Annapolis and the Road Map

[Charlie Martel is an adjunct professor at the American University Washington College of Law. His most recent article (available on SSRN here) examines the implications of Oslo and Road Map obligations on the legality of the Israeli security barrier, and was published last month at 17 Duke J. Comp. & Int’l Law 305]

First, thanks to Roger for offering me a chance to share some thoughts on the Annapolis Declaration. To bloggers and blog readers, I ask that you please be gentle with me because this is my first post. If I’ve gotten this hard subject wrong, I hope that responses will be vigorous but merciful.

I’ll start by agreeing with Roger’s views that the conference is cause for guarded optimism and that the reaffirmation of the Road Map was a significant substantive development that escaped much public discussion. Without a peace process the road ahead will look much like the road traveled for the past forty years. The Road Map is a better route.

An end to violence by both sides, required by the Road Map, is the sine qua non for the process and the outcome. Peace cannot be discussed, agreed on or maintained unless both sides have reliable, lasting sanctuary from violence. Easier said than done, I know, but the territorial steps called for in the Road Map can help reduce the political friction that helps lead to the cycle of violence.

The territorial commitments in the Road Map, while more nuanced and subject to interpretation than those on violence, are tremendously significant and bear attention. The parties’ renewal of their previous commitment to the Road Map provides a basis for both short term trust building steps and final status agreements on the critical issue of who gets what land.

As to the short term, the Road Map allows the encouragement of immediate Israeli guarantees on preliminary territorial issues addressed in the Road Map and Oslo Accords. Roger mentioned two expressly referenced in the Road Map–a settlement freeze and withdrawal from illegal outposts. I would add an end to construction of access roads and the security barrier in the occupied territories.

These latter steps are not referred to in the Road Map. However, in my view they are required by the Road Map, because the Road Map calls for “implementation of prior agreements” on territorial contiguity and a peace based on “agreements previously reached by the parties”. Those prior agreements are the Oslo Accords, which uniformly prohibit the parties from taking actions which change the territorial status quo in the occupied areas. Since settlements, roads and the barriers separately and cumulatively change the territorial status quo, it follows that they should be stopped in order to comply with the Road Map, Oslo and now the Annapolis Declaration.

Taking these steps immediately would be a confidence builder on hotly contested political questions that might dissolve Palestinian skepticism about Israel’s ultimate territorial intentions. It has to be said that on all of these steps, Israel has taken action which violate the agreements and international law. This does not justify any Palestinian violence, but it is one major reason why peace efforts have failed.

The steps also help get past two problems that have obstructed peace in the past–the “who goes first” problem and the “what happens after a terrorist attack” problem. Agreements to stop violence are essential and must come at the beginning of any peace process, but they are also fragile and hard to trust given awful and recent history. Both sides wait anxiously for hostilities to resume or increase and are ready to respond in kind when they do.

By contrast, a stop on settlements, barrier and road building, along with closing outposts, can also come at the beginning of the process, and would be tangible evidence of Israeli good faith on perhaps the most important issue to Palestinians. Moreover, these territorial steps need not be withdrawn even if a cease fire is violated because they are unrelated to counterterrorism. Thus, the territorial steps provide a way for Israeli and Palestinian authorities to sustain the peace process even if terrorist organizations attempt to sabotage it. To be sure, the peace process must not just survive violence, it must reduce and eliminate violence and disempower the groups who practice it. The process cannot withstand much violence, but meaningful territorial commitments are one way the process could continue, at least for a time, in the face of attacks.

The steps would also enable Israel to start the peace process by saying and showing that it is complying with the Road Map and Oslo on key issues related to the ultimate disposition of territory. This could strengthen Israel’s position on territorial questions, if it creates a climate for negotiations in which Palestine would agree to some Israeli retention of West Bank settlements. By contrast, if Israel expands settlements, roads and the barrier, the likely Palestinian response will be to insist on strict 1967 borders.

As to long term boundaries, the Road Map twice recognizes the goal to “end occupation that began in 1967”. Later, in the language of diplo-euphemism, it calls for “implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with the establishment of a Palestinian state with provisional borders.”

It seems that in plain language, this means that the drafters of the Road Map hope Israel will withdraw from most settlements and that the border will ultimately be quite close what it was in 1967. I appreciate that the language can be read to allow for greater Israeli retention of West Bank territory, and that the issue of borders is reserved for final status talks. However, it seems to me that the present level and duration of Israeli presence in the West Bank violate the spirit and the letter of the Road Map and Oslo, do not allow for a viable Palestinian state and are not politically workable.

If the Annapolis Declaration means that Israel and Palestine are prepared to agree along the lines of the Road Map and Oslo, then there is cause for hope.

I’ll close with a point about timing, because the 2008 deadline gives me pause. Deadlines are great if you are part way to a deal; apparently the imposition of a deadline was key to the Good Friday agreement. But deadlines can be obstacles, particularly if they are set early on before much has been agreed on and anyone has a sense as to how long it will take to agree. Failure to meet Oslo deadlines helped stop that process, and the sense that the timing of the peace process was dictated by change of administration probably contributed to the failure of the Clinton administration’s end of term talks. When it comes to peace, later is better than never, so the choice the process offers, at least in its inception, should be “better now than later”, not “now or never”.

It’s easy to foresee the U.S. election and change of administration having an unhealthy impact on the process. The parties might give up if a lot has not been agreed upon by fall of 2008, and would probably benefit from lower visibility talks without a deadline. Formally or informally, the parties might be wise to get rid of the temporal trip wire and agree to continue with this process as long as they are making reasonable progress.