Palestinians Have Rights And Law On Their Side, But Israelis Have Power

President Clinton had called the negotiations "really, really hard." The trilateral statement issued jointly by the Palestinian, Israeli and American sides said the talks were "unprecedented in both scope and detail." But they failed - and that failure was no surprise.

A truly comprehensive, permanent and just solution never seemed very likely, not even during the Camp David summit's moments of highest optimism. We don't know for sure whether serious agreements were in fact reached on crucial issues such as statehood, borders, settlements and water. We do know that no partial agreement was announced - this was a make-it or break-it deal. But the red-line issues were known going in and remained unchanged despite Clinton's marathon of persuasion: the status of Jerusalem and the return of Palestinian refugees.

That those would be the deal-breakers was known long ago. "Intractable" and "irresolvable" are perhaps the most common adjectives applied. But other words that might explain why these issues remain so difficult are virtually never mentioned above a whisper: rights, international law, and finally, power. Perhaps the last is the most basic: the Israelis have it all, the Palestinians have none. And the U.S., the most powerful player of all, accepts that vast disparity of power between the Israeli and Palestinian sides as if Camp David were a level playing field on which an honest broker could referee a fair game.

On Palestinian refugees, it seems rights and international law had no role in the talks. More than 3 million Palestinians who fled the fighting or were physically expelled from their homes during the 1947-48 war over the creation of Israel are now scattered throughout the world. After the war, the United Nations passed Resolution 194, mandating compensation for the refugees and assuring their right to return home. The United Nations even made Israel's own entry to the world body contingent on Israeli acceptance of that resolution and that right. The Palestinians' right to return is no less than that of the Albanian Kosovars, Rwandans returning from the Congo, East Timorese going home from Indonesian refugee camps.

Israel correctly maintains that allowing the Palestinian refugees to return would change its demographic balance, more than doubling Israel's Palestinian population, which now stands at about 20 percent. But concern over changing the ethnic makeup of the country should not be an acceptable basis for rejecting international law and Resolution 194.

Israel apparently offered a "humanitarian compromise" at Camp David that would allow a small number of Israeli-chosen Palestinians to return, but continued to reject 194 and the Palestinian right of return.

On Jerusalem, Prime Minister Ehud Barak reaffirmed Israel's longstanding "red line" that Jerusalem must remain undivided and under solely Israeli sovereignty. The Palestinian side also had its red lines. Theirs was the right to share Jerusalem, making it the capital of a Palestinian state with Palestinian sovereignty over Arab East Jerusalem. With continued Israeli sovereignty over West Jerusalem, that would make for what Palestinians describe as "two capitals, one city."

Instead, the Israelis offered only what they called "administration-plus." That offered Palestinians municipal administration of a few neighborhoods while the Israelis maintained sovereignty, including control over all of Arab East Jerusalem. So the talks foundered. Senior sources in Barak's office were quoted as saying the Palestinians "are not yet ready to accept the hard decisions that are required." That would have required abandoning their long-held dream of East Jerusalem as the capital of an independent Palestinian state - not to mention flouting the international law prohibiting Israel's continued occupation of it - in return for the illusion of Palestinian sovereignty.

Israel floated three possible concessions. One would have expand Israel's municipal borders of Jerusalem to include three small Palestinian villages outside the city. Then the Palestinians would have been offered some modicum of authority over the villages, one of which, Abu Dis, would be declared the "capital" of a Palestinian statelet. Palestinians would have been allowed to call the dusty hillside village "Jerusalem." Only problem is, everyone knows that Abu Dis is not Jerusalem. Redrawing municipal borders doesn't make it so.

Israel also offered to allow Palestinians to administer their own municipal services in scattered parts of East Jerusalem. The Palestinians would have been able to collect their own garbage and replace their own street lamps - but Israel would have remained in control of everything else. Barak apparently even offered the right to fly a Palestinian flag over al Aqsa mosque in Jerusalem's Old City, and maybe a "safe passage" to the Muslim shrine so that Palestinian leaders could travel from their "capital" without seeing Israeli soldiers.

But after 33 years of Israeli military occupation, symbolic authority was not enough. Jerusalem is more than a collection of religious sites: it is a living city, with real urban populations not only in Jewish West Jerusalem but in Arab East Jerusalem as well - a city long recognized as the commercial, political, cultural and national center of Palestinian life.

Israel claims sole sovereignty over all of Jerusalem, by virtue of a 3,000-year-old history and, more significant in today's world, by virtue of power, the right of might.

Israel's occupation of East Jerusalem in 1967 and its later annexation of the entire city were never recognized by the United States or the rest of the world community. The United Nations, in Resolution 242, called for an exchange of the territory Israel had occupied during the war in return for peace. That resolution also reaffirmed the illegality of holding territory by force, declaring that after a war, occupiers must withdraw. East Jerusalem was not exempt.

But, under U.S. sponsorship, the Camp David talks were based on precisely the opposite. The Clinton administration seems to have treated Israel's 1967 military occupation of Arab East Jerusalem as a legal reality that was subject to revision, but not reversal.

The Camp David agenda should have been based on international law and rights. According to international law, Israeli withdrawal from occupied East Jerusalem and the right of Palestinian refugees to return home are mandated by U.N. resolutions. But without U.S. insistence that those decisions be binding, Israel could ignore international law with impunity.

Like the Camp David summit, future talks will also fail if they do not address the enormous disparity of power that puts the Palestinians at such a disadvantage. Only Washington can balance that uneven playing field.

Ultimately, any successful effort to craft a lasting and comprehensive peace between Israel and the Palestinians should be based on justice, not on might. And that means relying on international law and the rights guaranteed by the United Nations, not simply using the cliched formula - might makes right.

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