Put Some Bite Into a ‘Land for Peace’ Deal

Violence continues to escalate in the Middle East despite the fact that the contours of a mutually beneficial deal seem obvious to many: Israel withdraws from most of the occupied territories and allows the Palestinians to establish a sovereign state. In return, the Palestinians give Israel peace.

This deal would not be perfect for either side, but it seems far better for both than ongoing misery and loss of life. Why is the bargain not struck?

A number of reasons have been suggested: centuries-old tribal hatreds, religious fervor, personal vendettas and Yasser Arafat’s rejection of the offer by former Prime Minister Ehud Barak at Camp David.

All these factors are relevant, but the most significant roadblock to peace is the structure of the imagined treaty. Land and peace cannot be exchanged simultaneously. Israel would have to provide the land first and rely on the Palestinians to provide peace in the future.

The problem is that Israel does not trust the Palestinians to live up to their end of the bargain. Many Palestinians want not just the occupied territories but also the entire state of Israel. So after their state is established, why would Palestinians not continue terrorist attacks? Arafat’s current claim that he cannot control the suicide bombers only underscores the fact that the Palestinians cannot guarantee future peace. Even if peace were to precede the transfer of territory--long an Israeli demand--Israel must be able to expect continued peace.

The problem of nonsimultaneous performance is common in bargaining contexts. Why would I pay you today for goods to be delivered later when you might decide to keep my money and either never provide the goods or provide shoddy goods?

Two types of solutions can make such bargains possible. First, an external enforcement mechanism such as a judicial system can guarantee to the first party the performance of the second party. Second, the agreement itself can provide a mechanism for the first party to recoup its losses if the second party fails to perform, both to protect the first party and provide incentives to the second.

Many commentators have essentially called for the development of an external enforcement mechanism by suggesting that U.S. or other outside peacekeeping forces go to the region. The problem with this approach--besides Western reluctance--is that neutral soldiers cannot prevent Palestinian suicide bombings any better than Israeli soldiers can.

A better approach is to build into the agreement a provision that permits Israel to reoccupy portions of the territories if the Palestinians fail to provide the peace they promise, with higher levels of terror triggering the right of Israel to reoccupy larger portions of land. This approach would give Israel the security to sacrifice land and the Palestinians the strongest possible incentive to prevent future terrorism.

Yes, disputes could arise. Israel might blame the Palestinians for an act of terrorism, while the Palestinians claim the attack was launched from elsewhere, such as Lebanon. To deal with such disputes, the treaty would have to establish a neutral international arbitration panel to quickly resolve disagreements.

To make “land for peace” safe for Israel, the Palestinians and the international community would have to recognize that an Israeli reoccupation under the conditions of continued terror would be justified. The Palestinians would do so by accepting such a provision in the treaty; the world community could do so by enacting a United Nations resolution in support.

To convince Israel to cede land, the Palestinians must guarantee peace. The best way to do this is to make the continued existence of a new Palestinian state dependent on it.

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Russell Korobkin is a professor of law at UCLA and author of “Negotiation Theory and Strategy” (Aspen Law & Business, 2002).