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September 28, 2017

If Only These Conflicts Could Be Mediated …

The past week was a challenging week for all of us, including those of us who consider ourselves to be mediators. What does the mediation profession have to offer toward resolution of national and international disputes that have not been submitted to mediation (so far as we know)? Some of the attributes that an effective mediator might bring to the table if such disputes were mediated, and in turn might bring to the discussion of these disputes even if they are not mediated, include: (1) an interest in identifying the fundamental interests of both sides, (2) an ability to understand the significance of language and its nuances, in the rhetoric of the parties, and in the mediator’s own rhetoric, which will be calculated to transform a contentious matter into a joint effort directed toward a solution, and (3) to understand the audiences and constituencies to which each of the disputing parties must report upon and justify any agreed solution.

In this post, I posit hypothetical mediations of two significant sources of conflict in recent days: the  killing of three Israeli soldiers by a Palestinian man who in turn was killed, while still armed and shooting, by Israeli forces (“Jerusalem Mediation,” below) and the protests by National Football League teams in response to comments by President Trump about NFL players (“Anthem Mediation,” below). They are many differences between these disputes. Notably, the first of them is in its general contours merely a new instance of a perennial problem in the Israel-Palestine conflict, i.e. random acts of violence regarded as terrorism, whereas the latter is a new stage of a dispute that has been percolating for more than a year over NFL player protests during the National Anthem, but has entered a new phase because of the entry of the President of the United States into the controversy.


  1. Jerusalem Mediation


Suppose that the State of Israel and the Palestinian Authority (“PA”) had a valid and binding agreement to mediate disputes concerning retaliation measures against the families and neighbors and property of perpetrators of violence, before such retaliatory measures are undertaken. Obviously this is contrary to fact, and Israel’s practices in this regard are a source of controversy at many levels — within Israel, in Palestinian communities, in past negotiations between Israel and the PA or its predecessor, and in the international human rights community.   Below I present what might be imagined to be the pre-mediation or opening statements of the parties, followed by the mediator’s summary and some suggestions for how the mediation might be resolved successfully.

  1. PA Mediation Statement: On the morning of September 26, a 37-year old father of four who lived peacefully with his family decided to become a martyr in the ongoing crusade for the liberation of Palestine by giving his life in an armed struggle with military occupation forces at the gates of an illegal Jewish settlement on Palestinian land 15 kilometers north and west of Jerusalem. The military occupation forces now insist upon the right to destroy the family home of the martyr, to revoke the work permits held by members of his family, and to prevent any entry to or exit from their village by any of its residents except in cases of clear emergency.  The occupation forces propose to take these measures, which constitute collective punishment in violation of international law, despite there being no evidence or even suspicion that members of the family of the martyr, or his neighbors, or the leaders of the community, had any involvement in or gave any encouragement to, the act of martyrdom in which he alone decided to engage.   Such measures are not a deterrent to future violence, but rather they are a cause of the hatred and anger that justifiably provoke such acts, and the contentions of the Jewish occupiers that they are necessary to prevent such acts in the future are contradicted by the history of such internationally unlawful activity over the many decades in which it has been practiced as well as by systematic research that has been done by creditable scholars.


  1. Israel Mediation Statement:  On the morning of September 26, a ruthless PA Arab terrorist, posing as a worker going to his job in a Jewish Israeli town, a Jerusalem suburb, drew his concealed pistol at a security checkpoint and opened fire, killing three young Israeli soldiers (two of them Jewish, one Arab), and seriously wounding another person, before Israeli military police prevented an even greater massacre by taking the life of the terrorist. The incitement of this murderous assault by the PA is obvious, and Hamas and Islamic Jihad have hailed this murderer as a hero and a martyr, as the PA has now done in its mediation statement today. It is primarily because of the forceful response to such unprovoked violence that the State of Israel has been able to protect itself and its people, to keep such terrorism from overwhelming and destroying our State. We cannot continue to have a program that allows Arabs living in West Bank villages to work inside Israel, a program that benefitted this assailant and his family and his community for many years, if we cannot assure the security of our people and our communities. We accomplish that security through deterrence, and the deterrence that has proved effective for decades has been swift retribution against the families and homes and communities of the terrorists. To deny Israel the ability to act in this fashion, in lawful self-defense under international law, and in accordance with a practice that dates back at least to the Mandatory period under British control pre-dating the formation of the Jewish State, is to deny Israel’s right to secure borders and in turn its right to exist,

3. The Mediator’s Summary: On the morning of September 26, a 37 year old man, appearing to be on his way to work in the community of Har Adar where he had worked for many years, opened fire and killed three security guards and wounded another at a checkpoint adjoining the town. The man was killed by military police. Har Adar is a Jewish town lying mainly just beyond the so-called Green Line, i.e. the pre-1967 geopolitical boundary, and the assailant’s home town in the West Bank was only a few hundred meters to the east of Har Adar. Israel contends that this act was incited by the Palestinian Authority, not in a direct sense but by its policies giving encouragement to individual acts of violence against Jewish Israelis. The PA contends that Israel’s occupation of the West Bank and its policies toward the people living in that territory have provoked and continue to provoke individual acts of violence. Those policies include, the PA contends, the proposed measures in dispute here, which the PA contends do not serve to deter future violence but instead to foment it. Israel, for its part, contends that the proposed measures have been effective as deterrents to violence, that credible and objective research has proven this to be the case, that the courts of Israel have repeatedly ruled that the practices are lawful, and that they are not violations of international law. Further Israel contends that this policy has been employed to the mutual benefit of Jewish and Arab residents, that is to say that they have functioned as an effective deterrent to violence which causes death and injury to Jews and Arabs, but also have materially contributed to the system of economic interchange that allows non-Jewish West Bank residents to lead relatively normal lives and to travel to and from their jobs in Israel without this system being seen by the Jewish populace as a threat to their security.


A Mediator’s Solution?? – As a preliminary comment, I note that the statements set forth above are constructed to illustrate how each party’s narrative is built around its fundamental beliefs, and that the mediator’s version of the statement avoids the rhetorical devices and buzz words that are critical to each side’s narrative. Moreover, many if not all of the disagreements reflected in the narratives are peripheral to the issue that needs an immediate solution in this hypothetical: whether there can be some substitute for the retaliatory action that Palestinians, with broad international support, regard as collective punishment in violation of international law. Thus, the parties are unlikely to agree in the near term, but need not agree in order to resolve the dispute, on whether: (1) the killer is a “terrorist” or a “martyr”; (2) Har Adar is a lawful community; (3) the West Bank is part of Israel; (4) Israeli administration of the West Bank is an “occupation”; or (5) the PA bears any responsibility for the incitement or encouragement of the actions of this or other Palestinian perpetrators of violence against Israelis.

Moreover, the PA and Israel are unlikely ever to agree on the legality under international law of what the PA regards as “Collective Punishment,” or to come even close to a mutual position on the effectiveness of such measures as a deterrent to violence. From the Israeli press one may discern that officers in the Israeli Defense Forces doubt the effectiveness of retaliation against families and communities, especially since such measures (according to press reports) tend to be temporary save for the destruction of the perpetrator’s home (and also, it is reported, destruction of the mourner’s tent as part of the planning for the demolition of the home). One also discerns from the press reports that communities like Har Adar benefit from having a Palestinian Arab labor force and yearn for a return to the status quo of relatively peaceful employer-employee relations. But the taking of retaliatory measures such as revocation of work permits in and/or quarantine of the perpetrator’s village apparently has considerable political value, as a demonstration of “strength” in regard to the security of Jewish communities in the West Bank.

What is the adequate substitute politically for the Prime Minister of Israel, acceptable to the PA, in exchange for a commitment by Israel to take no such retaliatory measures in this instance?  A PA pronouncement condemning that Act? – Not politically possible for the PA in all likelihood. A protocol for the diversion of Palestinian tax revenues, collected by Israel and otherwise payable to the PA, into a fund to compensate the Israeli victims and their survivors, not only in this instance but in future instances, with an initial stated agreed amount of funds to be diverted with regard to this instance, coupled with a statement of sympathy for the personal losses sustained by the loved ones of the victims? … I rather like this solution, as it is a form of economic sanction that from an Israeli perspective penalizes the PA for what is perceived to be its incitement of such violence and creates an economic incentive for the PA to inhibit it.  The main difficulty with the solution is its optics on the Palestinian side, which raises the question of how and even whether the accord would be reported publicly. Possibly such an agreement could be effective without reporting of details of the diversion of taxes. The PA could announce a “victory” in having negotiated a commitment from Israel not to take retaliatory measures and to restore immediately the rights of Palestinian workers from the perpetrator’s village and family. Israel for its part could report in a general way having secured strong assurances from the PA of efforts to deter violence. And the parties could each state that non-disclosure of the details was an essential element of the agreement.

I invite your views and your suggestions for alternatives.


  1. Anthem Mediation

Suppose that in this fourth week of the National Football League’s 17-week season, an individual team’s owner and its players agree to mediation, on an as needed basis, of the question of what position the Team and the players, collectively or individually, should take with respect to comportment on the playing field during the playing of the National Anthem. You have been engaged as the mediator. The ongoing nature of the engagement reflects to prospect that the contours of the issue will change from week to week, and also that approaches may vary based on whether the Team is playing in its home stadium or is the visiting team.

This week, the Team (Atlanta Falcons) is playing at home on Sunday, October 1, and the Team’s owner calls for a mediation session on Friday September 29 (by which date one game has been played, on Thursday night in Green Bay, Wisconsin).  The mediation begins with opening statements from both sides.

Owner’s Mediation Opening Statement: I would like to see our organization take a unified position at this week’s game. As the owner of this team I am completely supportive of the causes that originally inspired some individual players to engage in kneel-down protests during the National Anthem as a way to express their views on racially sensitive issues like disparate police treatment of suspects in African-American communities. But the President’s remarks portray protesting players as unpatriotic, ungrateful, disrespectful of our American flag and our country and especially of people who have served our country in the armed forces and given their lives to protect our freedom. I am concerned that this message resonates with a large segment of our fan base and that if we don’t conform our behavior to be sensitive to that, we do harm to our Team in the community and we do harm to the underlying causes that inspired some players to protest, before the President became involved.  The solution I propose for this week is this: (1) We will all stand together, owners, coaches, players, with arms linked and hands over our hearts during the playing of the national anthem, (2) the anthem will be sung by an African-American recording artist of international renown, and (3) the color guard will be presented by a four-person contingent of US Marines from Fort Benning GA, two African-Americans and two Caucasians, and in the pre-game ceremony just prior to the Anthem we will honor two recently-returned veterans, Marines who have served in Afghanistan, both women, one African-American and one Caucasian.

Players’ Mediation Opening Statement: The difficulty now is that we do not know what the President might say between now and the time of the National Anthem. Last week the President stood up on Friday night in Alabama and called us all SOBs who should be fired. We had to decide on Saturday what to do on Sunday. This week he has already said that he thinks the Team owners are afraid of the players. It sounds like he is prodding the Team owners to show that they can assert control over their uppity African American workers, like strong plantation owners would. And who knows what he might say on Saturday night or Sunday morning. Our right to choose how to act during the National Anthem, one by one, is a deal-breaker for us. The race of the Anthem singer looks like a token gesture. And the color guard and honoring of veterans, while worthy things to do in another context, in the context of your proposal look like answers to the President’s contentions that African American protesting players are unpatriotic, and we think we should not have to answer, because the President’s assertions that kneeling players are being disrespectful or unpatriotic are absurd — even if they are believed by some of his supporters — and these statements should not be dignified with a direct answer. Answering this President glorifies this President and makes the issue about him and his narrative.  It is not about him, and we should not allow him to alter and direct the terms of discussion.

The Mediator’s Proposal:  [which ensues after an exploration of various alternatives, including ways to return the focus of the protest to its original message of concern about unequal treatment of African Americans, solutions to express unity that do not entail conformity, and the pros and cons of engaging in a debate with the President on his terms]. Here is a proposal for each side to consider, and from my private sessions with each side I have some degree of confidence that you will be able to reach agreement on most of what I propose: (1) When the Anthem is played, the Team’s owner, the coaches, and the players, will arrange themselves in a single horizontal line on the on-the-field side of the sideline with the owner at the center of the line, and everyone is free to stand, kneel, or sit, but we will all be linked by contact with the persons adjacent – whether by linking arms or touching shoulders, etc.; (2) the auxiliary scoreboards will display this message: “Our Team, Our Community, Our Nation”, (3) prior to the singing of the Anthem, the public address announcer will state “Please join the Atlanta Falcons as we honor America with our National Anthem” and there will be no direction or request to the fans to stand or remove hats,  and (4) at the conclusion of the Anthem, there will be an announcement that the Atlanta Falcons have made a donation in the amount of $__ million to the Urban League of Greater Atlanta to support its ongoing work in the area of police reform and accountability.

I invite your views and your suggestions for alternatives.