Joel Singer, Israel Yearbook on Human Rights, 2020
My new article “The Use Of Constructive Ambiguity In Israeli-Arab Peace Negotiations” has just been published in the 2020 issue of the Israel Yearbook on Human Rights – an annual publication of Tel Aviv University’s Faculty of Law. The full article can be found here: Constructive Ambiguity.
As explained in the article, constructive ambiguity is sometimes used, primarily in international negotiations, in order to overcome a few remaining issues that cannot be resolved, in which case the parties agree to adopt a word or an expression that is so ambiguous that they can both accept it, even though, and, in fact because it may mean two different things, thus allowing the parties to reach an agreement while, in fact, continuing to hold their original, contradictory positions. The piece describes numerous instances in the long history of Israeli-Arab peacemaking in which fundamental disagreements between the parties have been resolved – in fact, papered over – through constructive ambiguity. These instances represent some of the most important moments in the history of the Israeli-Arab conflict: from the 1917 Balfour Declaration to the 1949 Armistice Agreements; to U.N. Security Council Resolution 242, and Henry Kissinger’s “Shuttle Diplomacy” following the 1973 war; to the 1978-79 Israel-Egypt Camp David Accords and Peace Treaty, and the 1993-95 Israel-PLO Oslo Accords.
How ambiguity has been, and can be, used in Arab-Israeli diplomacy is a rich topic, which remains relevant. Constructive ambiguity has at times been used with positive results (at least in the short-term), while other times ambiguity has been “unconstructive” or worse. For those without the time to read all 43 pages of the article, below I am providing one of the examples I included in the article – negotiating the details of Palestinian elections in East Jerusalem pursuant to the Oslo Accords.
In 1995, working on behalf of the Israeli government, I was negotiating the text of the Israel-PLO Interim Agreement on the West Bank and the Gaza Strip, also known as Oslo II (the ”Interim Agreement”) with Saeb Erekat, the PLO chief negotiator.
In the course of the negotiations, we encountered a major stumbling block regarding the method of voting by the Palestinian inhabitants of East Jerusalem. Earlier, in the 1993 Declaration of Principles on Interim Self Government Arrangements (the “Oslo Declaration of Principles” or the “DOP”), Israel and the PLO had agreed that Palestinians in East Jerusalem would be allowed to vote in the elections for the Palestinian Council, but would not be able to participate in the elections as candidates. That was a compromise between Israel’s original position – that East Jerusalem Palestinians would neither be allowed to vote nor stand as candidates in the elections – and the original Palestinian position that Palestinians of East Jerusalem should be allowed to participate in the elections both by voting and as candidates.
The argument that arose in 1995 related to whether such East Jerusalem residents would vote in Palestinian polling stations to be established outside Jerusalem (that is, in the West Bank), as I proposed, or whether they would vote in polling stations to be established inside Jerusalem, as Erekat suggested. In opposing polling stations in East Jerusalem, I relied on various provisions of the Oslo Declaration of Principles that excluded Jerusalem from Palestinian jurisdiction and precluded establishment of Palestinian offices outside the areas of the West Bank apportioned to the Palestinians under the agreement. In both cases, Jerusalem was excluded.
Erekat, while acknowledging these DOP provisions, noted that Israel and the PLO had already also agreed that the elections would allow residents of each administrative district to elect their representatives to the Palestinian Council, and argued that it did not make sense for Palestinian residents of East Jerusalem to be required to travel outside of their district to vote. Jerusalem’s place as an administrative district was a carry-over from Jordanian control of the city (1948-1967), in which Jerusalem was one of the districts of the West Bank. Knowing that the issue of voting by East Jerusalem Palestinians was particularly tricky, we put it aside for a while as we continued to negotiate all other aspects of the Interim Agreement.
Singer and Erekat Examining Ballot Boxes in the UK
At that time, Erekat and I were invited by the United Kingdom to visit the UK, so that we could together observe the holding of elections – part of the European Union’s support of the Palestinian elections. I thought that the many hours of flight that Erekat and I would spend together on the plane to the UK, away from the daily grind of our respective offices, would be an opportune time to resume the discussion over East Jerusalem voting. So, on the trip I brought an old Jordanian administrative map of the West Bank and showed Erekat that the boundaries of the Jerusalem district were much larger than the municipal borders of the East Jerusalem city, now annexed to Israel. My solution to our dilemma: if all the polling stations in the Jerusalem district would be established inside the historic district lines, but outside the lines Israel considered as defining East Jerusalem, then East Jerusalem residents would still vote inside the Jerusalem district – able to correctly assert that that they had voted in Jerusalem.
Erekat rejected my suggestion, arguing that this arrangement would still require those East Jerusalem residents to travel too far from their homes. As I was re-folding the large map, Erekat suggested that, instead, Palestinian polling stations could be established within the city of East Jerusalem, but inside “quasi extra-territorial” locations, such as in United Nations offices, International Red Cross offices or Muslim holy places. He hoped that this counter-proposal – allowing voting in “special status” locations – would allow for Israeli acceptance of voting in East Jerusalem, as it would not necessarily conflict with Israel’s position regarding its sovereignty in Jerusalem. I rejected all of these proposals and the disagreement remained unresolved for a long time.
To be clear, the argument was not really about the technical question of where to place polling stations for one day only – the day of the Palestinian elections. Rather, the Palestinians wanted to use the elections as an opportunity to establish a precedent for the larger “fight” over the fate of Jerusalem, to occur years later in the context of the permanent status agreement negotiations. For exactly the same reason – preventing the establishment of such a precedent – Israel wanted to avoid deploying Palestinian polling stations in East Jerusalem even for only a single day. In sum, the Palestinians wanted to plant seeds for recognition of their claims to East Jerusalem, while Israel sought to avoid such a maneuver.
One day, after visiting Egypt, Israeli Foreign Minister Shimon Peres called me to his office and informed that he had met with PLO Chairman Yasser Arafat in Cairo and the two had resolved the East Jerusalem voting dispute. As he recounted the agreed solution to me: “We agreed that they would vote by [and here I am bringing the Hebrew word Peres used] do’ar.” “Go ahead,” Peres instructed me, “put this agreed sentence in the draft agreement and move on.”
The expression “do’ar,” however, has two separate meanings in Hebrew. Depending on the context, it may mean either an envelope with a stamp, or the office that is responsible for collecting and delivering these envelopes. Further complicating the matter, translated to English, the Hebrew word do’ar could change meanings depending on the English speaker – Americans use the word “mail” for the letter and “post” for the delivering office, while in British English a stamped envelope is called “post” and the office responsible for delivering the post is the “mail.” In other words, an American may say “The mailman from the U.S. Post Office delivered the mail,” while a Briton may say “The postman of the Royal Mail Service delivered the post.”
Not knowing what exact word Peres and Arafat used when they reached their agreement, and further (whatever that word was), not knowing whether they were both thinking in American English or British English about the mail/post issue, I asked Peres for clarifications regarding his agreement with Arafat. Had he and Arafat agreed that Palestinian inhabitants of East Jerusalem would vote in polling stations to be established in post offices in East Jerusalem? Or had they decided that East Jerusalem Palestinians would send their ballots in envelopes to be delivered to Palestinian polling stations located outside of Jerusalem?
Peres explained that what he had in mind was the latter: using a procedure similar to American “absentee voting” in elections, East Jerusalemites would mail in their ballots to be processed outside the city. He added confidently that Arafat agreed with that approach. Given previous heated arguments I’d had with Saeb Erekat, I felt that this Peres-Arafat agreement might be too good to be true. Indeed, when I called Erekat to confirm how he understood the Peres-Arafat agreement, he responded that Arafat had told him very confidently that his agreement with Peres was that Palestinians of East Jerusalem would cast their ballots at post offices located in East Jerusalem. Thus, we were back to square one.
Eventually, Erekat and I resolved this issue through negotiating very detailed arrangements for voting of the Palestinians of East Jerusalem, involving compromises by both sides. Under these arrangements, while most Palestinians of Jerusalem would vote at approximately 170 polling stations situated in the West Bank, approximately 5,000 of Jerusalem’s Palestinians were allowed to vote through services provided in five specified post offices inside East Jerusalem. These services, which were provided by Israel Post Authority employees (not Palestinian elections officials), involved providing the voters with Palestinian ballot papers and envelopes to be marked at the post office counters, rather than in private booths of the type used in voting in the West Bank. These ballots would be inserted by voters into envelopes addressed to the relevant Palestinian election officials (like a letter), but which (unlike a letter) bore no stamps. Those envelopes were then handed over to the Israeli post office officials, who inserted them into boxes marked with the logo of the Israeli Postal Authority. Under the agreed arrangements, those boxes were then delivered to the relevant Palestinian elections office in the West Bank, where they were counted and totaled along with the other ballots cast in the West Bank.
While developing these compromise arrangements, the most heated argument between Israeli and Palestinian negotiators was over the shape and color of these boxes. For a moment, both sides appeared to truly believe that the future fate of East Jerusalem would be decided exclusively by whether the box’s slot would be at its top, as with a normal ballot box, or on its side, like in a normal post box. Ultimately, the parties agreed to design the boxes to be different in size and shape than both Palestinian ballot boxes and Israeli post boxes.
Had Peres’s sentence for resolving the argument regarding voting by Palestinians of East Jerusalem been inserted in the agreement, it could have been considered a prime example of unsuccessful constructive ambiguity – or perhaps “destructive ambiguity.” The Hebrew word do’ar, as well as its English translation (mail/post), could clearly mean different things to different people. By including an ambiguous provision in the Interim Agreement, the parties could have been able to sign it only to realize later, as the Palestinian elections got closer, that they had actually not reached an agreement. The detailed arrangements that Erekat and I ultimately negotiated and included in the Interim Agreement, while representing a compromise between absentee voting and normal voting (possibly disliked equally by both sides), were very precise and, therefore, saved the elections – an important milestone in the Israeli-Palestinian peace process – from another failed constructive ambiguity.
Finally, a message for those American readers of this blog who are concerned over potential vote-by-mail problems in the upcoming November 3rd election: you may find some comfort in the thought that, as this article demonstrates, election problems could be much more difficult if and when you vote in the Middle East.