The Future Of Hamas, Gaza, And The Two-State Solution

>> Tom Church: This is the libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein. Here at Hoover, Richard is the Peter and Kiersten Bedford senior fellow. He's the Lawrence A Tisch professor of law at NYU, and he's also a senior lecturer at the University of Chicago.

Richard, this week I'd like to talk about your column surrounding Gaza and as you call it, the elusive ceasefire. Many, many calls for ceasefire, nothing there yet. The United States just vetoed a resolution in the UN. We'll get into this. I want to point out, Richard, today's February 23, Israel has largely completed operations in the north of Gaza and is preparing to go into the south.

It's given Hamas an ultimatum, which is return all of the hostages or we will invade Rafa on March 10, the first day of Ramadan. And as you know, international pressure has been immense to prevent any more operations. We're going up on month five six of this conflict. President Biden proposed recently a six week ceasefire in order to work out hostage issues and put the two sides on a path to a two state solution.

So that's where we are now. Our colleagues who run Goodfellows, Neil Ferguson, John Cochran, had a very recent episode, had dense and you're on. And they were talking about the similar issue. Neil is actually in Israel right now chatting with israeli leadership, the people on the left and the right.

And one thing I think that struck me was that he said the country is unified right now and no one there is talking about a two state solution. I think that's a western or outside of Israel perspective. I think the phrase that they pointed out is that October 7 would not be Palestine's Independence Day.

And I think that's quite something to think about. In a piece in the Jerusalem Post today, it was revealed that Netanyahu's proposed to a Security council that Israel will, he wants to retain security control over Gaza and the West Bank, and I'm quoting, have a local Palestinian governance of technocrats to rule over the enclave.

So two questions for you. Do you think the israeli reaction that the two state solution is dead is a fair reaction? And do you actually think that that is not something that we should even be talking about right now, or should we be still pushing for that externally.

>> Richard A. Epstein: I think a two state solution is not only dead, I think it's suicidal. The definition of the state is the ability to defend your own borders and to create therefore, a military presence that would allow you to do this. You cannot possibly conceive of saying that the reward that you get for wanting on aggression is to give you a military force in the territory.

Because the moment you do that, they will find some reason, some pretext, some fraud, in which when they get other people to come inside their country to attack Israel from one or more directions, it's simply not going to happen because there's no way you could keep it demilitarized.

And everybody well understands this thing. So the only solution that I see is essentially a kind of grim return to a slight variation of the pre 205 situation in Gaza, where Israeli controls the dominant security arrangements. Why is that? Because there's nobody with whom it can share power responsibly at this point.

The United nations is a thoroughly corrupt and discredited organization. Probably has hundreds of people that participated with Hamas and their various activities. They cannot be trusted. There is no reason to think that Mister Antonio Guterres will clean out that organization with a fresh crop of people who might be more credible.

So they are gone on. It's quite clear that in the United States, there's no willingness whatsoever to engage in this. We have Joe Biden in this weird situation where he's trying to broker this futile search for priests while trying to cover his flanks in key states like Michigan.

So he sends his emissaries to Dearborn to say, really I think these really have gone over the top. A statement which is utterly irresponsible on his report. But he is essentially the best that we have relative to all other countries in trying to deal with this issue. So there's a kind of a basically gingerly interaction between the two of them.

But it will never lead to the level of trust whereby that the United States could broker a two state solution. And then the second question is, whom do you negotiate with? One of the metaphors I like to give is that West Germany survived after the second world war because they were able to find Conrad Adenhauer, who managed for 13 years to organize that shift.

There is nobody on the Palestinian side who has any credibility with anybody anywhere. No Hamas person could come in there. It turns out Abbas is 86 or 87. He's useless in any event, he's not been prepared to condemn Hamas for anything that it does. There's nobody else on the arab street who has basically taken a public position.

My own guess is that they would be quite happy to see Hamas destroyed because it essentially prevents anything else from happening of a constructive nature when there are real opportunities. After the Abraham recalls for the Israelis to make very responsible deals with the Saudis and with other countries, Qatar and so forth.

Even the secret for that is that the Israelis have to agree not to annex the West bank, which would be a horrible mistake in my view, if they tried to do it in an exchange for normalization of relationships. That means there's only one solution, which is the military force remains Israeli, and then there will be enclaves overseen by the Israelis in which local police forces will maintain order.

And after that is done, and you shut down the tunnels, what you try to do is resurrect the strategies that failed earlier on. Create all sorts of ways in which there can be people who live in arab controlled areas, who work in Israelis. Create a situation, hopefully, where you can have israeli plants move into arab areas, or think thats much harder so as to create low level trust on the ground with commercial relationships.

And then slowly, you may be able to go back to the Bernstein era, where well have an Arab Israeli orchestra that will be able to play in the streets of Tel Aviv and so forth. But that's about it in terms of Hamas has overplayed its ham. We don't even know how many of those hostages are alive, but there is no obligation whatsoever to pay ransom in order to recover people whose liberty should be given to the missive, right?

So the situation is essentially poised. There's gonna be a little bit of peace, but remember, it's not gonna be that there's gonna be no military activity taking place. The Israelis are probably doing stuff right now by way of preparation, maybe stuff in the tunnels and so forth. They're not gonna tell me exactly what it is that they're about.

But sooner or later, there's gonna be a massive effort to destroy the last remnants of Gaza by going into Rafa, going into the tunnels, and getting everybody out. My ideal, but I don't think it can happen, is that the Egyptians will let women and children go, cross the Rafa border onto the other side, into camps.

And if that doesn't work, which I doubt it will, then you try to find some land where you know, there's no tunnels in Gaza, and put up a bunch of ten cities and say to civilians, you could come here. As we continue with the attacks, even that is likely to be stymied by Hamas, who wants to use human shields whenever it can in order to slow things down.

But at this particular point, the Israelis have lost their patience. They will not, in fact, allow any such techniques to slow this thing down. So when it comes, it's going to be an effort to minimize harm. As they've tried to do consistently throughout, using telephone numbers and so forth, to figure out where people are hiding and using precision weapons of one kind of sort or another.

But they're not going to stop until everything is done. It would be crazy to do so. They know it, everybody else in the world starts to know it. What we need to do is to get the rest of the public throughout the Western civilization, Asia, wherever it is that people are Israeli, to recognize that they can't attack the Israelis anymore for villainous behavior when Hamas has been corrupt beyond all measure.

>> Tom Church: Next issue, Richard, I wanna talk about the hostage situation. In recent operations, the IDF has posted videos of tunnel systems that they've been discovering where they believe hostages have been held, mostly because they've found the Red Cross medicine there for the hostages that clearly wasn't delivered. This is just a sticking point, I don't believe Hamas will hand them over anytime soon.

I guess I'd like to know, Richard, is the taking and holding of hostages accepted in internationally accepted laws of war, rules of war?

>> Richard A. Epstein: No.

>> Tom Church: Again, there's a lot of pressure in Israel to stop operations, and yet the pressure on the other side for Hamas to give up.

I mean, again, there have been many, many calls. Many of the ceasefire proposals are, Hamas, you give all the hostages back. Israel, you pause operations, and let's figure some stuff out. So what is the attitude of taking hostages?

>> Richard A. Epstein: Not just Well, the international war rule is categorical.

Taking civilian hostages unrelated to military activities is a violation of every single norm. Even this corrupt ICJ, which waffled on every other issue, said that itself, is that the Palestinians have an unconditional and immediate duty to release all hostages. Well, that's said in the report. And then everybody concedes to ignore him.

And so the correct response is to say you get nothing in exchange. It is not part of international law that you have to ransom people by giving criminals a free pass to go back. And I think after that last instance of that one private Gil Salad, whatever his name was, was saved in exchange for releasing 800 or 900 people, many of whom are Hamas leaders.

The Israeli attitudes on this is absolutely ironclad. We will do everything we can to get these hostages out, everything we can to punish those who knows how, who have committed it. But we will not yield another exchange because that is simply feeding another war which will come in another day, in another place, and in another way.

So the hostage stuff is dead. And in fact, what happens is now that Hamas has played hardball, it means that there's no ceasefire possibility of any sort. There will be more deaths that are going to take place. Many of them are going to be, essentially, avoidable in a better situation, not gonna happen.

The Israelis, they are putting timetables out. The first thing you remember is you keep the timetables. You recall that there was the situation in 1991. You may not have been old enough, Tom.

>> Tom Church: That's right.

>> Richard A. Epstein: It's over 33 years ago, right? In which George Bush said, the first one, said, you have until March 15th at 12 o'clock to, basically, yield to our demands.

And when do you think he launched the planes?

>> Tom Church: 12 o'clock.

>> Richard A. Epstein: No, 12:01.

>> Tom Church: 12:01, good enough.

>> Richard A. Epstein: You're good enough for government work, right? But that's the whole point about this. The moment you start backing off a sharp deadline, you're toast, and you have to do it.

This is not a world in which bluffing works. And so the Israelis understand this all too well. Now, I think one of the things I most admire about the Israeli military and its general strategic command is that they're extremely adaptable and they learn from their past mistakes. And their past mistakes was being much too kind on this front.

And they've all become hardliners. I see no alternative to this. The more you love peace, the more you want them to be hardliners now, because that's the only way to shut this conflict down. And the only way you can rebuild Gaza is to get rid of Hamas and all of its trappings, and then hopefully sensible civilian government can start to work in cooperation with outside sources in order to clean up the mess.

But so long as Hamas is part of the picture, nothing constructive will happen. And let's be very blunt about it. A ceasefire does not rebuild a school, a hospital or a home. It just stops firing until somebody breaks the ceasefire, at which point they're at it again. So there are many people who said the Israelis have no system to figure out what they want to do after they throw out Hamas.

And the response is, nobody has any idea what to do if you're gonna have a ceasefire. How long it's gonna last, how it's gonna be enforced, all of that stuff is all pie in the sky. And so you have to become, almost by default, a hard liner. There's just no other alternative out there.

It is the most appalling thing to have to say that the only way to solve the problem of saving lives of Palestinian children is to engage in activities that will, in the short run, kill a very substantial number of Palestinian children unless it turns out Hamas relents. And as best I can tell, there's not the slightest part they would relent.

So you have to ask yourself what kind of negotiations do you have to create a separate state with somebody who's sworn to destroy? It's just not going to happen. This is a world tragedy unfolding, and all the blame belongs on one side. There are no antecedent conditions that could excuse any of this.

Ironically, Gaza flourished under Israeli control. And if they just kept, they would have tried to make it into a financial mecca or a tourist mecca of one sort or another. But they blew it all on building tunnels and killing people.

>> Tom Church: Let's talk a little bit about the conduct of the war and the Palestinian approach well, I say Palestinian, let's say the Hamas approach to fighting against Israel.

As you point out, part of Hamas strategy is for there to be a high civilian death toll because it cannot stop the IDF if Israel decides to keep going with its operations in Gaza. I mean, the estimates maybe have been half of Hamas fighters or leadership have been eliminated so far.

And then now they're going into the south. So its only hope is for the UN to step in and try to impose a ceasefire. But, Richard, the way that they fight has kind of, it puzzled me for a long time because I come from this. I've studied Clausewitz, and you defeat an enemy to fight by defeating its center of gravity.

In a liberal democracy, it's the political will to fight. So if you want to fight against the United States, and you are a small group, you SAP its political will by killing soldiers and putting it on the front page in the New York Times. But if you attack civilians, we're coming for you.

And Israel, we just had Hamas kill, capture, maim, rape civilians. And it's puzzled for a long time why you do this. Because it doesn't work, they unify, the world comes to the tune. But I've been looking into this. And so the idea, the argument I've gotten is that, listen, from their perspective, Israel is a settler colonialist nation.

And so the history of the 20th century of fighting colonial powers has been armed struggle to impose higher costs so that they get out. So I want to know, is that, is this a reasonable approach? And they're saying, well, what should they be doing instead?

>> Richard A. Epstein: It's suicidally crazy on this issue.

I mean, settle the colonialists. This is a very dominant trope that we have in the United States.

>> Tom Church: Is it appropriate at all for Israel?

>> Richard A. Epstein: That's not even appropriate in the United States in many cases. There are areas of conquest, but there are many areas of where there were cooperation.

The Indian relationships in the East in the US were very different from what they were in the West. You did not have a Custer's Last Stand in the Hudson River Valley. But if you go there, one figure I like to remind people of is the number of Jews that were displaced from Arab countries in 1948 was probably larger than the number of Arabs who left under one or another set of circumstances in the 1948 rules.

Remember, it was a complete pandemonium. There were Israelis who were determined to force them out in order to be able to mount a safe defense without having to kill civilians. And then there were the Arab leaders who said, the only way we could attack the Jews is for you to leave and we'll get you back into your homes when they're all gone.

And so there's a pell-mell type situation. Nobody could figure out what is the cause of what. And then when you get the ceasefire, what you should try to do immediately is to sort of normalize and stabilize situation. But you recall Gaza was in egyptian control until 1967 in the six Day War.

And at that particular point, things were not particularly good because the Egyptians were never prepared to let people who were in Gaza come out and go back into Israel, rather into Egypt. And it turns out no other arab country was willing to take them. Well, at this particular point, you have a bunch of Israelis who have the following composition.

Some of them are refugees from world war two. Some of them are refugees from Russia and other East European places. But a huge number of these people come from the Middle east themselves. And this is gonna be a very tough lot. You're not going to find any weak chink on this particular issue, because if it's not here, there's nowhere we can make our last stand.

To call these people settlers is a little bit crazy. Now, it turns out, and I've always thought that the single biggest weakness of the Israeli policy is that they are too aggressive in trying to take small towns or areas over inside the West Bank. And in general, I would want to see them limit their territorial expansion and then to expand solely within those territorial boundaries.

That was the position that was put forward by Elliot Abrams, who I regard as an extremely gifted commentator on this situation. And then to our great sorrow, Hillary Clinton basically messed up that deal around 2010. And the moment you start doing that, then nothing is possible. So the Americans have not been very good on this stuff because we've been very inconstant.

And the efforts of John Kerry, one of the more mindless people in public life, to sort of sit in a room and force everybody to agree to a deal that only he likes is just further evidence of how bad it is that we have done. So I think you have to get rid of that particular metaphor and realize, in effect, that for these Israelis, there's no place to go home.

This is not like British services soldiers leaving India and returning to Essex or to Devon. This is English soldiers. If they leave, they're gonna be killed or gonna have no place to be. So don't even start to think about that. And the same thing is with respect to apartheid.

The Israelis have one serious problem that overrides all others, namely the problem of national security. And it turns out that a danger to national security does not require every Arab who lives within your boundary lines to reveal secret. But it does result to problem if one or two people get into a unit and they blow that information to the enemy.

It's parallel, so the Israelis have done, I think, a difficult and sensible thing. Difficult, but sensible is they do not include Palestinians in the army, but they integrate them into civil society and every other role. And I think they've tried pretty hard to do that. The idea that this resembles apartheid when you wanted to exclude everybody from everything is just simply beyond the belief.

And the Israelis have to keep with exactly that strategy today cuz otherwise, they can be beaten from within. So I don't see any alternative that you can propose that makes sense. I don't regard myself as a great Middle East strategist, but I do have Epstein's law of Jewish negotiations with the Palestinians.

And the rule is as follows. The only concessions that you make to somebody else are those if they violate everything that they promise on their side, you're better off having made the concession than not. And so the should the Israelis have gotten out of Gaza in 2005, or when they were trying to defend 8000 settlers in a country which had almost two million people.

There's a huge debate over that. My own view at the time was, get out. And the moment they attacked and come back with overwhelming force, what happened is that scenario did not work in 2023 because they fell asleep at the switch and it was an absolute catastrophe. Now how do you evaluate the first decision to get out?

Do you evaluate on the assumption that they'll keep their guard up and will never have a fiasco like in 2023? Or do you assume, the moment you get out, sooner or later, there'll be a fiasco like 2023? It takes a very fine mind to figure out exactly which is the correct answer on that case.

I don't know what it was then, but I do know what the answer is now, which is you just don't get out. This is going to be a permanent state of enclave. And the trick is trying to make it work with low level cooperation on the ground without the ability of Hamas or any other organization that is disrupted by the use of force.

There's a long history in Arab, Israeli arrangements where if it turns out there's some modus operandi between some and many large numbers of Palestinians and some Jews. Some extremist group will always shoot it up in order to prevent the cooperation from taking place. That's the great peril, and if that kind of activity takes place, it has to be met with very powerful force.

The only way that the Arab israeli problem will be solved is not from the top. It will be solved from the bottom by mutually advantageous commercial, educational, and other kinds of cooperative relationships. If you can put those together, this whole thing is going to die. I think the Israelis understand that.

I hope when Hamas is obliviated that other arab nations will come to see the wisdom of that particular situation. Cooperation through trade and low level interactions is much better than trying to have a diplomatic association negotiated by the top when you don't have any legitimate leaders on the Palestinian side to lead what's going on.

So that's essentially is what my view is. I regard this as an optimistic scenario, but I don't think that you will ever see a Palestinian state. They forfeited and blew it too many times. And I don't think there's any way in which you could go back and pretend that it's 1947, right after the partition.

>> Tom Church: You've been listening to The Libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish on defining ideas at hoover.org. Now if you find our conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in.

For Richard Epstein, I'm Tom Church, we'll talk to you next time.

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