Palestinians Aren’t Ready for Negotiation

I have lived in Israel for the past 42 years–through three wars, two intifadas and repeated cycles of terror. The notion that the Israeli-Palestinian conflict can soon be resolved by negotiation (“Mission Impossible?” Fall 2005) is a naive and hopeless dream.

First, negotiation presupposes two responsible opposing entities. The Palestinians lack both entity and responsibility. There [has been] no dominant central authority–only a weak facsimile whose power base [was] shared by a conglomeration of independent armed gangs accountable to nobody.

Second, negotiation contemplates give-and-take on both sides. Realistically, Israeli-Palestinian negotiation would simply be a matter of how much Israel will continue to give and concede. Cessation of terror and murder is not a legitimate bargaining chip.

Third, if past experience is an indication, any resulting agreement will in any event not be worth the paper it is written on.

A prerequisite for successful negotiation is the reformation of the Palestinian psyche. This is the product of decades of indoctrination with a view toward one goal–the elimination of the Jewish state and the concomitant justification of the deliberate and indiscriminate slaughter of innocent men, women and children.

If such indoctrination can somehow be reversed and the present and intense level of hatred replaced by a measure of understanding and compassion, perhaps in a generation or two the Palestinians will be ready for negotiation.

Gaza Withdrawal a Sleight of Hand

Professor Mnookin misreads the motives and consequences of Ariel Sharon’s withdrawal from the Gaza (“Mission Impossible?“). By abandoning territory he cannot hope to keep without major casualties to the Israeli Army, he diverted the world’s attention from the massive construction of settlements and access roads in the West Bank. No one who has seen, as I did in November, the continued, accelerated construction of massive, new, illegal Israeli settlements on the Palestinian land in the West Bank can believe that Sharon or the Israeli government has any intention of forcing these new settlers to quit the new settlements with an easy commute to Jerusalem. Until you travel [these roads] and see the settlements they link together, you cannot understand the master plan which Sharon is implementing.

While American leaders in the administration and elsewhere applaud Sharon’s self-sacrifice in leaving Gaza, they fail to recognize that his real objectives were to control and never surrender Jerusalem, the fertile parts of the West Bank and the water of the Sea of Galilee. All of this is non-negotiable.

Terrorism Never Mentioned

Dick Dahl’s article in the fall issue, “Mission Impossible?” describes how members of the HLS Program on Negotiation seek to apply their negotiating skills to the Israeli-Arab conflict. According to the article, the program participants emphasize “empathy” and the desire to “get a deep sense of what drives the people who are involved.” The article then devotes more than a page to discussing Israeli settlements and their political context. But the lengthy article does not mention terrorism even once. Nor does it mention the terrorist organizations Hamas, Islamic Jihad or Al-Aqsa Brigades, all of which openly call for Israel’s destruction. Nor does the article mention democracy or suggest the desirability of creating a Palestinian government that might respect the human rights of its own people, never mind its neighbors. “Empathy” and a “deep sense of what drives people” are exactly what are missing from the article and, apparently, from Harvard’s would-be Middle East negotiators.

Do Palestinians really want peace?

The article on Professor Mnookin‘s ambitious effort at tackling the Israeli-Palestinian conflict through negotiation left me with mixed emotions. Of course, negotiation often works and is a preferred dispute resolution tool. Its efficacy as a discipline has been validated through the years.

Just the same, we would be naive to think, as the article suggests, that what stands in the way of peace is simply a better negotiation process for the parties. We have 57 years of history since Israel’s founding–and more before that–to tell us otherwise.

It does not take a Harvard-trained negotiator to understand that perhaps the most important element of any negotiation is sincerity. Both sides have to sincerely want to reach agreement.

Unfortunately, the politically incorrect truth is that as judged by actions–not sound bites–the Palestinians have lacked sincerity for 57 years. When Israel was founded it said “yes” to a two-state solution, while the Arab world responded “no Jews,” and launched the first of several wars to destroy Israel. Unfortunately, except for some posturing, little has changed since. Demanding a “right of return” is just a more polite euphemism for the old “no Jews,” which was arguably more direct and sincere.

All said, negotiation can be a wonderful aid to help solve many disputes, but to work, it must be premised on sincerity, which even the most seasoned facilitator like Mnookin cannot mandate.

Earlier Pioneers

In your informative article on the Negotiation Program, “Online and on the Road” (Fall 2005), you refer to the “pioneering work of Harvard faculty giants.” I agree that they are giants, but their work on negotiation was preceded by important scholarship and teaching by others unmentioned and now not so famous.

In 1953, Robert Matthew of Ohio State Law School published his article, “Negotiation: A Pedagogical Challenge,” 6 Journal of Legal Education 93. In 1967, James J. White published an article reporting on a seminar on negotiation which he taught at the University of Michigan, “The Lawyer as a Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation,” 19 Journal of Legal Education 337. In 1967 at the University of Washington, Robert Fletcher and I taught a course on negotiation on an experimental basis, which we reported in an article, “A Course on the Subject of Negotiation,” 21 Journal of Legal Education 196 (1968). I continued to teach the course at the University of Washington, at Stanford University Law School as a visitor in 1979-80 and as a visitor at the University of Iowa Law School in the fall of 1982.

I have written this letter because I believe that those who undertook to bring negotiation into law school education earlier than those highlighted by the Harvard Law Bulletin also deserve some credit and recognition for their work, which preceded that of the “pioneers.”

Missing Story

I was distressed that the Bulletin’s note listing the Harvard-educated jurists who have been justices of the Supreme Court (Gallery, Fall 2005) failed to refer to Joseph Story of the Harvard College class of 1798. He was not a law school graduate because the law school was not established until 1817, by which time Justice Story had been a member of the Supreme Court bench for six years.

While an associate justice, he became the first Dane Professor at the school and wrote the most important and influential legal textbooks of the era. He died in 1845.

If a degree recipient from Columbia was to be included in the list, certainly Justice Story, a Harvard-educated law school professor and Supreme Court judge for over 30 years, should have been added. After all, the entrance to Langdell Hall has been guarded by his statue for generations.