Quite unusually for peace deals in modern history, President Trump announced his long-awaited peace offering to the Palestinians, without their presence. On the Palestinian side, the deal was considered a joke by some and an insult by others. While Israelis welcomed the deal and invited the Palestinians to accept it because “it is realistic.” Israeli Prime Minister Netanyahu, tainted by corruption charges, spoke euphorically and overconfidently about how this ‘vision for peace’ would make the lives of Palestinians better and promised to work at making it happen. Assuming, of course, that he wins the upcoming Israeli general elections in March. He addressed the Palestinians in a sarcastic manner, which could hardly be deemed proper for a peace offering, urging them to accept the deal because “it takes an enormous talent to reject 50 billion dollars’ worth of investment.”[1]

The ‘Plan’: Between International Law and Power Politics

Contrary to most of the comments I came across in response to Trump’s ‘Plan’, it does not disregard international law, but actually blames it for the current situation.[2] According to the plan there are “700 United Nations General Assembly (UNGA  resolutions and over 100 United Nations Security Council resolutions (UNSC)” which are “inconsistent, . . . time-bound”, and hence “have not brought about peace”. The plan further points the finger at the “conflicting interpretations of some of the most significant United Nations resolutions, including United Nations Security Council Resolution 242”.

In line with this view on international law, the ‘Plan’ suggests a power-based approach instead of the rights-based approach of international law. It is now the “realities on the ground” rather than the basic rights of people which matter. The extensive use of words like “realistic,” “achievable” and “new realities” is but an indication of how the peace deal’s drafters are thinking.

Certainly, the ‘Plan’ does not consider international law a parameter at all and Trump must be wondering; “How could something ‘unrealistic’, ‘unachievable’ and not in line with ‘realities’ on the ground be a parameter after all?”

Let us have a look at what the ‘Plan’ offers and how it can be read in light of international law.

  • Non-contagious, non-sovereign, Palestinian archipelago of Bantustans.

Palestinian President Mahmoud Abbas calling the plan a “Swiss Cake” happens to be very accurate. The proposed state would be made up of a group of isolated islands connected by a highway supervised by Israel. Numerous UNSC and UNGA resolutions, and the International Court of Justice’s (ICJ) advisory opinion are not even mentioned. Only once does the ‘Plan’ mention UNSC Resolution 242 in order to claim its conflicting interpretations (Israel claimed so, but the wording was clear) and hence it cannot serve as a reference.

The state offered by the ‘Plan’ would be the first of its kind.

  • Settlements and borders

UNSC Resolution 242 already recognizes Israel’s possession of around 80% of Mandate Palestine. This ‘Plan,’ however, proposes to eat up a further 40-50% from the West Bank, including East Jerusalem. A Palestinian state would therefore have to exist on around 10-15% of historic Palestine. Again, the illegality of settlements, reinforced frequently in the UNGA and UNSC (where the USA indirectly endorsed those resolutions by not vetoing them) is not mentioned whatsoever. Instead, the ‘Plan’ assures that any “forcible transfer of either populations” would be avoided. This means settlements would remain and would be under Israeli sovereignty. A look at the map quickly shows how fatal their existence would be for Palestinian freedom of movement.

Territories in international law can be annexed through several methods. Perhaps the plan’s drafters needed a specialist in international law to inform them that the use of force is ultimately not one of them. Hague Regulations of 1907 are considered as ‘erga omnes’ (obligatory on all states) and there is a consensus that acquiring the West Bank through the use of force is illegal and building settlements or causing any change to its demography, geography or natural resources is also illegal.

  • Refugees

Simply put, “there shall be no right of return by, or absorption of, any Palestinian refugee into the State of Israel.” Palestinian refugees are to be absorbed and compensated by “their Arab brothers” who “have the moral responsibility to integrate them” just as the “Jews were integrated in … Israel.” The ‘Plan’ continues with these comparisons to raise the issue of Jews from Arab countries who have migrated into Israel. They are considered refugees by the ‘Plan’ in the same way as Palestinian refugees; hence, they are entitled to compensation by the relevant Arab countries for their lost assets. While it is true that few of these Jews were refugees, considering them all as refugees when they chose to leave on their own accord is a historical distortion. UNGA resolution 194, which asserts the Palestinian right of return, was deemed not worthy of a mention according to the ‘Plan’.

  • Jerusalem annexed in entirety

Ironically, while annexing the entirety of Jerusalem (including the Muslim and Christian holy sites), the ‘Plan’ offers the Palestinians to establish their own capital anywhere out of Jerusalem and call it “Al Quds” (Arabic for Jerusalem). Again, international law has been disregarded and not even mentioned.

  • Apartheid             

Finally, the only legal description that could be applied to the ‘Plan’ is that of a stark declaration of Apartheid (systematic regime of racial subjugation) imposed by Israel on the Palestinians. It would be similar (or arguably worse) than that of South Africa where the white minority subjugated the black majority.

Having said all that, the ‘Plan’ is for some reason so ambitious that it requests an end of claims and total recognition of the new realities. Palestinians would have to accept the close-to-nothing given to them and put an end to their claims in international institutions and courts as well.

What is the fate of the Oslo Accord?

The “Deal of the Century started around 30 years ago”, is quite a common statement on Palestinian streets these days. The irony is that it is hard to prove it wrong. In 1993, Palestine Liberation Organization (PLO) President Yasser Arafat signed the Oslo Accord with Israeli Prime Minister Yitzhak Rabin under the guardianship of the USA’s Clinton Administration. The Oslo Accord was not an agreement, but rather an understanding based on which the PLO recognized Israel for the first time and Yasser Arafat was allowed back in Palestine under Israeli control to negotiate almost everything. Furthermore, the accord was merely a declaration of intent to negotiate and recognize (although Israel did not recognize Palestinian statehood), and major issues were left up for negotiation.

Since the beginning of the peace process, settlement expansion has continued at an increasing pace, cutting the West Bank into slices and turning it into a “Swiss Cheese” in the words of Palestinian President Mahmoud Abbas. The pictures of Israeli Prime Ministers (from Rabin to Netanyahu) with Palestinian Presidents (Arafat or Abbas) were enough to justify any expansion because they showed that “we are negotiating peace and land swaps.”[3]

The Oslo Accord resulted in the establishment of the Palestinian Authority (PA) which later evolved to officially become the State of Palestine (despite its lack of sovereignty) following its promotion in the UNGA from an observer to a non-member state. The Oslo Accord also divided the West bank into three areas; Area A under the PA control, Area B under both PA and Israeli control and, Area C under Israeli control. Another agreement divided Hebron City into H1 and H2, where the first is under the PA and the second (that has the holy sites) under Israeli control. Another important outcome of the peace process has been the creation of the Palestinian Security Forces, created for the purpose of security cooperation with Israel. Since President Abbas’ inauguration, there has been an unprecedented increase in security cooperation and in several speeches, Abbas has asserted that around 90% of Palestinian operations against Israel were halted by Palestinian Security Forces.

However, according to Trump’s vision, much of the West Bank would be annexed and unlike in all previous agreements, there would be no such division as Areas A, B and C. The ‘Plan’ does not explain how independent Palestinian institutions would be, but even a glance suggests all Palestinian activities would be automatically under Israeli supervision.

What about Palestinian elections? If any Palestinian general election were to take place, it would also have to be under Israeli supervision. What of the Palestinian factions and figures that are labeled terrorist by Israel? (Israel has a habit of labeling anything uncomfortable as terrorist.) Would Israel let them carry out their electoral campaigns and move from one city to another? Would Israel allow them to travel if they won?

What about defense? According to the ‘Plan’ the ‘future’ Palestinian state would be disarmed. What if this Palestinian state invites another ally country to act in self-defense (something allowed in International Law)? Would Israel allow access? What if Palestine does not extradite someone wanted by Israel, would the Israeli army just strike the Palestinian territory and make an arrest?

It is quite obvious that this ‘Plan’ puts an end to the Peace Process and with it the logic of negotiating a solution through a rights-based approach. The ‘Plan’ seems to alternatively suggest a power-based approach where goals can simply be achieved by force.

What is the future of Palestinian statehood? An apartheid regime where Palestinians and their institutions are subjugated by Israelis is actually a reality in the present, not just the future. Palestinians could resort to a number of options to put an end to this or prevent its escalation.

What is to be done?

Trump’s ‘Plan’ has reminded everyone that the Palestinian fight for freedom is a fight of everyone who cares about international law and human rights. The way the ‘Plan’ approaches international law makes it clear that it is as targeted as Palestinians themselves. Palestinians need to be reminded that they are spearheading an international fight to protect what humanity has previously achieved in the face of reactionary and racist forces.

The remaining options are limited but could still be effective. The Palestinians are not the stronger side in this conflict; they have neither the military and technology might, nor the economic muscle of Israel. Nor do they have a superpower strongly biased in their favor. However, they have an important strength which should not be overlooked; they are on the right side and are defending human rights and international law itself. This should be the center of Palestinian strategy in order to make all progressive forces worldwide realize that the Palestinian fight for freedom is the fight of everyone who cares about what humanity has achieved.

Firstly, within the international legal regime;

  • United Nations General Assembly:

The UNGA is somewhat free of US hegemony and despite pressure which can arise from resolutions, this reinforces international law and Palestinian rights. It is therefore necessary to refer to the UNGA for a resolution condemning the ‘Plan’ and reinforce the old stance towards the struggle. One possibility is another resolution which could be sought to officially declare Israel as an Apartheid state in the UNGA.

  • International Court of Justice

Palestine may seek an advisory opinion from the ICJ, either through the UNGA or directly through its membership in the UNSCO, to accede to certain agreements which enable them to sue Israel. Palestine has already done this in the ICJ by instituting proceedings against the USA for relocating its Embassy to Jerusalem.

  • International Criminal Court (ICC)

Palestine has supported the ICC’s Prosecutor’s decision to investigate, and has submitted a request to open an investigation, into all crimes which have been committed by Israel and which fall under the jurisdiction of the ICC. This path should be continued, focusing not only on war crimes, but also on Israel’s apartheid regime.

  • Universal Jurisdiction

There are several legal principles which allow the instigation of proceedings at local courts for crimes committed by the Israeli government. One of them is Universal Jurisdiction; a principle which allows local courts to claim criminal jurisdiction over persons accused of committing crimes which are considered “against all humanity” such as genocide war crimes and crimes against humanity.

Secondly, outside the international legal regime:

  • Efforts to isolate and boycott Israel

There have been a number of campaigns which worked on raising awareness and lobbying support for boycotting Israel on multiple levels; politically, militarily, economically and culturally. The most influential of which is the Boycott Divestment Sanctions movement (known as BDS) which has made great progress at a cultural level. The Palestinian leadership needs to officially adopt this strategy to increase its impact at political and military levels. Despite the fact that efforts are slowly advancing on these levels, the calls for boycott are being heard by high-profile politicians. For instance, American Democrat presidential candidate Bernie Sanders has stated on more than one occasion that he would cut military aid to Israel if it continues behaving this way.[4]

  • Popular resistance

70 years of Israel has proved that as long as Israel is receiving no pressure internationally or locally from the Palestinian people, its levels of racism and misbehavior increase. Only in the face of pressure do they ask to “sit at the table and talk” (a strategy which proved fruitful for Israel to divert everyone’s attention from more land grabs and passing more racist laws).

Popular peaceful Palestinian demonstrations in all cities have prompted massive international waves of criticism of Israel’s murdering of peaceful demonstrators. Israel worked hard to push Palestinians into arming these demonstrations so as to find a justification for continuing the killing with a clear conscience.

Finally, the Oslo Accords and the institutions it created are on their way to being dissolved into an Apartheid Israeli state which racially subjugates the Palestinians (including those who are citizens of Israel) for the service of Israeli Jews. This “vision for peace” did not just violate international law, but aimed to totally deconstruct it, and worse, blamed it for protecting Palestinian rights. Therefore, the fight should never be merely a Palestinian fight, but an international one to uphold human rights, international law and protect all that human civilization has so far achieved.

[1] For the recorded speech: https://www.msn.com/en-us/tv/video/netanyahu-to-trump-your-deal-of-the-century-is-the-opportunity-of-the-century/vp-BBZpE8l

[2] For the full text of the ‘Plan’: https://www.whitehouse.gov/peacetoprosperity/

[3] Report: Number of Israel settlers quadrupled since Oslo Accords. MEMO, (September 14, 2018). Retrieved on February 2, 2020 from: https://www.middleeastmonitor.com/20180914-report-number-of-israel-settlers-quadrupled-since-oslo-accords/

[4] https://www.nationalreview.com/news/bernie-sanders-u-s-should-withhold-military-aid-unless-israel-fundamentally-changes-its-relationship-with-people-of-gaza/