Federalism in Israel-Palestine: Fresh Ideas, Old Problems

By Nathan J. Brown
Wednesday, August 15, 2018, 7:51 AM

Editor’s note: This week, Lawfare is running a series of essays on federalist governance in the Middle East. This essay is the third in the series. Read the introductory essay here and the second essay here.

Benjamin Wittes’s proposal to move Israel in a federal direction is both valuable and seriously flawed. The flaws are easy to spot: It is Israel-centric in a manner that sometimes makes it appear tone-deaf and at other times verges on a call for annexation of conquered territory. It leaves gaping holes—some of which it openly acknowledges; others that are obvious but unmentioned; and still others that would likely emerge only in practice. In its current form, it is unrealistic.

And yet it is a fresh and very welcome contribution to the international debate over the future of Israel-Palestine conditioned by the collapse of the Oslo peace process because it moves discussion in a much more realistic direction than those based on a revival of Oslo.

An Unrealistic Realism

Were it possible to produce a flawless approach to the conflict among Israelis and Palestinians, it would have been done long ago. Wittes’s proposal is still worthy of discussion since it avoids two kinds of thinking that has led so many smart people astray: beginning with an assumption that “the solution is known” and the only trick is figuring out how to get there; and basing a proposal on how an analyst believes the parties should behave. Instead, Wittes begins not with his hopes for how others will act—though some hopes inform his analysis—but instead with the hard realities on the ground and the directions of debates among Israelis and Palestinians.

And he depends not on negotiations and grand bargains (at least for the foreseeable future) but on unilateral actions, beginning among Israelis for their own benefit: “Israel could establish some of the governance structures … within the Green Line first, and then admit new provinces at a later date if and when the structure provides an attractive mode of governance that Palestinians would actually wish to join.”

As he sketches his federalist path, that day is unlikely to come. Palestinians would certainly not wish to join on the basis of the arrangements that Wittes describes, at least the way he describes them. He uses vocabulary (“cantons”) that Palestinians equate with what they call an “apartheid” or “Bantustan” model before switching to a Canadian terminology that will lead few people to mistake Hebron for Manitoba. He waves away the 1967 line without acknowledging what that line means for Palestinians. In a similar vein, he presents federalism in opposition to the centralized Israeli system he understands well, but does not make any effort to make a similar effort to understand or present federalism in terms of Palestinian governance (though local government was the subject of the first law passed by the Palestinian Legislative Council, established under Oslo).

Since Israel is his starting point, that is not surprising. If his proposal were to become the subject of debate between Israelis and Palestinians, however, it would probably not be occasion for an agreement. Palestinians would see the move to federalism as irrelevant to their predicament, and the offer to extend it to the West Bank as a way to mask annexation in a manner that serves only Israelis.

But a conversation about federalism might still break a logjam. Indeed, anything new in the few informal discussions are taking place between Israelis and Palestinians more closely resembles Wittes’s thinking than it does the unofficial diplomacy of the 1990s. And since varying kinds of gradualism and unilateralism are the only options now on the table, Wittes’s proposal also forces people to think about what sorts of metrics could be used to distinguish what sorts of gradual and unilateral measures would move toward a healthier or more hopeful future, and which merely deepen (or obscure) existing pathologies.

Federalism as More of the Same

If federalism were pursued at first unilaterally by Israelis—a possibility to which Wittes seems resigned—it would likely not so much deepen existing problems as it would entrench them in new ways. Wittes frankly admits that “federalism does not solve” many existing difficulties. But this acknowledgment does not go far enough. The issue is not simply that federalism offers no real solutions to the core problems that afflict inhabitants of Israel-Palestine at present: More profoundly, any move toward genuine federalism that offers any hope to the inhabitants of Israel-Palestine would quickly run aground because of those same problems. Wittes himself identifies two particular areas of difficulty: security and mobility.

Israeli debates are often framed in terms of security on both an individual and collective level: How can Israelis be safe from harm; how can Israel be safe as an expression of the Jewish nationalist movement? In both these respects, almost all major Israeli political actors insist on strong national security institutions with the ability to act throughout Israel-Palestine. Since Oslo, Israel has allowed the operation of varying measures of Palestinian security institutions, but only on the condition of what Israelis euphemistically call “security coordination”—which the Palestinians see, not without cause, as subcontracting the occupation. There has likely been no feature of the Oslo Accords more essential for Israeli acquiescence in the Oslo arrangements for Palestinian autonomy but simultaneously more corrosive of Palestinian support for it.

Wittes’ federalism would place some measure of local policing in the hands of local units (with some guarantees for rights protection by the central government). National security would be in the hands of central institutions. If Palestinians were to be drawn into arrangements along these lines, all concerned would likely ask questions with no mutually satisfying answers regarding the division of authority between central and local security agencies, as well as control over the central ones.

Recognizing this, Wittes suggests that “it is important not to think about it as a peace plan or a matter of negotiation between Israeli and Palestinian interlocutors. For federalism to be attractive, it has to be attractive as a means through which Israelis—Jewish, Palestinian, religious, and secular—can govern themselves.” He is too wise to suggest going to Taba, Geneva, Oslo, or Camp David to hammer out the details a grand bargain, but instead suggests that gradualism, unilateralism (at least initially), and reliance on Israeli institutions can help lead in the right direction.

But gradualism, unilateralism, and Israeli institutions are what built the current system. Israel has gradually and largely unilaterally constructed existing arrangements. Israeli institutions (most emphatically including its courts) have continued to shape the contours and deeply support those same arrangements. Even under a federalist arrangement, it is not clear why these forces would suddenly turn in a different direction. Moreover, it seems extremely unlikely that these institutions could operate in any way that could be simultaneously attractive, even over time, to all concerned. If federal arrangements are born in Israeli unilateralism, they will inevitably be founded on the elevation of the individual and collective security of Israelis to the detriment of Palestinians. It is hard to imagine how such arrangements would evolve in any direction objectively favorable to Palestinians, much less one that is attractive to Palestinians on a more subjective level.

Movement of people will run aground on similar problems. Wittes begins imagining federalism by also imagining an end to Israel’s 1967 borders, saying the Green Line “has moral significance only if one is trying to separate the Palestinian and Israeli populations and create borders between states.” But the line has more than moral significance: It is part of a system that creates zones of control and one-way permeability over movement and residence. Israelis have already imagined, and indeed imposed, an end to the 1967 borders for themselves—but they grasp on to them desperately when it comes to Palestinians. An Israeli can cross over the 1967 line without noticing; a resident of Nablus would have trouble getting close to the line and could be jailed if she crossed. Initial steps toward federalism would likely be sustainable in Israel only if they affirmed the existing zones of control for Palestinians.

So Palestinians would seem to be faced with a choice: Are they to insist that the 1967 borders be erased for them, too? Or are they to bring those borders into force for Israelis? I say they seem faced with the choice, because this is how outsiders often understand Palestinian internal debates. But the fact is that nobody is presenting them with any choice. It is not clear why a unilateral Israeli moves toward federalism would open anything up for Palestinians. As with security, the result would not be a step toward federalism in Israel-Palestine but instead devolution of a centralized Israeli system in a manner that would preserve restrictions on Palestinians.

Unilateralism faces the same central problem as do all attempts to move incrementally in any more hopeful direction or even to negotiate a comprehensive final settlement: the gross power imbalance between Israel and Palestine. As long as that exists, any change to existing arrangements can be imposed only if Israel finds that change to be within its interests. Wittes recognizes this, but he does not tell us why or how such arrangements would ever move in a direction attractive to Palestinians.

A Metric for Positive Movement—and Maybe Even Discussion

But Wittes takes a different approach that describing how diplomacy can develop an answer. Instead, he describes how a new arrangement may emerge on its own.

Here it may help to extend on his analysis and ask how to detect if federalism is moving toward a situation more widely satisfying to all parties—on that not only serves Israeli interests but can entice Palestinians to join in. Such analysis reveals how difficult it would be to imagine Palestinians moving in such a direction. For example, take property and religious rights as they are related to movement and borders.

How would federalism evolve in a promising direction? The city of Beersheva, where a mosque was built early in the twentieth century, provides one possible example. The Palestinian population of what was then a small town was initially barred from the immediate area during the 1948 war; many of them were expelled to Gaza. But as Jews arriving in Israel were settled in the growing city after the war, a considerable Muslim population remained in the region. Some settled back in the area of the old town. The Beersheva mosque remained standing, but it was kept in municipal hands and used for a variety of purposes. And then, beginning a few decades ago, some Muslim residents of the area tried to pray there. The municipality took measures to prevent any use of the mosque for religious purposes, leading to a protracted political and legal dispute. The city planned to renovate the mosque to serve as a museum but was stymied when the Israeli High Court ordered that the museum be devoted to Islam.

Imagine if a federalism were created in which a unit of the Northern Negev—an area with a very considerable population of Palestinian Muslims—had a real voice in administrative matters. Imagine there existed a central legal system with courts that that saw any local government’s attempt to prevent religious observance in a particular mosque as a violation of religious rights. Imagine an Israeli/Palestine where the 1967 line had become irrelevant for Muslims living in nearby towns on the other side could come to pray.

For the reasons cited above, it is difficult to imagine this happening. Only if Israeli federalism did indeed move in such a direction, would it be possible to imagine it evolving in the manner Wittes hopes.

Or imagine joint Palestinian-Israeli patrols in the West Bank that traveled through Palestinian and Israeli populated areas, enforcing the same law without discrimination on the basis of nationality or identity card.

Of course, no such equal enforcement of law exists—and any the prospect of such a joint patrol is not a near one. But those would be the kinds of moves toward federalism that would allow evolution to a more hopeful future.

Asking Better Questions

Wittes’s proposal is most valuable in how it contributes to debates taking place outside of Israel-Palestine. The discussions among the inhabitants themselves has already left the processes of the 1990s far behind. Outsiders, particularly official American actors, have begun to realize this but many pretend it is not the case.

The way in which Israeli debates have moved on from talk of a “peace process” is better understood, brought home by successive election results empowering anti-Oslo forces. But discussions among Palestinians have been much less heard by international ears. Some years ago, I noted “the receding dream of statehood” among Palestinians: A Palestinian state seemed not only less likely but also less central to Palestinian national aspirations. More recently, I explored with some colleagues and some Palestinian intellectuals and activists the direction of the Palestinian national movement. Palestinian debates no longer focus much around two-state diplomacy; indeed, they do not focus on diplomacy at all. Instead they are centered around questions of sociology, geography, and demography. They are often long term rather than short term in nature. They cohere around no strategic vision other than the hope for a better future.

Wittes is trying to point international discussions in a similar direction. In a post-Oslo era, what might be done (or what might happen) that will leave the next generation in a position to find alternatives to the options the last generation closed off? When a self-described “two-state guy” reluctantly realizes that the question must be asked, we should take his answer very seriously.