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Among the worst things that happened to Barack Obama in this annus horribilis in the Middle East was that Secretary of State John Kerry’s attempt to kickstart peace negotiations between Israel and Palestine crashed and burned, ending in severe West Bank and Jerusalem tensions and a massive bombardment of the tiny Gaza Strip. Ad Policy

It was unwise for Obama to authorize the Kerry Israeli-Palestinian negotiations in the first place, given that the Likud-led government of Benjamin Netanyahu is deeply committed to continued annexation of Palestinian territory in the West Bank and deeply opposed (whatever it may say publicly) to the emergence of a Palestinian state. Netanyahu’s government seemed almost gleeful as it kept announcing new housing settlements on confiscated Palestinian land, even as the talks were proceeding, and on several occasions humiliated Secretary Kerry. The negotiations raised Palestinian hopes, and when those were dashed, it was foreseeable that severe tensions would break out in that tinderbox. The Israelis dismissed Kerry’s peacemaking as narcissistic and “messianic,” which is utterly unfair. But it is true that he seems not to have realized that it is the sort of enterprise where failure comes with a cost.

The entire fiasco was based on a set of false premises about the nature of the contemporary conflict between the Israelis and Palestinians. It is driven at the end of the day by Palestinian statelessness. As Chief Justice Warren Burger wrote, probably under the influence of Hannah Arendt, “Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.”

Palestinians, as stateless, not only lack most basic human rights, they do not even have a right to have such rights. Their property is unstable—they never know what they actually own, and whatever they think they own can be usurped at will. Their farms are encroached on; their olive orchards sabotaged; their wells go dry because Israeli squatters dig deeper ones and extract the water for agriculture on Palestinian land. Sometimes they are murdered with impunity by militant, armed squatters, while they are kept unarmed and vulnerable by the occupation military.

An epochal evil was done the Jewish people by European fascists, who murdered 6 millon of them in death camps in the 1940s. But a great wrong was also done to the Palestinian people in 1947-48, when the British Mandate of Palestine was partitioned into Israel and Palestinian territories that came to be held in trusteeship by Egypt and Jordan. In the course of the war, involving some 500,000 Jewish settlers and various ragtag Arab armies (with a similar number of troops), about 720,000 Palestinian noncombatants, out of 1.2 million, were chased from their homes without compensation.

As late as 1939, British authorities envisaged establishing an independent Palestinian state in 1949, just as post–World War I European Mandates in Syria and Iraq eventuated in independent states. The 1948 war and ethnic cleansing of Palestinians, called the “Nakba,” or “Calamity” in Arabic, forestalled any such Palestinian state. In 1967 Israel took the Gaza Strip and the West Bank (along with the Golan Heights and the Sinai) as colonies in the aftermath of the war with Egypt, Syria and Jordan, gaining millions of Palestinian subjects and creating another wave of refugees. The United Nations charter forbids the acquisition of territory by military conquest—and despite what apologies for this colonialism argue, there is no exception for territory inhabited by stateless people. The framers of the UN Charter certainly did not intend to allow any form of aggressive conquest and annexation of territory, much less against the weak. The Israelis decided from the 1970s to contravene the Fourth Geneva Convention of 1949 on the treatment of occupied peoples, which forbids the militarily dominant power from flooding its population into the occupied territory, (e.g., the United States could not have expelled people from Basra in Iraq in 2004 and brought millions of Americans to settle in the country, without also contravening international law).

Because the Palestinians in the occupied territories have no right to have rights, no agreement made with them can be enforced. All of the promises the Israelis made in the Oslo peace accords have been reneged on by now. Netanyahu once even boasted of this achievement. In the 1990s, not only did the Israelis not gradually withdraw from the West Bank as they had undertaken to do, but they doubled the number of Israeli squatters on Palestinian territory in the eight years after the so-called peace accords. Israeli complaints about the rise in the 1990s of a new wave of terrorism by Palestinian militants are just, but do not justify putting several hundred thousand squatters on Palestinian land and undermining the authority of the Palestine Authority altogether. If the Israeli policy of torpedoing the Oslo Accords had been a security success, we would not still be hearing about the insecurity of Israelis today from Hamas, Islamic Jihad and so forth.

Secretary Kerry’s attempt to conclude another set of accords was therefore always quixotic and doomed to failure. A powerful Israeli state simply has no reason to abide by its commitments with a stateless, weak people divided into bantustans and encircled by checkpoints.

If Palestinian statelessness is at the root of the crisis, then the solution is obvious. The Palestinians must erect, and be recognized as, a state. Israeli squatting on Palestinian territory is theft on a grand scale, i.e., a tort. Palestinians, as stateless, have no forum in which they can adjudicate this tort. The United States decries the Israeli settlements verbally, but hypocritically does whatever is necessary to protect the squatters and their backers. For this reason, the acceptance by the United Nations in 2012 of Palestine as a non-member observer state was a significant advance. Likewise positive are Sweden’s recognition of Palestine and the rash of Western European parliamentary resolutions this fall in favor of doing so (in Britain, France, Spain, Ireland and Portugal). Palestine’s current moves toward joining the International Criminal Court are all to the good, since the court can deploy the Rome Statute of 2002 to sanction Israeli squatting on Palestinian land and any policies that amount to apartheid. Unlike with United Nations Security Council Resolutions, an ICC judgment cannot be blocked by a United States veto.

If President Obama truly wants to make a mark on history, authorizing Secretary Kerry for more, likely fruitless negotiations or easily derailed agreements is not the way to do it. Rather, he should show the boldness he did with regard to Cuba, and simply recognize Palestine and send a US ambassador to East Jerusalem. (This step would not imply a demand that Jerusalem be partitioned administratively; Chandigarh in India is the capital of two states, after all). Only a recognized Palestinian state can make peace, but more importantly, only such a state has standing in international institutions to help guarantee that agreements with it are honored.