In December 2002 the European Council first rang the alarm bells ‘at the continuing settlement activities, which threaten to render the two-state solution physically impossible.’ [1] Fast-forward a decade and EU High Representative Catherine Ashton echoed: ‘I am extremely worried by the prospects of settlement expansion on such a scale […] undermining the prospects of a contiguous and viable Palestine with Jerusalem as the shared capital of both it and Israel’. Ten years have passed since the fading prospect of a two state solution in Israel-Palestine was first aired. Has the Rubicon of the two-state solution been crossed without anyone noticing?

Too little and too much has changed since the first Cassandras started bemoaning the end of the two state solution. Too little has happened at the diplomatic level. In over a decade, only two half-hearted attempts at reviving direct negotiations were made: the first – Annapolis process – between November 2007 and Operation Cast Lead in Gaza in December 2008 was President Bush’s last ditch attempt to deliver on the protracted Middle East conflict against the hubris left in Iraq. The second, in March 2010, is credited to newly elected President Obama and his Special Envoy George Mitchell, who assiduously worked to re-launch the peace process upon an agreement of a partial settlement freeze, which Israel broke by September that year. In over 140 months since the ill-fated Taba talks in early 2001, less than 20 were spent on the so-called peace process. As for substance, precious little was achieved.

On the ground, far too much has changed, all of which makes the darkness of 2002 seem almost like rosy days bygone. In 2002 approximately 380,000 Israeli citizens lived in settlements in the West Bank and East Jerusalem. By 2012 this figured had skyrocketed to 650,000, that is 10% of the Israeli Jewish population. Particularly dramatic is the situation is Areas C, where settlement expansion and Palestinian access restrictions have not only eaten into the only contiguous areas of the West Bank, but have also compromised crucial natural resources for the future demographic and economic growth of a viable Palestinian state. Added to this, the recently announced settlement expansion into E1 in East Jerusalem sounds the final death blow to a viable Palestinian state effectively dividing the West Bank into two territories.

Alongside the burgeoning settler population and accompanying land grab in the occupied territories, the prospect of a Palestinian state has been trumped by intra-Palestinian violence in 2007, which culminated in the political separation of the West Bank from the Gaza Strip, with Fateh in control of the former and Hamas of the latter. Since the ouster of Hosni Mubarak in 2011, Egypt has moved to broker a deal between the warring Palestinian factions. While the prospects for intra-Palestinian reconciliation are somewhat brighter under the current Egyptian mediation, we’re still a far cry though from a full agreement implemented on the ground.

What does all this mean? The blatant bankruptcy of the peace process alongside the inexorable deepening of Israel’s occupation and the obstinate divisions amongst Palestinians have brought together a strange set of bed-fellows, all of whom openly question the validity of the two state solution. On the Israeli right, Knesset Speaker Reuven Rivlin is on record declaring: ‘I would prefer for the Palestinians to be citizens of this country rather than divide the land’ within a ‘state of all its citizens’, foreseeing a joint sovereignty arrangement in Judea and Samaria under the Jewish state’. On the left within both Palestinian and Israeli societies there are also long-time advocates of a one state solution, premised not on the dream of Greater Israel but on that of a single bi-national democratic state. Former Deputy Mayor of Jerusalem Meron Benvenisti argues that ‘The Jewish nation-state is doomed’… ‘In the end, the only way to live here will be to create an equality of respect between us and the Palestinians. To recognize the fact that there are two national communities here which love this land and whose obligation is to channel the unavoidable conflict between them into a process of dialogue for life together’.

Adding to the one-state chorus is a growing list of committed two-staters, who increasingly acknowledge the implications of evolving trends on the ground. Avi Shlaim, for instance, has recently shifted to supporting one-state, while recognizing that this is not the solution he would ‘ideally like’. Sari Nusseibeh has also started questioning what a Palestinian state is worth?[2] Likewise former Israeli Prime Minster Yossi Beilin has recently sent an open letter calling upon Palestinian Authority President Abbas to ‘end this farce’, disband the PA, and invite Israel to take up direct responsibility for ruling over the West Bank.

Be it out of ideology or tactics, commitment or resignation, the one-state chorus is growing perceptibly louder. It nonetheless remains a minority view, still fairly marginal at that. The counter argument is indeed powerful. Difficult as it may be to reach a negotiated two state outcome, it is still infinitely easier than agreeing on a single bi-national state. The unshakable logic of this argument leads frustrated observers to fall back on the two-state logic. Emblematic of this is a recent Crisis Group report, which provocatively unveils that the proverbial “emperor” – the peace process – “has no clothes”, but nonetheless advocates a negotiated two-state outcome. The circular logic of the two state solution – two states are increasingly unlikely, its alternatives more so, therefore two states remain the only solution – and power structure underpinning it – at domestic, regional and international levels – are such that alternatives are rarely seriously and publicly entertained.

The novelty in Crisis Group’s approach is the idea that a genuine peace process should heighten incentives for reaching a deal and disincentives for sticking with the status quo. Altering the incentive structure underpinning the conflict – and conditions on the ground – is no doubt the only recipe to dislodge the fossilized status quo. Yet considering a negotiated two-state outcome as the only framework for such a process risks becoming a straightjacket that impedes the necessary movement to alter incentives on the ground.

The alternative is not that of advocating for a one state solution instead. Doing so would represent an even tighter straightjacket upon which neither the parties nor external mediators would agree, even at the highest level of generality. The alternative would rather be that of sidelining the constitutional end-point altogether. Instead of framing the peace process as one aimed at reaching a two, one or indeed any N-state solution, greater attention could be paid instead to the imperative of respecting rights and law of all parties involved, by all internal and external parties, both in the process yielding a final settlement and as part of the core parameters of that settlement. This would include first and foremost the respect for international humanitarian law, followed by the respect for wider civil, economic and political rights as and when a final settlement is reached. Other complementary principles, often applied in conflict and negotiation contexts could include:

the equality of treatment of the parties, including the proportionality of the demands made of them relative to their capabilities;

minimizing path-dependent conditionality, whereby new pre-conditions demanded by either of the parties find their way into the international consensus determining the implicit rules governing the peace process.

Erecting rights and law as guiding principles of the “peace process” would offer far greater latitude for action: not all policies need be single-handedly focused on resuming negotiations. The bilateral negotiations track certainly represents a prerequisite for a solution, but equally important – and perhaps more so at this juncture – are policies conducted at the unilateral or multilateral levels to create the conditions for negotiations to eventually succeed.

With this logic in mind, the European Union could:

Work towards the enlargement and reorientation of the Quartet as a broader multilateral forum to establish a renewed international consensus regarding the principles of an Arab-Israeli solution that could ultimately find expression through the United Nations. In this respect, one could also see the value of extending the Quartet to others, such as Egypt, Saudi Arabia, Qatar and Turkey, which have played a role in the peace process in recent years.

Narrow the conditionality towards Hamas by focusing exclusively on the issue of non-violence, with its strong grounding on international law, and back up conditionality by pushing for international observers in the Gaza Strip to monitor the situation.

Upgrade international law as the guiding principle of EU-Israel relations, by viewing the application of law not as a punishment inflicted upon Israel in the domains of trade, research and police cooperation, but as the prerequisites to uphold EU norms while signalling to Israel that law is not up for political bargaining. Rather than an irritant to bilateral cooperation, rules and laws are what make cooperation between the EU and Israel possible. It is by recognizing this reality – by rectifying existing legal problems in bilateral cooperation and inserting safeguard mechanisms to ensure that no further irregularities arise in future spheres of EU-Israel cooperation – that the EU could create the conditions for a genuine peace process to bear fruit in future.

Europe was a pace setter in its support for a two-state solution, with its open backing of Palestinian self-determination in the 1980 Venice Declaration. It may thus strike us as nonsensical that as Palestine proudly enters the United Nations as an observer state, the EU should turn away from Palestinian statehood. But what is argued here is not the replacement of a two-state solution in favour of a one state outcome. The argument is rather that concentrating on the constitutional endpoint has manifestly worked against its very purpose. The peace process has become amongst the number one enemies of a just and lasting solution to the Israeli-Palestinian conflict. An alternative is to abandon the straightjacket imposed by the constitutional endpoint and work instead to create the conditions that would make such an endpoint possible through unilateral, bilateral and multilateral actions. Europe has the power and the responsibility to act in this regard, proving, much like it did in 1980, that it can be a pioneering force for peace in the Israeli-Palestinian conflict.

[1] European Council in Copenhagen on the 12-13 December 2002, Declaration on the Middle East. For similar declarations see also European Council in Thessaloniki on the 19-20 June 2003, Presidency Conclusions, (11638/03), point 86; Conclusions of the Council of Ministers on the Middle East, 20 June 2003; European Council in Brussels on the 16-17 October 2003, Presidency Conclusions, (15188/03); European Council in Brussels on 17-18 June 2004, Presidency Conclusions, (10679/2/04).

[2] Sari Nusseibeh (2012) What is a Palestinian State Worth?, Cambridge MA, Harvard University Press.