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Land Swaps Should Be Off the Table in Israel-Palestine Negotiations

Monday, 24 June 2013 14:25 Shawan Jabarin
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The following Op-ed was published on 6 June 2013 in The Huffington Post 

Shawan-Jabarin-2009-meetingIn an unexpected move in April the Arab League endorsed for the first time “mutual and minor” land swaps as a central feature of renewed negotiations between Israelis and Palestinians. Such a proposal risks undermining fundamental norms of international law and must be firmly opposed by the international community.

The Arab League’s new plan envisions a softening of the 2002 Arab peace plan, which proposed that 22 Arab countries would normalize ties with Israel in return for withdrawal from land that it occupied in 1967. According to the prime minister of Qatar, Sheikh Hamad bin Jassim bin Jaber Al Thani, this latest initiative would again involve an agreement that would strive for a two-state solution based on the borders of 4 June 1967, but with the additional option of "comparable and mutual agreed minor swaps of the land”.

Ministers from the Occupied Palestinian Territory (OPT) were among those present in Washington D.C. when the land swap proposal was presented to US secretary of state John Kerry. Chief Palestinian negotiator Saeb Erekat praised the initiative for providing “a comprehensive regional solution” but simultaneously cautioned that the Palestinian condition for returning to negotiations remains dependent upon Israel’s acceptance of the two-state solution based on the 1967 borders. Palestinian Authority (PA) and Fatah officials have expressed reservations with regard to such an idea. PA negotiator Muhamed Shtayyeh has stated his concern that the proposal would be interpreted as an invitation to annex West Bank settlements to the State of Israel.

Nonetheless, the announcement has been welcomed by Kerry who, along with British foreign secretary William Hague, visited Israel and the OPT late last month in a bid to kick-start negotiations between the Palestinians and Israel.

Regardless of the reaction to such a proposal, mutual land swaps are problematic on both a political and a legal level; not least because they would inevitably involve protecting illegal Israeli settlements and their infrastructure in the West Bank, including East Jerusalem, which have been universally recognized as in violation of international law. Therefore, an agreement of this nature would implicitly condone Israel’s illegal settlement enterprise, which routinely dispossesses Palestinians of their land and appropriates natural resources in the OPT. Such a move would also set a dangerous precedent in which prolonged colonial policies perpetrated by an aggressive occupier are eventually accepted by the international community. Any land swap agreement would further undermine fundamental norms of international law, such as the prohibition of acquisition of territory through force and the right to self-determination of the Palestinian people.

Not only should land swaps be removed from the negotiating table because they undermine fundamental norms of international law, but also because flaws in previously proposed land swap agreements illustrate the dangers to which Palestinian rights are exposed if this path is taken. Once the doors have been opened to this notion, the term “mutual and minor” swaps of land becomes open to interpretation, running the risk that the percentage of territory identified for transfer will continuously increase.

This is evidenced by several land swap proposals that have come to light in recent years. One example stems from the 2008 proposal put forward by Palestinian President Mahmoud Abbas suggesting that 1.9% of territory be swapped between Israel and Palestine. Journalist Avi Issacharoff recently discovered a map detailing former Israeli Prime Minister Ehud Olmert’s response to Abbas’s proposal.  According to the map and an interview with Olmert conducted by TheTower.org, if implemented, this counter-proposal would have seen Israel cede territory that it claimed amassed to the equivalent of 5.8% of the territorial scope of the West Bank. Meanwhile the Palestinians would have transferred what Israel claims was 6.3% of existing West Bank territory to the State of Israel.

Not only would such an agreement have condoned Israel’s long-lasting illegal settlement enterprise, but it was also fundamentally flawed in that the percentages involved referred to the West Bank excluding East Jerusalem. If the calculations had taken into account that East Jerusalem has been illegally annexed by Israel and therefore should be considered Palestinian territory, then the percentage of territory earmarked for transfer to the State of Israel becomes significantly higher. Furthermore, if implemented, Olmert’s counter-proposal would have had serious ramifications on the viability of a future Palestinian state. This is largely because the West Bank territory identified for transfer to Israel included the contentious E1 area, which is considered essential in ensuring that East Jerusalem is the capital of an independent Palestinian State and that it is territorially linked to the remainder of the OPT.

Finally, an agreement of this nature would have disregarded the interests of those Palestinian communities transferred from the State of Israel into the State of Palestine, where they would likely lose their right to freedom of movement into and within the State of Israel. Many Palestinians living in Israel are internally displaced since the Nakba of 1948 and transfer into the State of Palestine would likely prevent them from ever returning to their ancestral land and from visiting family members living elsewhere in Israel.

What’s more, it must be noted that due to the nature of occupation, any attempts to negotiate an end to the conflict will be characterized by an imbalance of power between the occupied population and the Occupying Power. This is evidenced by Israel’s adamant refusal to even engage in discussions regarding Jerusalem and its insistence on retaining most of the settlement blocs and their associated infrastructure. This imbalance in power was most recently illustrated by Kerry’s attempts at preventing either party from taking any so-called “unilateral” actions that could be detrimental to the resumption of negotiations. The Palestinians have honored their commitment to refrain from acceding to any further international bodies and have desisted from engaging the international community in their obligations, which dictate that in the event of breaches of peremptory norms of international law, such as denial of the Palestinian right to self-determination by Israel, third States must not recognize Israel’s conduct as lawful, they must not render aid or assistance in maintaining the illegal situation and they must cooperate to bring it to an end. Meanwhile, Israel has discarded Kerry’s request and continues its settlement activity including, most recently, moving to retroactively legalize four unauthorized outposts and giving preliminary approval for the construction of 300 houses at Beit El.

The Fourth Geneva Convention, which affords protection to populations under occupation, foresees such asymmetry and therefore expressly prohibits situations in which occupied authorities may be coerced into reaching agreements that serve the interests of the occupying power while undermining the rights of the occupied population.

The international community must not disregard its obligation to discourage on-going breaches of international law in the OPT in favor of pursuing a political solution which, in practice, would serve to legitimize Israel’s illegal settlement enterprise. This is particularly concerning when viewed in light of the Charter of the United Nations, which lists promotion of justice and conformity with international law as guiding principles in the organization’s pursuit of international peace and security.

Furthermore, the focus on land swaps not only jeopardizes the protection afforded to the occupied population, but also distracts from a multitude of other issues, including Jerusalem, the rights of Palestinian refugees and prisoners, and water, all of which must be addressed if negotiations are to bring about a just and durable solution to the conflict. It is the obligation of all parties, and the international community as a whole, to ensure that any proposals for negotiations are at the very minimum compliant with international law standards. Failure to ground negotiations in international law will result in a peace agreement that is neither durable nor capable of protecting the rights of all, especially those of the Palestinian people.

Absent a legal foundation, negotiations will be premised on the political interests of the most powerful actors, to the detriment of the occupied population that international law seeks to protect. Therefore, any attempt by negotiators to begin discussions based on the notion of mutual land swap agreements should be dismissed as not only a clear expression of purely political interests, but also as a dangerous precedent that would undermine the international legal regime and result in another round of failed talks and dashed hopes.  

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