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May 1999: Options

(February 1999)

May 4, 1999: The End of the Transitional Period and Palestinian Options *

In 1993, the Palestine Liberation Organization (PLO) and the government of Israel reached agreement on a mutual recognition and a Declaration of Principles on Interim Self-Government Arrangements (DOP), both within the framework of the Middle East peace process. The DOP stipulates for "a transitional period not exceeding 5 years, leading to a permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973)."

The basic idea, of course, was not a new one, but the DOP did represent the first time that the Israeli and Palestinian sides reached such an agreement. Following the DOP, the two sides concluded partial implementation agreements, which were then superceded by the Interim Agreement on the West Bank and the Gaza Strip of 1995. The Interim Agreement outlines the details of the 5-year transitional period, which began upon the withdrawal from the Gaza Strip and the Jericho area and which is to end on the 4 th of May 1999. The last agreement concluded between the parties is the Wye River Memorandum , reached at Wye River on 23 October 1998, under which the two sides again agreed to "immediately resume the Permanent Status Negotiations on an accelerated basis and will make a determined effort to achieve the mutual goal of reaching an agreement by 4 May 1999."

It is clear, then, that the 5-year transitional period will unambiguously come to an end on that date - May 4 th 1999. Unfortunately, it is also clear that the two sides will not be in a position to conclude a final settlement by that date as a result, I believe, of Israeli non-compliance and procrastination. The question then arises - what could or should be done by the Palestinian side on this important date?

It can be argued that the Palestinian people have the right, after undergoing the agreed-upon transitional period, to take the mutual recognition, combined with Security Council resolutions 242 and 338 to its logical destination - independence and statehood. In any case, and as a matter of principle, the Palestinian people have inalienable rights, including their right to self-determination, which are based on international law, the Charter of the United Nations, and on relevant U.N. resolutions. These rights are not dependent on and do not emanate from the existing Palestinian-Israeli agreements. Moreover, given the state of affairs of the peace process and the elapse of the transitional period, it seems justifiable for the Palestinian side to take steps to realize those rights.

Palestinian decisions aimed at the realization of the above-mentioned rights will be made by the relevant Palestinian bodies and, in the final analysis, by them alone. Any such decision cannot, however, be labeled a "unilateral act," an invented and vague term which seems to describe actions which are not fully consistent with the terms of the Palestinian-Israeli agreements. If any Palestinian actions are taken after the end of the transitional period, then they clearly are not inconsistent with those provisions. They will not violate the agreements and will be perfectly in line with international law. To the contrary, the threatened Israeli response, if carried out, would be a violation of the crux of the Middle East peace process and of the mutual recognition between the two sides. Further, it would be an additional gross violation of international law and is expected to be vehemently rejected by the international community.

Let us now try to examine closely the different options available to the Palestinian side on the 4 th of May and the ramifications of those options. The first option is to do nothing. What is meant here, of course, is the exclusion of any meaningful Palestinian actions entailing legal and political ramifications. Indeed, some parties are advising the Palestinian side to do just that. Their arguments in favor of this option are basically as follows: such Palestinian action would destroy the peace process, would provide the Israeli government with a pretext for taking extreme counter-measures and, finally, would have a negative impact on Israeli elections.

If taken, however, this ‘do-nothing' option will effectively mean a Palestinian surrender of the realization of their rights to unilateral Israeli will with no time limit. At best, it would lead to an unlimited transitional period and, at worst, a willful subjugation of Palestinian rights. Any future Israeli government, headed by Likud or even Labor, would realistically abuse such a situation to the maximum. Another problem with this ‘do-nothing' option is that, as some argue, with the end of the transitional period, the existing Palestinian institutions linked to it would also come to an end, thus creating a legal and political vacuum. Theoretically, at least, the whole situation might even revert back to the status quo ante . In addition, this option would cause, I believe, some serious problems for the Palestinian leadership among the Palestinian people, who were promised and expect specific actions. Finally, I believe that this option would benefit Mr. Netanyahu and the Israeli right during the election campaign. The ‘do-nothing' option would be portrayed by Mr. Netanyahu as a victory achieved because of his policies and as proof that the Palestinians, like Arabs in general, respond only to such policies.

The second option available to the Palestinian side is to postpone taking any action. In reality, this option would create exactly the same situation resulting from the ‘do-nothing' option. The argument, nevertheless, is as follows: a postponement does not close the door to any possible Palestinian actions at a later date, such as after the Israeli elections or after a few months. The problem with this option is that the success of such actions at a later stage seems largely unrealistic. Any future date for action chosen by the Palestinian side might be considered by the international community as an arbitrary choice. Many parties, wanting to avoid taking difficult decisions, would prefer to strongly pressure the Palestinian side to be even more patient. Nevertheless, that option will be advocated by some, at least since it will be hard for any Palestinian to go along with an outright public ‘do-nothing' option.

The third possible option is a mutual extension of the validity of the transitional period for a specific period of time. This option could have been the best option for both the Palestinian and Israeli sides, had there been reasonable implementation of the existing agreements. A few months ago, the speaker thought that the situation was most probably headed in that direction, while understanding that the matter would be subject to many bargains, pressures and counter-pressures. The problem, however, is that this option has become increasingly difficult given the actual and complete cessation of the implementation of the Wye River Memorandum and, of course, the negotiations on the permanent status. The timing of the Israeli elections, which seems intentionally set beyond the 4 th of May, makes such bilateral agreement on the extension all the more difficult. Soon, there will not even be a government to reach such a deal with.

The fourth and last option available to the Palestinian side is to take concrete actions towards the realization of statehood and independence. The actual results of this option will depend largely on what these actions are and how they are taken, with all the necessary attention to details. But it seems that, given the Palestinian inability to impose a different situation on the ground, a decisive element here will be the position of the international community and the degree of international acceptance or recognition of those Palestinian actions.

The question then becomes - which option should be pursued by the Palestinian side? It seems that the ‘do-nothing' and the ‘postponement' options are significantly dangerous for the Palestinian side and should be considered ‘non-options'. Option #3, to extend the transitional period, has become unfeasible under the circumstances intentionally created by Mr. Netanyahu. Moreover, if artificially undertaken, this option may be harmful to the Palestinian people and the Palestinian cause. If all of the above is true, then the Palestinian side is left only with option #4. The Palestinian side ought to take actions of a legal and political nature, thus creating different dynamics and preparing for a new stage.

Under this option there exists a range of possible specific actions, Which require greater Palestinian consideration and serious thought. The question effectively becomes - what can be done within option #4 and not outside of it? In this respect, regardless of what is decided, certain things should be done. For instance, the facts and realities should be explained to the Palestinian people, to the Arab states, and to the rest of the world. We must build a Palestinian consensus, for this is not a tactical matter. We must solidify the Arab front and we must rectify the current impressions that the Palestinian side is threatening to take "unilateral actions" and that the Palestinian side is just waiting for an opportunity to opt out of the peace process. Both, of course, are false characterizations. In addition, we must also make efforts to explain the facts and realities to the Israeli people.

Second, we should take into consideration the fact that the Declaration of Independence of Palestine was already proclaimed by the Palestine National Council (PNC) in 1988 and the fact that there already exists wide international recognition of Palestine. As such, we are not starting from zero. Third, our commitment to the peace process, to the mutual recognition and to the peaceful settlement of the conflict should be reaffirmed as a matter of policy. We must call upon the Israeli government to solve the remaining problems through negotiation, with the aim of reaching a treaty between Israel and Palestine. Lastly, we must take care not to give the Israeli side any pretext for violent reaction.

In the last period of time, if anything, the Palestinian side has succeeded in making the Palestinian State an inevitable, coming reality for all the parties concerned. In actuality, part of the current struggle is taking place over the terms for the creation of that state. The present situation imposes a dilemma upon the Palestinian side, but it also provides for a challenge and an opportunity. We must be careful not to undo any achievements or thwart that opportunity.

* This text was delivered as a statement by Dr. Nasser Al-Kidwa, Ambassador, Permanent Observer of Palestine to the United Nations, at a symposium of the Center for Policy Analysis on Palestine on 22 January 1999.