Michael Dorf: Trump’s Deal-Making Skills Won’t Help Israel

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A Muslim walks along the “separation barrier” or “security fence” in East Jerusalem on November 27, 2014. Michael Dorf writes that Donald Trump’s skills as a deal maker, such as they are, consist of taking advantage of the good faith of counterparties to his deals, frequently by failing to fulfill his contractual obligations and then using his holdup power as leverage to induce the counterparties to accept substantially less than full value. Whatever the dubious merit of that path to personal wealth, it will not yield a breakthrough in the Israel-Palestine conflict. Spencer Platt/Getty

This article first appeared on the Dorf on Law site.

Suppose you were a professional mediator and two parties came to you to help them resolve a dispute. As Professor Colb of Cornell Law School explained after completing her training as a mediator, you would quite properly resist the temptation to impose a solution on them.

The goal of mediation is to enable the parties to have an honest conversation in which they choose a resolution that suits them. That is fundamentally what distinguishes mediation on the one hand from litigation and arbitration on the other.

Thus, someone with no prior knowledge of the Israel/Palestine conflict or of Donald Trump's profound ignorance about nearly every subject relevant to the duties of the presidency might think that his pronouncement in the company of Israeli Prime Minister Benjamin Netanyahu was simply an expression of neutrality by an honest broker.

Also sprach Trumpathustra:

I'm looking at two-state and one-state and I like the one that both parties like. I'm very happy with the one that both parties like. I can live with either one.

I thought for a while the two-state looked like it may be the easier of the two but honestly, if Bibi and if the Palestinians—if Israel and the Palestinians are happy, I'm happy with the one they like the best.

Much of the press coverage of this statement has focused on how it amounts to a break with bipartisan U.S. government policy for roughly the last three decades, in which the U.S. has urged Israel to make territorial concessions to a Palestinian state in exchange for peace.

But is that fair? After all, Trump did not say that he opposes a two-state solution. He merely said that he would accept either a two-state or a one-state solution if either is mutually acceptable to Israelis and Palestinians. What's wrong with that?

Plenty, as it turns out. There are both Israelis and Palestinians who favor a one-state solution, but they mean very different things by one state. And the distance between the respective one-state visions is much greater than the distance between the respective two-state visions.

Right-wing Israelis who favor a one-state solution have in mind that Israel should annex East Jerusalem, the West Bank and perhaps Gaza. The one state would be Israel. Palestinians would presumably be permitted to continue to live more or less where they do, but to maintain Israel's status as a Jewish state (a core commitment not only of right-wing Israelis, but most moderates as well), Palestinians would not be given full democratic rights.

Given the demographics, Palestinians could not be given full democratic rights because they would outnumber Israeli Jews. Exactly what political status Palestinians would have in a single Israeli state in modern-day Israel plus the occupied territories is not clear.

Perhaps they would have the right to vote in local elections, and for certain governing bodies with a degree of autonomy. But they would be at best second-class citizens. The highly controversial term "apartheid state," which most Israelis regard as unfair when applied to present-day Israel, would be accurate as applied to a one-state solution in which the one state is greater Israel.

Meanwhile, some Palestinians who favor a single state imagine a single state that is essentially judenrein. Today, people who hold this view tend to be Islamists, but since the advent of modern Zionism in the late 19th century, there have also been many secular Palestinians (and other Arabs and non-Arab Muslims) who opposed any substantial Jewish presence in the lands now denoted Israel and the occupied territories.

However, since the emergence of Hamas as more radical than Fatah and is also Islamist, the notion of a single greater Palestine has been more closely associated with the Islamist factions.

While many of the Islamists would want Jews expelled from the resulting greater Palestinian state (or worse), in classical Islam there is a milder alternative. In a moderate Islamist Palestine, Jews would not necessarily be the victims of expulsion or genocide, but instead could live with dhimmi status—as Jews and other non-Muslims traditionally had done in Islamic lands for much of Muslim history.

Such second-class status with attendant partial autonomy would more or less mirror the lot of Palestinians in the Israeli far right's version of a one-state solution.

Needless to say, neither of the foregoing possibilities—Palestinians as second-class citizens in or exiled from a single greater Israel, or Jews murdered, exiled or second-class citizens in a single greater Palestine—is remotely acceptable to any of the people who would be, at best, relegated to the subordinate status.

That leaves a couple of possibilities. One is a single secular multiethnic liberal state. This approach is favored by some liberal Palestinians and far-left Israelis.

But it is completely unacceptable to the vast majority of Israelis, including many moderates, who fear (not without reason) that the moderate Palestinians who favor peaceful coexistence in a multiethnic secular liberal state would be outvoted or overthrown by violent means, so that this option would devolve into the greater Palestinian state in which the best that Jews could hope for is dhimmi status.

The other kind of single-state solution would be some form of federalism. The record of federalism as a solution to ethnic conflict is mixed. Belgium and Canada, though hardly without their problems, are relative success stories. Some failures—such as Czechoslovakia—at least failed peacefully, thus ending up as a way station en route to partition.

But in none of these countries were the differences as great as between Israelis and Palestinians. Yugoslavia looms as the more likely analogy, and even Yugoslavia probably had better ex ante prospects for peace than a federated Israel/Palestine, given the relative peace that had existed for decades (albeit under the strict rule of Tito).

Are there really no other paths to peace? Yesterday the U.S. ambassador to the U.N, Nikki Haley, walked back Trump's comments, casting them as simply a signal that the U.S. wants to help Israelis and Palestinians go about "thinking out of the box."

This might be a fair account of what Trump thought that he was saying. After all, Trump fancies himself a master deal maker.

However, in this and in so many other matters, Trump's self-conception is a fantasy. There is no evidence that Trump is a genius, or is even especially good at spotting opportunities for mutually beneficial cooperation where others don't see them.

His skills as a deal maker, such as they are, consist of taking advantage of the good faith of the counterparties to his deals, frequently by failing to fulfill his contractual obligations and then using his holdup power as leverage to induce the counterparties to take substantially less than full value.

Whatever the dubious merit of that path to personal wealth, it will not yield a breakthrough in the Israel/Palestine conflict.

There exists the conceptual possibility that there is some creative deal to be made between Israelis and Palestinians that has heretofore been overlooked. But such a hitherto ignored option would have to be so complex that if there were the will on both sides to strike a deal, the two-state solution would almost surely be the easier one to agree upon.

Accordingly, when President Trump says that he is open to a one-state solution, he does not put any new possibilities on the table. Instead, he diminishes the already dim prospects for peace by undercutting the approach that is, if not likely to succeed, the least unlikely to succeed: the two-state solution.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org.