The failure of the peace process to produce the desired outcome has provoked much speculation as to why it failed. The different sides to the conflict have different interpretations, mostly blaming the other. But few have questioned the approach on which the process was based.
When the United States and the Soviet Union invited the Israelis and Palestinians to the Madrid peace conference, the basis for the subsequent process, two sets of documents structured that process. One was the letter of invitation and the other the letters of assurances that were given by the US government to the different parties at the conference, primarily the Palestinians and the Israelis.
These documents, which set the frame of reference for the process, determined two phases, the interim and the final. The rationale was that the interim phase would create conditions more conducive to negotiating the final outcome. That included, according to these terms of reference, the substantial aspects of the conflict, i.e., borders, settlements, Jerusalem and refugees.
It is legitimate to question this structure. While the interim phase was intended to pave the road for the final phase, as it turned out the parties to different extents used that period to either prejudice the situation on the ground or promote the kind of final phase they desired.
Israel, for example, intensified settlement expansion in a way that aimed directly at influencing where the final borders would run. At the moment, Israel is constructing a wall along the route Israel wishes to become that border. Such activities, whether now or then, distort future possibilities and thus poison interim stage relations. In other words, a situation is created where the interim stage defeats its own purpose.
Recently, and while the Palestinian leadership was trying to coordinate a political initiative on the eve of the last UN General Assembly session, some Arab countries, led by Egypt, suggested that the terms of reference for the process be restructured to reach agreement on borders first and then work out the necessary steps to reach that point.
It is an eminently sensible suggestion and is based on a strong sense of international legitimacy. International law stipulates a complete end to the occupation. Thus the borders are already determined and any change to these borders not agreed to by the parties is illegal. The roadmap, which was accepted by all concerned parties, also stipulates in its last paragraph that the final objective of this plan is to end the occupation that started in 1967. At Camp David, Israel raised certain concerns about borders that were accommodated by the Palestinian leadership through the principle of a land swap, equal in quality and quantity.
Fixing the borders first will put an end to all the bad faith interim maneuvering and prejudiced practices that are ultimately responsible for producing actions and reactions of a kind that undermine the desire and intention of those pursuing peace.
Settling the issue of borders in advance will not only reduce the tensions and increase confidence, but also allow the two parties to work out non-territorial issues that are of a particularly complicated nature, especially the issue of refugees and Jerusalem. The latter is non-territorial insofar as agreement needs to be reached on how exactly relations between the east and the west of the city are conducted and how free access of all to the city’s religious sites is safeguarded, as well as the legal status of these sites.
The only reason not to accept this approach is if one of the parties, to wit, the one in control over the other, does not intend to end the occupation. If that is the case, adopting the above process of borders first will clearly expose that position.