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Professor Anthony D'Amato
Northwestern University School of Law
JURIST Guest Columnist

Permanent peace in the Middle East by 2005 would be a long dream come true. The Road Map issued April 30 seems to be the most practical way to achieve that dream. It is issued on behalf of the Quartet -- the United States, Russia, the European Union, and the United Nations. Although in effect it's an imposed peace, it's better than bilateral negotiations between the Israelis and the Palestinians which have never gotten anywhere.

The Road Map is flexible on the theory that there has to be "confidence-building" between Israel and the nascent state of Palestine. I suspect that the flexibility in the plan is a bit of a cop-out; it was apparently too difficult for the Quartet to draw up a more detailed plan with clear steps that had to be accomplished by given dates. The Road Map to me seems too large in scale, like using a road map of the United States when you want to take an in-state trip. The result may be to throw too much responsibility for detailed planning into the various committees that the Quartet will set up to supervise and monitor the plan as it goes along. In turn this will result in many fights over the composition of the committees.

On the most fundamental level, obtaining a commitment from Palestine to accept Israel as a neighbor living in peace and security is, I believe, non-negotiable. It is clever of the Quartet to tie that commitment to their willingness to accept Palestine as a new state. (Palestine doesn't really need the Quartet's permission to become a state, as Francis Boyle pointed out back in 1986; the Palestinians could simply declare themselves to be a state, and a great many other states would immediately recognize them.) But all these are just surface issues. The really big issue waiting to erupt is, What's going to happen to all the Palestinians who have been living for many years as unwanted refugees in neighboring Arab states? Would a new state of Palestine proclaim a "right of return" to these people similar to the Jewish right of return proclaimed by Israel in 1948? A huge migration of Palestinian refugees into the new state of Palestine would be anathema to Ariel Sharon, through there are many liberal Jews in Israel who accept it as inevitable. But curiously, even though left-wing Jews do not oppose the migration of Palestinian refugees into the West Bank and Gaza Strip, left-wing Palestinians oppose it. Of course I'm not saying anything new here; the Palestinian terrorists don't want the refugees to come home, whereas Arafat does. (It's the one thing that I find most curious about Arafat; he's a greedy, selfish manipulator who for all his conniving seems basically stupid, yet I've never heard a really convincing explanation of why he is liberal on the refugee issue.) Now that Arafat has been marginalized, we may find that hidden in the Road Map is an underground deal between Bush, Sharon, and the new Palestinian Prime Minister Mahmoud Abbas, to conveniently forget about the plight of the Palestinian refugees. At the end of the Map we find a statement that the final and comprehensive permanent status agreement between Israel and Palestine in 2005 will include "an agreed, just, fair, and realistic solution to the refugee issue." That language doesn't get us much farther than agreeing that the universe is real independently of our perception of it.

As the parties begin to implement the Road Map, there will be much jockeying for position on the refugee issue. The Quartet was obviously devised to exclude Israel's neighbors (except insofar as they have a minor voice in the United Nations which itself is part of the Quartet.) Thus there may be no one around to speak for the refugees whom Michael Reisman in a book many years ago called the "wretched of the earth."

Sensitivity to the refugee issue may account for the most glaring absence I found in reading the Road Map: it contains virtually no mention of human rights (except for easing restrictions on movement of persons, a not unimportant matter depending on how it is interpreted). I've said on other occasions that the Bush Administration seems intrigued with exporting a process-type democracy to other nations (as was Woodrow Wilson; it's nothing new), but otherwise it seems unconcerned with basic rights as contained in our Bill of Rights or in the Universal Declaration of Human Rights. There is no mention in the Road Map of achieving equal rights for women, to pick one example. The bulk of the Road Map deals with security issues, but never asks the question: security for what? Maybe the Quartet was afraid that if it mentioned human rights, the refugee issue might be highlighted when the goal is to hope it goes away silently into the night of the desert.

I think the Bush Administration has a short-sighted view of "democracy." It seems to have failed to learn the lesson of Algeria, where the electoral process had to be halted lest a fundamentalist party be elected that would then abolish the democracy ("one man, one vote, once"). We are headed to the same problem in Iraq, and if the Road Map is a clue, we may be headed the same way in Palestine. A process-democracy isn't enough; separation of powers isn't enough (the Road Map calls for separation of powers to be built in to the new Palestinian constitution!); what's needed, as the US experience has shown to all but the most partisan observers, is that you have to tack on a Bill of Rights (as well as including certain fundamental rights in the body of the Constitution, such as habeas corpus and the prohibitions against ex post facto laws and bills of attainder), in order to make democracy work. Without an up-front commitment to securing these basic rights as the Bush Aministration engages in its quest of toppling dictatorial regimes and replacing them with democratic ones, it may soon find that democracy equals fundamentalism--the tyranny of the majority. For all President Bush's talk about freedom and morality, he doesn't appear to see much of a relationship between those concepts and international human rights. The end result may come back to haunt him.

Apart from the refugee issue, which could be the most potentially explosive in months to come, are the issues of Jerusalem and the Israel-Palestine border.

Jerusalem is slowly slouching its way toward becoming an international free city. It's still a long way off, but as I've observed the matter over the years, it will be very hard for Israel to claim sovereignty over Jerusalem. A divided, or sectorized, Jerusalem is the most prominent current idea, but I don't think it's really in the parties' best interests unless it's a beautifully managed "soft" kind of division. If the goal is to have a Religious Capital, then Jews, Muslims, and Christians all stand to gain by having access throughout the city. In addition, land values and commerce will soar. The Road Map seems to be making a gesture toward a free-city solution when it calls for a "negotiated resolution on the status of Jerusalem that takes into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christians, and Muslims worldwide."

The border between Israel and Palestine has been since 1947 the main springboard for violence. The Arabs, with a territorial genius rivaling that of Saddam Hussein, blew their golden opportunity to accept the November 1947 Partition Plan. They again blew their chances in subsequent conflicts. As one of the Israeli Prime Ministers said, the Palestinians never miss an opportunity to miss an opportunity. There is little talk today about going back to the 1947 lines, even though a case can be made that the Partition Plan was the last legal boundary. The talk today is whether the border is to be pre-1967 or post-1967 up to September 2000. (The Road Map itself calls upon Israel to withdraw from Palestinian areas occupied since September 2000.) What does the Road Map say about pre- vs. post- 1967? In effect it opts for a legal solution, first referring to the "occupation that began in 1967." Israel has resisted calling it an "occupation," but the term has stuck, and debate on the propriety of the term shifted to whether or not it was a military occupation that invoked the protections of the Geneva Conventions. By using the term "occupation," the Road Map tilts slightly against Israel on this starting point. The Road Map then goes on to say that the final border solution must be "based on the foundations of the Madrid Conference, the principle of land for peace, UNSCRs 242, 338 and 1397, [and] agreements previously reached by the parties." This is legal quicksand rather than a road map. At least it will help a lot of lawyers earn a living as they try to unscramble what all this means. By and large, the citation of the three Security Council resolutions tilts slightly against Israel. But "agreements previously reached by the parties" tilts slightly against Palestine because of the notorious difficulty in this context of proving who agreed to what. Israel is much more likely to have thorough documentation on these "agreements" than Palestine could be expected to have.

Viewed as the art of the possible, the Road Map is overall a reasonable step at this time. It tends to establish the propriety of an imposed peace outside the auspices of the United Nations, and by and large I think that there's no better alternative in the realm of practicality. Once the propriety of the principle sets in, the parties will be jockeying for power over the selection of persons to run all the committees that will have to be set up to implement the plan. In this respect, Israel has the better lawyers and the better international negotiators. So even if the Road Map on paper tilts somewhat toward Palestine, as I have suggested, Israeli talent will probably cancel the advantage the Map gives the Palestinians.

[Addendum, May 7]

Newt Gingrich recently said (according to the Washington Times of May 6th which did not footnote its source): "The State Department invention of a Quartet for Israeli-Palestinian peace negotiations defies everything the United States has learned about France, Russia and the United Nations. After the bitter lessons of the last five months, it is unimaginable that the United States would voluntarily accept a system in which the U.N., the European Union and Russia could routinely outvote President Bush's positions by three to one . . . ."

Instead of the word "unimaginable," I'd substitute "quite slick." Let me postulate the Bush Administration's (Karl Rove's?) objectives regarding the Middle East situation: (1) Do nothing to alienate Jewish voters in the United States; (2) Bring about a peaceful solution to the Israel-Palestine problem, no matter what the peace terms may be, so long as the solution is stable through 2008 (i.e., forget about more troublesome long-term issues like the refugee problem).

These two objectives override the one we might infer from Newt Gingrich's statement: (3) retain control over all aspects of US foreign policy. In the early days of the Bush Administration, I suspect that goal number (3) appeared paramount. But instead, the "bitter lessons of the last five months" have taught an interesting lesson that is quite the opposite of anything Gingrich seems to have imagined, namely, it's sometimes desirable to relinquish control over a specifically defined chunk of foreign policy in the interests of other more important goals (in this particular case, objectives (1) and (2)).

I think it takes a certain realism and humility to relinquish control over any aspect of foreign policy. Certainly the idea never seems to have crossed Clinton's mind, yet if it had, he might have been a lot more effective in his foreign policy (it requires a subtlety of leadership worthy of an FDR). As I suggested in my previous note on the Road Map, bilateral negotiations between Israelis and Palestinians have never gotten anywhere, and probably never will. I should have added: even if the US pushes both sides. Throughout Clinton's efforts at mediation, I seemed clear to me that the Palestinians and the Israelis weren't meeting with Clinton to divide up the pie but rather only to figure out by how much Clinton would enlarge the pie. Clinton did, indeed, offer to throw in many billions of taxpayer dollars to (in effect) bribe both sides to reach agreement.

President Bush has a better, and far cheaper, idea: impose peace on both sides by the heft of the UN, EU, Russia, and the US, and if any point gets substantively sticky, cast a loud dissenting vote on that point while making sure it passes three to one.

Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law.

May 2, 2003


JURIST Guest Columnist Anthony D'Amato is Judd and Mary Morris Leighton Professor of Law at Northwestern University School of Law. He writes in the areas of international law and jurisprudence, focusing upon their underlying analytic structure. His most recent books include The Alien Tort Claims Statute: An Analytical Anthology, European Union Law Anthology, International Law: Process and Prospect (2nd ed.), Analytic Jurisprudence Anthology, International Intellectual Property Law, and volume 2 of his collected papers, published by Kluwer Law International. His first book, The Concept of Custom in International Law, published in 1971, is generally regarded as a classic and is one of the most widely cited works in international law.

Professor D'Amato has taught courses in constitutional law, environmental law, international law, international intellectual property law, jurisprudence, justice, legal ethics, and torts, and since 1976 has lectured on professional ethics at Northwestern University Medical School. He has on occasion taught courses on the Evanston campus in the departments of Philosophy and Political Science. He is founder and chair of the Human Rights Interest Group of the American Society of International Law, and past president of the International Law Section and the Jurisprudence Section of the Association of American Law Schools. He has been active in the American Bar Association, serving as a member of the council of the Section of International Law and Practice, as chair of the Committee on International Courts and the Committee on Independence of Lawyers and Judges. He has served as a member of the board of editors of the American Journal of International Law and is advisory editor of the Journal of International Legal Studies.

Professor D'Amato has stated his belief that the occasional practice of law helps make more realistic his teaching and writing. Notable among the cases he has litigated are the only court of appeals victory against the government in a military service case during the Vietnam era, the only court of appeals victory against a foreign sovereign for a governmental tort committed against an American citizen, and the only case litigated (and won) by an American attorney in the European Court of Human Rights.

Professor D'Amato received his AB from Cornell University with Distinction and High Honors, his JD from Harvard Law School magna cum laude, and a PhD from Columbia University where he was a Woodrow Wilson Fellow. After teaching for three years at Wellesley College, he joined the Northwestern faculty in 1968. He was the Perkins Bauer Teaching Professor at Northwestern in 1984-85 and the Stanford Clinton Sr. Research Professor in 1989-90.