The Hamas massacre of October 7 has demonstrated that Israel faces severe challenges—absent advanced warning—in defending its borders with the Palestinian Territories against a large-scale mass terrorist onslaught or infantry attack, at least with the force structure and troop dispositions the Israel Defense Forces (IDF) deployed on October 6.
This realization, along with the widespread support within Palestinian society for the October 7 assault (above 70 percent according to an opinion poll taken by the Palestinian Center for Policy Survey and Research in December), suggest that it is highly unlikely that any Israeli government would agree to a two-state solution—in other words, ceding complete sovereignty to any potential Palestinian entity ruling the Gaza Strip and the West Bank/Judea and Samaria, or even Areas A and B. That is something that could leave Israel vulnerable to another attack on the scale of that which took place on what is now referred to as the “Black Sabbath” or even a more lethal one. Moreover, the national psychological trauma inflicted on Israelis (and Jews worldwide) by that intelligence failure and the ensuing bloodbath have created an atmosphere in which there is virtually no support among the Israeli public for a two-state solution, nor is there likely to be any in the foreseeable future, or at least over the next several election cycles.
On the other hand, the international community, and most importantly the Biden administration, has doubled down on its support for the two-state solution and does not share Israel’s trepidation, nor does it seem to believe that October 7 changed the political or geopolitical calculus of the viability of that idea. If anything, recent developments seem to have introduced a new degree of urgency. Intense international pressure is being brought to bear on Israel to advance plans for the creation of a Palestinian state, and this is likely to increase over time. Here, one is reminded of the pithy adage, “There is nothing so powerful as an idea whose time has passed.”
More significantly, Saudi Arabia has reportedly included a demand for “a path to a two-state solution” or “a path to Palestinian statehood” in its list of conditions for normalizing relations with Israel and ultimately joining the Abraham Accords. Finally, as October 7 has demonstrated, the status quo in the Palestinian Territories is not necessarily stable, and there are currently no grounds on which to assume that the demographic realities—and the challenge they could pose to Zionism and to Israel’s Jewish majority—are likely to change significantly within the current generation.
It would seem that the way out of this conundrum is to change the existing paradigm. Instead of on-and-off negotiations for the establishment of a Palestinian state, and instead of plodding down the well-trodden path of applying international pressure to Israel to acquiesce to a plan that it rejects, the “burden of proof” should be shifted to the Palestinians.
This could be done by Israel’s formal acceptance, in principle, of the idea that the two-state solution is the desired outcome of the process. However, the establishment of a Palestinian state would have to be made contingent on the fulfillment by the Palestinians of a list of conditions to prevent any future hostilities between that state and Israel or any future in which ceded territory could be used as a base for terrorism against the Jewish State.
For its part, Israel would have to demonstrate its sincerity by undertaking to refrain from any activity that could undermine the prospects for the establishment of a Palestinian state, such as the construction of any new settlements in the West Bank/Judea and Samaria or the outward geographic expansion of existing settlements. It would also be wise to refrain from additional construction in outlying Jewish settlements in those territories on land not contiguous with Israel or with existing settlement blocs, because they could find themselves within the territory of any future Palestinian state. The legalization of illegal outposts established by wildcat settlers there should also be rejected.
In this paradigm, it would fall to the Palestinians—not only the Palestinian Authority but Palestinian society itself—to fulfill these conditions as a prerequisite for obtaining statehood. The rejection in the past by Palestinian leadership of the various statehood proposals and offers proffered on a series of occasions—beginning in 1937 (The Peel Commission) and including both the UN Partition Plan of 1947 and the Palestinian statehood proposals by the Israeli governments of Prime Ministers Ehud Barak (2000) and Ehud Olmert (2008) following the onset of the Oslo process—could lead one to surmise that the Palestinians are not really interested in a two-state solution, or at least do not consider the attainment of Palestinian statehood their top priority. As long as this remains the case, they will probably not take the steps needed to fulfill the listed conditions for statehood. That would seem to be the most likely outcome under the current Palestinian leadership, although that could change with different people at the helm. The plan, however, would remain a standing offer, and the burden of proof would remain on the Palestinians. It might take them ten years to fulfill the conditions for statehood; it might take them fifty. It might never happen, but the onus would be totally on them.
In order for this to succeed, it will be necessary for the international community to “buy-in” both to the plan and to the list of conditions. An effort should be made to get the US, the EU, and the moderate Sunni Arab countries (or at least those that signed the Abraham Accords) to agree on the prerequisites for Palestinian statehood and to co-sponsor the plan.
The list of conditions should include not only such obvious items as fighting terrorism, deradicalization, expunging the antisemitic and anti-Israel tropes from the Palestinian educational system, agreeing to an end to the conflict, and renouncing all claims to territory not ceded to the Palestinian state. There must also be a security regime based on demilitarization and Israeli responsibility for external security west of the Jordan River.
Quantifiable metrics of Palestinian public sentiment should also be part and parcel of the plan. For example, at least 75 percent of Palestinian adults must—consistently and over a protracted period of time—answer public opinion polls (conducted by reputable firms) in a manner indicating that they favor living in peace with Israel as a Jewish state.
Probably the most contentious condition, and yet the most critical for Israel, would be the abandonment by the Palestinians of their unwavering demand for the so-called “Right of Return” of Palestinian refugees or their descendants to sovereign Israeli territory (though there would be no parallel demand that they abandon their right to control their own immigration policy within the territory on which the Palestinian state would eventually be established). For many Palestinians—certainly the current leadership, which is massively invested politically and ideologically in the Right of Return as part of the 1948 Nakba narrative—this would be a non-starter. However, because the Right of Return is central to the Palestinian rejection of the very idea of Jewish sovereignty in any part of the historical land of Israel/Palestine, the potential political payoff of forsaking this demand would be exponentially higher than the fulfillment of any other condition.
For Israelis, the Palestinian insistence on a Right of Return to Israel proper is an existential threat, a red line that no Israeli government, regardless of where it lies on the political spectrum, would ever cross. It is considered proof positive that the Palestinians are not interested in peaceful coexistence with Israel as a Jewish state, but rather cling to their long-time dream of liquidating “the Zionist Entity,” in this case by demographic means. For that reason, withdrawal of this demand by the Palestinians would likely be received in Israel and among the Israeli public as evidence that the Palestinians “mean business” and that they have finally decided to live with the reality of Israel as a Jewish state. By way of historical example, one could cite the November 1977 visit of the late Egyptian President Anwar Sadat to Jerusalem and his speech before the Knesset, an act that overnight convinced both Israeli society and a large part of Israel’s political elite that Sadat, once Israel’s most dangerous enemy, was now a partner for peace.
Additionally, if a list of conditions, including limiting the Right of Return to territory in which the Palestinian state were to be established, were accepted by the international community—particularly by the US, the EU, and the moderate Sunni Arab states—it would lower any expectations the Palestinians might have of achieving better conditions by holding out or by engaging in violence against Israel. The conditions would be clear, unchanging, and not subject to further negotiation, but the end result of their acceptance and implementation would also be unambiguous: the creation of a Palestinian state.
Establishing the list of preconditions for Palestinian statehood and the two-state solution as the agreed eventual outcome will not obviate the need for negotiations between the parties. These will have to be undertaken on such thorny issues as borders, holy sites, and the details of demilitarization. However, these negotiations themselves will present less of a challenge and will be more likely to succeed in an atmosphere in which the Palestinians will have already agreed in principle to fulfill the preconditions, since such an agreement would signal a desire to accomplish a lasting peace with Israel as a Jewish state.
There are two historical models for this kind of process. One is the mandate system under Article 22 of the League of Nations Covenant, which reads, in part: “Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” The other is the accession process to the European Union, which involves a country seeking membership in the EU to agree to and actually implement a series of accession criteria.
Reliance on the mandate model might be objectionable to the Palestinian side, as it was established largely by the colonialist victors of World War I—Britain and France—and was the framework under which the Yishuv [Jewish community of pre-state Palestine] prepared itself for independence, which was eventually achieved in 1948. However, the Palestinians could be reminded that the very same framework prepared the Arabs of Palestine for independence, which they rejected both in 1937 and 1947. Moreover, it was under this system that other Arab states, the territories of which had been ruled by the Ottomans prior to World War I, achieved their own independence: Iraq in 1932, after a mere eleven years of mandatory government; Lebanon in 1943, after twenty years; and Syria and Jordan in 1946 after twenty-three and twenty-five years, respectively. For a population interested in achieving national independence, one could certainly do worse than adopting the mandate system as a model.
The EU accession process could also serve as a helpful model. For one thing, its familiarity to Israel’s European partners might make it easier for them to support the plan. In our case, the criteria for Palestinian statehood would not be those the EU demands for accession—which involve democratic rule, good governance, the rule of law, and sound fiscal management—but those that are intended to guarantee that any future Palestinian state would be culturally and institutionally predisposed to live in peace with Israel and, as such, would eschew support for terrorism and antisemitism.
The adoption of such a plan would change the paradigm from one in which Israel needs to be driven kicking and screaming into accepting the two-state solution to one in which it readily accepts it as the best possible outcome. The burden of proof would fall on the Palestinians, who would be compelled to demonstrate that they are ready to assume responsibility for determining their own destiny and to create a modern, peaceful state. Potentially, this could end the conflict and finally lead to real and durable peace.
It would probably take a long time, but that could be a feature, rather than a bug. Just as those Israelites who had been slaves in Egypt and lacked the courage to take on the challenge of conquering the Land of Israel needed to be replaced by a new generation, born in freedom, which could undertake that mission, so it seems likely that this generation of Israelis, traumatized by the Second Intifada and now by October 7, and the current generation of Palestinians, a large majority of whom supported—at least in opinion polling—the October 7 massacre, will not be the ones to make peace or to implement the two-state solution. That task will likely fall to a future generation, which will learn about these events in school.
However, our generation still needs to do something, if only to improve Israel's international standing and to prevent an even worse outcome, as well as to provide Saudi Arabia with the “path to a Two-State Solution” that they maintain they need in order to normalize relations with Israel.
One should have no illusions that the current Israeli government would or could propose this plan without collapsing. However, its successor, which consistent polling indicates will be of a different character, just might. As the Mishna teaches, “You are not obligated to complete the work, but neither are you free to desist from it.”
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Uzi Amit-Kohn
Uzi Amit-Kohn is an attorney in private practice in Jerusalem. He was a major (res.) in the International Law Section of the IDF Military Advocate General’s Command. During his military service, Amit-Kohn provided legal counsel concerning international law to the IDF and to government ministries, participated in the negotiation and drafting of international agreements, and was a member of the legal teams that prepared the government’s defense in over one hundred petitions to the Israeli Supreme Court. He served as the legal adviser to one of the Israeli delegations to the negotiations with the Palestinian Authority within the framework of the Oslo Agreements. He is the co-author with David Yahav of Israel, the “Intifada” and the Rule of Law.