Israeli-Arab Negotiations 101  

Date Published:June 12, 2019

An Oral Agreement Isn’t Worth the Paper It’s Written On

By Joel Singer

 

Samuel Goldwyn

Among his many accomplishments, Samuel Goldwyn – the legendary Hollywood movie mogul and the “G” in MGM – is often remembered not only for his fine movies but also for his accidental witticisms. A Jewish Polish immigrant whose English was a bit broken, Goldwyn left behind a number of “Goldywnisms” – paradoxical statements that at once ring confusing, true, and humorous.  He once critiqued a script: “I’m sick of old clichés. Let’s have some new clichés.” Or, referring to an aspiring young actress, he commented: “Give me a couple of years and I’ll make her an overnight success.”

But my favorite Goldwynism is his adage that “a verbal contract isn’t worth the paper it’s written on.” The importance of this observation is not limited to commercial contracts between a Hollywood producer and Silver Screen stars. In my experience, this maxim applies equally to international agreements.


A Lesson from Moshe Dayan

During the 1978-1979 Israeli-Egyptian peace treaty negotiations, I was a member of the Israeli delegation headed by Foreign Minister Moshe Dayan. The negotiations took place in the Madison Hotel in Washington, DC, where the Israeli and Egyptian delegations stayed and worked for several months, with the Americans as mediators. As the Director of the International Law Department of the Israel Defense Forces’ Judge Advocate General, I was then responsible for drafting the military aspects of the peace treaty (which ultimately comprised almost two-thirds of the document).

Moshe Dayan

One day, during an internal Israeli delegation meeting, the topic was a specific treaty provision that we had proposed and which contained an obligation of the Egyptians that was important to us.  Earlier that day, the American delegation informed us that the Egyptians could not accept the Israeli-proposed provision in the peace treaty. Instead, the Egyptians had indicated that they would be prepared to undertake an oral obligation to that effect, provided it would not be published.

Being young and inexperienced, I thought this was a good idea. Israel would get what it wanted, and Egypt would avoid the potential political embarrassment that could result from including the agreed-upon provision in the publicly released peace treaty. But Dayan thought otherwise. He concluded that, if Egypt was not able to accept the Israeli-proposed obligation publicly, ultimately it would not be able – politically – to perform it.  Israel, therefore, would be paying, thorough the negotiations’ “give-and-take” process, for an illusionary Egyptian obligation. As a result of Dayan’s ruling, we declined the Egyptian delegation’s proposed secret, verbal agreement, instead ultimately negotiating a watered-down version of that obligation – significantly less than what we wanted – which was included in the peace treaty. Notably, however, Dayan’s preference for a lesser, public obligation, over a better, secret undertaking did not involve a crucial element of the peace treaty, but rather an important issue that was somewhat more peripheral to the core issues being negotiated.

Watching Dayan lead the Israeli delegation in the peace talks with Egypt, I developed a lot of respect for Dayan’s negotiating skills. While better known for his military accomplishments as a former Israeli IDF Chief of Staff and Minster of Defense, Dayan had also gained negotiating experience during the final stages of Israel’s 1948 War of Independence.  At that time, the 34-year old Dayan – not much older than me (28) during the 1978 negotiations – secretly negotiated with Jordanian King Abdullah (the great grandfather of current Jordanian King Abdullah II) the principles for ending the Jordanian-Israeli war, which facilitated the 1949 Israeli-Jordanian Armistice Agreement.

During this time, I internalized Dayan’s approach to oral agreements and, over the years, have time and again seen evidence of how right he was.  And if that approach was correct with regard to Egypt, a strong and regionally influential country, it is even more relevant to other, weaker neighbors of Israel, such as Lebanon, Jordan and the Palestinians.

Verbal Promises and the Oslo Negotiations

Indeed, fifteen years later, when Israeli Prime Minister Yitzhak Rabin sent me to Oslo to fix the draft Declaration of Principles (DOP) that had been secretly developed there by PLO representatives and two Israeli academics, I was faced with the same dilemma. The draft DOP was replete with problems, not the least of which was that the document did not reflect the agreements the two academics told me they had reached with the Palestinians. I liked what the PLO representatives had purportedly agreed to, but found the agreed draft DOP to be completely deficient.  I wasn’t sure why there was such a huge gap between the text in the draft, and what the academics informed me the PLO was agreeing to. Was the gap attributable to misunderstandings between the two sides in Oslo, so that what the Israelis thought was agreed was not really agreed to by the Palestinians? Or did the Palestinians play “Bait and Switch” on the Israelis, by promising the skies in oral discussions and then maneuvering their Israeli counterparts to accept a completely different text?

Regardless of the reason for the gap, my job was to determine whether I could infuse the PLO’s reported oral commitments into the text of the draft declaration. And doing so was quite urgent, as just a few days earlier Rabin had instructed Israeli Foreign Minister Shimon Peres to shut down the Oslo back-channel discussions, leaving only one door open for a potential resurrection of Oslo: if I could fix the draft DOP.

Unlike Rabin, who hated ambiguity, Peres cared less about the actual wording of the DOP. To Peres, the aim was to start a process and hope that things would somehow fall into place later, during the implementation of the agreement. As a negotiator and lawyer, I sided with Rabin. My thinking was that if a promise isn’t written in the agreement, it does not exist. And, unfortunately, most of the important issues that, based on what I was told, had been discussed in Oslo were not reflected in the draft DOP. I wanted to reach an agreement with the Palestinians as much as Peres and his team, if not more. But I thought that it was necessary to have a clear understanding on what was agreed to, especially regarding Palestinian autonomy arrangements. It was one thing, I thought, right or wrong but at least deliberate, to defer for five years the decision regarding all the important permanent status issues, such as Jerusalem, borders and refugees. But it was a completely different thing for the DOP not to address (or to address in an incomplete and confused manner) important issues relating to the five-year transitional period that were intended to be implemented immediately. I wanted the two parties to be able to enter into a stable agreement, which required that they understood well what they were agreeing to. Otherwise, I was concerned, the heightened expectations from the DOP would quickly crash as the parties realized that they had diametrically opposed understandings regarding the DOP, resulting in complete chaos. For an agreement as complex as this, ambiguity could be disastrous.

I didn’t even bother to raise with Peres and his team the legal questions of whether secret, oral promises are binding and enforceable. Instead, I focused on practical questions such as how Israel could confirm whether the Palestinian representatives in Oslo were authorized to make these important purported oral promises, and what Israel would do if, after the DOP was signed, they denied making these assurances.  In internal consultations with Peres’s team, I asked (tongue-in-cheek): “If it was acceptable to you to have a part of the agreement – the most important part – agreed to only orally, why would you want any written agreement with the PLO?  Either you put it all in writing or make it all oral.”

To illustrate this point, I told them the following joke:

One weekend, a guy visits an old friend, whom he has not seen for a long time, at his secluded house and without advance notice. To the visitor’s great surprise, the friend opens the door completely naked but wearing fancy kid gloves, a bowler hat and a bow tie.

The visitor asks: “Why are you naked?” The friend responds: “It’s a weekend so I thought no one would come to visit me.”

The visitor inquires further: “So why are you wearing these gloves and bowler hat and bow tie?”

The friend answers: “Well, I was concerned maybe someone would come after all.”

When the stakes are high, I concluded, why go only half the way?

Anyhow, Peres and his team had no choice but to allow me to try to fix the DOP, given Rabin’s instructions. They only asked that I not start the negotiations with the PLO from scratch by developing a new draft DOP. Instead, I was asked to fix only what was absolutely necessary to be fixed in the existing draft, to which I grudgingly consented – to me, the deficient draft DOP required much more than a simple face lift.

In my mind, this may be the most challenging mission any negotiator has ever faced. Solving the Israeli-Palestinian conflict was, in and of itself, the most difficult challenge in international negotiations. Fixing a deficient draft agreement to fix the Israeli-Palestinian conflict was exponentially more difficult to do:  a “fix” raised to the power of two.

To accomplish this objective, I devised a two-step plan. First, I developed a list of questions that I intended to raise with the Palestinian representatives in Oslo, which covered the gap between the draft DOP and the purported oral promises from the PLO delegation. If the Palestinian responses to my questions would not substantially confirm what the two Israeli academics told me they had heard from the PLO, that would be the end of the Oslo back-channel discussions. If, conversely, the PLO’s responses substantially matched what I was told they had promised, I would fix the DOP by planting their responses into the text of the agreement.

Uri Savir, Joel Singer and Abu Ala in Oslo

When I finally met with the Palestinians in Oslo, I was pleasantly surprised to realize that my concerns about possible misunderstandings between the Israelis and Palestinians over what had been agreed were without basis – the report from the Israeli academics was correct, and confirmed by the PLO representatives. I then proceeded to the second step, in which I revised the draft DOP to include the Palestinian responses to my questions, sometimes almost verbatim.

When I presented the modified draft to the PLO’s representatives in Oslo, I was again surprised – this time unpleasantly – to witness their stubborn resistance to incorporate their own oral promises in the text of the Oslo Agreement. At that time, I was not sure whether the Palestinian refusal to commit in writing their oral promises was an attempt to conceal from their public the scope of the PLO’s commitments; or perhaps because they had not received approval from the PLO leadership to make these promises in the first place; or perhaps because they never really intended to live up to these oral promises; or perhaps some combination of all of these possibilities. 

I could have then reported back to Rabin and Peres that the PLO had backed away from all of their oral promises, which would have sealed the grave that Rabin had dug for Oslo when he instructed Peres to shut this channel down unless I could fix the DOP. But, having heard with my own ears the PLO’s commitments (which although only oral, were still groundbreaking), I was determined to attempt to pursue the Oslo back channel with all of my powers. The real Oslo negotiations then commenced. Before that, there had only been informal, academic talks in Oslo – like many other such unofficial discussions that had occurred before Oslo and since – which had been conducted without the knowledge of the Israeli prime minister. When Rabin was finally informed of these talks, he didn’t initially veto them and instead simply disregarded them as unserious. As soon as I joined, however, Rabin became interested and began providing me with detailed guidance. The formal negotiations then started in which I was trying to close the gap between the PLO’s oral promises and the previous draft DOP text, while the Palestinian representatives were trying to exclude these promises from the written Oslo Agreement. After an intensive three-and-a-half-month battle, the text of the Oslo Agreement was concluded with the PLO accepting (albeit, kicking and screaming) most – not all – of their oral promises included in the Oslo Accords.

After the Oslo Agreement was signed ceremonially in Washington, DC, the PLO commenced violating it, with most of the violations relating to those very same commitments they initially had provided orally and resisted including in the text of the DOP until I twisted their arm. These violated provisions consisted primarily of the PLO’s commitments to take responsibility for security in the areas of the West Bank and Gaza Strip evacuated by Israel; to prevent attacks against Israel and Israelis; as well as commitments to prevent incitement against Israel.


The Limited Value of Agreements with Weak Parties

It thus became clear that Dayan’s concern during the Israeli-Egyptian peace treaty negotiations – the likely inability of a party to an international agreement to perform commitments that the party is too weak to commit to in writing – is a symptom of a larger problem: the likely inability of a weak party to deliver under any agreement, whether oral or written.

Uzi Dayan (second from left) and Joel Singer with Rabin and Peres

By way of illustration, following the signing of the DOP, I worked extensively with Major General Uzi Dayan (then the IDF’s Chief of Planning and a key IDF representative in the negotiations with the PLO) on the DOP’s implementing agreements, particularly the Gaza-Jericho Agreement and the Oslo II Agreement. General Uzi Dayan also happens to be a nephew of Moshe Dayan.

One day, General Dayan and I met with Prime Minister Rabin and a group of Israeli officials to brief them on the previous round of discussions with the PLO and to receive instructions for the next round. Some of the meeting participants expressed their opinions on various additional commitments that they thought should be imposed on the PLO, or how other commitments that Dayan and I proposed should be modified to become stricter. To these proposals, General Dayan responded, more or less, as follows:

“Look guys, I believe we can convince our PLO counterparts to accept all of your proposals, but we must first consider whether we want those undertakings to also be performed by the PLO or just remain as dead letters in the agreement. I don’t think they will be able to perform your proposed provisions and, therefore, think we should not attempt to convince them to include those provisions in the agreement.”

Yet another sign that the apple doesn’t fall far from the tree. (Rabin, needless to say, accepted Dayan’s approach.)

But neither Dayan the uncle, nor Dayan the nephew, invented the negotiating principles that guided them, 15 years apart. More than 500 years ago, Niccolo Machiavelli observed in his book Discourses on the First Ten Books of Titus Livius (1517) that “it is never wise to enter into agreements the observance of which is doubtful.”

It has been my consistent experience in negotiating with weak Middle Eastern parties that their observance of agreements is often doubtful.

  • They may first do as much as they can during the negotiations to avoid accepting key requirements of the other side – however necessary and reasonable – if they consider them to be politically embarrassing (which has often been the case for Arab parties undertaking key commitments to Israel).
  • If they realize that they must accept certain requirements for the agreement to be concluded, they may attempt to keep those key commitments oral or secret.

                     Case in point: Egypt in Washington and the PLO in Oslo.

  • If, after many months of negotiations they finally accept these requirements and agree to their inclusion in the written agreement, they may ultimately avoid signing the agreement.

                      Case in point: In 1994, during the Gaza-Jericho Agreement signing ceremony in Cairo, I caught PLO Chairman Yasser              Arafat  pretending to sign the agreement’s agreed upon maps (an integral part of the deal), but not actually signing them.

  • If they ultimately sign the agreement, they may avoid ratifying it.

                      Case in point: In 1983, Lebanon signed the May 17 Agreement with Israel (on which I worked as a member of the Israeli                  delegation), which was intended to lead to the withdrawal of all foreign forces, including Israel’s and Syria’s, from                  Lebanon and establishing peace with Israel, but – torn by civil war and pressured by Syria – the Lebanese government             avoided ratifying the agreement.

  • If they accept the text of the agreement, sign it and ratify it, they may then simply violate it.

                      Case in point:The PLO violations of the Oslo Accords. 

Nonetheless, this doesn’t necessarily mean that one should always avoid entering into any agreements with weak parties or (and here I come full circle) always avoid entering into oral or secret agreements with them. There may be cases in which it might be mutually beneficial for the parties to enter into a secret or oral agreement with the full understanding that such an agreement may not be enforced, and its continued validity is dependent on the continuation of some common interests. As long as one party is not required to undertake a written, binding and enforceable obligation in return for a non-enforceable, oral commitment, the two parties may be satisfied with such an arrangement.

This type of secret, far-from-the public-eye arrangement, has allowed some Arab neighbors of Israel to engage in much deeper cooperation with Israel than they could have afforded doing publicly. Each party to such an arrangement can “give” more, as the secrecy of the arrangement shields them from internal and external criticism, and, therefore, can also “get” more because the other side, also shielded from criticism, can “give” more in return. The trade-off is that neither the “give” nor the “take” are binding and enforceable and, therefore, they both last only as long as it is convenient for both parties.

In a bizarre way, any premature attempt by a third party, such as a U.S. president, to force the parties to elevate their relations from informal, non-binding cooperation based on unenforceable, oral and secret arrangements, to a binding, written agreement to be ceremonially signed, may backfire.  At best, if successful, such a step may result in a much narrower scope of cooperation contained in the publicly-available agreement. At worst, it may lead to confrontation, strengthening of opposition forces, and eruption of violence, which may “kill” the existing, well-functioning secret cooperation.


Singer’s Rules for Middle East Negotiations

In sum, paraphrasing on Parkinson’s Laws, Peter’s Principles, and Murphy’s Laws, here are Singer’s Rules for Middle East negotiations:

Rule 1: An oral agreement isn’t worth the paper it’s written on.

Rule 2: It is never wise to enter into an agreement the observance of which is doubtful, especially with weak parties.

Rule 3: If you know the other side will not be able to perform a certain commitment that you desire, don’t insist on including it in the agreement. If that provision is crucial to you, however, walk away from the deal instead.

Rule 4: As an exception to Rule 1, Rule 2, and Rule 3, you  may choose to accept an oral or secret agreement if it is mutually beneficial, and provided that: (a) you understand that the commitments of the other side are not enforceable; and (b) you do not provide any written, binding and enforceable commitments to the other side in return.

Rule 5: If you have concluded that, given the circumstances, it is preferable to enter into an oral or secret agreement per Rule 4, don’t attempt prematurely to elevate it to a binding, written and publicly-available agreement. If you try to do so, it will likely fail and everyone will suffer.

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