a framework agreement for a two-state solution are still stuck over the issue of a fourth Israeli prisoner release. Netanyahu refuses to release veteran terrorist prisoners who are Arab citizens of Israel. What's so special about them?

A. As we noted last week, Israel's refusal to include Israeli Arab terrorists in the fourth and final release of veteran Palestinian prisoners is one of the sticking points holding up agreement to extend negotiations beyond the end-April nine-month deadline. The lack of clarity over this particular issue stems from the fact that, back in July 2013, both sides agreed that a total of 104 Palestinians convicted of terrorism charges prior to the Oslo agreement were in Israeli prisons and that 104 would be released in four stages. Of these 104, 14 are Israeli citizens. The PLO negotiators quite understandably believed that while the Israelis might be released last, they nevertheless would be released. Netanyahu now argues that he never agreed to release Israeli citizens and that, by dealing creatively with the date of the Oslo agreement, 14 alternative Palestinian prisoners could be released.

In this regard, there are plenty of dates to choose from. The Oslo Declaration of Principles was signed in Washington on September 13, 1993. But it was signed in draft form in Stockholm a month earlier. And implementation only began after additional agreements were signed in 1994, by which time additional terrorists had been apprehended. If indeed the agreement to free the 104 never specified a precise binding date, Netanyahu may have a case, at least at the legalistic level.

But that's the point. These are all procedural and legalistic arguments, augmented by demands and offers from both sides that concern an extension of negotiations: the Palestinians want a settlement freeze; Netanyahu is offering to free additional hundreds of prisoners down the line.

Yet beyond legalisms there is something truly bizarre about the question of releasing Israeli Arab prisoners. On both the Israeli and the Palestinian side there are powerful arguments against the PLO even demanding the release of Israeli Arabs, and against Israel agreeing.

When Abbas demands the release of the 14, he is in effect declaring that the PLO represents Arab citizens of Israel who served its cause. Yet one of his arguments for rejecting Israel's demand to be recognized as a Jewish state or the nation state of the Jewish people is that this would compromise the sovereign citizenship status of 18 percent of Israel's population who are Arabs, not Jews. Moreover, by posing as the ultimate leader of Israeli Arabs, he is playing right into the hands of those Israelis who constantly argue that the country's Arab citizens are a fifth column, ultimately loyal to the Palestinian cause. Further, when Israeli Arabs refuse to oppose Abbas' release demand, they are seemingly silently confirming this view. Neither they nor Abbas can have it both ways.

On the other hand, the moment Netanyahu refuses to release the 14 precisely because they are Israelis, he must confront the fact that these Israeli Arab murderers are being treated differently than Israeli Jewish murderers. The latter get weekend vacations from prison in return for good behavior, and are usually paroled after 20 years or so of incarceration. Even Israeli Jews convicted of terrorist murder of Arabs get vacations and are allowed to marry and have conjugal visits, whereas their Arab counterparts are denied these privileges. Yigal Amir, who assassinated PM Yitzhak Rabin, was allowed to marry in jail.

Yet can Netanyahu concede Palestinian "sovereignty" over Israeli citizens? He is trapped by this issue no matter what he does.

Q. How does this issue jibe with a new Israel Foreign Ministry document that appears to find legal justification for Avigdor Lieberman's proposal to transfer Arab-populated parts of Israel to Palestinian sovereignty under a two-state redrawing of borders?

A. Abbas' demand that Israel free 14 Arab citizens of Israel and the absence of Israeli Arab objections to the demand play serve Lieberman's cause. He has long argued that if Israeli Arabs support the Palestinian position they should be interested in living in a Palestinian state, especially if they don't have to move: their towns and villages that are located near the green line will become part of Palestine by virtue of moving the line westward. Lieberman also argues that such a measure would not only improve the Arab-Jewish demographic balance in Israel but would easily answer Israel's need to make land swaps with the Palestinian state to compensate for settlement blocs being incorporated into Israel.

Now Lieberman has commissioned a study on his proposal by the Foreign Ministry's legal department: "Territorial exchange: Transfer of Sovereignty over Populated Areas in the Framework of a Final Arrangement with the Palestinians, Legal Aspects". The study finds that incorporating, say, several hundred thousand Arab citizens of Israel who live in parts of the "Little Triangle" and Wadi Ara in a Palestinian state by moving the green line would comply with international law on condition that it is done with the consent of the Palestinians, does not leave anyone without citizenship and includes a compensation mechanism.

Does this study render Lieberman's idea any more viable? Is it any more likely to be embraced by Israeli, Palestinian or American negotiators (note that Lieberman himself is not and never has been involved in actual negotiations with the Palestinians)? The answer is almost certainly, no.

I briefly examined this idea in a study I wrote on "Borders and Settlements" at the Jaffee Center back in 1994. It was that study that first proposed annexing the settlement blocs to Israel and, since the Palestinians would not budge from their insistence on the 1967 lines as the basis for negotiations, compensating them in some agreed way. The idea to redraw the green line further west so as to engineer a territorial swap that included Israeli Arabs was looked at--and ruled out. Most Palestinian Arab citizens of Israel rejected being made, in effect, Palestinian citizens of Palestine; they still do. And it was assessed that the High Court of Israel would back up any Israeli Arab citizen who refused to be divested of his/her citizenship rights. In one likely scenario looked at, Israeli Arabs caught up in such a territorial swap would simply move back to sovereign Israeli territory, thereby leaving Israel high and dry: it gave up land without in any way altering the demographic balance.

Moving borders to accommodate agreements between warring states was done frequently up to the nineteenth century and even into the twentieth. Alsace-Lorraine is a good example; so is the lake and Alps region of northern Italy, southern Switzerland and southern Austria--note the Italian speakers who are citizens of Switzerland and the German speakers in Italy. But today, people in conflict regions are recognized to have inalienable civil and human rights that the Israeli High Court is very good at upholding. (Russia's unilateral annexation of Crimea fits into this issue somehow, too: at a minimum, it is illegal under international law because it was not agreed to by both sides, and Ukraine is not being compensated.) Perhaps of equal relevance is the fact that the Palestinian leadership rejects this swap idea and would refuse to confer Palestinian citizenship on Israeli Arabs "dumped" on it, say, by a unilateral withdrawal by Israel from its own territory.

That this position stems from the Palestinian leadership's insistence that Arab citizens of Israel, whose release from Israeli jail it believes it has the right to demand, must remain Israeli citizens inside Israel to ensure somehow that Israel does not become "Jewish", is but one of many anomalies that render a two-state solution so difficult to achieve.

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