On October 19th IGLP Director David Kennedy moderated a faculty discussion between Harvard Law School Professors Duncan Kennedy and Noah Feldman on Israel/Palestine: One State or Two? Kennedy and Feldman discussed the Obama administration’s goal to save the two-state solution and whether the two-state solution, as currently understood, is worth saving. Is it too late for that? Is it really more realistic than the one state solution? Are the Israeli and Palestinian elites willing to do what it takes for a two-state solution? You can see a recording of Duncan Kennedy’s portion of the event below.

Duncan Kennedy on a two state solution in Israel/Palestine – part 1

Duncan Kennedy on a two state solution in Israel/Palestine – part 2

Afterward, the IGLP spoke with Duncan Kennedy about the issues raised during the debate.

Duncan, you presented a rather pessimistic picture.  In your view, a two-state solution as currently foreseen, along the lines developed in 2001 in Taba, would not be desirable.   Luckily, you continued, it is also unlikely given the relative political weakness of the American and Palestinian negotiators now at work.   Could you expand on that?  First, why a bad idea?

My point was this: If we woke up tomorrow to a banner headline in the New York Times declaring that the Palestinian Authority and the Israeli government, under the aegis of the United States, had reached agreement on a two state solution … we should probably (nothing is certain)  be horrified.  Why?  Because given the current balance of power between the three parties , it is overwhelmingly likely that the particular form that a two state solution would take would be so bad for the Palestinians that it would, first, be worse than the status quo, and, second, so bad that it wouldn’t be stable.  The main gainers would be Israel in the very short run and Hamas over the long run.

Under the most favorable version yet developed, in the Taba negotiation, and likely better than anything attainable now, the transfer of “sovereignty” over 90% of the West Bank is merely nominal.   Israel retains military control of the Jordan valley (a third of the “state”), of all the borders and air space, annexes 10% of the West Bank, keeps most settlements in place (with Israeli law in force) along with the access roads, and continues to control customs revenue.   There is a Palestinian police force but no military.  The twenty four square miles of “Greater Jerusalem” remain Israeli.  After the deal, Israel, as in Gaza, will no longer accept occupant responsibility for the welfare of the Palestinians in the West Bank, and as in Gaza, can simply treat them as arms length enemies, intervening whenever and however it wants to when it claims a security threat.  The only economic relationship likely is further development of the settlements inside the West Bank and a neo-colonial relationship of complete dependence, if not exploitation, between the stronger Israeli and the basket-case Palestinian economy, with the latter continuing to survive only on the dole of the “donors” of humanitarian aid.

Noah pressed you, in effect, not to let the just be the enemy of the attainable, particularly should the parties themselves conclude that something like the Taba solution is the best that can be achieved.   Why do you think it unlikely the parties will, in fact, come to that conclusion – and, if they nevertheless do, why should we not support their decision?

Two questions here: Should we advocate for something like Taba now, in the negotiation phase?  My answer is that we outside observers sympathetic to the Palestinians should not do so, because such a solution will leave in place everything bad about the status quo, make some things worse (no more duty of the occupant), not work in the long run, and allow concerned publics all over the world to finally forget about the pesky Palestinians, whose plight is both moving, and for the typical observer, profoundly disquieting.  Instead, we should advocate not for a “solution” in the short run, but for improving the situation of the Palestinians in the West Bank, in Gaza, inside Israel proper, and in the refugee camps of the Arab world.  My view is that the primary plausible tactic is pressure on the US government, through a growing civil society based movement for boycott, divestment and international sanctions against the occupation, and if necessary against Israel more generally.

But what about Noah’s point: if the Palestinians through a referendum agree to the kind of solution you are opposing, shouldn’t we support it?

Of course, if such a referendum occurred, we should hope with all our hearts that it will work out to the benefit of the Palestinians.  But the suggestion that we would be seeing a pragmatic preference for the good over the best is a little odd.  My fear is that the old Fatah leadership has a strong motive to sell out the general populace, since they are sitting pretty, through the combination of corruption, crony based import monopolies, and control of the security services (now massively financed and trained by the US).  They have plenty of means to rig a referendum, and even if they didn’t, it is not obvious that a decision by a majority of the population in the current and historic circumstances of disaster, would be “free” in any meaningful sense.  But we should definitely “support” it in the sense of hoping it would work.

You proposed the construction of a single “bi-national” state as a worthy political alternative.  What do you have in mind – and wouldn’t this be a far less politically realistic objective?   What would it mean for Palestinians to adopt this as their objective?

The current situation has many aspects of a binational  state, since Israel effectively rules the whole of historic Palestine under a bifurcated and unequal regime, with different de jure status (in the West Bank) and de facto discrimination (in Israel proper) for Jews and Arabs.  The proposed two state regime a la Taba would continue to look more like a single binational state, because Israeli dominance, military, legal and economic, of the Palestinians would be so overwhelming as to refute the idea that the Palestinian state was autonomous.  These versions of the binational state are by any standard highly repressive of the Palestinian population.  My ideal solution would be a federal binational state founded on legal, political and cultural equality, with elaborate guarantees of the rights of both peoples, as opposed to the apartheid-like actual situation.

Your opposition to a “two-state solution” also seemed to take issue with our relentless focus on a “solution” around the next corner in negotiations for its tendency to take our eye off the ball — a quite long term and unjust reality on the ground.

Yes, that is exactly what I think.  I don’t think that a more just version of the binational state is likely to come into existence for the indefinite future.  In the short run, I think the only plausible course of action for those supporting the Palestinians is to press the BDS campaign, and develop it in the US in the way it has developed over the last few years in Britain.  But I should add that I don’t favor the kind of categorical attitude towards boycotts that has been common on the left in the South African case and to some extent at present in Britain.  I think boycotters should be flexible, pick their targets, and at all costs avoid making it appear that they can’t tell the difference on the Israeli side between the friends and enemies of a just peace.

Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School. His research focuses on, among other things, Legal History and Legal Theory, Law and Third World Economic Development and Private Law Theory. Professor Kennedy is a member of the IGLP Advisory Council. his event was organized by Justice for Palestine at HLS. JFP is a student organization concerned about the lack of campus-wide debate about the Israeli-Palestinian conflict and aims at challenging misrepresentations and misperceptions of the fundamental issues related to Palestine. Duncan Kennedy is the faculty advisor for JFP.