The most astonishing thing about Foreign Ministry Legal Division Ehud Keinan’s legal opinion (commissioned by Foreign Minister Avigdor Liberman) on the legality of transferring Israeli Arabs to a potential future Palestinian state was that it was written at all.
Not only is population transfer not on Prime Minister Binyamin Netanyahu, Finance Minister Yair Lapid or peace-process negotiator Tzipi Livni’s list of proposals, it is likely anathema to most diplomats in the Foreign Ministry.
Population transfer in this context generally refers to Wadi Ara and the triangle of Nazareth, Sakhnin and Shfaram, though since it has never been seriously discussed in negotiations, its exact contours are unclear.
The next surprise is that it was leaked to the press in a Foreign Ministry in which Liberman has worked hard to stop leaks.
Probably Liberman ordered the report by Foreign Ministry lawyers since they are directly under his management, whereas Justice Ministry lawyers might have refused or said that such an idea was categorically against international law.
The 18-page document itself by Keinan appears to be a fascinating and delicate balancing of interests.
First, it carefully frames the legal question as one of states exchanging land and populations in the context of resolving border disputes, not as targeted solely at population transfer, which could bring criminal allegations of ethnic cleansing.
Next, on the one hand, Keinan and his legal team were not likely to tell their boss, Liberman, that his idea is categorically illegal, and as the opinion says, there could be very specific circumstances where it might not be categorically illegal.
On the other hand, they probably did not want to be used as a fig leaf for Liberman’s public campaign in favor of his idea.
So the big support for Liberman’s idea is the opinion’s statement that even though most state practice in transferring territory and populations has offered the transferees a choice of becoming citizens in the new state versus remaining in the old state by moving “inward,” this choice has not yet become a binding obligation under international law.
Meaning, it says Israel could do the transfer potentially without giving the “transferees” a choice to stay.
The opinion gives as the basis for this claim: the minority of examples where there was no such right (since the choice was given in most examples), the absence of any definitive convention requiring choice as a right in resolving border disputes, rulings of the International Court of Justice and a recent instance where states rejected making that right required, instead leaving it only as desired.
This is no small jump. Israel sometimes bucks some of the trends in areas of the law of armed conflict by taking a more aggressive position in light of its unique situation.
But bucking the clear trend on population transfer could be viewed very differently even by Israel’s staunchest allies.
However, the opinion then adds at least three fundamental qualifications without which it says any population transfer would be illegal.
The first two requirements are: there must be just compensation, as with Gush Katif, and that the transferees would need to finish the process with either Israeli or Palestinian citizenship, so they would not emerge stateless.
These requirements are based on the idea that they should not come out of the border resolution dispute having lost human or economic rights, and neither are surprising.
But the third condition: that the Palestinians must approve and receive the Israeli Arabs, is a poison pill.
If the idea is anathema to most Israeli diplomats, there is no Palestinian leader that would even discuss the issue, let alone agree to such a deal.
France-Algeria and others could be called exceptions, but most of the agreed transfers mentioned in the opinion came relatively soon after a war – resolving an unresolved situation with non-citizens or foreign citizens in limbo.
In contrast, the Israeli Arabs of the North have been citizens for decades and have been widely integrated, however imperfectly, into the state for generations.
Which brings us to the opinion’s other poison pill – its reference to diplomatic and domestic- social fallout if any such transfer is perceived as having discriminatory or other improper motivations, such as a plan attempted by apartheid South Africa.
This is a poison pill because few parties internally or externally would view such a transfer as anything other than that.
All of that said, Liberman has now given his idea greater infrastructure and practicality than it has previously enjoyed.
At a time when the peace process looks in doubt, he must believe that raising the profile of his idea can assist – or at least present him as a statesman with domestic ideas.