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APN Analysis: "The Prisoners' Document Dilemma"

Exploration of the document agreed upon by Palestinian President Abbas and Prime Minister Haniyah...

CONTACT: Lewis Roth - (202) 728-1893


Now that Palestinian President Mahmoud Abbas and Hamas Prime Minister Ismail Haniyah have agreed to a revised version of a Palestinian national consensus plan, frequently referred to as the Prisoners' Document, it's worth exploring what that document signifies as a tool for obtaining internal calm, negotiating with Israel, and re-gaining international legitimacy for the Palestinian Authority. While the document is not designed to promote peace with Israel (and doesn't try), it may offer the Palestinian factions a chance to achieve some level of internal cohesion. However, it could well undermine the international legitimacy of the Palestinian Authority (PA) and PLO in the process. It will take additional efforts by Abbas, Fatah, and the PLO, along with Israel and the international community, to turn the Prisoners' Document into a positive development on the road back to the negotiating table.

Obtaining Internal Calm

First and foremost, the Prisoners' Document is written for internal Palestinian consumption. Factional fighting has plagued the West Bank and Gaza since Hamas won the legislative elections in January. Immediately after elections, Abbas tried to get Hamas to accept minimal international standards for governance (i.e., recognizing Israel, adhering to signed treaties, and renouncing violence), which just so happen to coincide with Fatah's platform. Hamas saw little reason at that stage to be co-opted by Fatah's agenda, because, after all, it had won the elections, and it had not yet had the chance to either consolidate its new authority or begin internal negotiations over new positions.

One of the reasons for Hamas' victory was the perception that it could fight corruption and chaos better than Fatah. But rather than improve the domestic situation for Palestinians, the international economic boycott of the Hamas-led PA has prevented it from consolidating its victory through significant reforms of the PA bureaucracy. Instead, PA workers have not been fully paid for months, unemployment has skyrocketed, and poverty has tightened its grip on the Palestinian territories.

Further, the struggle between Fatah and Hamas has led to a splintering of direct control over various security agencies, in addition to the creation of new militias. Killings, kidnappings, and firefights have spiraled out of control and made day-to-day existence in the territories much more difficult.

While some of this chaos can be attributed to the international community's rejection of an unreformed Hamas as the head of the PA, some of it is also fueled by partisan politics, namely Fatah's shock at losing the elections and unwillingness to part with the levers of power and the economic and political benefits that go with them. Given that Abbas still wields power as President of the PA and that Hamas has now obtained considerable clout through its control of the legislature, the two sides need to find a formula for power-sharing and coexistence.

Enter the Palestinian security prisoners being held in an Israeli jail.

Under the guidance of jailed Fatah leader Marwan Barghouti, top Palestinian prisoners representing all the major factions-who are held in high esteem across the Palestinian political spectrum-pieced together a national consensus document designed to address the internal fissures in their society and serve as the basis for debate between political leaders outside of Israeli prisons. In the internal Palestinian context, the Prisoners' Document contains "motherhood and apple pie"-type stuff. But because of the added legitimacy coming from its authors, the document succeeded in prompting a major debate among Palestinian political leaders, who felt compelled to address an initiative that called on everyone to rise above partisan bickering and put national interests first.

The result has been an agreement to form a national unity government based on the principles outlined in the document, but without necessarily abandoning the basic tenets of each faction. In several spots of the final version, the document talks about maintaining rights and principles (however these are interpreted by the different groups), regardless of their agreement to go along with the Prisoners' Document. Perhaps the factions are willing to adhere to certain compromises, but they don't necessarily believe in them and they are reserving their options in case everything falls apart, as it well might.

The nature of this compromise is tentative in other ways as well. For example, it is interesting to note that in the final version of the document, reference to Fatah and Hamas forming the national unity government has been dropped in favor of participation of the parliamentary blocs. While the PLO is recognized as the "sole legitimate representative of the Palestinian people wherever they are," in the final version of the document, the Palestinians factions are called on merely to participate in the PLO, as compared to the original document, which called on them to join it.

Still, the bottom line of the Prisoners' Document for internal political purposes is agreement to pull together to make the PA work, revive and expand the PLO, uphold Palestinian laws, preserve democracy, recognize the PA President as the top negotiator for the Palestinians, coordinate security services and "resistance" efforts, end chaos on the streets, and improve the international standing of the Palestinians. All while fighting for an independent state inside the 1967 borders with Jerusalem as its capital, liberating prisoners, and preserving the rights of refugees. Despite the tentative commitment of parties to this program, the Prisoners' Document probably serves its main purpose of pointing to a way for Fatah and Hamas to politically coexist under current circumstances.

Negotiating with Israel

The Prisoners' Document does touch on several issues that are relevant to negotiations with Israel, but it's silly to view the paper as a "peace plan" for Israel to consider. That's not what it's designed to be.

Yes, the document calls for an independent Palestinian state in all territories occupied in 1967, with Jerusalem as its capital.

Yes, it calls for securing the right of refugees to return to their homes and properties and receive compensation.

Yes, these would not be acceptable outcomes of negotiations, as far as Israel is concerned.

So what?

The Prisoners' Document outlines maximum starting positions for negotiations, just like Israel demands to hold onto all of the Old City of Jerusalem and "settlement blocs." Palestinians should no more be expected to adopt Israeli positions on final status issues prior to peace talks than Israel should be expected to adopt Palestinian positions as a prerequisite for negotiations. Neither side will get everything it wants in the end-that's part of the compromise process.

If there was already agreement all around, there wouldn't be a need to talk.

Regaining International Legitimacy

The main concerns raised by the Prisoners' Document have to do with its impact on the international legitimacy granted to the PA and the PLO.

Since Hamas' rise to power, the international community has been steadfast in demanding that Hamas meet three conditions in order to be considered a legitimate governing power and potential negotiating partner for Israel: recognize Israel, recognize previously signed peace agreements with Israel, and give up terrorism. The international community has differentiated between Abbas and Fatah on the one hand (which have met all three requirements already and have pushed Hamas to do the same) and Hamas on the other (which refuses to meet these international demands).

Similarly, the international community continues to consider the PLO as a legitimate representative and interlocutor for the Palestinian people. The PLO is headed by Abbas, does not include Hamas and Islamic Jihad as member organizations, and historically has been Israel's negotiating partner on peace agreements.

The Hamas-led PA has been subject to an international economic and diplomatic boycott which has, for the most part, held up and imposed considerable pressure on the Hamas government, as well as on the Palestinian people.

In order to try to dodge a humanitarian disaster in the occupied territories and avoid contact with Hamas, the international community has turned to Abbas and the PLO as legitimate political partners and possible conduits for aid.

But the Prisoners' Document calls for a national unity government among the Palestinian factions and for the participation of all Palestinian forces and factions in the PLO. And it does so on terms that may undercut the legitimacy of Abbas, Fatah, and the PLO in the eyes of the international community in terms of meeting the community's three demands.

Recognizing Israel

First, on the question of recognizing Israel, the Prisoners' Document states that Palestinians have the "right to self-determination, including the right to establish their independent state with al-Quds al-Shareef as its capital in all territories occupied in 1967."

Fatah activists point to this statement as a victory for moderation, since it could be interpreted as Hamas implicitly recognizing Israel's right to exist inside the Green Line.

However, in the introduction of the revised document-which the paper says must be considered as part of the whole initiative-it is stated that the document is being put forth "on the basis of no recognition of the legitimacy of occupation." Given that Hamas has considered all of Israel to be occupied territory, in addition to the West Bank and Gaza, it's unclear that the moderates have achieved any sort of compromise on this matter from Hamas. Ha'aretz correspondent Zvi Bar'el pointed out that the phrasing "could either mean the Israeli occupation of the territories or the 'Zionist occupation of all of Palestine.'" Indeed, one Hamas legislator, Salah al-Bardawil, told Reuters, "We said we accept a state in 1967-but we did not say we accept two states."

Along the same line, another section of the document says that the PA "is committed to the Arab consensus and to joint Arab action." Fatah leaders point to these words as indicating that Hamas has now agreed to the Arab League proposal adopted in Beirut, which offers pan-Arab recognition of Israel in return for a complete Israeli withdrawal from the occupied territories. Therefore, they argue, this is another example of Hamas implicitly recognizing Israel. But the document goes on to say that the PA is committed to such action "that supports our just cause and the higher Arab interests," a vague qualifier that could allow Hamas to say that it has not agreed to the Arab League peace proposal.


Second, the Prisoners' Document not only calls for adhering to the "right" of the Palestinian people to "resistance of occupation" (i.e., terrorism), it also calls for working to form a unified "Palestinian Resistance Front" to lead this "resistance." Presumably this new command would include Fatah, as well as Hamas. And while the document states that "resistance" should be focused on the territories occupied in 1967 (thereby perhaps extracting some level of compromise from Hamas to knock off attacks inside the Green Line), this phrasing does not exactly amount to even a complete ban on terrorist attacks inside Israel proper.

Adhering to Treaties

Third, the Prisoners' Document calls for Palestinians to pursue their goals "based on the UN Charter and international law and legitimacy" (perhaps hinting at recognition of existing agreements signed between Israel and the Palestinians). But it goes on to say that this should be done "in a way that does not affect the rights of our people," which leaves it open to interpretation as to whether or not Hamas is actually recognizing peace treaties that have already been signed.

Whether one agrees with the three demands specified by the international community or not, it would be hard to argue that the Prisoners' Document meets them. Economic aid and political legitimacy are unlikely to flow to the PA as a result of this paper. Further, if Abbas and Fatah have signed the documents on these terms-and if these terms are now guiding the PLO, in which Hamas would be participating, according the document-it could be argued that Abbas, Fatah, and the PLO themselves no longer meet the standards set by the international community. Such a development would further erode the ability of the international community to have any sort of political relations with current Palestinian leaders or funnel humanitarian aid to the Palestinian people.

Additional questions arise from the Prisoners' Document. For example, are all the Palestinian factions committed to it? Islamic Jihad says it isn't, and this faction has been responsible for much of the Kassam rocket fire directed at Israel. Hamas' political leadership in Damascus is also thought to be unsupportive of the document. So while some parts of Hamas and Fatah may be signed on to the Prisoners' Document, flaws and all, it isn't clear that the initiative will necessarily bring meaningful quiet to the Palestinians or between Israel and the Palestinians.

Quo Vadis?

Abbas, Fatah, and the PLO cannot pretend that the internal political implications of the Prisoners' Document are somehow disconnected from the implications of the paper for the international legitimacy of Palestinian institutions. The PA will not be able to function, even with a broad unity government, unless international aid and diplomatic relations are restored and Israel releases the tax money that it collects on behalf of the PA. The situation could get even worse if what limited aid and relations that still exist between the international community and Abbas, Fatah, and the PLO are downgraded or severed.

Palestinian Actions

Abbas, Fatah, and the PLO should do four things in order to prevent the situation from spinning further out of control.

First, they should launch an aggressive effort to educate the public that the Prisoners' Document is not some sort of universal party platform for all the Palestinian factions. It is only a lowest common denominator agreement that uses vague language and open interpretations to mask deep ideological divisions between the factions that still exist. Abbas, Fatah, and the PLO should reaffirm that the Prisoners' Document does not diminish in any way their personal and institutional commitments to recognizing Israel, rejecting violence, and adhering to existing peace agreements. And they should do so in a manner that is convincing to the international community and preserves their legitimacy, no matter what happens with the national unity government or expanded membership base of the PLO.

Second, they should publicly define the terms of the Prisoners' Document and offer their own interpretation of its vague phrases in a manner that is consistent with their long-standing positions, as mentioned above. They should not let Hamas have an open playing field to diminish any potential positive developments contained in the document. They should make it clear that, in their view, the Prisoners' Document does embrace the Arab League peace initiative, a real two-state solution to the Israeli-Palestinian conflict, and recognition of Israel and existing treaties. Similarly, they should say that while, in their view, Palestinians may have a right to "resistance," they believe that such a right should only be exercised in a non-violent manner and that they will only participate in a "Palestinian Resistance Front" with that understanding.

Third, they should emphasize that what is important about the Prisoners' Document is not how various factions interpret its various provisions according to their own ideologies, but the results it produces on the ground.

If the document helps pull Hamas into living with a negotiating process that could result in an independent Palestinian state within most of the West Bank and all of Gaza, does it really matter what Hamas thinks in its heart of hearts, any more than it really matters what Israelis think about evacuating West Bank land in the depths of their souls?

If terrorist attacks against Israelis are stopped or significantly reduced, isn't that more important than asking Hamas to pledge that they never want to do anything worse? Aren't there more than a few Israelis who would like the IDF to take more extreme measures against the Palestinians than it already does?

If Hamas is willing to fully participate in a Palestinian government created by peace agreements previously signed by Israel and silently goes along with provisions of those treaties, does it matter if they really like it? Has Israel necessarily been enthusiastic about fulfilling all of its commitments under these same accords?

Fourth, there is nothing in the Prisoners' Document that requires a new national unity government to be approved by the Palestinian Legislative Council (which is controlled by Hamas) or to necessarily include members from specific parties. If an emergency government of non-partisan technocrats is appointed without running it through the legislature and formally being approved by an act of Hamas, it would be easier for the international community to deal with the new government.

Israeli Actions

Palestinian moderates are not the only ones who need to think about how they need to function given the new realities that the Prisoners' Document may create.

Israel should take advantage of the document's clear reaffirmation that negotiations fall within the jurisdiction of the PLO and the President of the PA. There is an opportunity created in the document to resume productive negotiations on day-to-day interactions between Israel and the Palestinians, and perhaps even final status issues, in a way that would force Hamas to either except the results of such talks or explain to their public why they are opposed. Even if nothing results from the discussions themselves, negotiations could provide Abbas with greater political leverage in dealing with Hamas because the Palestinian people-despite everything-still support the peace process.

Outside of the context of the current situation in Gaza, Israel could also finally provide some significant diplomatic gestures to help build up Abbas, like delivering a sizeable group of Palestinian prisoners held in Israeli jails to the Palestinian president, instead of haggling over the numbers so as to drain any good will out of the measure or waiting until hostages are taken and delivering prisoners to terrorist groups. Israel should also energetically look for ways to resume the transfer of Palestinian tax money to the Palestinian people, if not through a new national unity government, then through the temporary international mechanism being set up by the World Bank.

International Actions

Finally, the international community should be more aggressive in getting humanitarian aid to the Palestinian people, either through new funding mechanisms or a new national unity government. It should push Abbas, Fatah, and the PLO to clarify their own positions in light of the Prisoners' Document. And it should proactively create opportunities to demonstrate the potential for positive interactions between Israelis and Palestinians at various levels in order to create momentum towards calming the situation and restoring quiet.