U.S. Secretary of State John Kerry has done an admirable job of creating an "architecture of peace" to support the negotiations launched in July 2013. He engineered the appointment of retired U.S. General John Allen to delve deeply into Israel's security requirements following a peace treaty, recognizing that the security dilemmas would range far beyond the immediate challenges of securing an Israeli-Palestinian border. Kerry understood that Israel's readiness to take the risks associated with withdrawal from the Occupied Palestinian Territories (OPT) would be influenced directly by the degree to which Israel's security requirements were taken into account.
Kerry also reactivated the role of the Arab states in the Israeli- Palestinian negotiations. He convened a meeting in Washington of the Arab foreign ministers' "Quartet" along with the secretary-general of the Arab League in order to reaffirm the validity of the 2002 Arab Peace Initiative and, in fact, to modify it slightly to take into account Israeli concerns. Kerry also expressed strong support for two important economic initiatives: a multi-billion dollar commitment by the World Economic Forum to promote investment in the Palestinian state, and "Breaking the Impasse," a privatesector Israeli-Palestinian initiative designed to promote business ties after a treaty is agreed to. In so doing, Kerry reflected the importance of ensuring that a Palestinian state would be successful and able to support its citizens' economic needs.
Having fashioned this architecture of peacemaking, rather than simply asking the parties to resume negotiations, Kerry created a modicum of resilience in the negotiating structure - that is, a process able to withstand the expected problems, obstacles, and efforts by spoilers to derail the effort. So far, the process has held - notwithstanding mini-crises over prisoner releases, settlements, and individual acts of Palestinian violence; but it is showing severe signs of stress, none of which is unexpected.
The Need for Terms of Reference
For the process to move forward, Kerry will need to address at least two problems that stand out. First, although there are indications that the parties have been talking seriously since July, it also appears that these negotiations lack terms of reference. Reportedly, there were some general understandings reached between the United States and each of the parties in advance of negotiations, but the two sides could not agree on a starting point for the talks - on whether the talks should proceed from where they left off in 2008 - or what precedence should be given to the discussion of the core issues. Normally, the absence of terms of reference in negotiations is a prescription for failure, as there is no constraint on the parties' raising any issue they want or refusing to engage on issues of concern to the other side.
In this case, Kerry undoubtedly understood that it would be impossible to agree on terms of reference in advance, and that imposed terms of reference were likely to drive one or both sides from the table. Indeed, dealing with the issues of terms of reference in advance of negotiations would have eaten up an enormous amount of time and diplomatic capital. Instead, having constructed a reasonably sound negotiating structure, Kerry probably assessed that it would be best to allow the parties to engage directly for a few months, even if the prospect of their accomplishing much was minimal.
Now that the two sides have exhausted this period of a "few months," the absence of terms of reference has become far more important. Without them the parties will have trouble dealing with the trade-offs and mutually reinforcing concessions that will be critical to reaching an agreement. As such, it is time for the U.S. to develop terms of reference, introduce them in the negotiations, and expect the parties to negotiate within the parameters of those terms. Nothing about this will be easy.1
Four Factors That Must Be Taken into Account
First, while the United States has crafted such terms in the past - for example, the "Clinton Parameters" in 2000 - it has never put them forward unilaterally as a required basis for negotiations. In introducing his parameters, then-President Bill Clinton said that he would withdraw them if both sides failed to accept them as a basis for talks, and in fact he did withdraw them. Earlier, in the run-up to the Madrid peace conference in 1991, the U.S. negotiated terms of reference with the parties, incorporating what was agreed in the letter of invitation. So, a unilateral move by the U.S. in this respect would be unprecedented.
Second, while there is a common refrain that everyone knows how this conflict will end, framing terms of reference will be far from simple. Both parties will examine each word with a microscope, and will argue that U.S. formulations bend too far in the direction of the other side, or fail to take into account critical national interests. The future trade-offs that both sides know they will ultimately face will need to be outlined in this paper, but seeing them on paper will be a shock to both systems. The political temperature in both societies will soar.
Third, for the process of launching the terms of reference, the U.S. will want to consult with both sides while avoiding the perception of bias in favor of Israel. In this respect, Israel will cry foul, as it believes there is a U.S. commitment to consult and coordinate policy with it in advance. Israel will argue that U.S. parameters or terms of reference that have not been coordinated in advance are as dangerous as the 1982 Reagan Plan, which was launched without any prior coordination with Israel.
Fourth, the credibility and diplomatic power of the U.S. are under assault today both in Israel and throughout the region, especially in the aftermath of the interim nuclear agreement with Iran. U.S. policies are particularly unpopular in Israel, and thus a diplomatic push in this direction will need to overcome resistance, opposition, and distrust. Even the most artfully crafted terms of reference will be dismissed among many in the Israeli government coalition as a desperate American attempt to exert pressure on Israel and thus pacify the Arabs.
Can the U.S. Accept "No" for an Answer?
For all these reasons, Kerry and President Barack Obama will face a second policy choice at this time, namely, whether or not to accept "no" as an answer. This is a most problematic test for a president who is under assault at home by Republicans over healthcare legislation and other matters, and who faces opposition even within the ranks of the Democratic Party over the Iran agreement. On the one hand, given the president's crowded agenda and the natural disposition of a second-term president to think about achievable goals, it may be hard to persuade Obama that "no" is not an acceptable response to a U.S. initiative in the peace process.
On the other hand, in some respects, Obama is already leaning in the direction of bolder, more forthright American behavior in the peace process. In his September 24, 2013 address to the United Nations General Assembly, Obama said:
In the near term, America's diplomatic efforts will focus on two particular issues: Iran's pursuit of nuclear weapons, and the Arab- Israeli conflict. While these issues are not the cause of all the region's problems, they have been a major source of instability for far too long, and resolving them can help serve as a foundation for a broader peace.
Obama went on to say that it is time for world leaders to take risks for peace, in order to provide support for the risks that Palestinian and Israeli leaders are taking. Obama has thus committed his administration to act more boldly than in previous peace efforts.
If the United States does put forward terms of reference, it is thus imperative for the administration to refuse to take "no" for an answer, that is, to make it clear that the U.S. is prepared to push forward and to exact consequences, if appropriate, for the failure of the parties to negotiate seriously on the basis of the terms of reference developed in Washington. The U.S. has experience in the diplomatic art of refusing to take "no" for an answer. President Dwight D. Eisenhower did not back down in 1956-57 from his demand that Israel, along with France and the United Kingdom, withdraw from Egypt after the Suez War. President Gerald Ford and Secretary of State Henry Kissinger refused to accept Israeli Prime Minister Yitzhak Rabin's initial rejection of the 1975 Sinai II Agreement. President George H.W. Bush and Secretary of State James A. Baker III kept working toward the Madrid Conference of 1991, notwithstanding initial rejections from Israeli Prime Minister Yitzhak Shamir and Syrian President Hafez al- Assad. No two cases are so similar as to allow us to draw exact parallels, but each of these cases is instructive regarding American will, determination and willingness to stay the course.
The U.S. Should Express Determination to Advance the Peace Process
What would the aftermath of a "no" from the parties look like? First, the U.S. would have to speak clearly and authoritatively, with one voice, of its determination to advance the peace process. This would require not only discipline within the executive branch, but also enough support from Congress so as to preempt an end-run, primarily by Israel, around the president. The current mood in the Congress is fractious on both domestic and foreign policy issues. The administration would have to make a strong case for the reasonableness of its approach in order to gain even minimum support on the Hill.
Second, the administration would need to have thought out in advance - and discussed in its consultations with Congress - the consequences of a "no" from the parties. There would not be a need to escalate immediately into punitive measures - such as cuts in economic assistance - but there would need to be a graduated scale of measures that the administration would be prepared to take to manifest its seriousness. In this regard, the Ford- Kissinger period is instructive. In 1975, the Ford administration declared its intention to "reassess" relations with Israel, and it took administrative steps to put some bilateral programs and dialogues on hold pending the outcome of the reassessment. The Ford administration also suspended the delivery of some fighter aircrafts, not a particularly wise move when arguing that a peace agreement would enhance Israeli security. The point is that the 1975 experience illustrates how gradual, graduated steps can accomplish a larger policy purpose.
The New UN Security Council Resolution Option
Third, if these measures, or the threat of additional measures, still fails to change the views of one or both parties, perhaps the most far-reaching action that the administration could undertake would be to take the terms of reference to the United Nations Security Council (UNSC) and seek to adopt a resolution incorporating those terms as a new basis for the Middle East peace process, a successor to UN Security Council Resolution 242 of 1967. This action, if undertaken, would have profound consequences. The negotiations themselves would stop. Israel and the United States, and perhaps the Palestinians and the United States as well, would enter a period of severe bilateral crisis, with some Israelis calling on their government to abandon negotiations altogether and adopt instead unilateral measures, including accelerated settlement activity. In the U.S., the domestic political costs for Obama would skyrocket, as politicians scramble for cover in the run-up to the 2014 midterm elections. In the immediate term, thus, this move would carry high costs.
However, these short-term costs would need to be measured against the long-term viability of the two-state solution, should terms of reference not be put forward now or should the U.S. abandon the effort in the face of resistance from the parties. If the current process fails under its own weight and without the strongest possible push from the U.S. - notwithstanding the short-term political risks - a deep malaise will overtake the region, and the two-state idea will be in deep crisis. Already there are signs of renewed Palestinian violence - what one analyst has called an "Intifada of individual initiatives" - and another round of serious violence cannot be ruled out.
Hope for Progress and the Two-State Solution
At the same time, determined action by the U.S. - that is, fair and balanced terms of reference and the insistence that the parties negotiate within the parameters of these terms - offers hope for progress which, if unrealized, at least will provide the two-state solution with a revitalized basis for a settlement when leaders are ready to resume. In this case, the downsides of short-term crisis would be more than offset by the importance of strengthening the two-state negotiating structure in future negotiations.
1 For an example of parameters or terms of reference, see: "Appendix: Possible Terms of Reference for Israeli-Palestinian Negotiations" in Daniel C. Kurtzer, editor, Pathways to Peace: America and the Arab-Israeli Conflict (N.Y.: Palgrave Macmillan, 2012), 209-214.