Let’s start with the two-state solution. Do you believe that this framework is something of a fantasy, have these two states been overtaken by developments on the ground in Israel and the Occupied Palestinian Territories (OPT)?

Yes, most definitely, but first I think we need to back-up a little and look at who the Palestinians really are; we have gone down this road now of really believing that Palestinians are only those who live in the West Bank, East Jerusalem and the Gaza Strip, but that is only one-third of the Palestinian population. We have 1.5 million Palestinians living inside Israel as citizens and then we have others, who are about six million, living outside, in the Palestinian diaspora. So overall when you are talking about how to come up with a comprehensive solution to this conflict, you cannot simply ignore two-thirds of the Palestinian population, you can’t simply think that these people are going to go away, that their exclusion will be sustainable, it’s not going to be sustainable. And this is why it’s not just a question of facts on the ground but it’s also a question who the Palestinians really are, and trying to resolve this issue by including the whole population.

Now, in terms of facts on the ground, they make it impossible today to have two states, and this is not only because of Israeli settlement activity, but because of a mindset that has been created by Israel as a result of its failure to challenge the settlers and the settler movement. Israel can dismantle settlements, we have seen this happen in Gaza and there was a lot of opposition but it can be done. The bigger problem is that there is a mindset that has been created in Israel since 1967, one that is lasting till this day, which dictates that the Palestinians have lesser rights and actually gives settlers this idea that they have a right to be in the west bank. So to challenge this mindset, that’s where the failure of the two-state solution lies. When we had the process of negotiations, the one thing that Israel never did was to make clear to the settlers that the settlements were going to go away; instead the way that they approached the negotiations was to demand from the Palestinians that we accept the presence of the settlements rather than them pulling out the settlers. And this is a reflection of what has gone on in Israel for the past 45 years: they firmly believe that they have superior rights than the Palestinians and under these circumstances it becomes absolutely impossible to create two-states.

People who support the two-state solution can say that we are not at that stage yet, settlements can be unraveled or that it’s not practical to have anything but two-states, but the reality is that we are actually living right now in a one-state, it’s just that we have different sets of rights for people who are living on the land. We have five sets of rights for the people that are living here; we have Jewish Israeli citizens who have superior rights to everybody, we have Palestinian citizens of Israel who are very seriously discriminated against by Israel, there are people who are from East Jerusalem who are also discriminated against by Israel, and there are Palestinians living in the West Bank who are subjected to a whole host of military orders, movement restrictions, home demolitions and who live under Israeli military rule. Finally we have the people in Gaza who basically have no access to any form of justice even though Israel is the authority that controls them. So within this one-state that exists we have five different classifications of people’s rights.

And how would a process capable of challenging this mindset in Israel begin? How would a one-state framework help change this mindset?

This is good point. I think that the way that this issue must be addressed is that first of all we have to recognize that this mindset exists, but number two is beginning to put into place measures that address this issue rather than just concentrating on this question of a two-state solution. There are a number of things that need to be done and challenges that need to be made legally and politically, but fundamentally it requires a rethinking of the way in which the state operates and a rethinking of the rights that people have within this state.

The problem so far has been the way in which Palestinian rights have been articulated by the Palestinian Authority and by others. They are articulated strictly in this context of drawing a new border instead of beginning to challenge this mindset in Israel by really reframing what this issue is about. So the first thing that needs to be done is that there needs to be a reframing so that it’s not just a question of focusing on where a border is but focusing on what the rights of individuals are within the larger state. This is where there is very little work that has been done in large part because all of the efforts have gone towards this issue of two-states. For instance, the Palestinian Liberation Organization (PLO) accepted [UN] Resolution 242 in 1988, that’s twenty-five years ago. We are actually on the anniversary of it and twenty-five years later we are still trying to come up with a two-state solution and it is clearly not working.

It’s time to rethink and start approaching this issue in a different way. I think once we begin approaching it a different way and start articulating rights rather than a border we will certainly face a number of challenges by a number of people, I don’t want to minimize that at all, but I think that once you begin to address it this way and begin to address this idea of Jewish-Israeli privilege then I think that we will be at least one step closer to addressing the bigger problem and not just trying to mask it.

So in this sense we would be reframing the Palestinian struggle from one for sovereignty and independence to one that is based on equal rights in a single bi-national state?

Yes, exactly.

And regarding the asymmetry between the two negotiating sides, how has this impacted the process of negotiations and how would a struggle for equal rights in a single state hope to address this inequality between the two sides?

I can give you some examples that occurred during those ten years when I was working as a legal advisor to the Palestinian negotiating team. First of all, the very nature of negotiations between these two parties is absurd. One is an occupier, which means that they have power, and the other is the occupied, which means that they are powerless, so we are clear where the power balance lies. And this idea that somehow a very weak party can negotiate with a very powerful party when that very powerful party actually exerts control over the weak party’s life is from its very outset absurd, it’s crazy. But on top of that once we got into negotiations this was made worst by a number of factors and most primarily by the United States. The US first and foremost took the position that there could be no other party in the room, which meant that there could be no third party to balance out the inequality of the power balance. Then on top of that the US came in and virtually accepted every single proposal that the Israelis put forward, they just became parrots and mimicked exactly what the Israelis were saying. So the Israelis were using the Americans who thought themselves to be honest brokers, they would use them as Aaron David Miller said, as their “lawyer”. The Americans would come out and put forward proposals that the Israelis had drafted.

So first you have the fact that negotiations are absurd because of the asymmetry between the sides, then you have the Americans saying that there can’t be a role for a third party and then the Americans come in and play this role but not to the benefit of the Palestinians but to the  benefit of the already powerful party, and then finally add to this mix the fact that the Israelis themselves would use their power to come up with absurd proposals which in effect prevent any negotiations from taking place.

Let me give you an example from my experience. We were sitting in negotiations and the Israelis put forward a demand to modify the border, to modify the 1967 lines. I said to the Israeli negotiator: ‘on what basis in international law are you seeking this border modification? Now the Israelis don’t even want a reference to anything that could potentially balance out the asymmetry of power, like international law for example’. The Israeli negotiator came back and said to me ‘I will recognize international law when I’m forced to recognize international law, until then it’s just the two of us in this room’. This is to show you the absurdity of the whole negotiation process, and in this context you can see that it becomes futile to have negotiations in the first place.

So you are talking about abandoning negotiations and engaging in a civil struggle for equal rights?

Yes exactly, this is the path that I think we need to follow in order to move forward.

You were originally working as a legal advisor to the PLO and personally involved in the negotiation process, when did you shift your position and begin supporting a one-state framework?

I always had the belief that there should be one-state, just by virtue of the fact that I am from Nazareth which became part of Israel after 1948, so to me Palestine and the Palestinians is not just a question of the West Bank and Gaza. My father was kicked out of his home in 1948 and even though he is a citizen of Israel and he lives just three kilometers away from his land, he has never been able to go back. I fully recognize that the question of Palestine and the Palestinians goes way beyond just the West Bank, East Jerusalem and the Gaza Strip. These areas are those that are bleeding the most and we need to stop that obviously, but in terms of a more comprehensive solution I have always favored the idea of a one-state.

I began to work with the Palestinian negotiations unit because I believed at the time that perhaps if we worked on stopping the bleeding that would be a first step towards reaching a more comprehensive agreement. The first thing that a surgeon does is to stop the bleeding and then they go and work on all the other issues.

That’s what my original thinking was, but by the time we left the Taba summit [2001] – again this great negotiation session that everybody has been describing as so close and fruitful – that was when I realized not only that this was hopeless but also that we should be focusing on something much broader than simply negotiating, that we needed a more comprehensive approach. My experience as a negotiator largely shaped my opinion today.

Now the way that I generally prefer to frame the issue is a struggle for a single, bi-national state. And I think it is important to highlight the fact that this idea has been stifled and silenced by all these people who insist on talking about two-states. So the discussion on this one-state has largely been silenced. On the one hand we are now at an initial stage of exploring new ideas and frameworks, but when we move to the realities on the ground I think we are much beyond that, and these ideas have not caught up with the reality on the ground. The reality is much graver than people tend to believe and there is still a lot of work that needs to be done in order to push forward this idea of a bi-national state.

Let’s move to what many believe are the major obstacles confronting this idea of a bi-national state. In this context I would highlight Israel’s demographic fears and the importance that is given to preserving the so-called Jewish majority in Israel. On top of that I would also include Hamas’s unwillingness to consider a bi-national state, but also the fact that nationalism and a quest for sovereignty for both Israelis and Palestinians remains a major driving force for the two communities.

Yes the challenges are great, but I will try to address each one of these. Now beginning with the issue of recognizing Israel as a ‘Jewish state’, this issue is actually a new issue, and I can tell you this because I was actually in the negotiating room. In none of the negotiations, ever, was this issue of a recognition raised, the first time this was brought up was by former Israeli Foreign Minister Tzipi Livni in 2003 when we were having track-two negotiations. She raised this issue about the Jewish State. Since then it has been used by every single Israeli prime minister as a precondition and as a means for actually halting negotiations, not as a means for pushing them forward, so this was never a historic Israeli demand. This issue is brand new, and it is entirely designed to make sure that there are no negotiations, to add preconditions to all the preconditions that already exist. On top of that, when you ask Israelis what does it mean to be a Jewish state, they don’t know, and I challenge Israelis on this issue all the time, they come back saying that it means a Jewish majority, ok but they cannot guarantee this is going to be a Jewish majority, we are already in a situation where there is not a Jewish majority in this entity that Israel controls.

Between the Palestinians of the West Bank, the Palestinians of East Jerusalem, the Palestinians of Gaza and the Palestinian citizens of Israel, there is not a Jewish majority anymore. What does the concept of a Jewish state really mean? This is where I actually believe that there has been a lot of rhetoric and a lot of irresponsible politicians, but there hasn’t been anyone who has thoughtfully challenged this question. So it’s an issue that needs to be addressed and I agree with you that it is necessary, but only to debunk the myth and to make clear to the Israelis that there is never going to be a Jewish majority in the way that they understand it. It’s just not going to be sustainable with the current birth rates of the Arab Palestinians. And Israelis also need to confront this issue and think about what is going to happen when they don’t have a majority anymore.

But wouldn’t a shift in strategy and a struggle for equal rights for the Palestinians based on a one-man one-vote scenario eventually challenge the Jewish character of Israel, in terms of the culture, the leadership and the institutions of this state?

In the context of a bi-national state, the character or the culture of this state is preserved; it’s the privileges that are no longer preserved. Right now there are laws that state that only Jews can immigrate to Israel and that’s a privilege. This is one aspect that obviously in the context of a one-state needs to be addressed because this privilege cannot be extended to only one community. And there are dozens of these laws that directly or indirectly discriminate against the Palestinian community. But the point is that you can preserve elements of culture in a possible one-state, but what has to absolutely go is the system of privileges for one side or the other, and the whole idea is that people have a measure of equal rights. And in terms of voting rights, I don’t really see any problem with an Arab Palestinian someday becoming the president or prime minister of this state. I mean the whole essence behind this idea is having equal rights.

Now, moving to Hamas, and whether Hamas would be opposed to such a one-state reality. I think much of the rhetoric that has come out from Hamas and also from the other factions is very reactive. It is reactive because they have been subjected to so much oppression by the Israelis, but even in the context of that oppression Hamas has come out and said that they support a two-state solution, they have said it many times, so even in this context of huge oppression they have said that they support the concept of two-states. I think we have moved beyond this idea of throwing the Jews into the sea, as the Israelis would like to phrase it, and I think we have actually seen that the reverse is true. It’s Israel who is trying to get rid of the Palestinians, not the other way around. So in the context of Hamas and all of these other organizations, this is an issue that needs to be addressed but I don’t think that we should view it as huge obstacle that cannot be overcome.

Finally, in terms of Jewish and Palestinian nationalism, this is also another obstacle but I don’t think that this is insurmountable. I think that basically we need to unravel what their demands are and once you unravel these demands and begin to address those demands then you can come up something that is more comprehensive.

So in a sense what is needed is a repackaging of the whole framework in a way that is capable of highlighting the benefits for both sides…

Yes exactly, I mean I think we are not at the stage anymore, at least I hope we are not at the stage anymore, that people are talking about expelling the other. I think we have an overwhelming majority on both sides that recognize that the other side is not going to go away, that it is not possible to get rid of the other side. So in this context and with this situation of apartheid that we have today, I think the only way forward is to really confront these issues head on and really begin discussing what people want.

You talked briefly about the need to ground Palestinian claims in international law as a means to level the playing field between the two negotiating sides, in this context how do you view the Palestinian Authority’s strategy of going to the UN for an upgrade in status, keeping in mind that this step is obviously still framed within the context of two-states?

Well ok let me tell you why I am opposed to this, and it has nothing to do with this issue of one or two states. My opposition to all of this UN bid activity that has been going on both this year and the last derives from the fact that it is done without heat, without a clear strategy in mind. I have to put it into a little bit of perspective, this is being done largely for domestic reasons. In January, Mahmud Abbas, President of the Palestinian Authority, will have served two terms even though he was actually elected for one. The current Palestinian Prime Minister is the longest serving PM in Palestinian history, but he has never gotten confirmation of his authority from the parliament. The parliament itself has not even met in five years and hasn’t issued a single new law in six years, and the Parliament’s term has actually expired two years ago, three years in January. All of our laws are being issued by Presidential decree, and on top of that we do not see any possibility of elections on the horizon.The same is happening in both the West Bank and the

Gaza Strip, and the peace process is not going anywhere. Abbas however has been very reluctant to do anything other than talk about negotiations and more negotiations, he spent eight years talking about negotiations and he hasn’t even begun to think about an alternative strategy. In this context that Abbas has decided to go to the UN over the past two years, but nothing in this time frame has indicated to me that this is part of a greater strategy to move away from negotiations or that it is part of a bigger strategy to actually hold Israel accountable. He just hasn’t done anything. This UN bid is harmless but it actually doesn’t achieve anything.

If on the other hand they were to say that this was part of an overall strategy of holding Israel accountable, and that we want to become a UN member state because we want to sign on to the International Criminal Court (ICC), then I would be able to assess the bid on those terms, but so far all that I have seen is that this is being done to boost his credibility at a time when Abbas’s legitimacy is at its lowest. I absolutely support going to the ICC because Israel has to be held accountable for what it is doing, but Abbas has made it clear that this is not his strategy. Israel can’t continue bombing civilians, destroy buildings and so on. As we saw with South Africa there has to be truth and reconciliation before there is healing, and here is where I believe that we have a path to move forward, there hast to be a measure of accountability to heal and to move forward.