What If the Conflict Went to Arbitration?

The Hour

By Leonard Fein

Published February 16, 2007, issue of February 16, 2007.

This is not the most propitious week in which to propose the exercise I am about to recommend, but when dealing with the Arab-Israeli conflict, waiting for the stars to align is pointless.

This week’s particular misalignment? The remarks of a delusional man named Nizar Rayyam, a spokesman for Hamas: “We will never recognize Israel. There is nothing called Israel, neither in reality nor in the imagination.”

Rather than clucking about such pathetic bluster, let us turn to more constructive endeavors.

Which brings me to baseball — more specifically, to the manner of arbitration in baseball. It turns out that when a player rejects his team’s salary offer, each side is required to secretly propose a resolution. The arbitrator then must choose one or the other. This device, known as “Final Offer Arbitration,” is occasionally used in other efforts at conflict resolution, but in baseball it is the exclusive method.

Its purpose, plainly, is to bring both sides closer together. If the player asks for wildly too much while the team is being reasonable, the team wins, and vice versa. The success of the method is, of course, contingent on both sides accepting the arbitrator’s decision as binding — and on a rigorously unbiased arbitrator.

So here’s our exercise for the day: Imagine that the Madrid Quartet — the United States, European Union, United Nations and Russia — perhaps Japan, China and India as well, was to inform the Israelis and the Palestinians that unless they accept the baseball model of binding arbitration, severe sanctions will be imposed on them. And then, in an even more powerful feat of imagination, imagine both do accept and agree on an acceptable arbitrator.

Here’s the question: What should the Israeli proposal contain?

The purpose of the exercise is the clarification of values and priorities. Borders, settlements, Jerusalem, refugees, water — the big questions. (Should it ever come to this, the minutes of the heated internal meetings of the two sides will doubtless prove one of history’s more fascinating documents.)

Take the very contentious “right of return.” The Israelis know that Saudi Arabia, the Arab League, even Yasser Arafat before he died, indicated their recognition of Israel’s “demographic constraints” — that is, of Israel’s determination to retain a sizable Jewish majority, therefore to bar the wholesale absorption of Palestinian refugees.

Were the Palestinians to insist on an absolute right of return while the Israelis were proposing both a generous family reunification program and an acknowledgment of Israel’s share of responsibility for the refugee problem, a fair arbitrator seeking moderation from all sides would go with the Israelis; were Israel to be adamant that all Palestinian refugees must be absorbed exclusively by the new state of Palestine, while the Palestinians were proposing a mixed solution, the Palestinians would get the nod.

Jerusalem? Is it not immediately obvious that the Palestinians will have their capital in East Jerusalem, as also control over the neighborhoods in which they are the majority? Indeed, here we might even expect nearly identical proposals.

Borders are considerably trickier. The guiding principle will have to be, as it almost was in the offer made by then-prime minister Ehud Barak at Camp David in 2000 and as it was in the Geneva Initiative several years later, that the boundaries of June 4, 1967, are the starting point, that any Israeli expansion beyond those borders — as, most prominently, in the several settlement blocs — must be compensated for by Israeli concessions of equivalent amounts of land.

My purpose here is not to draft a peace treaty nor even the peace proposal the Israelis might be inclined to put forward. It is to force consideration of the issues, consideration that takes us beyond rhetoric, that demands of us that we distinguish between the essential and the peripheral.

It is, I believe, a useful exercise, but it does have one instructive limitation: In the end, the disagreement is less about the terms of a peaceful settlement than about its reliability. All sorts of guarantees can be stuffed into a formal document, and the key elements of the document can be drafted as efforts to reduce potential flash points, but when all the language has been put to bed, the question that remains is whether the parties really intend peace. Put bluntly, how much is the signature of a Palestinian whose governing majority believes “there is nothing called Israel, neither in reality nor in the imagination” worth?

The Hamas spokesman who spoke those words is wrong. What there isn’t is a process that will bring the parties, whether willingly or through coercion, to argue their way to agreement. What there isn’t is any confidence, on either side, that an agreement, once achieved, will be honored.

We may be nearly certain that if anyone were able — and no one is — to guarantee the Israelis that an agreement would in fact be honored, the overwhelming majority of Israelis would happily, almost giddily, endorse it, almost no matter how generous its terms, almost no matter how deep the concessions it calls for. And there’s little doubt that were such a guarantee offered to the Palestinians as well, their masses, too, would approve it.

The real world problem is that no such guarantee is available. In the real world, we get odds, not guarantees. It is a mistake to think that the language of a treaty can resolve the credibility problem; indeed, no matter how delicately or imaginatively crafted, a treaty that is required to manufacture credibility where there is none will be too weighted down to warrant signature. And there you have the nub of the difference between those who want to move toward a final settlement in one giant step and those who insist on the priority of “confidence building” measures.

Relax, it’s only an exercise. Then again, so was a Jewish state back in 1897 when Theodor Herzl convened the first Zionist Congress.



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