By Alan M. Dershowitz
May 19, 2011

President Obama should be commended for his emphasis on Israel's security and his concern about Hamas joining the Palestinian Authority without renouncing its violent charter. But he made one serious mistake that tilts the balance against Israel in any future negotiations. Without insisting that the Palestinians give up their absurd claim to have millions of supposed refugees "return" to Israel as a matter of right, he insisted that Israel must surrender all of the areas captured in its defensive war of 1967, subject only to land swaps. This formulation undercuts Security Council Resolution 242 (which I played a very small role in helping to draft).

Resolution 242, passed unanimously by the Security Council in the wake of Israel's 1967 victory, contemplated some territorial adjustments necessary to assure Israel's security against future attacks. It also contemplated that Israel would hold onto the Western Wall, the Jewish Quarter of Jerusalem and the access roads to Hebrew University, without the need for any land swaps. Land swaps would only be required to make up for any areas beyond those contemplated by Resolution 242. The Obama formulation would seem to require land swaps even for the Western Wall.

Any proposed peace agreement will require the Palestinians to give up the so-called right of return, which is designed not for family reunification, but rather to turn Israel into another Palestinian state with an Arab majority. As all reasonable people know, the right of return is a non-starter. It is used as a "card" by the Palestinian leadership who fully understand that they will have to give it up if they want real peace. The Israelis also know that they will have to end their occupation of most of the West Bank (as they ended their occupation of Gaza) if they want real peace. Obama's mistake was to insist that Israel give up its card without demanding that the Palestinians give up theirs.

Obama's mistake is a continuation of a serious mistake he made early in his administration. That first mistake was to demand that Israel freeze all settlements. The Palestinian Authority had not demanded that as a condition to negotiations. But once the President of the United States issued such a demand, the Palestinian leadership could not be seen by its followers as being less Palestinian than the President. In other words, President Obama made it more difficult for the Palestinian leadership to be reasonable. Most objective observers now recognize Obama's serious mistake in this regard. What is shocking is that he has done it again. By demanding that Israel surrender all the territories it captured in the 1967 war (subject only to land swaps) without insisting that the Palestinians surrender their right of return, the President has gone further than Palestinian negotiators had during various prior negotiations. This makes it more difficult for the Palestinian leadership to be reasonable in their negotiations with the Israelis.

It is not too late for the President to "clarify" his remarks so that all sides understand that there must be quid for quo—that the Palestinians must surrender any right to return if the Israelis are expected to seriously consider going back to the 1967 lines (which Abba Eban called "the Auschwitz lines" because they denied Israel real security).

If President Obama is to play a positive role in bringing the Palestinians and the Israelis to the negotiating table, he should insist that there be no preconditions to negotiation. This would mean the Palestinians no longer insisting on a settlement freeze before they will even sit down to try to negotiate realistic borders. The President did not even ask the Palestinians to return to the negotiating table. Nor did he ask them to drop the condition that he, in effect, made them adopt when he earlier insisted on the freeze.

The President missed an important opportunity in delivering his highly anticipated speech. We are no closer to negotiations now than we were before the speech. My fear is that we may be a bit further away as a result of the President's one-sided insistence that Israel surrender territories without the Palestinians giving up the right of return. I hope that Prime Minister Netanyahu's visit to Washington may increase the chances of meaningful negotiations. I wish I could be more optimistic but the President's speech gave no cause for optimism. I wish it had been different because I strongly support a two-state solution based on a willingness by Israel to surrender territories captured in 1967 coupled with a willingness of the Palestinians to recognize Israel as the nation-state of the Jewish people, to renounce the use of violence and terrorism and to give up any right of return.

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