THEME: Mediation and International Politics
This article was authored by Parnika Mittal and Shuktiz Sinha from National Law University, Jodhpur.
The Israel Palestine conflict has been on the burner of international geopolitical conflict for decades and it baffles the world leadership on how little progress traditional means of resolution have made in arriving at a mutually agreeable solution through peaceful means. Amidst the bloodbath and the political jargon, this essay aims to explore the benefits of applying mediation as an alternative dispute resolution mechanism to help both the nation states at arriving at a deal that was mutually satisfy the wants and requirements of each. The first section of the paper provides a brief background of the dispute, followed by an analysis of the failure of previous attempts at negotiations and conflict resolution. Further, the benefits of mediation to overcome such barriers is highlighted, along with how the mediation sessions should be structured at an international level and what are the considerations to be kept in mind when appointing a mediator. The paper ends with certain important points to be kept in mind when dealing with international dispute resolution and presents the hope that mediation would finally enable both the nations to resolve their differences and co -exist peacefully in the coming future.
Origin And Background Of The Dispute- The Israel Palestine Conflict As A Frontier And Ethnocentric Challenge
Before trying to check the feasibility of mediation in the conflict or proposing solutions for the same it is imperative to understand the history of the issue. This section aims to look at the Israel Palestine conflict as a result of its colonial past and seeks to understand the present-day implications of the same. We also establish cross border and cross-frontier challenges which make it a multipartite issue with a clash of ideologies and interests across continents and not just a conflict between two nations.
Contrary to popular belief this conflict is not thousands of years old and only began during World War 1 due to British and French strategic interests in the Mediterranean Sea. The Mediterranean Sea was a major trading route and whoever controlled it controlled the trade to India. But in order to do so the Colonial navies had to pass the Suez Channel which was made difficult by the presence of the Ottoman navy. In order to control this ‘menace’, the colonizers decided to divide the Middle East into smaller entities and countries to make it essentially impossible for the Ottomans to effectively control the region.
The Ottoman Syria that comprised of the modern nations of Syria, Lebanon, Jordan, and Israel was divided by the secret Sykes-Picot Agreement into the French north and the British south. Syria was further divided creating the country of Lebanon for the Maronite Christians. They had never had their own nation and their main national identity still remains ethnic identity and religious demography.
At the same time, the British entered into a number of alliances with Arab clans, making conflicting promises to different players. Their main allies in the region were the Hashemites, ruler of the Hejaz region in the Arabian Peninsula. The Britishers refused to keep their promises and instead played the smaller players against each other. So when the Soviet Union published the secret Sykes-Picot agreement it led to a lot of instability in the region. The Saudi clan launched a reconquest of the peninsula from Kuwait. They ended up capturing the Eastern and Central parts establishing the 3rd Saudi state which later went on to become modern-day Saudi Arabia.
Although the Hashemites lost the peninsula to the Sauds, the British gave them two news kingdoms, Iraq and the Northern and Eastern side of the Jordan River. The latter came to be known as Trans-Jordan, meaning ‘the other side of the Jordan River’. After British withdrawal in 1948, this region was renamed Jordan. Although they are two different nations the people on both sides of the Jordan River are ethnically the same which is why some scholars still believe that Jordan is actually the land of the Palestinians.
As for the settlers, European Jews had been moving into western Palestine since the 1880s as part of the Zionist Movement, i.e. the Jewish nationalist movement. Jews bought land from absentee landlords who lived in Cairo, Beirut, Damascus, etc. This was not only counter to Arab interests but happened right under their noses. Jews thought of it as a legitimate real estate transaction. The Arabs, on the other hand, thought of it as an outright attack on their livelihood. This was because many of them were evicted from their land so that the Jews could join the small, already settled communities of other Jews. This is important to realise the fact that the dispute began as a mere land transaction issue.
Soon thereafter, a large number of Jews immigrated to Syria in search of safe harbour from the Holocaust and also in pursuance of the Zionist movement during World War 2. This made them the ethnic majority in the region essentially making it a Jewish state.
As nationalism arose in the Arab world, Syria rejected the Sykes-Picot agreement and opposed the existence of Lebanon, Jordan and the Jewish state on the West Bank. They saw all of these as historic Syria and rejected any other claim otherwise.
Along similar lines, Jordanian Nationalism led to them taking control of the West Bank and East Jerusalem. Soon after tensions arose between Palestinians and the Hashemites as the latter never wanted an independent Palestine. This is evidenced by the fact that they did not grant Palestinians independence between 1948 and 1967 when they could have. Instead in 1970 they fought a bloody war with the Palestinians forcing the Palestine Liberation Organisation into Lebanon. This came to be known as Black September. In Lebanon they had to fight another civil war wherein Syria invaded Lebanon because they too oppose the concept of a Palestinian land. This is the origin of the modern tensions in the region between Syria, Lebanon, Hezbollah, Palestine and Jordan.
To add another country to the mix, even Egypt does not recognise the statehood of Palestine. The Egyptians see it as an extension of the Sinai Peninsula and in light of this ideology, the Egyptian Army came into Gaza. The second President of Egypt, Gamal Abdel Nasser, envisioned a single United Arab Republic which would not only be socialist but also secular. In pursuance of this objective Egypt and Syria formed a new federation in 1958. This federation acted as a direct threat to Jordanian interests.
So Jordan and Iraq formed the Arab Confederation but it fell apart in the very same year, as Iraq fell prey to a Nasserist coup. This idea of Nasser of a United Arab Republic saw Palestine as a part of this union. Yasser Arafat, chairman of the PLO and President of the Palestinian National Authority, allied with Nasser and promoted this idea of a united Arab republic and Arab nationalism. Palestine was integral to this idea, its independence being immaterial to them.
This socialist union of Nasser was hostile to the then Arabs. Nasser very clearly wanted to overthrow the monarchies as he had done with Iraq. This triggered the Arab Cold War. This War saw the Arab Socialists (Egypt, Syria, Iraq) supported by the Soviet Union on one side and the Arab Monarchies including Jordan and Saudi Arabia supported by the United States of America on the other.
So we see that Palestinian Nationalism does not arise just against Israel but also due to Egypt’s vision of a united Arab republic given by Nasser as well as Syria’s idea of a historically Syrian land. Furthermore Saudi will get involved because of the obvious need to protect themselves against the anti-monarchy, socialist stance of Egypt. Even Jordan would be fearful of losing the last vestige of Hashemite monarchy might be lost. So to conclude this problem is particularly labyrinthine because even if Israel ceases to exist Egypt, Jordan, Syria and Saudi Arabia would immediately clash over Palestine.
Why The Previous Negotiations Failed- How Mediation Can Overcome The Barriers Of The Same
From the time the state of Israel came into existence, it has been a point of common consensus that peace can be achieved in the Middle East only by means of a solution to the Palestinian problem. Given the intertwined nature of the demographic, religious and cultural linings of the two states, continued hostility is not an option If political stability and peace are the goals to be achieved. Many multiparty frameworks have been suggested over the years, particularly involving the neighbouring states of Jordan and Syria, with more powerful states also being present for the same in order to provide rewards and security for the same. In light of this, a direct negotiation between the parties has been cited as being more effective by experts and political commentators, rather than through proxies, as has been observed over the years, particularly in the case of the Oslo and David Accords. The purpose of this essay is not to delve into the intricacies of how these negotiations came into being but rather to analyse why these negotiations failed and how can those barriers be effectively countered with mediation as the intervening factor. The issue at the foremost that led to the failure of the Oslo and David Accords, and other negotiations carried out between the two states was the gamut of power exercised by extremists in setting the agenda for these negotiations. This has historically pushed pressing issues like economic development of the region and the establishment of a stable state to the backburner, and instead, the negotiations have boiled down to mudslinging and counter accusations between political factions from both states. A major drawback of the Oslo accords was the representation of Palestine by the Palestine Liberalisation Organization during the course of negotiations. The PLO has a notorious reputation of being a proponent of armed struggle and was historically classified as a terrorist organization by the United States as well as Israel. This stance softened after the PLO recognised Israel’s right to exist and rejected violence and extremist measures by adopting resolutions 242 and 338 of the UN Security Council and in response, Israel recognised PLO as the official representative of the Palestinian people. It is commonly accepted within the negotiating circles that both states want a mutually agreeable settlement, and are open to a two state solution, However, even after aspiring towards a common solution, arriving at it in a peaceful and mutually consensual way has proved to be a problem. This is majorly due to a lack of trust between both the parties, compiled with scepticism and a lack of personal chemistry between the negotiators. The characteristic features of mediation derive from the trust building process between the parties, which is something that is considered to be of utmost essence for a consensual solution is to be arrived at. A trained mediator aims at objectivity and establishing a personal rapport to put the negotiating parties at ease, as well as to build a sense of trust between them. A trained mediator would have sufficient experience of having mediated varied disputes between different kinds of people under varying conditions and this experience can help structure the entire negotiating process, which would further help in avoiding disastrous failed outcomes like those observed in the case of the Oslo and David Accords. As is expected in case of states that have historically enjoyed a hostile dynamic, negotiations can give way to an environment full of jibes, caustic remarks and other politically incorrect measures being adopted. A mediator who embodies the core skills of patience, adaptability and self-control and perseverance can ensure that the dialogue flows smoothly and all aberrations are promptly nipped in the bud. While the opposing party may easily become discouraged in light of a blockade being encountered in the course of dialogue or non- cooperation and aggression from the other side, a mediator would ensure that this does not lead to abandoning of the entire dialogue itself. Providing a fresh neutral perspective at this juncture, would well serve to save the course of negotiations from abrupt termination, and this can be provided only by a mediator who is ever present to patiently guide the entire process.
The effectiveness and the speed with which the solution to the conflict can be arrived is directly dependent on how effectively the entire mediation session is structured. Haphazard meetings with unpreparedness and lack of professionalism would compound the problem and likely increase the hostility between the two states, an outcome that must be avoided at all costs given the already tense situation prevalent in the entire Middle East. The details of the structure of the mediation process are therefore required to be crafted meticulously.
The question that arises next is regarding the appointment of the Mediator. It is well established that the entire process of Mediation would fail drastically if the qualifications required for a professional mediator are not met. In structuring an effective mediation process, attention should be paid to the credentials under scrutiny for the appointment of the mediator.
Considerations To Be Taken Into Account During The Appointment Of Mediators
On 25th June 2012, the United Nations came out with an annexure to the report of the then Secretary-General Ban Ki Moon on Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution. This annexure was titled The United Nations Guide for Effective Mediation.[i]
This annexure was designed in order to increase the efficacy of mediation efforts in international scenarios. Although it recognizes the fact that each problem is different and so the approach towards achieving an amicable solution must also be different it does propose some general principles to be adhered to so that the parties not only have a better understanding of the process in general but also the chance of their success is as far as possible maximised.
The essential job of a mediator, no matter at what scale, remains the same- to help two or more parties manage and come to a resolution with regard to any conflict, such that the agreement so reached is on mutually acceptable terms. A mediator has the power to change the balance of power and politico-economic structures and relations between countries.
But before we understand what are the criteria for an effective process of mediation we must realise the fact that not all conflicts can be amenable to this process. There are always a number of metrics to verify whether mediation would be a reliable process in the particular case. These are openness of the involved parties to the process, acceptability of a mediator, and regional as well as international support to the process.
The fundamentals of choosing a mediator boil down to-
- Preparedness- While it does not entail in any way predetermining the outcome, it does come in handy through processes like stakeholder mapping and developing a mediation strategy.
Preparedness helps in the pre-negotiations, negotiations as well as the implementation of the solution. This preparedness does not mean that the procedure or flow of mediation should ever become rigid; in fact on the contrary preparedness allows the mediators to account for more flexibility.
- Consent- It is imperative to remember, especially in cases like Israel and Palestine that mediation is a completely voluntary process. Bona fide mediation is impossible without the presence of consent by both parties. Basic elements like confidentiality, security, and even trust, in the party across the table as well as the mediator becomes extremely important. That is the reason why choice of a mediator is a pivotal question and something that can have large scale repercussions on even the existence of a mediation process between the countries in the first place.
Sometimes the parties might even see the mediation process as a threat to their sovereignty or foreign interference and reject it as a whole.
Another challenge of mediation in Israel Palestine would be that it is a multipartite problem. Obtaining the consent of all the parties becomes particularly tricky and this might lead to a situation of partial consent which would be symbolic of lack of complete commitment by all parties to the process.
Although there is always the hope that as the trust of the parties in the process of mediation increases so does the scope or the ambit of the discussion. For example, while a mediation in our context may begin purely with the intent of sorting out the issue of Jerusalem as the capital of Israel or land issues in the Gaza strip, if the process heads in a positive direction, the parties might choose to bring more to the table for resolution.
- Impartiality- Generally if the impartiality of the mediation process is brought into question it compromises the chances of a solution being reached. In international conflicts it is necessary to ensure that the mediator is such that all parties are able to talk freely with the mediator and the mediator can talk freely with them.
In this regard we bring in the novel idea of how a mediator who would traditionally be considered biased for international conflict resolution can also act as a boon for the process, as discussed later.
- National Ownership- This implies that the issue is not limited to the people in power who are participating in the mediation process or are representing their respective interests. There needs to be a broader acceptance of the mediation process and the society as a whole needs to commit to the solutions as well as their execution. The society has to move towards a peaceful future. While we know that these solutions cannot be forced down the throats of the communities, it is up to the mediator to create ideas that can be helpful in ensuring that this situation does not arise.
It requires everybody to adapt the process in order to accommodate for the specific culture of the place and there customs, culture, norms, and values.
- Inclusivity- An inclusive mediation process means that there would be a higher likelihood of identification and addressing of the root cause of the conflict. This works in turn to increase the legitimacy of the process and the previously expounded upon point of national ownership. Mediators also face the challenge of at times being too inclusive. For example, inclusion of violent, armed forces in the process legitimises those groups and incentivises other people to take up arms. It has been observed that civil society actors prove to be much more beneficial in such cases. The appointment of the mediator directly relates to the effectiveness of the structure of the entire process and hence the aforementioned considerations must be kept in mind during the selection and training of mediators presiding over international geopolitical disputes.
Biased Mediation- A Viable Alternative?
When arguments in favour of mediation as a dispute resolution mechanism are raised, major concerns are voiced pertaining to the objectivity of the entire process. Indeed, unbiasedness of the mediator is a major concern in regular mediation processes as well, and the gravity of the same increases when we take into account international disputes charged with political friction. Though the era of the Cold War is over, we live in a largely polarised world where the major powers of the world fight their wars through proxies, in short, nearly all countries are part of certain informal alliances that they owe military and political allegiance to. In such a scenario, ensuring a negotiation process between countries where the mediating party in question is unbiased becomes a big challenge.
Over the years, Palestinian leaders have expressed concern over the supposedly unbiased mediation of the conflict between Palestine and Israel being dispositioned in favour of the latter. The United States of America has globally been viewed as a default mediator between the two parties, however, the said position has often been challenged on grounds of credibility in the diplomatic circles, as the US’ soft spot for Israel is widely known. This compiled with ominous threats of the current.
American Regime to move their embassy from Tel Aviv to Jerusalem, widely anticipated as a politically and culturally charged move, has eroded the Palestinians’ confidence in the American Goverment as an unbiased and credible mediator. The citizens as well as political factions within Palestine have expressed their willingness to repose their faith in the United Nations as an alternate mediator, particularly rejoicing at the UN’s current move of imposing stringent economic sanctions on
Israeli goods which have been made in the illegal Israel-occupied West Bank Settlements. The current mediation process has been disrupted by the presence of power disparities since the beginning of the Oslo peace process in 1993. These parities in existence between the concerned parties have been ignored and often downplayed by successive US administrations, a point of contention of raised by factions within Palestine opposing American intervention. It is often alleged by these same factions that while the Israeli administration is given a free hand to the extent of by passing some of their share of peace obligations, the same courtesy is not extended to Palestine, with little regard to its internal conflicts, culture or constraints. In light of the predicament elaborated above, this section of the paper deals with a road slightly less travelled by. Biased Mediation, often considered to be the biggest obstacle in ensuring an effective and unbiased mediation process, can actually prove to be advantageous to all the parties involved in a dispute. This statement might attract raised eyebrows or scorns at first, undoubtedly this was the reaction received as well when the scholarly doctrine of ‘Biased Mediation’ was first proposed by renowned Israeli Professor Saadia Touval in the late 1970s. Often the process of mediation fails due to inadequacy of information available to proceed with. It is mainly due to the fact that there is a sense of mistrust between the parties, coupled with their tendency to see the situation with jaundiced eyes, the less sharing of information resulting from this predicament only leads to complicating the task of the mediator. However, as proposed by Professor Touval, if the mediator is biased towards one of the parties involved in the dispute, then the said party would be more comfortable in taking both information as well as advice and insight from the mediator that it trusts. It would try and supply more information in the hopes of preserving its trusted status and the disfavoured party would consequently try and be more open with the mediator as well, to strengthen its position in the conflict, knowing it starts off from a disadvantaged point. The disfavoured party, in this scenario, is likely to work twice as hard to drive a wedge between the favoured party and the mediator, so as to minimise the damage that it would face in the process, in hopes of a greater bargaining leverage. Dennis Ross, who led the U.S Negotiations in the Israel Palestine conflict is said to have resorted to this doctrine extensively. This, however, drew widespread criticism from many quarters, with many branding Ross as Israel’s lawyer rather than a mediator. Israel used the leverage it gained from such biased negotiations to apply brute force. The Hebron accords, signed during this period, divided Hebron disproportionately in favour of Israel, a disastrous deal that attracted widespread condemnation. Thus biased mediation as a doctrine itself serves as double edged sword. However if we go by the practical results of the application of the doctrine till now, we can safely say that it is not a reliable one.
While we go about structuring the process by which an effective mediation system can be put into place for the resolution of an international conflict like the Israel Palestinian geopolitical conflict, it is to be kept in mind that no negotiation that questions the existence of either of the states will be acceptable to any of the parties. No extremist organisations like the PLO or other radical political groups must be involved in the negotiation procedure. Extremist ideology or militant measures are bound to lead to the failure of any kind of mediation procedure that might be put into place. Palestinians, on the other hand, would acquire an assurance of self determination in return, since a threat to their very political freedom to determine their own structure and existence would pose a hindrance to the entire process. The issue of territorial claims is directly linked to the sovereignty of the states, and hence that issue needs to be dealt with in accordance with the principles of international law. The false illusion, that both the parties are involved in a zero sum conflict where the existence of one is not possible while the other is existing too, needs to be done away with if we hope to make headway with the negotiation process in a peaceful manner. We must remember that Israel and Palestine are not Harry and Voldemort, one can live while the other survives too, it is just a matter of resolving the conflict in a mutually agreeable and methodical way, and mediation definitely looks like the best hope that we have today, in that regard, provided the international community plays its cards right.
[i] The United Nations Guidance for Effective Mediation, (A/66/811, 25 June 2012), Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution (General Assembly resolution 65/283).