Biden says he's pushing a 2-state solution. Let's put him to the test.

The Biden administration is wrestling for a two-state solution to the Israeli-Palestinian conflict — or so it claims. President Joe Biden has insisted that the war in Gaza must end with a pathway to Palestinian independence, a proposal Israeli prime minister Benjamin Netanyahu has loudly rejected. Arab governments have tried to sweeten the deal, by offering to normalize relations with Israel in exchange for “irreversible” steps towards a Palestinian state.

There’s one irreversible step Biden could take with or without a deal: granting the Palestinian Authority diplomatic recognition. Experts say that the U.S. president has the power to recognize the State of Palestine, with immediate legal effects, and would most likely be able to push the United Nations to recognize Palestine as well. The president would not need permission from Congress or Israel, despite the fact that Israeli troops remain in control of most Palestinian territory.

“Even if the exact borders haven’t been defined, Israel was recognized as a state without defined borders, so it’s not an insurmountable obstacle,” said Khaled Elgindy, former adviser to Palestinian negotiators and current head of the Program on Palestine and Israeli-Palestinian Affairs at the Middle East Institute in Washington.

Biden is unlikely to make such a drastic move. His administration has opposed steps as basic as a ceasefire in Gaza, while running past Congress to flood Israel with generous military assistance, including ammunition refills and targeting support. Although Biden administration officials have portrayed themselves as helpless bystanders to the Israeli-Palestinian conflict, trying their best to create the conditions for a solution, experts and former officials say that the administration has a variety of tools it has so far chosen not to use — both diplomatic recognition and other moves short of it.

“On the ground in Palestine,” recognition of a Palestinian state “would not change too much,” argued human rights lawyer Zaha Hassan, a fellow at the Carnegie Endowment for International Peace. “It would likely change how third states deal with the issues following on the U.S. lead, however.”

U.S. State Department official Josh Paul had resigned from his post last October over concerns that the “expanded and expedited provision of lethal arms to Israel...would only lead to more and deeper suffering for both the Israeli and the Palestinian people.” In an essay published by the Los Angeles Times last month, Paul called on the Biden administration to recognize Palestine and endorse Palestinian statehood at the UN Security Council as the “first step” to a new peace process.

The United States previously blocked the Palestinian Authority’s bid for full UN membership in 2014. (It currently has a non-voting, observer seat.) Paul told Responsible Statecraft that no permanent member of the Security Council “would veto a U.S.-supported candidacy for Palestine.”

Everything from water rights to the use of radio waves and airspace over Israel and Palestine “would become negotiations between two equal parties rather than concessions from the occupier to the occupied,” Paul said. “For many of these there are international arbitration fora that exist that would suddenly apply.”

Making Palestine a full member of the United Nations would render Israel “a state engaged in aggression against another member state” under the UN Charter, said Hassan, the lawyer. That could have immediate effects under American law. The Arms Export Control Act, which regulates American weapons sales and military aid, requires foreign buyers to use American-made weapons for “legitimate self-defense” in line with the UN Charter.

After the Israeli air force bombed an Iraqi nuclear reactor in 1981, the Reagan administration temporarily suspended fighter jet shipments to Israel on the grounds that Israel had exceeded the limits of self-defense. If Palestine were recognized as a separate country from Israel, similar calculations may come into play.

However, it “really depends on the parameters of that recognition decision and what Israeli action we’re talking about,” said former State Department lawyer Brian Finucane, now a Crisis Group adviser. The United States could interpret Palestine’s borders and Israel’s right to self-defense in a way that continues to allow for broad Israeli military action.

Another immediate impact of recognition would be allowing Palestine to open an embassy in America. Previously, Palestinian diplomats were based in the Palestine Liberation Organization offices in Washington, which the Trump administration shut down in 2018. If Palestine were a state, it could open an embassy protected by international law.

“However, Palestine might not want to do that unless the president also stops treating the PLO/PA officials as terrorists,” said Hassan. The administration could waive immigration restrictions on Palestinian officials, but those officials may still be on the hook for civil lawsuits over violence against Israelis, due to the Anti-Terrorism Clarification Act, passed by Congress in 2018.

On top of the terrorism sanctions, any future U.S. administration could de-recognize the Palestinian government, warned Finucane, so “you need some kind of political consensus supporting” Palestinian independence to make it last. From the 1990s onwards, U.S. policy has been to support a Palestinian state as the end result of negotiations, not beforehand.

“It would almost certainly create a crisis in the bilateral relationship with Israel, which is the fundamental reason why it wouldn’t happen,” said Elgindy, the former adviser.

However, Elgindy insisted that there are measures short of recognition that the Biden administration could take. Biden has so far imposed visa bans on Israeli settler vigilantes who commit violence against Palestinian civilians. He could push more serious economic sanctions against the settlements. Elgindy pointed out that several American charities funnel money to the settlements, and Biden could easily revoke their tax-exempt status. Several New York state legislators are pushing for that measure.

Biden has also declined to reverse some of the Trump administration’s moves entrenching Israeli legal control over the Palestinian territories. Former Secretary of State Mike Pompeo had issued a memo declaring that Israeli settlements are not “per se inconsistent with international law,” and ordered U.S. customs authorities to label settlement products “made in Israel.” Biden’s State Department has not reversed either decision.

U.S. military aid to Israel is often cited by critics as another point of leverage that the United States refuses to use. Congress currently budgets around $3 billion a year in aid to Israel and is considering $14.5 billion in additional aid this year. There are signs Biden would have a willing partner in Congress if he decided to restrict that aid. Almost every single Democrat in the Senate has signed on to an amendment that would add endorsement of a two-state solution to the military aid package.

“Step One is the realization that there isn’t a military solution to this, and that only addressing the political dimension is going to resolve that. Right now, they’re doing both. They’re saying there is a military solution to the Israel-Palestine conflict, but we also want to have a diplomatic solution. You can’t really do both. It doesn’t make any sense,” Elgindy said. “Maybe they think that they mean it, but in reality, they are creating the conditions that make a diplomatic settlement almost impossible.”

Faced with the tradeoff between military and diplomatic measures, Biden is committed to continuing the Israeli war.

“You cannot say there’s no Palestinian state at all in the future. And that’s going to be the hard part,” Biden said at a December campaign event. “But in the meantime, we’re not going to do a damn thing other than protect Israel in the process. Not a single thing.”