The “two state solution” has been invoked, almost as a mantra, by the UN, the EU, the media, various states, including the U.K and the US, sometimes as the “only solution”. For example, the Joint Declaration of the Paris Middle East Peace Conference, Jan. 15, 2017,

… reaffirmed that a negotiated solution with two states, Israel and Palestine, living side by side in peace and security, is the only way to achieve enduring peace.

Reviewing recent documents, Alan Baker found the words “two state solution” 15 times in the July 1, 2016, Quartet statement, 7 times in Security Council Resolution 2334, 12 times in Samantha Powers’ explanation of the U.S. vote to abstain on that resolution, 24 times by John Kerry in his speech responding to the outrage voiced by many at the U.S. failure to veto that resolution, and 9 times in the Paris Peace Conference Joint Declaration.

In contrast, Baker notes,

The formal peace process documentation, including UN Security Council Resolutions 242 (1967) and 338 (1973), as well as the Oslo Accords and related documents signed by Israel and the PLO (1993-9), make no reference to a two-state solution and leave the issue of the final, permanent status of the territories to be negotiated between them.

Even the Oslo Accords did not provide for a “two state solution.”  That was left for final status negotiations. And while the Oslo Accords did not rule out a Palestinian State, it was not what Rabin envisioned when he agreed to the Oslo Accords.. In presenting the Oslo Accords to the Knesset, he said:

We view the permanent solution in the framework of the State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank.

We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority (emphasis added).

He also emphasized that,

The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the June 4, 1967, lines.”

Although the exact contours of the two state solution have not been determined, in general what is contemplated is an Arab State composed of Gaza and Judea and Samaria, or the West Bank,  as renamed by Jordan..

            The establishment of a Palestinian State in Judea and Samaria has long been opposed by  many Israelis, as well as Jews living outside of Israel, for religious, historical, and security reasons. The territory in which a Palestinian State would be established includes many places that were the heart of ancient Israel: Betlechem, Hebron, Modiin, Shilo, to name just a few. Sites holy to Jews would be desecrated and Jews would be denied access to holy sites, as happened from 1948 to 1967, when the territory was under Jordanian control. Jordan destroyed over 50 synagogues, desecrated the Mount of Olives cemetery, and used the grave stones to pave roads and build latrines. The water aquifers would be under Arab control, making it possible for them to divert water that is vital for Israel’s existence. Most importantly, Israeli withdrawal would permit stationing hostile armies and missile launchers within minutes of Israel’s major population centers. Moreover, even if the Palestinian Authority intended to abide by an agreement it reached in negotiations with Israel — and that’s a very big if, given the numerous statements to the contrary by Arafat, Abbas, and members of Fatah — Hamas, whose Charter calls for the destruction of Israel, would seize control, as it did when Israel withdrew from Gaza. Israeli withdrawal from Gaza led not to peace but to thousands of rockets being launched at it and to three wars with Hamas. Israeli military leaders have stated recently that the question is not “if” there will be another war, but “when”.

            In an op-ed in the New York Times, Nov. 5, 2014, titled “For Israel, Two-State is No Solution,” Naftali Bennett, head of the Jewish Home Party, wrote:

This past summer, Hamas and its allies fired over 4,500 rockets and mortars at Israel, -[the number is several times that now]- demonstrating once again what happens when we evacuate territory to the so-called 1967 lines and hand it over to our adversaries. Peace is not obtained. Rather, we are met by war and bloodshed.

The rise of . . . ISIS, and other extreme elements in Iraq, Syria and Lebanon, make the risks just as clear. Israel cannot afford to gamble with its security. There are no second chances in the volatile Middle East.

That is why, for its security, Israel cannot withdraw from more territory and cannot allow for the establishment of a Palestinian state in the West Bank. If we were to pull out of the West Bank, the entire country would become a target for terrorists who would be able to set up rocket launchers adjacent to the Old City of Jerusalem and on the hills above the runways of Ben-Gurion International Airport and the Tel Aviv Stock Exchange.

 . . .  The Palestinians demand that Israel withdraw from [the Jordan Valley] . . . which borders Jordan. But if we do so in today’s climate, we potentially open the door for the Islamic State and other extremists to flood into the new Palestinian state. We cannot take that risk.

. . . In the mid-1990s, we pulled out of Palestinian cities as part of the Oslo agreement. In 2000, the second intifada erupted and over 1,000 Israelis were killed in attacks carried out by terrorists, many of whom came from the very cities we had evacuated.

When we pulled out of Lebanon in 2000, we saw a significant strengthening of Hezbollah, the Iranian-backed militia. During the second Lebanon war six years later, Hezbollah fired more than 4,300 rockets at our cities.

And in 2005, we withdrew from the Gaza Strip and handed it over to the Palestinian Authority. We were told that Gaza would turn into the Singapore of the Middle East and that peace would grow out of the greenhouses the Jewish residents had left behind.

Instead, those greenhouses were used to cover up terrorists’ tunnels dug across the border into Israeli towns and villages. Gaza quickly turned into a fortress of terror.

Even Israelis who were staunch supporters of the two state solution have changed their position. Prominent Israeli author, A.B. Yehoshua, considered an intellectual giant of the Israeli left, was recently quoted as saying,

 This solution [two state] is no longer possible. I have believed in this solution for 50 years. I fought for it. I was an activist for it. And now I see it cannot happen. 450,000 Jews in [Judea and Samaria] can simply not be uprooted. Can Jerusalem ever be divided, realistically? We have to start thinking  of alternate solutions.

Given the turmoil and instability in the Middle East – the fighting in Syria, Iraq, Yemen, Libya – the threat posed by ISIS, I find it incomprehensible that anyone would suggest that Israeli withdrawal to the 1949 armistice lines – which left the country less than 10 miles wide in the middle – or any part of the West Bank for that matter, would be in the best interest of Israel or of the United States. As Kissinger famously asked:

With the state structure weakened in several Arab states and having collapsed in others, with Iran and Islamic State rising, and amid general instability in the Arab world, why create another potentially weak, dysfunctional Arab state in Palestine?

            A number of commentators believe that although Palestinian leaders pay lip service to the “two state solution,” they are not interested in establishing a Palestinian State, but in destroying Israel. They point to Arafat’s speech on Jordanian TV following his signing of the Oslo Accords, in which he assured his listeners that he was merely implementing an earlier resolution, to take anything they can get by diplomatic means, and use it as a basis for destroying Israel, to Palestinian Authority President Abbas’s referring in UN speeches to “67 years of occupation,” meaning that he considers all of Israel illegitimate,  to the rejection by Arafat and Abbas of very generous offers by Barak and Olmert,  under which Israel would have given up most of the territory captured in 1967 and given parts of the Galil in exchange for territory it retained.

Shlomo Avineri, a political philosopher of the Israeli left, explained in an article in Haaretz, that the reason the two state solution has not worked and in his opinion, “there is no chance for any mutually accepted agreement in the foreseeable future,” is that Israelis and Palestinians view the conflict in fundamentally different ways. He wrote:

Most Israelis view the conflict as a struggle between two national movements: the Jewish national movement – Zionism – and the Palestinian national movement as part of the wider Arab national movement. The internal logic of such a view leads in principle to what is called the two-state solution. . . .

The point is that those Israelis who see the conflict in the framework of a struggle between two national movements assume that this is also the position of the other side; hence when negotiations fail, the recipe advocated is to tinker with some of the details, hoping that further concessions, on one or the other side, will bring about an agreement.

Unfortunately, this is an illusion.

The basic Palestinian position … is totally different . . . . According to the Palestinians’ view, this is not a conflict between two national movements but a conflict between one national movement (the Palestinian) and a colonial and imperialistic entity (Israel). According to this view, Israel will end like all colonial phenomena – it will perish and disappear. …

According to this view, the Palestinians see all of Israel – and not just the West Bank and Gaza – as analogous to Algeria: an Arab country out of which the foreign colonialists were ultimately expelled.

[Shlomo Avineri, With No Solution in Sight: Between Two National Movements, Haaretz, Oct. 2, 2015].

Further, he says,

This is also the reason why there is no regret among the Palestinians for their rejection of the 1947 United Nations Partition Plan, …                                                                                      

To this very day, no Palestinian intellectual or politician has dared to admit that had the Palestinians accepted partition then, on May 15, 1948, a Palestinian Arab state would have been established in a part of Mandatory Palestine, and there would have been no refugees and no Nakba (“catastrophe”).

He concludes:

… [T]here should be no illusion: So long as the Palestinians maintain that they are fighting – militarily or diplomatically – against a Zionist colonial and imperialistic entity, an historical compromise is unfortunately not on the agenda.  

Daniel Gordis, a senior vice president at Shalem College in Jerusalem, related a personal experience that confirms  Avineri’s analysis. He wrote:

We have a young language instructor at Shalem College in Jerusalem, where I work. She’s a religious Muslim who wears a hijab, lives in one of the Arab neighborhoods of Jerusalem and is a graduate student at Hebrew University. She’s fun and warm, and a great teacher — the students like her a lot.

… They were curious what someone like her thought about the conflict in this region, especially now that she was teaching at an unabashedly Zionist college, had come to know so many Jewish students and had developed such warm relationships with them. How does someone like her see things here? How did she think we would one day be able to settle this conflict?

So they asked her. She replied:

“It’s our land. You’re just here for now.”

Gordis comments:

[A]n educated woman, getting a graduate degree (which would never happen in a Muslim country) at a world class university . . . and working at a college filled with Jews who admire her, like her and treat her as they would any other colleague — still believes that when it’s all over, the situation will get resolved by our being tossed out of here once again.

Even she, who lives a life filled with opportunities that she would never have in an Arab country, still thinks at the end of the day the Jews are nothing but colonialists. And colonialists, she believes, don’t last here. The British got rid of the Ottomans, the Jews got rid of the British — and one day, she believes, the Arabs will get rid of the Jews.

His conclusion is similar to Avineri’s. He says

Increasingly, Israelis . . .  fear that while for us this is a conflict that can be settled by adjusting borders and guaranteeing security for both sides, for our enemies this is an all-or-nothing battle in which the only end would be for Israel to disappear.

In an op-ed in the New York Times, titled “A Settler’s View of Israeli’s Future,” Yishai Fleisher, spokesperson for Hebron, says:

[T]he two-state solution is dead, and the time has come for a discussion of new options by which Israel would hold on to the West Bank and eventually assert Israel sovereignty there . . .

Various plans have been suggested. Under one plan, Israel would simply annex  all of the West Bank and give the Arabs living there full Israeli  citizenship.  A major argument against this has been that because of the high Arab birth rate, this would quickly result in an Arab majority and Israel could not be both a Jewish and Democratic state. It would either have to deny the Arabs full citizenship and lose its democratic character, or give full citizenship to the Arabs and lose the Jewish character of Israel. Many of those who support a two state solution do so for that reason. But, recent studies have concluded that those demographic predictions are no longer correct, that Arab birth rates have gone down significantly and Jewish birth rates have stayed higher, particularly in the Haredi community. Caroline Glick, a prominent Jerusalem Post writer, has written a book advocating annexation of the West Bank and giving full citizenship to the Arabs living there.  

            Another proposal is for Israel to annex Judea and Samaria, but for the Arabs living there to have Jordanian citizenship. It is difficult to see why Jordan or the Palestinians would agree to that.

A solution that I think might work pragmatically, but probably has no chance of being accepted politically, would be for Israel and Jordan to negotiate a boundary, with Israel retaining areas it needs for security reasons and areas that are of historic or religious importance to Jews, giving the Arabs living in the area retained by Israel a choice of Israeli or Jordanian citizenship, with  the remaining area forming a Palestinian State in federation with Jordan, or becoming part of Jordan. The advantage would be that instead of creating a new unstable state, it would be part of or in federation with an existing state, with an existing government infrastructure. Such an approach would not be unreasonable, given that a large part of the Jordanian population is Palestinian, including the queen, and that Jordan is on territory that was part of the original Mandate for Palestine. But it is not likely to be acceptable to the Palestinian Authority and probably not to Jordan either.

Bennet has argued for what he calls “bottom-up peace.” In an article in the New York Time, Nov. 5, 2014, he wrote:

The secret is bottom-up peace. After more than two decades of working on a single solution for the Israeli-Palestinian conflict — the establishment of a Palestinian state — it is time to realize that coexistence and peaceful relations will not be obtained through artificial processes imposed on us from above. Instead, I propose a four-step plan.

First, we would work to upgrade the Palestinian autonomy in the West Bank, in the areas largely under Palestinian control (known as Areas A and B, according to the Oslo Accords). Ideally, this will be done in coordination with the Palestinian Authority.

The Palestinians will have political independence, hold their own elections, select their own leadership, run their own schools, maintain their own social services and issue their own building permits. They should govern themselves and run their day-to-day lives. Israel should not interfere. Much of this already exists, but we can do better.

This Palestinian entity will be short of a state. It will not control its own borders and will not be allowed to have a military.

Gaza already functions like a state, but the Hamas government in control there is bent on Israel’s destruction. As long as Gaza remains on this path, it cannot be a party to any agreement.

The second step will see the massive upgrade of roads and infrastructure, as well as the removal of roadblocks and checkpoints throughout the West Bank. The objective will be to ensure freedom of movement for all residents — Palestinian and Israeli — and to improve their quality of life.

No peace, though, can last without economic viability. So the third step will be to build economic bridges of peace between Israelis and Palestinians.

[T]here are 15 industrial zones in the West Bank where Israelis work alongside about 15,000 Palestinians. These zones pump about $300 million a year into the Palestinian economy. Imagine what another 15 industrial zones could do.

Lastly, I propose applying Israeli law in Area C, which is the part of the West Bank controlled by Israel under the Oslo agreement. The Palestinians who live there would be offered full Israeli citizenship. We can start with the known settlement blocs that everyone agrees will remain part of Israel even under a final status agreement. By applying Israeli law and asserting national sovereignty in those blocs, while upgrading Palestinian autonomy in Areas A and B, we will reduce the scope of territory in dispute, making it easier to reach a long-term agreement in the future.

I am aware that the world will not immediately accept this proposal. It seems to go against everything Israel, the Palestinians and the international community have worked toward over the last 20 years. But I will work to make this plan government policy because there is a new reality in the Middle East, which has brought an end to the viability of the Oslo peace process.

            What these solutions and others that have been suggested have in common is, of course, that Israel would exist, that it would not disappear as others who controlled Palestine in the past did. But, if Professor Avineri is right, that Israel’s existence is not acceptable to the Arabs, then, as he says, “there is no chance for an acceptable agreement in the foreseeable future”. What are the implications of that? In my view, they are that Israel should give the Arabs of the West Bank as much freedom as possible consistent with its security needs, that it should support economic growth and improve the standard  of living, education, healthcare, housing, as much as possible ,because that’s the right thing to do, morally, and probably politically, but it should not enter into any agreement or accept any solution that would require it to cede territory if that would endanger its security or risk destruction of Jewish historic or religious sites.

            A poll conducted in March 2017 found a decrease in support among Israeli Jews for withdrawal from the West Bank and the establishment of a Palestinian State. Willingness to agree to withdrawal from the West Bank as part of a peace agreement declined from 60% in 2005 to 36% in 2017. Only 12% of Israelis believe full withdrawal from the West Bank would end the conflict (Daily Alert, Mar.  28, 2017).

A report released by the Heritage Foundation, a prominent conservative think tank, states:

Trump has described an Israeli–Palestinian peace agreement as “the ultimate deal,” but the situation is not ripe for such a deal. The Palestinian authority is unwilling to make the necessary concessions and too weak to enforce any agreement in the face of Hamas’s implacable opposition to Israel.

It recommends that the “administration should focus on managing rather than resolving the conflict,” which, it believes, “is impossible for the immediate future.” (Arutz Sheva, 3/29/17).

Malvina Halberstam is a professor of law at the Benjamin N. Cardozo School of Law, Y.U. She served as Counselor on International Law  in the U.S. Department of State, Office of the Legal Adviser.

This is one of four lectures presented April 15-18, 2017,  at the Lake Las Vegas Westin in Henderson Nevada. The material may not be reproduced , in whole or in part, without the author’s written permission, but may be quoted with appropriate attribution.