bitterlemons.org
January 17, 2011 Edition 2 Palestinian-Israeli Crossfire
 
Referendum
 
International legality is not up for a vote  - Ghassan Khatib
The referendum has surfaced for different and sometimes contradictory reasons.


A theoretical but important discussion  - Yossi Alpher
The fate of a referendum, if and when it is held, is by no means a foregone conclusion.


Referendum crisis or peace crisis?  - Nagi Shurrab
The referendum is an important component of a democratic system.


Democratic inclusion vital for legitimacy  - Gerald M. Steinberg
If a two-state agreement is reached by Netanyahu's government, the legitimacy question will be central.


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A PALESTINIAN VIEW
International legality is not up for a vote
 Ghassan Khatib
The prospect of posing a referendum in the respective societies on any agreement reached between Israeli and Palestinian negotiators is not a new idea. Periodically it has surfaced in the political landscape, arising for different and sometimes contradictory reasons.

Because any final agreement between Palestinians and Israelis will involve a major compromise for Palestinians, who--by agreeing to two states--will be compromising their rights to 78 percent of historic Palestine, it would be useful for everybody involved to make sure that such an agreement enjoys the support of the majority of the Palestinian people.

This concept was always viewed positively by both the Palestinian and Israeli leaderships. Israel, for its part, remains concerned that any agreement with Palestinians be final, i.e., does not leave any outstanding claims. One of the main means of ensuring that is by putting the agreement to a referendum that assures everybody that the agreement and the compromises it embodies are final, which will in turn be important for guaranteeing commitment.

The referendum idea was also referred to during reconciliation efforts between Fateh and Hamas and, before that, during the discussions between Palestinian factions that led to the Mecca agreement and the first national unity government in 2005. Fateh and Hamas, who have conflicting views about the correct political solution, were able to agree at that time and to form a national unity government on the basis of referring to a referendum any future agreement reached by the PLO in negotiations with Israel. Hamas has since reiterated that position in its attempts to show that it has a flexible position towards reconciliation, thus confirming its willingness to accept any agreement that would pass the muster of the Palestinian people through a referendum.

As such, the concept of referendum has been used by the Palestinian side in a constructive way that facilitates the peace process with the Israelis and the internal reconciliation process.

Recently, the referendum surfaced in Israel as well. It was used mainly by the current right-wing Israeli government in order to reassure those opposed to the peace process. Prime Minister Binyamin Netanyahu, squeezed between external pressure to proceed with negotiations on a two-state solution that would mean giving up Israeli control over the occupied Palestinian territories, and internal pressure from the strong right wing and radicalized Israeli political elite that seek further Israeli consolidation and control of these territories, used the referendum to navigate these pressures. He promised the Israeli public that, no matter what is negotiated or agreed, nothing will be final before a referendum is held. As such, the concept of the referendum was employed in a divisive manner.

Leaving the peace process up to the balance of power between Israelis and Palestinians will always produce widening gaps between them. While the idea of a referendum is legitimate for both parties, neither it nor for that matter negotiations should be over principles already established in international legality, such as the need to end the occupation that started in 1967. Rather, the referendum should be held on how those legal principles should be implemented and on the arrangements for future peace, security and prosperity for all parties within their legal borders and in complete accordance with international legal standards.-Published 17/01/2011 bitterlemons.org


Ghassan Khatib is coeditor of the bitterlemons family of internet publications and director of the Government Media Center. This article represents his personal views.

AN ISRAELI VIEW
A theoretical but important discussion
 Yossi Alpher
The demand to submit an Israeli-Palestinian peace agreement to a popular referendum is not exclusive to either side. Last November, the Israeli Knesset passed a law mandating a referendum under certain circumstances. Hamas leaders have from time to time indicated that a two-state solution affirmed by a referendum of all Palestinians, including the refugee diaspora, might be acceptable to them. Here and there, PLO leaders have mentioned the referendum possibility, too. Given the fact that the Palestinian parliament no longer has a legal mandate, a referendum could become the fall-back mechanism, at least in the West Bank, for approving a peace deal.

At present, the only binding referendum is last November's Knesset law, and it is limited in nature. It applies only to lands occupied in 1967 that have since been effectively annexed to Israel--the Golan Heights, annexed in 1981, and the areas north, east and south of Jerusalem ("East Jerusalem") to which Israeli law was applied in 1967--as well as any parcels of sovereign Israeli territory inside the green line that might be included in "land swaps" in return for Israel annexing settlement blocs as part of a peace deal with the Palestinians. Any other lands Israel gives up under a final status agreement, such as the Jordan Valley, do not require a referendum under the new law.

The law, incidentally, is not a "basic law" with quasi-constitutional status. This means it is subject to review on appeal by the High Court of Justice, which could easily rule it unconstitutional insofar as it virtually neutralizes the role of the Knesset as Israel's primary legislative institution. By the same token, a future government that can muster the support of a majority of the Knesset in favor of a peace deal involving the Golan or East Jerusalem can also, if it chooses, apply the same majority to cancelling the referendum law.

Note, too, that the acts of annexation under which Israel extended its sovereignty to East Jerusalem in 1967 and the Golan in 1981 required nothing more than simple Knesset majorities and were never submitted to the public for approval. Hence at the ethical level there is room to question the thinking behind a referendum law that refers to the return of those territories, whether it comes from the political left or the right.

Back in Rabin's day, the left weighed the idea of a referendum as the sole sovereign decision-making mechanism for a deal with the Palestinians involving Jerusalem or a deal with Syria--bypassing the Knesset, where the toxic interaction between the Palestinian issue and Israeli politics renders decision-making extremely problematic. The right-wing version that was passed last year, in contrast, approaches the referendum mechanism as a fall-back option for scuttling a peace deal that has actually been approved by the Knesset.

Thus, a referendum will be called if at least 61 but fewer than 80 MKs have approved a peace agreement involving return of annexed territories. The public then will have the option of vetoing or approving the Knesset vote. But if the Knesset rejects the peace deal, no referendum will be called to possibly reverse the Knesset decision.

There appears to be at least one "hole" in this new law, too. The question the public will be asked is, "Are you for or against the agreement approved by the Knesset?" But suppose the government of Israel and the Knesset decide to withdraw from previously-annexed territories on the basis of a United Nations demand--a distinct possibility sometime later this year--or simply unilaterally, i.e., without a treaty or agreement, as in Gaza in 2005: will the law apply?

Ultimately, in last November's Knesset decision, the right voted for the referendum law and the left against. That Prime Minister Binyamin Netanyahu, a declared advocate of a two-state solution, supported a law making it more difficult for him to win approval for such a solution clearly reflects the ambiguous nature of his commitment to peace.

Still, the actual fate of a referendum, if and when it is held, is by no means a foregone conclusion. Suppose, for example, that Syrian President Bashar Assad comes to Israel to appeal directly to the public to support a peace deal involving the Golan, and sweeps the public behind him much as Anwar Sadat did in 1977 concerning Sinai. (In contrast, it's hard to imagine such an act of charisma on the part of any current Palestinian leader.) Moreover, around 14 percent of the Israeli voting public, Arab citizens of Israel, can be expected to vote automatically for any withdrawal agreement, thereby reducing the percentage of the Jewish public that has to be convinced. Indeed, a referendum seemingly empowers the Arabs of Israel to a greater extent than their diffuse Knesset representation.

Meanwhile, as long as there's no peace process, and however important the issue at stake, this remains a theoretical discussion.-Published 17/1/2011 © bitterlemons.org


Yossi Alpher is coeditor of the bitterlemons.net family of internet publications. He is former director of the Jaffee Center for Strategic Studies at Tel Aviv University.

A PALESTINIAN VIEW
Referendum crisis or peace crisis?
 Nagi Shurrab
There is no dispute that the referendum is an important component of a democratic system that takes its legitimacy from the people, especially in issues dealing with war and peace, security, or relationships with neighboring countries and peoples.

Here we have the example of the Arab-Israel conflict, with the Palestinian-Israeli conflict at its heart. This conflict has lasted more than 60 years, with tens of thousands of victims on both sides, and a region that has seen more than one war, all of which failed to resolve the disputes between the parties. Now it is imperative that we resolve this conflict through negotiations. But this dispute is linked to the rights of both Palestinians and Israelis, tied to land ownership and intractable issues like Jerusalem, which Israel treats as its capital alone and Palestinians seek as the capital of their future state. Likewise, there is the issue of the refugees, which when broached Israel invokes its right to maintain the Jewish nature of its state. Both sides feel that such an issue cannot be resolved through negotiations.

Here we begin to feel the need for the intervention of the public. Because any agreement will be on paper alone if it is not backed by the support of the people. The decision to come to a peaceful solution lies more with the people than with the leaders or ruling elite. Even this ruling elite does not have the wisdom or the authority to overcome the will of the people and their national aspirations. Nor are leaders likely to sign agreements opposed by their publics, whose history, ideology and religion dictates what they will accept and what they will not accept.

So one question becomes: is it within the right of the Israelis and Palestinians to decide by referendum on any agreement that is reached? I believe that from the democratic perspective, the answer is yes. The target of any agreement is the public itself.

A second question is: does there exist any contradiction between the referendum and peace itself?

If it is the right of any people to vote in a referendum on any agreement intended to bring an end to the conflict, then no contradiction exists between the referendum and the agreement itself. If a referendum fails then the crisis is not in the referendum, it is with the agreement that has been reached and its lack of fairness and acceptability.

The third question is then, why is there fear and opposition to a peace referendum that would be presented on our side or theirs? This is the right of the Palestinians, as it is the right of the Israelis.

There seems to be, however, a lack of understanding of the relationship between the referendum and the conflict itself. To overcome this anxiety, we must all work to create among the two peoples feelings of acceptance of peace, political coexistence, cooperation and interdependence. Both peoples must feel that the other country is not a threat. To reach this end, we must rid ourselves of laws that deepen separation and discrimination, and eradicate violence and discrimination. Perhaps what is behind the fears and anxieties about a referendum is the growing radicalization of each society and the transformation of relations between them to one of war and destruction and killing.

Thus, the crisis lies not in the referendum itself, and not in peace, but in the relationship of coexistence and mutual acceptance. We must teach that the benefits of peace are much greater than the benefits of war, that the value of life is much higher than the value of death, and that it is the right of these peoples to live as partners on this earth.-Published 17/01/2011 bitterlemons.org


Nagi Shurrab is professor of political science at al-Azhar University in Gaza.

AN ISRAELI VIEW
Democratic inclusion vital for legitimacy
 Gerald M. Steinberg
In November 2010, during the intense efforts of the Obama administration to extend the very thin Israeli-Palestinian negotiation framework, the Knesset adopted a law requiring either a two-thirds legislative majority or a national referendum to approve the transfer of highly sensitive areas in any peace deal. In particular, the law refers to the eastern Jerusalem sections occupied by Jordan between the 1948 and 1967 wars (including the Old City and Temple Mount), to Israeli territory within the 1949 ceasefire ("green") line (that might be included in a land swap), and to the Golan Heights.

Wrenching decisions are difficult for any society, and in order to gain legitimacy and limit conflict, a wide radius of public participation is necessary. Particularly in democracies, a referendum can cushion the divisions and channel anger among those opposing the proposed change, while giving the government the legitimacy required to impose the chosen policies.

Illustrating the importance attached to gaining public support through a referendum, Prime Minister Binyamin Netanyahu expressed support for this law, both "to prevent irresponsible accords in the future" and to "allow governments to pass with strong public support any agreement that will answer Israel's national interests." If a two-state agreement is reached by Netanyahu's government, the legitimacy question will be central in gaining approval and avoiding civil conflict.

Indeed, the intense disputes that polarized Israeli society during the Oslo negotiations, culminating in the assassination of Prime Minister Yitzhak Rabin in November 1995, illustrate the need for such frameworks. In October 1995, the Rabin government received approval for the "Oslo II" (Taba) agreement transferring major territory to Palestinian control, by a two-vote majority, and under highly controversial circumstances. A referendum might have defused much of the resulting anger, which was compounded by Palestinian mass terror attacks, by preventing the exclusion of Israeli opponents and giving them an opportunity to participate directly in decision-making.

Critics of the referendum process argue that the referendum requirement is designed to effectively block agreements on territorial and related issues. From this perspective, Palestinian concessions on key issues such as refugee claims, territory and Jerusalem would be subject to rejection and then have to be renegotiated. This process would make an already extremely difficult process even more problematic, it is argued.

In addition, those who oppose referenda in general assert that governments chosen in (frequent) elections, together with Knesset representation, provide the democratic legitimacy necessary for decision-making, including on controversial core issues. In opposing the referendum law, opposition leader Tzipi Livni declared: "These are decisions that leaders who understand the scale of the problems and are exposed to all of its aspects are supposed to make. The public is not a substitute for good leadership. . . . There is one national referendum, and it is general elections."

However, there are successful precedents for relying on the law's option of receiving two-thirds support from the Knesset, meaning multi-party approval that includes significant opposition votes. The United States constitution requires the Senate to approve treaties by a two-thirds majority. In 1979, Menachem Begin received even greater support for the Egyptian peace treaty, as almost all of his Likud-led coalition members were joined by Labor and other opposition MKs. The main ideological opponents, who came from Begin's right, were very active in the media and in Knesset debates, which gave them a full opportunity to present their views within the democratic framework.

In looking forward, it is important to note that this law would have no impact on future Israeli withdrawals from the West Bank or on an interim agreement that does not involve changes in the status of Jerusalem or land swaps within the 1948-1967 armistice lines.

However, when and if "a permanent status" agreement is negotiated, changes in the post-1967 status of Jerusalem will be highly controversial among Israelis. Many fear a return to the period after 1948 when the most sacred sites (including the Western Wall of the Temple Mount) were inaccessible and ancient synagogues in the Jewish Quarter were desecrated. The terms of the armistice that guaranteed free Jewish access to these sites were never honored, and the "international community" failed to enforce the agreements.

All of the proposals and plans under consideration--a division of the city into Israeli and Palestinian sections, international security forces, "Holy Basin" under third-party control, etc.--will trigger fears of a return to the pre-1967 situation. Palestinian statements denying 3,000 years of Jewish history in Jerusalem and its centrality to the Jewish nation reinforce these concerns. An IMRA/Maagar Mochot poll from April 2010 showed that while Israelis favor peace agreements, a large majority are convinced "that the division of Jerusalem with international control . . . would lead to ongoing conflict rather than peace for generations." Therefore, a wide and inclusive debate on these issues will be essential for political stability.-Published 17/1/2011 © bitterlemons.org


Gerald M. Steinberg is the founder and president of NGO Monitor and professor of political science at Bar Ilan University.