Deconstructing Discriminatory Dershowitz

From JPost, 12 July 2012, by Martin Sherman:



Martin Sherman



Alan Dershowitz

...I feel a certain discomfort in ...[contradicting] such a staunch supporter of Israel as Dershowitz. But his good intentions are no guarantee of the quality – or the consequences – of his political prescriptions, and given his significant public influence and considerable media access, his well-meaning but ill-advised proposals cannot go unchallenged.
This is particularly true of his recent offering in The Wall Street Journal, “A Settlement Freeze Can Advance Israeli-Palestinian Peace.” ...
Dershowitz correctly observes: “Israel accepted a 10-month freeze in 2009, but the Palestinian Authority didn’t come to the bargaining table until weeks before the freeze expired. Its negotiators demanded that the freeze be extended indefinitely. When Israel refused, they walked away from the table.”
He then cautions that if the government imposed a similar freeze now: “There is every reason to believe that... they would continue such game-playing especially in light of current efforts by the Palestinian Authority and Hamas to form their own unity government, which would likely include elements opposed to any negotiation with the Jewish state.”
But what conclusion does Dershowitz draw from his recognition of proven bad faith in the past, and of probable increased rejectionism in the future? Rather than following the logic that his own analysis seems to dictate, i.e. either that negotiations are futile, or that more generous offers be made, he advocates neither.
Instead, he makes the astounding suggestion that the Palestinians be coaxed back to the negotiating table by offering them... less than what they have already rejected. Go figure.

The Time is Ripe for “bold peace offers”?
According to Dershowitz, given the giant-sized ruling coalition in Israel, “the time is ripe for that government to make a bold peace offer to the Palestinian Authority”..
The problem with making “bold peace offers” is not that they endanger the ruling coalition, but that they have proved totally unproductive – indeed counter-productive – resulting in nothing but Palestinian demands for yet further concessions.
At some stage, repeating increasingly risky offers ceases to be “bold” and become just “bonkers.” ...apart from the unrequited unilateral 10-month freeze on construction in the “settlements,” Israel has, among other things:
• Withdrawn from major populations centers in Judea and Samaria;
• Unilaterally evacuated the Gaza Strip, erasing every vestige of Jewish presence;
• Unearthed its dead from graveyards;
• Demolished settlements in northern Samaria; and
• Allowed armed militias to deploy adjacent to its capital, within mortar range of its parliament.
The Palestinians have responded with vitriolic Judeophobic incitement and vicious Judeocidal terror, even from within – especially from within – areas transferred to their control. (Imagine the storm of international outrage that would erupt if the mainstream Israeli media dared to depict the Palestinians as the mainstream Palestinian media depicts the Israelis. Ah! The soft racism of low expectations.)

Misguided moral equivalence
Despite the accumulation of unequivocal evidence, [Dershwitz] still appears loath to recognize the recurring bad faith on the part of the Palestinians and to acknowledge the continual and concrete good faith shown by Israel.
In a breathtaking display of misplaced moral equivalence, he has the temerity to suggest that his proposal will not only provide “a good test of the bona fides of the Palestinian side [but].. would also test the bona fides of the Israeli government.”
...[But] Israel has made the Palestinians offers more farreaching than Dershowitz’s proposal, which were all rejected.
... it is entirely unclear why his proposal should have any chance of acceptance by the Palestinians – or how it could contribute to any further clarification of the two sides’ bone fides.

Why Should Less of What Failed Before Now Succeed?
...the Palestinians spurned the construction freeze, [and]... they are likely to do so again.
Moreover, ...the future Palestinian government may well include elements opposed to any negotiations. Yet despite all this, [Dershowitz] suggests that negotiations be commenced with an Israeli offer of a “conditional freeze,” to commence “as soon as the Palestinian Authority sits down at the bargaining table, and... continue as long as the talks continue in good faith.”
This, of course, leaves us to puzzle over two things:
(a) If the implementation of the previous unconditional freeze did not induce the Palestinians to come to the negotiating table, why on earth should the mere promise of a conditional one do so?
(b) Even assuming that it did, given the past acrimony, reproach and disagreement between the sides, what would be the criteria for determining – and who would be the arbiter to determine – whether the talks were in fact “continuing in good faith”? Obama? The State Department? The EU? Egypt? The Arab League?
I am sure that, on reflection, Dershowitz might admit that this could be a touch problematic, with Israel risking being locked into a perpetual construction freeze by a biased adjudicator of Palestinian “good faith.”
Or would Israel be able to decide this unilaterally and revoke the freeze at will whenever disagreement arose? If so, why would the Palestinians agree to an arrangement which give Israel the power to judge their good faith?

Is Borders the "First Issue"?
Dershowitz asserts: “The first issue on the table should be the rough borders of a Palestinian state.” Oh really! ...
...he prescribes: “Setting those [rough borders] would require recognizing that the West Bank can be realistically divided into three effective areas: Those that are relatively certain to remain part of Israel, such as Ma’aleh Adumim, Gilo and other areas close to the center of Jerusalem [presumably Gush Etzion with a population of about 70,000 Israelis – M.S.].
“Those that are relatively certain to become part of a Palestinian state, such as the vast majority of the heavily populated Arab areas of the West Bank beyond Israel’s security barrier.
“Those reasonably in dispute, including some of the large settlement blocs several miles from Jerusalem such as Ariel (which may well remain part of Israel, but subject to negotiated land swaps).”
...Does [Dershowitz] seriously imagine that there is any relevant Palestinian negotiating partner who would agree – a priori – that the areas he designates as “relatively certain to remain part of Israel” are indeed relatively certain to remain part of Israel? Does he know of any Palestinian who would agree that the areas that include “the large settlement blocs such as Ariel” are “reasonably in dispute”?
Although Dershowitz continues that “this rough division is based on prior negotiations and positions already articulated by each side,” it is not at all clear to what – or to whom – he is referring, certainly not with regard to the Palestinians.
For to launch Dershowitz’s initiative, some mealy-mouthed, ambiguous – and deniable – inference, surreptitiously whispered in some covert meeting in some discrete location, scrupulously shielded from the public eye – and hence totally devoid of any binding political commitment – will not suffice.
What is needed is for it to be declared, overtly and officially, as the Palestinians’ publicly proclaimed position for the commencement of negotiations. Good luck with that.
Can any Palestinian afford to be seen to be less Palestinian than Barack Obama, who stipulated the pre-1967 lines as the starting point for delineating the “rough borders of the Palestinian state,” especially, as we have seen, Dershowitz himself notes the PA is striving to set up a unity government with Hamas, which opposes any negotiations with Israel.

Durability...
Given the winds blowing throughout the Arab world, the durability and credibility of Palestinian “good faith” becomes crucial, not only because of the grave consequences of territorial concessions for Israel’s security. It is equally crucial for the application of the core element of Dershowitz’s proposal – “conditional freeze” of settlement construction – which if anything is even more problematic than his geographical division of the “West Bank.”
For he is completely mistaken when he claims: “If there can be agreement concerning this preliminary division – even tentative or conditional – then the settlement-building dispute would quickly disappear.”
Nothing could be further from the truth, or more conducive to potential friction – especially the part about the agreement being “tentative or conditioned.”

Discrimination...
[Dershowitz] stipulates that “there would be no Israeli building in those areas likely to become part of a Palestinian state” but refrains from precluding Palestinian building “within areas likely to remain part of Israel” – which fair and balanced impartiality would seem to call for. Wouldn’t it?
His attitude to the “disputed areas” is even more discriminatory.
He states: “The conditional freeze would continue in disputed areas until it was decided which will remain part of Israel and which will become part of the new Palestinian state.... An absolute building freeze would be... a painful but necessary compromise.”
But would the Palestinians be prevented from building in these disputed areas “until it was decided which will remain part of Israel and which will become part of the new Palestinian state”? You know, so as not to prejudge the outcome? And if not, why not?
Significantly, he adds: “It might also encourage residents of settlements to move to areas that will remain part of Israel, especially if accompanied by financial inducements to relocate.” Really! Financial inducements for relocation of Jews in “disputed areas”– but not for Arabs? ...