CURRENT AFFAIRS  

The clock seems to be running out on the Palestinian elections planned for summer 2021. In January of this year, Palestinian Authority (PA) President and PLO Chairman Mahmoud Abbas – known popularly as Abu Mazen – announced that Palestinian Legislative Council (PLC) elections would occur on May 22 and PA Presidential elections on July 31. The announcement was generally welcomed by the international community, and by the Palestinian people, who have not participated in elections since 2006.

Mahmoud Abbas

On April 29^th, however, President Abbas announced that elections will not be held until Israel agrees to allow the PA to place ballot boxes in East Jerusalem. While East Jerusalem voting is an important issue for Palestinians, it is not impossible to resolve, as Israel and the PLO resolved this issue in the Oslo Accords – ensuring that East Jerusalem voters are able to cast ballots for the government in Ramallah.  Rather, the announcement seems to be a function of the political dilemma facing Abbas and Fatah (the PLO’s dominant faction).

Since January, Abu Mazen, the PLO and Fatah have come to realize the quandary the elections decision has created: should elections take place, Abbas’s Fatah seems certain to face defeat by Hamas or, less likely, by a new party led by Marwan Barghouti – a prisoner in Israeli jail sentenced to five life sentences for terror activity. If the elections are held and conducted in a fair manner – and the jury is still out on this question – there does not appear to be a third option by which Abu Mazen and Fatah prevail.

Abu Mazen and Fatah leadership are not the only ones losing sleep about the potential ramifications of the next Palestinian elections. Israel – sitting on the sidelines and watching these developments with increasing anxiety – also finds itself torn between the devil and the deep blue sea. The United States – which in 1993 hosted the signing of the Israel-PLO Oslo Agreement and has since served as the broker of all subsequent Israeli-Palestinian agreements – contemplates, with growing concern, a potential Hamas victory, which may offer the death blow to any possible future Israeli-Palestinian peace treaty (already considered almost impossible by some).

Background

The upcoming Palestinian elections will be conducted under the provisions of the Oslo Accords, specifically, Annex II (“Protocol Concerning Elections”) to the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip of September 28, 1995 (known as Oslo II).  According to Oslo II, the Palestinian elections must be conducted according to Palestinian election law and Oslo II, also requiring that Palestinian election law must not contradict Oslo II.

Erekat and Singer Shaking Hands

Like all other provisions of this 314-page agreement, I wrote the first draft of the Elections Protocol and then negotiated it with my Palestinian counterpart, Saeb Erekat. Consistent with a vision of establishing fully democratic Palestinian elections – a vision shared by both Erekat and myself – I based the protocol on Israeli election law. And since in 1995 Israel adopted a new law that bifurcated the elections into two separate elections, one for the Israeli parliament (the Knesset) and one for the office of the Prime Minister, I proposed to do the same in the Palestinian elections. Erekat accepted this proposal. (Israel subsequently abolished the law that arranged for separate elections for the Prime Minister office, even though Israeli Prime Minster Benjamin Netanyahu has recently advocated reinstating that law).

In the first Palestinian elections – which took place on January 20, 1996 – PLO Chairman Yasser Arafat was elected Palestinian Authority (PA) President with a very large majority (almost 90%). Candidates belonging to Arafat’s party, Fatah, won 50 of the 88 seats in the Palestinian Legislative Council (PLC).

After Arafat died in 2004, Abu Mazen was appointed PA President. In the months that followed, new elections were scheduled (after several postponements) – first for the PA Presidency in 2005 and then for the PLC in 2006. In 2005, Mahmoud Abbas was elected PA President, with 62.52% of the vote. Months later, however, Fatah was defeated by Hamas in the parliamentary elections, winning only 41.43% of the vote (resulting in Fatah holding 45 of 132 seats in the PLC), while Hamas won 44.45% of the vote (resulting in Hamas controlling 74 of 132 seats).

In 2006-2007, tensions rose between Fatah and Hamas loyalists, culminating in the 2007 Hamas takeover of the Gaza Strip, leaving Fatah with control over only the West Bank. Neither Hamas nor Fatah recognized the legitimacy of the other’s rule over its respective territory, creating a split in the Palestinian polity which, as of this writing, has lasted more than 13 years. In that time, despite a number of false starts and failed reconciliation attempts, the divide has continued and no Palestinian elections have taken place.

On Sept. 24, 2020, however, Hamas and Fatah representatives met and finally agreed to hold elections in both the West Bank and Gaza. On January 15, 2021, Abu Mazen announced the May and  July dates of these elections, prompting a wave of popular enthusiasm – 93% of eligible voters registered before the deadline.

Since that time, however, Fatah party unity has fallen apart. Rivals to Abbas have emerged from Fatah and the PLO to challenge his leadership. Polls predict that, should elections go forward, Abu Mazen will be defeated in the elections for the PA Presidency and Fatah will lose a significant share of the PLC seats. Abbas and his supporters seem to have backed themselves into a corner.

The Marwan Barghouti Participation Dilemma

Part of the reason why Abu Mazen and Fatah may lose the upcoming elections is that the elections are no longer a clear-cut battle between Fatah and Hamas; rather, several former prominent leaders of the PLO and Fatah have broken away, forming competing parties to run against Fatah and Hamas. Thus, the anti-Hamas constituency has been split – and criticism toward Abbas and Fatah has been heightened – increasing Hamas’s chances to prevail. Two men have been central to these developments: Nasser Al-Qudwa and Marwan Barghouti.

In March, Dr. Nasser Al-Qudwa – nephew to Yasser Arafat and former Palestinian Foreign Minister and Ambassador to the United Nations – formed his own party to run against Fatah, leading to his expulsion from Fatah. He pledged that he remains “Fatah to the bone,” and his decision appears to be an effort to reform the Fatah movement, rather than bring it down.  Yet, the anticipated outcome is just the same.

Marwan Barghouti

But perhaps more problematic for Abu Mazen and Fatah has been the emergence of Marwan Barghouti, the most charismatic Palestinian leader, as an active participant in Palestinian politics. Barghouti – who has partnered with Al-Qudwa’s “Freedom” party – has been in an Israeli prison since 2002, convicted on charges of murder, and is serving five life sentences. Barghouti has long-been a national symbol to many Palestinians, who object to his imprisonment and view him as a “freedom fighter” of the Palestinian national cause. Under the provisions of Oslo II, an imprisoned person, such as Barghouti, cannot legally participate in the elections; to bypass that restriction, Barghouti’s wife is running in his stead.

In a bizarre twist, Fatah’s interests and Israel’s appear to converge here. Fatah doesn’t want to see Palestinian anti-Hamas votes being split between Fatah and Freedom candidates, thus bolstering Hamas’s odds in the election. And Israel does not want to see a convicted terrorist in its custody winning the elections. However, these Israeli- and Fatah-held positions may be near-sighted.

Nabil Shaath and Amnon Shahak

We faced a similar situation in 1994, in negotiations that would lead to the Gaza-Jericho Agreement. In those talks, the Israeli delegation was headed by General Amnon Lipkin-Shahak then the Deputy Chief of Staff of the Israel Defense Forces (IDF). General Shahak was a charming and charismatic man, possessing unique courage on the battlefield alongside complete support of the Israeli-Palestinian peace process. General Shahak’s bravery was well known to all – in early 1973 he was a part of the Israeli retaliatory operation avenging the Palestinian hostage-taking operation at the 1972 Munich Olympics which ended in the massacre of 11 Israeli athletes. Shahak led an Israeli team of 14 commandos that raided, from the sea, a Popular Front for the Liberation of Palestine (PFLP) headquarters in central Beirut. Shahak and his team met heavy resistance in the building – approximately 100 terrorists standing guard – but managed to win the battle, destroy the building and return safely to Israel. In recognition of his bold leadership in action during that operation, Shahak was awarded the Medal of Courage, his second such decoration. (On the same day, as part of the same operation, a young Ehud Barak –future Prime Minister of Israel – disguised as a woman, successfully led an attack by another Israeli commando team against another PLO stronghold in another part of Beirut.)

Back in 1994, after one of the negotiating sessions, General Shahak pulled me aside to discuss a request made by the PLO chief negotiator, Nabil Shaath. The PLO delegation head had asked Shahak, on behalf of PLO Chairman Yasser Arafat, to allow a new individual to join the Palestinian delegation. As it turned out, that person had been one of the key planners of the Munich Olympics hostage-taking operation.

As Shahak recounted to me, Shaath understood the anticipated knee-jerk Israeli reaction opposing the request for a high-profile terrorist to join the talks, but argued that Israel should not object to the request because all members of the PLO, including this new Palestinian delegate, had acted with Arafat’s orders in past attacks and operations. If Israel was now agreeing, based on the Israel-PLO Mutual Recognition Agreement to talk with Arafat and let him enter Gaza and later the West Bank, Israel cannot now logically refuse the participation in the PLO delegation of anyone, such as the Munich hostage-taking operation planner, who simply followed Arafat’s orders.

Further, Shaath added, “I have read that you [Shahak] played an important role, as the IDF’s Head of Intelligence, in killing Arafat’s Deputy, Abu Jihad, in his house in the PLO compound in Tunis in 1988. Abu Jihad was a good friend of me. Yet, once Israelis and Palestinians agreed to reconcile, I accepted you as my counterpart to the negotiations and agreed to shake your hands, because we, the Palestinians, have put the past behind us. And so should you.”

Shahak found Shaath’s request acceptable under the circumstances – agreeing to allow the past stay in the past – and Israeli Prime Minister Yitzhak Rabin approved it. I got the impression though that Rabin and Shahak were nonetheless concerned of possible sharp criticism from the Israeli media and opposition parties, should the decision become publicly known. Therefore, they sought to keep it very low key.

Singer and Shaath Negotiating

Two days later, the Munich operation planner, as well as another new Palestinian delegate, an Arafat spokesperson, joined the Palestinian delegation. As I took my seat at the Israeli side of the negotiating table, I scanned the row of Palestinian representatives seated in front of me, searching for the arch-terrorist. Since I knew all the regular members of the Palestinian delegation, I searched for and immediately spotted the two new faces. Shaath, sitting in the middle of the other side of the table, did not introduce the two new members, but I quickly was able to identify one of the two newcomers as the infamous terrorist.

I ruled out the first one – an older man with a tired, grandfatherly smile, dressed in an elegant, well-fitted suit – concluding that he must be Arafat’s spokesperson. I noticed that the other guy – a younger man wearing a coat with no tie, with a square jaw and strong expression – looked at the members of the Israeli delegation in front of him with an expression I read as concentrated focus and sheer hatred. This must be the Munich hostage-taking planner, I concluded.

After the session was over, I pulled Shahak aside for a quick chat and bragged:

Me:  Even though Nabil Shaath did not introduce the Munich massacre planner by name, I quickly identified him. Indeed, no one can fool me, an experienced negotiator with a sharp eye for detail.  But doesn’t he look a bit young?

Shahak: The young guy is Arafat’s spokesperson. The terrorist is the other, older guy.  

In retrospect, I concluded that in 1994 Arafat understood that to complete the Gaza-Jericho Agreement, he would need to make many concessions to Israel. Arafat must have felt that to do so, he needed to bolster the PLO delegation – which, until then, consisted primarily of PLO “pogues” or diplomats such as Shaath – by adding a delegation member known among Palestinians as a freedom fighter (and to Israelis as a terrorist), such as the Munich Olympics operation planner. The move highlights the old principle that only General de Gaul could give up Algeria and only Nixon could go to China. In fact, this very same principle likely also guided Prime Minister Rabin in sending General Shahak, the famous fighter, to head the Israeli delegation in the Gaza-Jericho Agreement discussions – Rabin had faced criticism from more hawkish skeptics for allowing Shimon Peres and his Foreign Ministry “softies” to negotiate the Oslo Agreement, which had been signed a few months before the Gaza-Jericho discussions commenced.

Assessing the Barghouti Quandary

Back to 2021 and the Palestinian elections. From the Palestinian perspective, it’s easy to understand why Abu Mazen would strongly oppose his rival Barghouti. But if Fatah wants to retain its control over the West Bank and potentially extend it to Gaza by prevailing over Hamas in the elections, whenever they occur, Fatah should be interested in co-opting the charismatic Barghouti and crowning him as the future leader of Fatah and heir to the 85-year old Abu Mazen. Since Abbas has lost his popular support among Palestinians, the only way for Fatah to prevail over Hamas – thereby re-unifying the West Bank and Gaza and re-inspiring the Palestinian people – is to make such a change.

For the very same reasons, the United States should also be interested in Barghouti’s success in Palestinian elections, again whenever they occur. Further, should he win the elections and, like Nelson Mandela in South Africa, is released from jail, a strong and popular Barghouti may be able to lead the Palestinians back to renewed Israeli-Palestinian peace talks. It would remain an uphill battle to get him there – Barghouti was once a strong supporter of the Oslo peace process but has since become a skeptic and reverted to terrorism. Still, only a charismatic and popular leader such as Barghouti may be able to take the necessary steps and make the necessary concessions to achieve an agreement. Barghouti may be a question mark, but a Fatah/PLO collapse or Hamas takeover seem almost certain to spell disaster for a future, sustainable Israeli-Palestinian peace.

The Israeli perspective is much more nuanced. On the one hand, the same considerations discussed above should also appeal to Israel – Hamas has never accepted the Oslo Accords and continues to advocate the destruction of the State of Israel. Thus, anyone who is capable of effectively defeating Hamas must be favored by Israel. On the other hand, Israeli leadership would undoubtedly feel significant heartburn releasing Barghouti from an Israeli jail (where he is serving five life sentences) to become PA President, and then seek to negotiate peace with him.

Israel will undoubtedly argue that Barghouti is no Nelson Mandela. Mandela was jailed for committing terrorist activity and became a peacemaker. Barghouti, conversely, walked in the opposite direction; he was once a peacemaker, but turned into a terrorist. Pressure may be placed on Israel to accept Barghouti as a legitimate partner, with the hope that, once released form jail, he would again become a peacemaker. But Israel will be understandably concerned that Barghouti may again revert to violence. After all, didn’t Israel have enough in its dealing with Arafat – the terrorist-turned peacemaker, who in his final years reverted back to enabling violence?

The Hamas Participation Dilemma

It appears to be clear to everyone that if Hamas wins in the elections, modern Palestinian history and Israeli-Palestinian relations will experience a tectonic change. Hamas, a fundamentalist Islamic movement and off-shoot of the Egyptian Muslim Brotherhood, does not accept the leadership of the PLO, rejects the Oslo Accords and is not only opposed to making peace with Israel through the establishment of a Palestinian State in the West Bank and Gaza, but is determined to see Israel disappear altogether in favor of a Palestinian state on all lands between the Jordan River and the Mediterranean Sea.

Here too, the interests of the PLO and Israel clearly coincide, as both seek to prevent Hamas from winning in the elections. Neighboring countries, such as Egypt and Jordan – who are equally threatened by Hamas and the Muslim Brotherhood – similarly want to see Hamas defeated. And other countries who support the Israeli-Palestinian peace process, such as the United States, equally are interested in seeing a decisive election win by Fatah and Palestinian actors who meet the “Quartet Principles:” renouncing violence, publicly recognizing Israel, and committing to previous agreements and understandings with Israel and the United States. Hamas certainly does not meet these criteria.

But this common hope for Hamas to be defeated does not seem to be in the cards. Palestinian opinion polls suggest that Hamas would likely win the elections and come to control both the West Bank and Gaza. This reality raises the question of whether democracy should always trump stability, regardless of consequences.

Erekat and Singer with a Ballot Box

The same question arose in 1995, when I negotiated Oslo II with chief Palestinian negotiator Saeb Erekat. As indicated earlier, Oslo II included the blueprint for the Palestinian elections. Both Erekat and I were strongly inclined to follow democratic principles in how we drafted Oslo II because, among other things, we were completely Americanized in culture – Erekat completed all of his academic studies in the United States and England, and I had worked in a large US law firm before commencing work on the Oslo Accords.

At the same time, we both faced pressures from our respective colleagues to draft the agreement’s Palestinian elections provisions so as to guarantee the success of Fatah candidates over any potential opposition forces. For instances, in internal Israeli discussions, some voices expressed the view that Islamic fundamentalist organizations (such as Hamas) should be barred from participating in the elections. Others suggested, as an alternative, that Israel demand that a provision be included in the Oslo II agreement requiring every candidate wishing to stand in Palestinian elections to undertake to support the Oslo Accords – or at least (consistent with the PLO’s commitments undertaken in the Israel-PLO Mutual Recognition Agreement) to declare that they accept the right of the State of Israel to exist.

In fact, however, Israel did not demand any of these requirements. We did not want to create the impression that Israel was effectively blocking major opposition forces from participating in Palestinian elections. Israel knew that many, if not all, of the potential Islamist candidates would not be able to accept these requirements, if such conditions were imposed. Therefore, no Islamist candidates would be able register as candidates. The Israeli concern was that Hamas and other opposition organizations would boycott the elections outright, allowing some to dismiss the elections as exclusionary and illegitimate. Israel’s objective, however, was just the opposite: it wished that, once elected, the PLO/Fatah officials who had been previously appointed to run the PA would gain widespread legitimacy among Palestinians. Thereby, the Oslo Accords – the basis for the Palestinian elections – would also be indirectly approved by all, including Hamas (even if grudgingly).

At that point in its negotiations with Israel, the PLO was also negotiating in parallel with Hamas, seeking to convince Hamas to participate in the elections as a political party. When these PLO-Hamas negotiations eventually broke down, Hamas decided to not officially participate in the elections, but it did not prohibit individuals who publicly identified with Hamas to run. Erekat and the PLO, therefore, also did not want to include a provision in the Oslo Elections Protocol that would prevent the candidates supporting Hamas from running, and thus force Hamas to actively boycott the elections.

For this reason, the formula that I proposed, based on a similar requirement in Israeli election law, only prohibited the registration of any candidates that advocated either racism or the implementation of political programs through the use of unlawful or non-democratic means. Erekat accepted this provision – which was ultimately incorporated into Oslo II – as both he and I believed that a qualification requirement phrased in this manner would not in itself prevent Hamas candidates from participating in the election process. Indeed, many Hamas supporters participated in the January 20, 1996 elections, which resulted in clear victory of the Fatah candidates over those candidates identified with Hamas.

Thus, the 1996 Palestinian elections experience was very successful, as Israel and the PLO were able to obtain popular support for the Oslo II-based elections and for the peace process through a formula that both avoided a Hamas boycott and saw a resounding Fatah victory.

In the next Palestinian elections in 2006, however, the trend changed completely. Not facing any participation hurdles in regard to its anti-PLO/Fatah and anti-Israel policies, Hamas again participated in the elections – this time decisively defeating Fatah candidates in the elections for the PLC.

So, as Hamas is projected to again defeat Fatah in the 2021 elections – potentially expanding its rule from Gaza to the West Bank – it is clear to all that to prevent this disastrous outcome, either Hamas candidates must be barred from participation in the elections, as Israel advocates, or the elections must be again postponed or cancelled, as Abu Mazen now contemplates.  The United States appears to support both ideas – that is, either preventing Hamas candidates from participation as candidates if they do not recognize Israel or if they support terrorism, or even postponing the elections.

Seeking an Excuse to Delay Elections – the East Jerusalem Voting Solution

Assuming the elections will indeed be delayed, all that remains is for Abu Mazen to find an excuse for doing so. The Palestinian leadership is now contemplating blaming Israel for putting the elections on hold. Nabil Shaath has already stated that the elections are likely to be postponed due to Israel’s refusal to allow Palestinian residents of East Jerusalem to vote in the city.

In fact, however, Oslo II specifically stated that Palestinian residents of East Jerusalem are precluded from casting their ballots in polling stations inside the city; rather, they must vote in polling stations located in the West Bank. Stated otherwise, Palestinians that are residents of East Jerusalem are not precluded from voting in the Palestinian elections. They may vote freely using polling stations located in the West Bank near the city boundaries. Further, Israel also agreed in Oslo II, as an exception, to allow 5,000 Palestinian residents of East Jerusalem to vote by mail in five specified Israeli post offices located inside Jerusalem. This is how East Jerusalem Palestinians voted in 1996 and in 2006 – the PA does not have any new legitimate basis to demand that this agreed arrangement be changed during the 2021 elections. However, if everyone – the PLO/Fatah, Israel and the United States, among others – now agree that the right thing to do is postpone the elections, and if blaming Israel for this delay best serves the Palestinian face-saving purpose, so be it.