06 January 2008 - The negotiation panel - more of the same?

Today’s Ha’aretz reports that Israel and the Palestinian Authority have established a negotiating panel to deal with the core issues of borders, refugees, and Jerusalem. The panel appears to be a souped-up version of the Joint Liaison Committee, which handled dispute resolution during the Oslo peace process. It is the middle level of a three-tiered system—below the leaders and above a set of subcommittees.

There are reasons to believe this panel will succeed. The two sides are closer to agreement than they were during the Oslo years. The public on both sides are exhausted and most are ready for peace. The Americans are more committed than ever before and will act as mediators and arbitrators. Hamas has isolated itself geographically and politically.

However, the panel suffers from the same weakness that plagued Oslo—lack of public involvement, and hence potential lack of legitimacy. I have long argued that the Israeli-Palestinian peace process needs some kind of public, multi-party negotiating forum to broaden the range of stakeholders, delegitimize violence and build the foundations for future relations between the two sides.

Below, I have reprinted a term paper I wrote for an international negotiations class here at Harvard last month. It discusses the JLC and its failures, and makes a few recommendations for future reforms. I wrote it after consulting with Nasreen Abbas, Mahmoud Abbas’s daughter-in-law, a student at Harvard’s Kennedy School and a Palestinian negotiator during Oslo. I’d be interested in comments, etc.


The Joint Liaison Committee of the Oslo Process: Lessons from Failure

by Joel Pollak

December 20, 2007

Introduction

“[T]his bold new venture today, this brave gamble that the future can be better than the past, must endure.”[1] Those were the words of U.S. President Bill Clinton as Israeli Prime Minister Yitzchak Rabin and Palestine Liberation Organization (PLO) Chairman Yasser Arafat signed the Declaration of Principles on Interim Self-Government Arrangements on the White House lawn on September 13, 1993.[2] Seven years later, in September 2000, the Oslo peace process—named for the city in which informal negotiations had begun earlier that year[3]—collapsed. Violence broke out in East Jerusalem, the West Bank, and Gaza, launching the second intifada. Israelis and Palestinians still disagree about what triggered it, and who was to blame. But it soon became clear to all that the Oslo peace process had passed into the pages of history.

What went wrong? The Israeli-Palestinian negotiations had emerged at a time when other intractable conflicts seemed to be moving toward resolution. In South Africa, President F. W. de Klerk released Nelson Mandela from prison in 1990 and began talks with the African National Congress (ANC) that would eventually lead to non-racial democracy. In Northern Ireland, talks were under way that would lead to a ceasefire and ultimately produce the Good Friday Agreement in 1998. Each of these cases, which were (and are) often compared by analysts in the field of conflict resolution,[4] has unique features. The Israeli-Palestinian case differs from the other two, for example, in that the aim of the dominant parties on both sides is to achieve a two-state solution rather than a unitary state or a power-sharing arrangement in a single polity. In other words, the goal is not marriage, but divorce.

Yet there are some important common factors to consider. The peace processes in both South Africa and Northern Ireland made use of formal, public negotiating forums representing all parties that had given up violence.[5] The Oslo process also created several negotiating committees. The Oslo structures were not public forums, and none of them bore formal responsibility for overall negotiations, but they were critical to the process. The most important of these negotiating committees was the Joint Israeli-Palestinian Liaison Committee (JLC), created by the Declaration of Principles as the core of a broad dispute resolution mechanism. Theoretically, the JLC should have prevented the peace process from falling apart. In this paper I explore the reasons for its failure, as well as remedies that have been suggested for future negotiations, in the context of an emerging general theory of peacemaking strategies.

Why Oslo failed

Very little has been written about the JLC. The only references appear to be a few passing mentions in books about the Oslo process,[6] occasional reports on JLC meetings in the Journal of Palestine Studies, and a recent op-ed in the Jerusalem Post by Israeli researcher and peace activist Gershon Baskin.[7] In contrast, there is no shortage of analysis, opinions and even memoirs about the reasons for the failure of the Oslo process as a whole.

One of the most widely reported and debated explanations focuses on the behavior of Arafat at the Camp David negotiations of July 2000, which were aimed at achieving a conclusion to “permanent status” talks. President Clinton blamed Arafat for the failure of Camp David, and for the talks that aimed to rescue the process in the months that followed: “Arafat’s rejection of my proposal after Barak accepted it was an error of historic proportions.”[8] U.S. Ambassador Dennis Ross felt that Arafat lacked the political will to agree to a settlement:

"Had Nelson Mandela been the Palestinian leader and not Yasir Arafat, I would be writing now how, notwithstanding the limitations of the Oslo process, Israelis and Palestinians had succeeded in reaching an “end of conflict” agreement. In effect, Oslo might not have failed if Arafat had been prepared to be a leader and not just a symbol. As a symbol, he could not give up Palestinian myths. As a symbol, he could not compromise or concede in order to end the conflict. As a symbol, he had to remain a unifying figure even to those who rejected peace with Israel."[9]

Others have claimed that Arafat rejected proposals made by Israeli Prime Minister Ehud Barak without making a counteroffer, effectively walking away from a peace deal.[10] Not surprisingly, this view is hotly contested. Critics sympathetic to the Palestinian version of events, such as former U.S. President Jimmy Carter, have claimed that Israeli proposals were such that “[t]here was no possibility that any Palestinian leader could accept such terms and survive.”[11] Others maintain that Barak and Clinton were to blame for pushing Arafat toward a deal prematurely.[12]

Still other explanations focus on the violations of the agreements on both sides. Israel frequently complained about the Palestinian failure to stop terror attacks against Israeli civilians, and incitement against Jews and Israel in official Palestinian media. Palestinian leaders countered that Israel had failed to stop building settlements in occupied territory, which they claimed violated the spirit of the agreements.[13] Israel maintained, correctly, that it had not committed to stopping settlement construction in the Declaration of Principles. This merely reinforced the views of Palestinian opponents of the process such as Edward Said, who complained that the Oslo accords did not meet minimum Palestinian aspirations, including not only the removal of settlements but guarantees of sovereignty.[14] Parallel views existed among those Israelis who believed that Israel had sacrificed its fundamental interests for the sake of illusory promises of peace. Raphael Israeli, for example, castigated the architects of Oslo for failing to obtain explicit Palestinian agreement to Israel’s right to exist as a Jewish state.[15] For many of these critics, Oslo had been doomed from the start, and its demise was welcome.

Failure is the norm

What these varied explanations neglect is the reality that failure may be the norm in negotiations of intractable conflict that feature complex and deep-seated divisions between national, religious, ethnic or racial groups. Perhaps in the immediate post-Cold War era of bloodless transitions to democracy, the world came to expect easy resolutions. Viewed in broader historical context, however, success stories are the exception rather than the rule. Examples of repeated failure are easy to find, even within the single case history of the Israeli-Palestinian conflict. After the Weizmann-Faisal Agreement of 1919, for example, the two sides failed to agree again despite several attempts at reconciliation in the 1930s and 1940s. Israel and Egypt went to war in 1973 partly because Israel had rebuffed quiet peace overtures by new Egyptian President Anwar al-Sadat.[16]

Even successful negotiations typically encounter failures along the way. In South Africa, a massacre in the township of Boipatong in 1992 caused the ANC to walk out of ongoing talks.[17] Right-wing paramilitary groups also disrupted the negotiations, and several other violent events,[18] including the assassination of South African Communist Party leader Chris Hani,[19] threatened to ignite a full-scale civil war. In Northern Ireland, violence also interrupted negotiations several times. The thorny issue of the “decommissioning” of arms held back progress for several years, often interrupting the peace process.[20] The Belfast Assembly, where the various parties were to have shared power, was suspended from 2002 to 2007, owing to the failure of Protestant and Catholic leaders to reach a power-sharing agreement.[21]

Occasionally, even otherwise successful negotiation processes fail at the final hurdle. In 1999, U.N. Secretary-General Kofi Annan began an intense effort to resolve the conflict on Cyprus between Greeks and Turks.[22] The “Annan Plan” underwent several revisions and a joint version was presented to both sides for a simultaneous referendum vote in 2004, only to be rejected by the Greek Cypriot majority.[23]

What distinguishes successful from unsuccessful peace process is not whether they fail, but how they deal with failure when it occurs. Leadership, too, plays an important role in determining whether the various parties are able to pick up the pieces of shattered negotiations and move forward. Yet the institutional framework of the process also plays a large role.

Dispute resolution mechanisms

In most legal systems, written agreements—even basic commercial contracts—typically include provisions for dispute resolution. If all else fails, the parties can appeal to the courts. Agreements between parties at the national or international level are similar, except that international systems of dispute resolution generally do not have authority absent the explicit consent of the disputing parties. One avenue is suggested in Article 66 of the Vienna Convention on the Law of Treaties (1969), which provides for dispute resolution through the International Court of Justice (ICJ) and the Secretary-General of the United Nations.[24] Although neither Israel nor the Palestinian Authority have signed or ratified the Vienna Convention, it has entered into force and is generally considered binding as customary international law.

Another method of dispute resolution that is often used is third-party intervention. Many countries are keen to make themselves available as mediators between warring parties. Norway, for example, played a key role in brokering the informal agreements that later led to the Declaration of Principles. In addition, parties to a conflict will occasionally agree to invite foreign nations to resolve their disputes.

Some methods of dispute resolution in international negotiations, however, are internal to the peace processes themselves. These may be formally provided for in agreements between the parties, or may be the subject of informal arrangements between the two sides. In certain cases, mechanisms of dispute resolution may also be the means through which overall negotiations are conducted; in other cases the function of dispute resolution mechanisms is far narrower.

We can distinguish between dispute resolution mechanisms according to a simple set of criteria: whether they are internal or external; formal or informal; and broad or narrow. Often, several different forms of dispute resolution will be used within a single peace process, though one mechanism may be more important than any other in determining outcomes and shaping relations among the parties.

In both South Africa and Northern Ireland, the parties agreed to create internal, formal, broad institutions of dispute resolution that confronted the core issues of contention. In the Israeli-Palestinian case, the JLC was an internal, formal, narrow institution, supported in principle by further internal and external mechanisms. These differences may have had an effect on its performance, as I shall discuss below.

Theoretical foundations

The author of this paper has identified the use of public, multiparty negotiating forums as one of the key determinants of the success of negotiations in the cases of South Africa and Northern Ireland. Conversely, the author has argued, the lack of public, multiparty negotiating forums in the Israeli-Palestinian case has been one of the most important reasons for the failure of the Oslo process.[25] According to this hypothesis, creating a formal institution to conduct negotiations between Israelis and Palestinians could boost the prospects of future talks between the two sides. Although the Israeli-Palestinian case is different in that it aims at a political separation between the parties, the author has argued that the creation of a joint negotiating institution need not interfere with the sovereignty of either state.

The creation of the JLC and other negotiating committees in the course of the Oslo peace process poses a serious challenge to this hypothesis. Some of these committees survived the collapse of the negotiations. Israelis and Palestinians have continued cooperating on water issues, for example.[26] According to a strict reading of the hypothesis, however, these institutions ought to have prevented the collapse itself. It is useful to briefly review the theoretical framework proposed by the author I order to evaluate the hypothesis according to its precise meaning and context.

Approaches to dealing with intractable conflict can be grouped into two general categories: conflict resolution, which is ambitious about reaching agreement; and conflict management, which seeks to make conflict incrementally less destructive. Alternatively, approaches to dealing with intractable conflict can be described in terms of their methods. Some approaches are “top-down,” relying on the preeminent leaders of the various parties to manage or resolve the conflict. Other approaches are “bottom-up,” relying on the involvement of a far broader range of actors within the different groups to advance the goals of the peace process. These two modes of categorization can be considered jointly to create four categories overall: top-down conflict management, bottom-up conflict management, top-down conflict resolution, and bottom-up conflict resolution. These can be identified as Weberian ideal-types: the “dictator” model, the “anarchist” model, the “diplomat” model, and the “democrat” model, respectively. A multi-faceted approach combining elements of all four models may offer the most promising approach.

Conflict management: the dictator and the anarchist

The “dictator” model involves unilateral action by a strong leader to change the alternatives and preferences of all parties in a way that facilitates negotiation. It is generally reserved for use as a last resort, when all other attempts at negotiation have failed. The term “dictator” does not refer to a specific political system but to the type of leader described by Niccolò Machiavelli in The Prince,[27] who not only seizes and increases his own power but in doing so creates the foundation for the ideal republic later described in the Discourses on Livy.[28] This leader is not necessarily an autocrat, but is able to act beyond democratic and diplomatic constraints.

The Middle East offers two successful examples of the “dictator” model. One was Sadat’s historic visit to Jerusalem in November 1977. The Egyptian leader took Israel and the Arab world by surprise in opening a dialogue that eventually led to the return of the Sinai to Egypt in exchange for peace. Sadat’s bold move did not resolve the broader Arab-Israeli conflict but made future resolution more likely. The other example was Israel’s unilateral “disengagement” from Gaza in 2005, led by Prime Minister Ariel Sharon. Though essentially a retreat, the disengagement proved Israel’s willingness to make concessions for peace and restored Israel’s international standing. Sharon established boundaries—literally and figuratively—around the conflict in a way that favored Israel’s long-term security interests. Not all strong leaders are benevolent, but some unilateral decisions can play a positive role.

In contrast to the “dictator” model’s top-down approach to conflict management, the “anarchist” model is aimed at bottom-up reforms within the two societies that improve their ability to make peace in the future. The term “anarchist” does not refer to chaos but rather to the spontaneous order that can emerge under laissez-faire conditions, as in the “invisible hand” of Adam Smith[29] or the libertarian theories of F. A. Hayek.[30] Domestic reforms improve the chances that both sides can survive the failure of negotiations and return to try again.

Two examples of the “anarchist” model have been at work in the Israeli-Palestinian conflict in recent years. On the Israeli side, the long-stalled process of writing a formal constitution has gained new momentum. The constitution will seek to answer questions such as the role of religion and the rights of the Arab minority; tackling these internal challenges may encourage Israelis to face up to external ones. On the Palestinian side, the Palestinian Authority is finally devoting attention to the task of building stable political and economic institutions. Not only are these necessary prerequisites for the future emergence of a viable Palestinian state, but they also provide Palestinians with an alternative to negotiation other than violence in the event that talks with Israel fail once again. A better Palestinian alternative, in turn, creates stronger incentives for Israel to negotiate, lest the Palestinian side walk away.

Conflict resolution: the diplomat and the democrat

While the “dictator” and “anarchist” models aim at managing the conflict in the event of failed negotiations, the “diplomat” and “democrat” models are geared towards reaching a successful agreement in the short term. The “diplomat” model aims at conflict resolution in a top-down fashion, and involves direct negotiation between elite representatives of the various parties to the conflict. The model includes the strategies and tactics of deal design and deal-making, and is an indispensable part of most peace processes, including the Israeli-Palestinian peace process.

Generally, there are two types of negotiations within the “diplomat” model. One is referred to in the literature as “Track I” and involves formal contact between diplomatic representatives. The other is called “Track II” and refers to informal deliberations among official representatives, as well as the wider network of contacts that supports (or, as in the Oslo process, initiates) the formal negotiation process.[31]

The strength of the “diplomat” model is that it is indispensable to starting, and concluding, a peace process. It has serious weaknesses, however, in that it is isolated from public participation. Negotiation processes that are overly elitist may fail for lack of support among the constituencies of one or more of the various parties, and are especially vulnerable to disruption by extremist violence.

The “diplomat” model may be complemented by the “democrat” model, which involves the creation of joint, multiparty negotiating forums made up of representatives from the various groups involved in the conflict. The term “democrat” refers to the fact that these negotiating institutions resemble systems of representative government, and actually evolve into formal legislative institutions in some cases (e.g. Northern Ireland). The “democrat” model can take various institutional forms, but its effectiveness depends on the firm application of one particular rule: no party using violence to pursue its aims can be allowed to participate. The key to the “democrat” model is to use the peace process not only to achieve agreement between the parties but to delegitimize violence and gradually marginalize or co-opt extremist groups into the process. Another advantage of the “democrat” model is that the negotiating institutions create opportunities for moderates on all sides to strengthen each other vis-à-vis hard-line groups. This, in turn, creates pressure on hard-line groups to offer constructive solutions rather than to simply obstruct progress. In addition, the “democrat” model can facilitate positive post-conflict relations among the parties.

Examples of the democrat model

Perhaps the most important feature of the “democrat” model is that it is robust in the face of disruptions. By incorporating a wide range of parties, and indirectly involving members of the public through their representatives, the “democrat” model creates a broad range of stakeholders in the process. Peace, when embodied in an institution, takes on a life outside the institution itself and sustains it.

The South African example provides a useful illustration. The various parties came together in 1991 in the Convention for a Democratic South Africa (Codesa), in which all groups that had suspended the “armed struggle” were guaranteed a seat at the table. After these talks failed to produce an agreement, a second round of negotiations was convened as Codesa II. These collapsed after the Boipatong massacre in 1992. Despite these failures, the parties continued to negotiate with greater urgency. Direct negotiations between the ANC and the apartheid government began to predominate over the multi-party process, but the formal participation of other parties helped create both the image and reality of broad support for the peace process. That public consensus proved robust in the face of short-term crises.

In Northern Ireland, the parties set up the Northern Ireland Forum for Political Dialogue in 1996.[32] The Forum spent much of its energy in exhausting debate; as in the South African case, the final deal was brokered between representatives of the two dominant parties. However, the broad participation of parties eschewing violence created public support that sustained the process through several violent episodes. Following the Good Friday Agreement, the Northern Ireland Forum was succeeded by the Belfast Assembly, which was to exercise devolved “home rule” powers. As the negotiations faltered, the Assembly was interrupted and suspended for years at a time. Yet the number of violent attacks decreased over the years, and the prospect of wielding political power discouraged all sides from abandoning hope altogether. The eventual result was a power-sharing agreement negotiated—surprisingly—between the hard-line parties.

Thus the democrat model’s chief advantage, when combined with other models, is not that it prevents failure but that it provides for better failures by building public support and delegitimizing violence. The Oslo peace process did not include representative structures, but the JLC was designed to play a similar (if narrower) role of resolving disputes and sustaining contact between the two sides if and when disagreements arose. It is to its history that we now turn.
The Oslo process and the JLC

The JLC was created under Article X of the Declaration of Principles, which reads:

JOINT ISRAELI-PALESTINIAN LIAISON COMMITTEE - In order to provide for a smooth implementation of this Declaration of Principles and any subsequent agreements pertaining to the interim period, upon the entry into force of this Declaration of Principles, a Joint Israeli-Palestinian Liaison Committee will be established in order to deal with issues requiring coordination, other issues of common interest, and disputes.[33]

The role of the JLC was reiterated in Article XV:

RESOLUTION OF DISPUTES - Disputes arising out of the application or interpretation of this Declaration of Principles. or any subsequent agreements pertaining to the interim period, shall be resolved by negotiations through the Joint Liaison Committee to be established pursuant to Article X above.

Disputes which cannot be settled by negotiations may be resolved by a mechanism of conciliation to be agreed upon by the parties. The parties may agree to submit to arbitration disputes relating to the interim period, which cannot be settled through conciliation. To this end, upon the agreement of both parties, the parties will establish an Arbitration Committee.[34]

Minutes appended to the agreement indicated:

It is further agreed that each side will have an equal number of members in the Joint Committee. The Joint Committee will reach decisions by agreement. The Joint Committee may add other technicians and experts, as necessary. The Joint Committee will decide on the frequency and place or places of its meetings.

The JLC was one of several committees created by the Declaration of Principles. Article XI created an “Israeli-Palestinian Economic Cooperation Committee,” and Article XII created a “Continuing Committee” to coordinate negotiations with Egypt and Jordan. Annexes to the agreement created even more committees and joint programs on security, water, electricity, energy, finance, transport, communication, trade, industry, labor and the environment. The JLC, however, was the apex of the dispute resolution apparatus.

Meetings and progress of the JLC

The JLC met frequently in the months that followed. It was headed by high-level officials: Foreign Minister Shimon Peres led the Israeli team, while Mahmoud Abbas led the Palestinian team until he resigned over differences with Arafat and was replaced by Nabil Shaath.[35] Its authority was confirmed by subsequent agreements, such as the Gaza-Jericho Agreement (1994).[36] The committee’s official responsibility was to “ensure the smooth implementation” of that agreement, but it also carried out “some of the more delicate negotiations.”[37] Israeli negotiator Uri Savir notes that the first formal negotiations subsequent to the signing of the Declaration of Principles occurred under the auspices of the JLC in October 1993, though these were largely ceremonial.[38] The JLC later played a key role in negotiations toward the Gaza-Jericho agreement, meeting several times in Oslo, Paris, Cairo and Davos to consider control over border crossings and other issues.[39] It continued to conduct subsequent negotiations on a variety of issues. The Journal of Palestine Studies reported in the summer of 1995:

"At 5/7 Joint Liaison Committee meeting following the 4/27 crisis over the Jerusalem land confiscation issue, Israel made several concessions to keep the PA at the table, including approving plans for a heliport in Gaza, permitting 6,000 additional Palestinian workers into Israel, transferring $3 m. in tax money, improving the flow of trucks through checkpoints into Israel, releasing 250 pro-Fatah prisoners, and setting up an unofficial joint Jerusalem Committee to discuss expropriations. On 5/9, the PA postponed the first meeting of the [Jerusalem] committee until 5/14 after Israel refused to set an agenda in advance."[40]

On several occasions, the JLC dealt with finance for the Palestinian Authority and development projects in the West Bank and Gaza.[41] On other occasions the JLC approved weapons sales to the PA, including a weapons fair staged by South Africa in Ramallah in 1997.[42]

Some of the subsequent agreements proposed their own version of the JLC. The Oslo II agreement (1995), for example, provided for a “high level Joint Liaison Committee . . . to deal with the security situation in Hebron after completion of the [Israeli troop] redeployment.”[43] However, the proliferation of committees meant that the Oslo process became extremely complicated. By August 1995, a mere two years into the process, “over 150 negotiators were working in nearly 20 subcommittees under Israeli and Palestinian negotiating teams.”[44] This led UN envoy Terje Roed-Larsen to wonder “whether an accord could be reached among so many negotiators and committees.”[45] That shifted the focus back to direct, one-on-one bilateral negotiations between Peres and Arafat.[46] In addition, while some committees met regularly, some committees had ceased to function entirely. The Wye II (or Sharm-El-Shaykh) Agreement of September 1999 called “for all existing PA-Israeli joint committees to resume or continue meeting,”[47] which indicates that the problem had become somewhat pressing. The JLC, too, was struggling to function properly, as I shall discuss below.

Distinguishing features of the JLC

There were several important distinguishing features of the JLC. One was that it was designed as an internal, formal, narrow mechanism of dispute resolution. In practice, however, the JLC’s responsibilities often expanded to include areas of substantive concern. These included border crossings, finance, development, security, and—critically—the status of land in Jerusalem. In addition, the JLC was supported—on paper, at least—by several other mechanisms, including an Arbitration Committee. Provision was also made in the Declaration of Principles for other possible mechanisms to be agreed by the parties. This left the door open for the parties to appeal to external, international mechanisms of dispute resolution, though they never did so.[48] The JLC was also one of several committees established by the agreements, and it spawned further committees itself. Its work crossed into areas that were theoretically meant to be covered by other committees. The image emerges of an “ombudsman” committee, ranging across the field of negotiation as needs and circumstances required.

Despite the breadth of its scope, the JLC was not a joint, multiparty negotiating forum. Its members were appointed from among elite groups of senior politicians and high-level bureaucrats who did not represent a broad variety of public constituencies, as they would have in a representative public institution. And while the JLC occasionally handled core issues, it did so on an ad hoc basis and was not always the primary channel for bargaining on these points.

The dearth of literature on the JLC is another indication of the degree to which it was not a “public” institution. Few Israelis or Palestinians would appear to have been aware of it at all; even articles in the popular press that mention the JLC are difficult to come by. Though its proceedings were not entirely confidential, the JLC did not play the broader role that public, multiparty negotiating forums played in other cases. It was often bypassed by direct bilateral negotiations between Israeli and Palestinian leaders. This was partly a result of the proliferation of committees, which made coordination of the various negotiating processes virtually impossible and focused the initiative back onto a small group of elite negotiators. It was also, however, symptomatic of the breakdown of relations among the negotiators, as described below.

Analyzing the failures of the JLC

In 2007, one of the few analyses of the Oslo process to discuss the JLC was published by Gershon Baskin in a series of articles in the Jerusalem Post entitled “Why Oslo really failed.” Baskin argued that the JLC had failed to perform its core function of dispute resolution, and blamed the fact that other possible avenues of appeal had never been invoked to support the JLC or provide an adequate substitute for it:

"The Israeli-Palestinian agreements did not have any external mechanisms of verification of implementation for ensuring compliance and for dispute resolution. . . .

"Each side breached the agreements or interpreted their obligations or the obligations of the other side in different ways and then issued statements against the other side. The JLC that was established was simply incapable of resolving the disputes because it became the forum through which each side raised it claims against the other - not for the purpose of resolving the dispute but to "score points" against the other side.

"When the breaches piled up so high the JLC ceased to function as did most of the joint bodies that were formed through the agreements. There was no mechanism established that could fairly determine which claims were valid and which were less valid. There was no external mechanism to help the sides comply with the commitments they had taken upon themselves.

"There was no external mechanism that could help bring about resolution of the disputes; and thus once the process of breaching the agreement became the norm there was little or no value in signing new agreements. Signing new agreements nevertheless became part of the process . . .

"Throughout the process the failure to resolve the disputes also emanating from a lack of external mechanisms led to further breakdowns in trust and confidence that further limited the ability of the sides to continue negotiations on the core issues.

"It seems that had the sides invented mechanisms involving acceptable third parties for processes of verification of implementation compliance assurance and dispute resolution perhaps breaches of the agreement would have been resolved from the very first breach and future disputes would have been contained and resolved. Leaving the verification compliance assurance and dispute resolution means to the two disputing parties alone sabotaged the process from within."[49]

Thus Baskin identified two core problems with the JLC. First, it was used by each side to achieve distributive gains at the expense of the other, rather than to achieve joint, integrative gains. Second, the parties failed to create or invoke external mechanisms of intervention and enforcement that could resolve the disputes that arose within the JLC itself. The failure of the JLC was only one reason the process collapsed, according to Baskin, but it was a key factor.

Recommendations for the future

Baskin provided a “lesson learned” from the failure of the JLC, which he applied not only to the this case conflict but conflict resolution in general: “Protracted conflicts in which there is little or no trust and confidence require external mechanisms for verification of implementation of the agreements external mechanisms for insuring compliance and external mechanisms for external dispute resolution.”

One possible method of external dispute resolution in the Israeli-Palestinian case would be to appeal to the institutions suggested by the Vienna Convention: the ICJ and the U.N. Secretary-General. However, neither is trusted fully by Israel. Israel rejected the ICJ’s 2003 ruling on the security barrier in the West Bank,[50] and rescinded its decision to allow then-Secretary-General Kofi Annan to investigate Palestinian claims of a “massacre” in Jenin in 2002 when he sought a more interventionist mandate.[51] Third-party resolution has also been problematic. The Middle East Quartet—the U.S., U.N., European Union and Russia—attempted to mediate between the two sides in recent years, but Israel considers the latter three to be pro-Palestinian, while the Palestinians have often accused the U.S. of heavy bias in favor of Israel.

There is still the internal dimension to consider. There are two reasons the architects of the Oslo peace process might have preferred a JLC that conformed more to the style of the “diplomat” model of conflict resolution than the “democrat” model. One is that “Third Way” political leaders such as Clinton and Peres were relatively skeptical about the role of institutions in society, and more optimistic about the transformative power of economic relations. That is perhaps why the most successful committees in the Oslo process were those dealing with joint economic and environmental projects. The other reason the negotiators preferred a narrower, more elite JLC may have been a shared fear that a joint institution could lead to joint sovereignty of some kind, raising the threat of a truncated independence for Palestinians and fear of a binational state for Israelis. Still, when the JLC is compared to the public, multiparty negotiating forums used in South Africa and Northern Ireland, the differences—lack of broad public representation, and the ad hoc nature of its role in negotiations—suggest that more expansive and more open internal dispute resolution mechanisms should be used, in addition to external options.

The belated public process

Much has happened since the Oslo process collapsed in September 2000. The two sides came close to a deal at talks in Taba, Egypt in January 2001, but negotiations were cut short by continued violent conflict and by Israeli elections that brought Ariel Sharon to power. In the months that followed, Palestinian terror continued, as did Israeli military responses, reaching a climax in the Passover bombing of April 2002 and Israel’s subsequent Operation Defensive Shield in the West Bank. At the same time, the government of Saudi Arabia proposed a new peace initiative that would trade full peace and normalization of relations for an Israeli withdrawal to the 1949 armistice lines and a solution to the Palestinian refugee problem. The timing was poor, however, coinciding with the Passover bombing, and the ambiguity of the language on the refugee issue prompted Israel to reject the Saudi plan outright. The initiative was renewed in 2007, when it was unanimously adopted by the Arab League in Riyadh; this time, Israel indicated a willingness to consider it.[52]

In August 2005, Israel began carrying out its “disengagement,” withdrawing thousands of settlers from Gaza. Hamas won the next Palestinian parliamentary elections in January 2006, and Israel began to suffer a surge in rocket attacks from the Gaza Strip. In July 2006, Hamas kidnapped Israeli soldier Gilad Shalit, helping to trigger the Second Lebanon War; in May the following year, Hamas ousted President Mahmoud Abbas and his Fatah party in a military coup in Gaza. This was a step backward for the Palestinian Authority, but in some ways a step forward for the peace process. Israel seized the opportunity to begin talks with Abbas, now helpfully shorn of his terrorist coalition partner. Arab states, worried about the surge of Iranian-backed Hamas and Iranian ambitions in the region, threw their weight behind renewed talks.

There was new public support for negotiations, too. Despite the carnage of the intifada, several grassroots initiatives rallied public support around peace plans. In 2002 the “People’s Voice”,[53] led by Palestinian intellectual Sari Nusseibeh and former Israeli secret service chief Ami Ayalon, proposed compromises on borders, refugees and Jerusalem and generated hundreds of thousands of petition signatures on both sides. In 2003, Israeli politician Yossi Beilin and Palestinian negotiator Yasser Abed Rabbo created the Geneva Initiative, which proposed a similar peace plan and sought public support from both Israelis and Palestinians. The OneVoice movement, based outside the region, generated global support for a two-state solution. These initiatives filled the diplomatic void and demonstrated the potential for formal public involvement in the peace process along the lines of the “democrat” model.

The Annapolis process

In November 2007, Israeli and Palestinian leaders met in Annapolis, Maryland to sign a declaration that would inaugurate a new round of talks, aimed at achieving a two-state solution before U.S. President George W. Bush left office. The declaration affirmed the goal of a two-state solution, as well as the basic structure of the U.S.-sponsored Middle East Road Map to Peace, which had been launched in 2003.[54] The Annapolis declaration included one new innovation: “The United States will monitor and judge the fulfillment of the commitment of both sides of the road map. Unless otherwise agreed by the parties, implementation of the future peace treaty will be subject to the implementation of the road map, as judged by the United States.”[55] The Americans, and not the Quartet, would be third-party enforcers. This provision meant that the U.S. would take direct responsibility for the success of the peace process, an unusually bold commitment for an administration that had been critical of Clinton’s direct involvement in Israeli-Palestinian talks.

Baskin’s advice has apparently been taken to heart: under Annapolis, there were to be no internal dispute resolution mechanisms between Israelis and Palestinians, only high-level talks and enforcement by the world’s strongest third party. However, that does not mean it would be impossible to create a broader and more inclusive peace process through the use of public negotiating institutions. Some form of joint Israeli-Palestinian forum could be created; even if it were to simply be little more than a debating forum, as the Northern Ireland Forum was, it could support negotiations by allowing ordinary people to participate in the peace process at least indirectly.

There would be several obstacles to such a forum. One is that the entire peace process is now being carefully and tightly managed from Washington, and the U.S. may not want to risk losing control to the vagaries of debate between the two sides. Another obstacle is that broader geopolitical issues, such as the confrontation with Iran, now dwarf the Israeli-Palestinian issue and may encourage a quick “framework” agreement rather than a comprehensive resolution.

Still, a joint Israeli-Palestinian forum could establish a basis for cooperation between the two sides in a post-conflict future. Beginning with “islands of agreement”[56] and with issues where there is already substantial and enduring cooperation, such as water management, Israelis and Palestinians could establish a formal common dialogue that would support the peace process and lay the foundations for future positive relations.

Conclusion

The current Annapolis round of peace talks has better chances of success, in many ways, than did the Oslo peace process. Many lessons have been learned since Oslo, which diplomats on both sides have taken to heart. There are also several structural reasons these negotiations should succeed, beyond the diplomatic level itself.

One is that the best alternative to a negotiated agreement—the BATNA—of both sides has improved. During the Oslo process, Israel’s best alternative was the status quo—continued occupation and opposition. After the Gaza disengagement, however, and the erection of the security barrier, Israel’s best alternative has become unilateral withdrawal—not ideal by any means, but better than occupation. The Palestinian BATNA is also improving. Under Arafat, who systematically undermined Palestinian institutions of self-government, the only conceivable alternative to negotiation was violence. Today, the Palestinian Authority—with Gaza and Hamas excluded—is building new institutions that may help sustain it even if the Annapolis round of negotiations fails to achieve its goals. Improved BATNAs on both sides mean that each can walk away from talks more easily—which also means each has a stronger incentive to offer concessions. At the same time, the worst alternative to a negotiated agreement—the WATNA—has become worse for both. Israel wants to avoid an “apartheid” scenario,[57] and the chaotic Hamas coup in Gaza has shown the Palestinian Authority the potential cost of failure. The involvement of a committed third party—the U.S.—that is acceptable to Israel, and at least not unacceptable to the Palestinian Authority, also adds the previously missing element of external enforcement.

But there is yet another missing element—the use of a public, multiparty negotiating forum—that could enhance the prospects of success. In negotiations toward a two-state solution, this approach would have to play a lesser role than it has in other cases of intractable conflict, but it could play a positive role nonetheless. Perhaps the most important lesson of the failure of the JLC and the Oslo process is that peace cannot simply be forged between leaders and elite negotiators. It must ultimately be built between peoples. With all that has happened in the past ten years, many people on both sides feel skeptical about the prospects of a renewed peace process. But the fact that most are willing to try, regardless, is the best reason to hope for success.


[1] President Bill Clinton, Remarks at the signing of the Israeli-Palestinian Declaration of Principles, Washington, D.C. (Sep. 13, 1993).
[2] Declaration of Principles on Interim Self-Government Arrangements, Isr. – Pal., Sep. 13, 1993, available at http://www.mideastweb.org/meoslodop.htm.
[3] Norway’s Involvement in the Middle Eastern Peace Process, News of Norway, Issue 7, 1999, http://www.norway.org/News/archive/1999/199907middleeast.htm.
[4] See, e.g. Hermann Giliomee and Jannie Gagiano, The Elusive Search for Peace: South Africa, Israel and Northern Ireland (1990).
[5] Joel Pollak, Let Peace Go Public, Pal.-Isr. J., Vol. 10, No. 3 (2003).
[6] See, e.g., Uri Savir, The Process: 1,100 Days That Changed the Middle East (1998) (mentioned or discussed on only six pages); see also Geoffrey R. Watson, International Law and the Israeli-Palestinian Peace Agreements 121 (2000) (mentioned on one page).
[7] Gershon Baskin, Why Oslo Really Failed (II), Jerusalem Post, Aug. 21, 2007, at 15.
[8] Bill Clinton, My Life 944 (2004).
[9] Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace 767 (2004).
[10] Alan Dershowitz, The Case For Israel 118 (2003).
[11] Jimmy Carter, Palestine Peace Not Apartheid 152 (2006).
[12] Heribert Adam and Kagisa Moodley, Seeking Mandela: Peacemaking Between Israelis and Palestinians (2005).
[13] Yossi Beilin, quoted in Joel Pollak, The Long Walk to Peace, The Big Issue (South Africa), November 2001, at 20-21.
[14] See Edward Said, Palestinians Under Siege, London Rev. of Books, Dec. 14, 2000.
[15] Raphael Israeli. Address at Shalem Center conference, Jerusalem (Jun. 11, 2007).
[16] Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881-2001 388-90 (2001).
[17] Patti Waldmeir. Anatomy of a Miracle 206 (1997).
[18] Id. at 237.
[19] Id. at 223.
[20] David F. Curran and James Sebenius, “To Hell With the Future, Let’s Get On With the Past.” George Mitchell in Northern Ireland, 9-801-393 Harvard Business School 27 (2001).
[21] Alan Cowell and Eamon Quinn, Power-sharing begins in Northern Ireland, Int. Herald Trib., May 8, 2007, available at http://www.iht.com/articles/2007/05/08/europe/08irelandcnd.php.
[22] Maria Anastasiou, Passing On the Knowledge of the ‘Cyprus Problem’: The Institutionalization of Ethnic Conflict, 2007 Middle East and Central Asia Conference (2007).
[23] Id. at 2.
[24] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.
[25] Pollak, supra note 5; Sapir Handelman and Joel Pollak, Interactive Models of Negotiation: The Palestinian-Israeli Case, 2007 Middle East and Central Asia Conference (2007).
[26] See, e.g., Israeli, Jordanian, Palestinian Representatives Sign Red-Dead Sea Canal Study Agreement, Pal. Med. Ctr., Apr. 27, 2005, http://www.palestine-pmc.com/details.asp?cat=3&id=527.
[27] Niccolò Machiavelli, The Prince (David Wootton ed. & trans., Hackett 1995) (1513).
[28] Niccolò Machiavelli, Discourses on Livy (Harvey Mansfield & Nathan Tarcov, Chicago UP 1996) (1531).
[29] Adam Smith, An Inquiry Into The Nature and Causes of The Wealth of Nations (Edwin Cannan, ed., 2003) (1776).
[30] F. A. Hayek, “Free” Enterprise and Competitive Order, in Individualism and Economic Order (1948).
[31] Hussein Agha et al., Track-II Diplomacy: Lessons From the Middle East (2004).
[32] David McKittrick and David McVea, Making Sense of the Troubles 300 (2000).
[33] Declaration of Principles, supra note 2.
[34] Id.
[35] Peace Monitor: 16 February – 15 May 1995, J. Pal. Studies, Vol. XXIV, No. 4, summer 1995, at 122-23.
[36] Id.
[37] Id.
[38] Savir, supra note 6, at 97.
[39] Id., at 105-09.
[40] Peace Monitor, supra note 34 at 122.
[41] See, e.g., Peace Monitor: 16 August – 15 November 1995, J. Pal. Studies, Vol. XXV, No. 2, winter 1996, at 113.
[42] Peace Monitor: 16 August – 15 November 1996, J. Pal. Studies, Vol. XXVI, No. 2, winter 1997, at 125.
[43] The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II), Annex I, Art. VII(8), Isr.-Pal., Sep. 28, 1995, available at http://www.jewishvirtuallibrary.org/jsource/Peace/iaannex1.html#article7.
[44] Peace Monitor: 16 May – 15 August 1995, J. Pal. Studies, Vol. XXV, No. 1, autumn 1995, at 122.
[45] Id.
[46] Id.
[47] Peace Monitor: 16 August – 15 November 1999, J. Pal. Studies, Vol. XXIX, No. 2, winter 2000, at 120.
[48] Watson, supra note 6.
[49] Baskin, supra note 7.
[50] Legal Consequences cf the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (Jul. 9); see also Aluf Benn et al, Israel Firmly Rejects ICJ Ruling, Ha’aretz, Jul. 11, 2004, available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=449729&contrassID=2&subContrassID=1&sbSubContrassID=0&listSrc=Y.
[51] Israel Refuses Jenin Inquiry, Guardian, Apr. 30, 2002, available at http://www.guardian.co.uk/israel/Story/0,2763,707651,00.html
[52] Reuters, Olmert Says Wants Talks On Arab Peace Initiative, Jun. 6, 2007, http://www.reuters.com/article/topNews/idUSL0687404020070606.
[53] The Ayalon-Nusseibeh Plan (The “People’s Choice”), Jul. 27, 2002, available at http://www.jewishvirtuallibrary.org/jsource/Peace/peoplesvoiceplan.html.
[54] A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, Apr. 30, 2003, available at http://www.state.gov/r/pa/prs/ps/2003/20062.htm.
[55] President George W. Bush, The Annapolis Declaration, U.S. - Isr. – Pal., Nov. 27, 2007, available at http://www.jpost.com/servlet/Satellite?cid=1195546742035&pagename=JPost%2FJPArticle%2FShowFull.
[56] See Gabriella Blum, Islands of Agreement: Managing Enduring Armed Rivalries (2007).
[57] Aluf Benn, Olmert to Haaretz: Two-State Solution, or Israel Is Done For, Ha’aretz, Nov. 29, 2007, available at http://www.haaretz.com/hasen/spages/929439.html.