As Secretary of State John Kerry tries to place primary blame on Israel for the stalled negotiations, it is important to look at the big picture and go back to first principles.
A little history always helps to understand the present.
In 1937-1938, the Peel Commission proposed a two-state solution in which the Jewish community of Palestine would receive a relatively small percentage of the land on which to establish the nation-state of the Jewish people.
The majority of the land was allocated to the Arab population, with the hope that they would establish their own state. The Jewish Agency, the predecessor to the Israeli government, reluctantly accepted the division.
The Arabs quickly rejected it.
In 1947-1948, the United Nations once again proposed a division of the land, with the Palestinians again getting the majority of the arable area and the Israelis getting the majority of the total area, including the Negev Desert. Israel accepted and established its state. The Palestinians rejected the proposal and joined the surrounding Arab armies in a genocidal war against the newly formed nationstate of the Jewish people.
The Jews lost 1 percent of their population, including many Holocaust survivors, in their successful effort to defend the nascent state.
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In 1967, Jordan, which had occupied the West Bank since 1949, attacked Israel despite Israeli efforts to keep Jordan out of the war. Defending itself, Israel captured the West Bank.
Its leaders made it clear that it would return most of what it captured in exchange for peace and recognition.
The UN Security Council adopted Resolution 242 which essentially accepted the Israeli formulation. The Palestinians went to Khartoum where they and all the Arab countries issued their three famous nos: No peace. No negotiation. No recognition.
This led Israel’s ambassador to the United Nations, Abba Eban, to quip: “I think that this is the first war in history that on the morrow the victors sued for peace and the vanquished called for unconditional surrender.”
In 2000-2001, the Israelis once again offered to withdraw from more than 90 percent of the West Bank in exchange for peace. Yasser Arafat rejected that offer and initiated a series of terrorist attacks that left thousands dead.
In 2007, Prime Minister Ehud Olmert offered an even better deal that included land swaps under which the Palestinians would obtain part of Israel in exchange for land that Israel retained in the West Bank. Once again, the Palestinian leadership did not accept that offer.
It is clear therefore that the Israelis and the Palestinians do not stand in equivalent positions — morally, legally, diplomatically or politically — when it comes to negotiating Israel’s withdrawal from the West Bank.
Israel captured this territory in an entirely lawful defensive war.
The Palestinians want it.
Unless they are prepared to negotiate with the Israelis, they can’t get it.
The burden is on the Palestinians to come to the negotiating table, not as equal partners, but as claimants, seeking to obtain something that they do not have.
Possession is 9/10th of the law, and in this case, 9/10th of morality as well.
Those who seek a change in the status quo have the burden of coming forward and showing a willingness to negotiate.
It would be as if there was a dispute over a car, or a painting, or a piece of land. The person who was lawfully in possession of the item need do nothing unless the person seeking it offers to negotiate. If the claimant walks away from the negotiation, the status quo remains.
Of course captured land is not the same as a car or a painting, but the principles underlying negotiation are similar. The land at issue was never part of a Palestinian state. It was lawfully captured from Jordan in a defensive war.
The Jordanians have now given their rights over to the Palestinian Authority, but the Palestinian Authority has refused to take yes for an answer since 2001. And before that, the surrounding Arab states refused to accept yes for an answer over the course of three-quarters of a century.
The Palestinians deserve to have a state, but their claim is no greater than that of the Tibetans, the Kurds, the Chechens and other stateless groups. Indeed, these other groups, unlike the Palestinians, have never been offered statehood and turned it down. Nor would these groups refuse to sit down and negotiate for a state.
The two-state solution would be good for the Palestinians, for Israel, and for peace in the region. But it is the Palestinians who need it most.
They are demanding of Israel substantial territorial compromises.
They are also demanding prisoner releases, an end to construction in the settlements and a termination of Israel’s military presence in the vulnerable Jordan Valley.
To get these and other concessions from Israel, the Palestinians must be prepared to make sacrifices as well.
They must give up all claims against the nation-state of the Jewish people, including the so-called right of return.
And they must assure Israel’s security against attacks from within the areas under their control.
Most important, they must be prepared to negotiate without preconditions and to stop taking unilateral actions that may satisfy their street but that will get them no closer to achieving a state.
So let the Palestinian Authority come back to the negotiating table, and if they refuse, let the world understand why they have not achieved their goal of statehood.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. His latest book is his autobiography, Taking the Stand: My Life in the Law.
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