Despite their longstanding efforts to bring peace between Israelis and Palestinians, two experts clashed sharply over the role of international law in the peace process at an 11 November public forum entitled, “Peace and international law in Israel and Palestine: assessing the paths to peace.” The forum was part of the World Council of Churches' (WCC) International Affairs and Advocacy Week in New York.
“The situation in the Middle East is a sad and vicious cycle of actions and reactions, retaliation and revenge,” said Avraam Burg, a member of the Labour Party and former speaker of the Israeli Knesset, and a participant in negotiations between Israeli opposition leaders and Palestinians leading to an October 2003 draft peace agreement known as the Geneva Accord. Burg asserted that peace would only succeed if peace negotiators focus directly on the practical concerns of ordinary citizens, rather than “theoretical” international norms.
“The principal flaw in the Oslo peace process - and the problem with the Geneva Accord - is that both exclude the relevance of international law from the process,” said Richard Falk, Milbank professor of international law emeritus at Princeton University and visiting distinguished professor, Global Studies, University of California at Santa Barbara.
Falk argued that both processes were flawed, since both sought to strike a bargain between unequal parties. “The fundamental defect of Oslo was that it incorporated a geopolitical inequity into a so-called peace process,” since it sought to “bargain between two sides of unequal capacities,” Falk added. “And the mediator of the conflict - the United States - was aligned with the stronger party in the negotiations.”
The realm of possibility
In opening remarks that framed the discussion, Salpy Eskidjian, WCC programme executive for the Middle East, expressed a sense of urgency in the situation. “In the midst of deadly violence in the Palestinian occupied territories and Israel, despair and humiliation, fear and frustration, the Palestinians and the Israelis as well as the international community are trying to find acceptable, just, sustainable ways of sharing the land and sharing the peace,” she said. “Our task is to bring the impossible into the realm of possibility.”
“We must overcome the biblical mentality of ‘an eye for an eye” and end the tribal disputes at the root of the conflict,” Burg said. He argued that the Palestinian-Israeli conflict “is much more than a squabble over a piece of land,” and hence, he said, any resolution of the matter “will have to be more than a real estate deal.”
Instead, Burg suggested that the root of the conflict “is much deeper, originating at the level of symbols and icons”. If peace negotiators do not explore the deeper symbolic roots of the conflict, “they will remain on a collision course,” he said.
Much of the conflict, Burg asserted, is fuelled by “the clash between the holocaust and colonialism” still lingering in the politics of the Middle East. He also argued that international law has a transitory quality - not unlike when new legislators often change old laws.
Compromise on both sides
In his review of the process leading to the Geneva Accord, Burg said that both sides have to relinquish some cherished symbols: for the Israelis, control of the Temple Mount in Jerusalem; for the Palestinians, the notion of the “right of return”. Both sides, said Burg, have painfully agreed to this “transfer” of symbols. The only peaceful way forward, he continued, “is for a change in mindsets based on mutual respect, and the will to compromise on both sides.”
According to Burg, many practitioners of religion in the 21st century have hardened their positions, revealing an image of God who is “stubborn, tough, and angry”. He argued that fruitful dialogue must confront such religious intolerance. Yet, Burg argued, “Any analysis of the Palestinian-Israeli conflict as a clash between Judeo-Christianity and Islam is shallow and superficial.” Instead, Burg contended, the real clash exists between “democratic societies and theocratic ones”.
A genuine equality
When Palestinians ultimately rejected peace proposals, they were unfairly blamed for the failure to reach an agreement, Falk said. “If the process doesn’t produce a vision of equality, then the weaker side is forced to swallow an unfair bargain.” “The real failure of the Palestinian leadership,” he continued, “was that it did not offer an alternative vision of what real peace would consist of.”
Falk also rejected Burg’s contention that the Palestinian-Israeli conflict represents a clash between theocracy and democracy. “Democracies should not be uncritically confirmed,” Falk argued. “Democracies are no better or worse than the political cultures in which they exist.”
In the end, Falk said, the choice is between “a geopolitical process that seeks to bargain between two unequal sides, and one that acknowledges the principles of international law.”
According to Falk, the only genuine way to secure a peace is to appeal to the perspective of international law on all critical issues - including settlements, water rights, and the occupation - even though such an appeal might appear to favour Palestinians.
Without appealing to international norms, Falk fears that any peace process that is based on the inequities - including the Geneva Accord - will lead to unrealistic expectations, distortions, and eventually disappointment on both sides.
Reconciled neighbours, secure borders
“The best and most secure borders rely not on the accumulation of nuclear weapons or weapons of mass destruction, or of spying, but in the existence of reconciled neighbours,” said Bishop Riah Abu El-Assal, head of the Episcopal Diocese of Jerusalem and the Middle East, who is a Palestinian Christian and a citizen of Israel.
Describing both the Oslo and Geneva processes as “steps in the right direction”, El-Assal endorsed the appeal to international law, and added that any successful process must “address the root causes of suffering”. The bishop also expressed support for a two-state solution, “and eventually perhaps a federation or confederation of two states with open borders”.
“Jews and Palestinians have so much in common,” El-Assal said. “We have lived side by side for so many years, and both communities have a sense of living in the Diaspora,” he said. El-Assal urged people on all sides of the conflict to “stop being ready to die for your cause, and start living for peace and justice”.
In response to a question from the audience, the bishop was especially critical of the current construction of a wall between Israel and the occupied territories. He called on the international community “to address the issue of the wall”.
“This is not an era for erecting barriers, but for breaking down barriers,” he said.