Ed Rettig, Acting Director, AJC-Jerusalem
November 30, 2010
Last week Jerusalem and Ramallah vividly displayed their respective dysfunctions. The Knesset passed a law requiring a referendum on withdrawal from Jerusalem or the Golan Heights, areas that have been legally incorporated into Israel. Not to be outdone, the Fatah party's Revolutionary Council (described as its highest "legislative" body) issued yet another provocative declaration rejecting Israel as a Jewish State, nixing land swaps and directing its leadership to foil the Israeli referendum law.
Some on the Israeli right say that requiring a referendum places brakes on any possible withdrawal. In fact, the law is an embarrassingly slapdash effort that could well prove irrelevant should the peace process move forward. These are some of the problems with the law:
In short, if ever a draft law deserved to be sent back to committee for thorough review, this was it.
- It passed as ordinary legislation, not as a constitutionally protected "basic law." Unlike a basic law, which usually requires a special majority to amend or repeal, ordinary legislation can be repealed by a simple majority of Knesset members present at a vote. Put another way, the same Knesset majority that passes some future agreement requiring an Israeli withdrawal could also repeal the law that prescribes a referendum. Absurdly, the law requires a supermajority of eighty MKs-two-thirds of the membership-voting in favor of a withdrawal from the Golan or Jerusalem to negate the need for a referendum. Legislators failed to notice that a simple majority can do the same, if it repeals the referendum law itself.
- The law speaks only of Jerusalem and the Golan Heights. The government and Knesset are free, as before, to approve any withdrawal on the West Bank without a referendum. Theoretically, they can agree to Fatah demands in that region, a return to the hard-to-defend pre-1967 lines and expulsion of settlers, without a referendum. While this made political sense in terms of getting the bill passed, it expresses an inconsistent approach to the democratic "voice of the people" in agreements on withdrawals.
- Equally incongruously, if the intention was to apply direct democracy to the difficult question of withdrawal from the Golan and Jerusalem, why does the Knesset retain its power to reject a withdrawal agreement on its own authority, without referendum?
But Palestinian responses may well have greater significance than the Israeli legislation itself. As soon as the bill passed the Knesset, even before the Fatah Revolutionary Council denounced it, Saeb Erekat, a Palestinian veteran of decades of peace negotiations, explained to the French news agency AFP: "Ending the occupation of our land is not and cannot be dependent on any sort of referendum.... Under international law there is a clear and absolute obligation on Israel to withdraw not only from east Jerusalem and the Golan Heights, but from all of the territories that it has occupied since 1967." Herein lies a "Freudian slip" indicating how profoundly the Palestinian leadership misunderstands what makes Israelis tick, and therefore cripples them in negotiations.
Anwar Sadat could have taught Erekat a thing or two about negotiating effectively with the Israelis. Commenting on Israel's approval of the peace treaty with Egypt, he memorably noted: "I have a great ally in Israel that I depend upon. Do you know who? The Israeli mother." What Sadat provided the Israeli mother was credible assurance of safety for the Israeli people, something that Egyptian governments maintain to this day. It was the credibility of that assurance that generated the Israeli majority in favor of withdrawal from Sinai and taking the chance of entering a new era of peace with their largest Arab neighbor. In the process, Sadat successfully outmaneuvered the Carter Administration (largely locked into a now long-forgotten misconception of how to deal with the Soviets at the expense of America's allies), and the Begin government, which was confused about its negotiating goals.
A wiser approach to the referendum law would have the Palestinians finally make the strategic decision to win the support of the Israeli mother, rather than lecture her about international law. It would render any referendum moot by crafting an agreement with Israel that credibly meets the fundamental need of the Israelis for safety. Such a response would turn a sloppy piece of Israeli legislation into a winning card for the Palestinians. Sadly, we still await Palestinian leadership that grasps what Sadat understood.