What Israel Needs to Know About Sharia

Israel and the United States should understand the Islamic laws Hamas obeys to begin finding solutions for a peaceful coexistence.

In January, 2006, Hamas -- an Islamist party with a military wing that is branded as a terrorist group by much of the West -- won one of the freest and fairest elections ever conducted in the Middle East. In doing so, Hamas became the legally and duly chosen representative of the Palestinian people, an inescapable player in the Israeli-Palestinian conflict, and also, necessarily, a factor in any peace process.

Despite apocalyptic and unequivocally anti-Semitic statements contained in its 1988 Charter, the organization has indicated an increasingly clear willingness to coexist with Israel for the foreseeable future, acknowledging it as an established fact in the region. This week, for instance, Hamas leader Khaled Meshaal reportedly told a Russian diplomat he would not "stand in the way" of a peace agreement between Israel and the Palestinian Authority, with the condition that it be approved in a Palestinian referendum.

Despite similar previous pronouncements, the United States and Israel have avoided formulating a realistic policy towards Hamas, based primarily on three non-negotiable demands: that Hamas recognize Israel, renounce violence, and accept previous agreements between Israel and the Palestinian Authority. Hamas has expressed willingness to enter into truces and to recognize or respect previous understandings. But it has unequivocally rejected the first demand. The United States has insisted that it will not deal with Hamas until all three are fully accepted.

Last month, the U.S. Institute of Peace published a special report we wrote, which sought to present perspectives on Hamas that are absent from current policy discussions. We are an unlikely pair: one an American Jew who lived in Israel for years and supports it as a Jewish state; the other a Palestinian Muslim whose father was expelled from his home at Israel's creation and who believes the state should not have been established. Our views on many issues are often at odds. Yet we pooled our knowledge and perspectives to try to inject some reality into what has often been a discussion defined by dogmatism.

We argue that engagement with Hamas is essential, and possible. To understand how, it is necessary to take into account that many of Hamas's statements and actions are governed and limited by its understanding of Islamic religious law (sharia), a comprehensive code relevant to all aspects of life for believing Muslims, very much including politics. We maintain that Hamas cannot be understood without understanding the sharia background of many of its policies.

By its reading of sharia (a reading it shares with the Muslim mainstream), Israel's establishment is illegitimate and unjust, and its recognition by Muslims is forbidden. Thus far, the Muslim states that have recognized Israel, including Egypt, Jordan and Turkey, have made a political decision to do so, one not grounded in Islamic law. Similarly, the Arab Peace Initiative -- which offered full recognition of Israel by all 19 remaining Arab states in return for Israel's withdrawal to the 1967 boundaries and an "agreed-upon" settlement of the Palestinian refugees -- is a political, not sharia-justified, compromise.

Hamas maintains that accepting Israel's legitimacy necessarily renounces the Palestinian narrative, which defines Palestine as Arab and Muslim, in contrast to the Jewish narrative, which defines the Land of Israel as Jewish by God's promise, by legal right, and by history. Can these two worldviews be reconciled? Absolutely not. Can Hamas and Israel co­exist peacefully? We believe they can. Reconciliation is much harder than coexistence.

Hamas has repeatedly offered to end its violent resistance against Israel by means of various sharia-based mechanisms, such as a hudna (time-limited truce) or a tahadiyya (cease-fire). It has also advocated the principle of "Palestinian legitimacy," whereby it would accept as binding the decision of the Palestinian people to accept peace with Israel -- even if Hamas, as a Muslim religious organization, could not reconcile that outcome with sharia and preserve its Muslim beliefs.

To many, this may seem pointless and arcane double-talk. However, within Hamas's frame of reference, these categories are crucial. Taking them into account may be the key to ending the current deadly stalemate.

We do not advocate that either Israel or the United States plunge into negotiations with Hamas based on these principles. Instead, careful and skillful diplomacy, using intermediaries, can test whether Hamas is indeed willing to abide by the necessary agreements. These agreements could eventually result in American and Israeli acceptance of a coalition government, including Hamas, that could negotiate a real peace with Israel.  And even in a seemingly real peace, both sides would take a long time before they let down their guard.

We do not claim to be prescribing a series of steps that will assure peace. However, we are urging policymakers to realize that Hamas has signaled repeatedly it is ready for coexistence, and that taking into account Hamas's view of sharia is critical to understanding what the organization will and won't do, and why. Until that happens, we believe the current stalemate is likely to continue.

Space precludes spelling out our full arguments, which can be found here.



Bird in Hand

One of the strongest multilateral sanctions architectures ever created already exists to pressure North Korea; it just needs to be enforced.

As U.S. Secretary of State Hillary Clinton arrives in Thailand for talks with her Asian counterparts, a central topic of discussion will be security on the Korean Peninsula. Two weeks ago, North Korea celebrated America's independence with a fireworks show of its own: seven ballistic missiles launched into the Sea of Japan.

This latest launch and the Association of Southeast Asian Nations (ASEAN) meetings add urgency to the international debate about how to compel more-responsible behavior from the Hermit Kingdom. This discussion misses a critical point, however. One of the strongest multilateral sanctions architectures ever created already exists to pressure North Korea; it just needs to be enforced. The United States was complicit in emasculating this sanctions regime. So, before jumping into lengthy negotiations over yet more sanctions, why not enforce the coercive measures already on the books?

In response to North Korea's first nuclear test in October 2006, the U.N. Security Council passed Resolution 1718, which authorized three types of sanctions: an embargo on arms and luxury goods, a travel ban, and an asset freeze against individuals or entities contributing to North Korea's weapons program. The resolution banned all transfers in or out of North Korea of heavy weaponry and ballistic-missile technologies and inputs. The resolution did not specify the luxury goods banned, nor did it name the individuals and entities to be designated for the travel ban and asset freeze. Instead, it established a sanctions committee to undertake these tasks.

Shortly afterward, however, North Korea announced it would return to denuclearization negotiations. Within weeks of their adoption, the sanctions were tacitly shelved in deference to the six-party talks (the negotiations between North Korea, China, Japan, Russia, South Korea, and the United States that were initiated when North Korea pulled out of the Nuclear Non-Proliferation Treaty in 2003). Six-party negotiators felt the sanctions resolution had helped compel North Korea back to the negotiating table and worried that trying to enforce the sanctions might jeopardize the fragile talks.

The sanctions became a bargaining piece and were quietly traded away in futile hopes of six-party progress. The following 2½ years saw on-again, but mostly off-again, U.S. interest in enforcing the sanctions, based on the status of the fledgling six-party process.

As a result, the sanctions committee created to track and enforce Resolution 1718 became largely dormant. It took the committee nine months to adopt its working guidelines after passage of Resolution 1718. It failed to define a list of luxury goods and decided in February 2007 that luxury goods meant whatever member states defined them to be. This allowed countries like China to skirt the terms of the resolution. By 2008, only a third of U.N. member countries had reported as required on measures taken to implement the embargo, and the sanctions committee didn't even meet during 2008 due to a lack of business.

The travel ban and asset freeze went similarly unrealized. Without a list of names or entities designated for sanctions, travel ban and asset freeze authorities are a hollow shell. Until three months ago, there were no designations for a freeze of assets under U.N. sanctions toward North Korea, meaning that for more than two years, the mandatory asset freeze created in 2006 was never used. And for nearly three years and in the face of continued North Korean provocations, not a single person was designated for a travel ban.

After North Korea's continued nuclear and missile tests this April and May, the new U.S. administration focused on adopting a second sanctions resolution. The three-week negotiation (Resolution 1718 took five days to negotiate) resulted in Resolution 1874, a resolution that modestly expanded the sanctions authorities already on the books. In a positive step toward enforcement, the U.N. Sanctions Committee on North Korea last week agreed to new designations under the sanctions regime. The committee added two materials to the embargo, listed five new entities and individuals for an asset freeze, and for the first time since the travel ban was adopted in 2006, designated five individuals under it. Senior U.S. officials are now touring Asia to discuss implementation of these designations with Asian and Security Council counterparts.

The shift in focus to compliance is right on target but is also where the administration can expect the greatest expenditure of diplomatic resources. Significantly more designations will be needed to avoid a diplomatic game of whack-a-mole. A more thorough application of sanctions is not unprecedented -- compare the eight entities and five individuals subject to North Korean sanctions with the 35 entities and 40 individuals listed under similar sanctions on Iran. But designation justification packages and identifiers are notoriously complicated to compile, all the more so when information on regime entities and individuals is so difficult to obtain. It is no surprise then that this is where the hard work of building consensus and U.S. focus should lie.

If North Korea continues its path of provocation, and there are few signs that it won't, the United States should focus on enforcement, rather than negotiating more architecture. The Obama administration should continue its recent efforts to unite with China, India, Japan, Russia, and South Korea to enforce the arms embargo and to hammer out the search and seizure procedures authorized in Resolution 1874. As North Korea's largest trading partner, China is the lynchpin to enforcement, and as such, the United States should make North Korea's trade and financial dealings with China a priority topic of study and subject of bilateral discussions. Information on trading in banned goods or member-state breaches of sanctions commitments should be brought immediately to the attention of the sanctions committee. The United States should work quickly to propose further entities and individuals for targeted sanctions, and the sanctions committee having taken a positive step in its designations last week, should now be given a long lead to fulfill the terms of its mandate. It should define a list of luxury goods and technologies banned under the sanctions regime, move quickly on further designations proposed by member states, and proactively urge countries to report on measures they have taken to implement the designations. Perhaps most importantly, if and when North Korea expresses an intention to return to negotiations, the Security Council should outline and demand results before allowing the sanctions process to drift once again.

That the situation could rapidly escalate into a military crisis is all the more reason to work quickly to use the wide berth of sanctions authorities so hard won. There is little point arguing about whether coercion is a successful strategy if coercive authorities that already exist have never been tried.