The settlement project in the West Bank is not just a collection of rickety caravans installed on Palestinian farmland that can be dismantled upon the signing of a peace agreement.
Costing $17 billion and populated by more than half a million Israelis, this enterprise has become a huge colonialist and real estate enterprise. It sprawls across twelve million square metres of roads, homes and factories on some of the most important Palestinian geographic and agricultural land.
This construction includes 32,000 apartments, 23,000 private homes, and an additional 868 public facilities to satiate the Israeli settlers’ social and economic needs.
A simple look at the list of public facilities (most segregated for Israeli Jews only), exposes the extensive development and investment of the settlements industry: 321 sports facilities, 344 kindergartens, 211 schools, 717 industrial structures, 187 shopping centers, 21 libraries, and 15 banquet halls. These figures are based on a 2010 Israeli study on the West Bank that excludes East Jerusalem, which would have made these figures even greater.
Many of us living inside the West Bank are witnessing the reality (that is perhaps just too difficult to swallow); that Israel’s prolonged occupation is very much entrenched. It is here to stay, and worse, the yet unincorporated land is too spread out and disconnected to create a viable Palestinian state.
Some international actors also recognise this reality. Richard Falk, the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, wrote in his report in August 2010:
“After more than four decades, it is appropriate to conclude that Israel’s occupation of Palestinian territories has ceased to be temporary, and acknowledge that it has become tantamount to permanent.”
The current Palestinian leadership seems to be acknowledging this entrenched reality as well. Rather than challenge it, its solution is to abandon sovereignty over these vital and organic West Bank land expanses through the legally questionable ‘land swaps.’
Others are not giving up so quickly. Many political, academic and civil society actors have been challenging the dominant two-state framework and the strategy of endless engagement in a so-called peace process and are examining other political paradigms.
On the legal front however, this reckoning has been slow to catch up. International law advocates, organisations, and institutions along with some in the Palestinian leadership are still heavily reliant on an occupation law paradigm to scrutinise Israel’s colonising activities, to define Palestinian rights and support a seemingly never-ending peace process.
International law playing catch-up
The Palestine movement has relied on legal paradigms to support its political positions and legal claims since the 1948 Nakba. In its role of ‘supporting actor’, the legal paradigm is important because it provides legal legitimacy to the Palestine political claim.
In addition, it offers internationally acceptable framework by which to hold Israel and other states accountable for violations and failing to implement Palestinian rights. In the early 1950s for example, Arab states demanded the return of all Palestinian refugees not only in light of UN General Assembly Resolution 194, but also in the framework of implementing the Universal Declaration of Human Rights.
With regard to the repatriation of refugees the delegations of the Arab states maintained that there could be no limitations on the return of the refugees. In making its proposal, the Commission has not only contravened paragraph 11 of General Assembly resolution 194 (III), which set no limit on the right of the refugees to return, but had also sanctioned a flagrant injustice and had disregarded a right confirmed by the Declaration of Human Rights. As long as Israel refused to allow the return of the refugees, there could be no peace in the Middle East.
In the 1964 PLO charter, the legal paradigm of the right to self-determination formed the basis of the PLO’s raison d’etre -- to reject the UN Partition Plan:
“Article 17: The partitioning of Palestine, which took place in 1947, and the establishment of Israel are illegal and null and void, regardless of the loss of time, because they were contrary to the will of the Palestinian people and its natural right to its homeland, and were in violation of the basic principles embodied in the Charter of the United Nations, foremost among which is the right to self-determination.”
A narrowing of the paradigm
UN Security Council (UNSC) resolution 242 effectively reduced “Palestine” to the 1967 militarily-occupied parts and marginalised most Palestinian rights outside of the occupied territory.
When the PLO began accepting UNSC 242 in the late 1980s, the broader legal paradigms that covered most, if not all Palestinians, also began to be supplanted by a much narrower International Humanitarian Law of Occupation (“IHL”) paradigm. This fragmentation deepened during the Oslo Process during the nineties and given further effect by the recent admission of Palestine as a non-member Observer State in 2012.
The IHL occupation law paradigm is based on the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the 1949 Fourth Geneva Convention -- and its additional protocol.
These laws are designed to protect civilians during hostilities and military occupations. An occupation per se is not illegal under international law; IHL focuses on the extent of the occupier’s authorities and privileges, and its obligations to protect and provide for the civilians under its occupation.
The privileges and authorities granted to the occupying power are premised on the assumption that the occupation is “temporary” and that “l’ordre et la vie publics” (public order and safety) should not fall into chaos during the period between occupation and a peace agreement.
Occupation law allows for the suspension of national sovereignty and self-determination and other economic rights during the occupation on the same premise: that this would be for a short period until a peace agreement is arranged and the occupying power withdraws.
Occupation law could be a useful tool to protect Palestinian civilians under a short-term military occupation, if its rules were enforced. IHL’s principles prohibiting settlements, annexation, transfer of populations and extensive destruction are useful in justifying criticism and non-recognition of Israel’s policies.
However, today’s reality is not just a short-term occupation, but something clearly entrenched and probably illegal.
While there are enforcement remedies for certain serious violations under occupation law like torture and murder, there is no clear remedy to address prolonged occupation and illegal colonisation.
No mechanism exists under The Hague Regulations or the Geneva Convention either to end the occupation or to declare that the Israeli kind of prolonged occupation has become illegal.
The occupation law paradigm is dependent on a peace agreement to end the occupation. When that peace agreement fails to end the occupation, as in the case of Palestine, this law does not provide an equal and alternative relief.
Effectively, the ‘temporary occupation’ premise remains in effect indefinitely. Self-determination and national sovereignty are not just temporarily suspended, but progressively impeded.
The occupation law paradigm as applied in the Palestine case, validates the necessity of having a peace process. Those advocating this paradigm in the Palestinian leadership and the international community are compelling the rest of Palestine’s advocates to wait (indefinitely) until this peace agreement appears to make the occupation illegal and terminable.
Jurists concerned with advancing Palestinian rights must question why they must wait and rely on this IHL paradigm, when there are other legal paradigms and remedies to implement concurrently, that can outlaw the occupation and thus make Israel’s every move in the occupied territories illegal and without any IHL justification.
Occupation law validates a never-ending peace process
IHL has other weaknesses that should cause jurists to question its efficacy to regulate Israeli actions and advance Palestinian rights. Most important, while it contains several enforcement mechanisms for violations of the Convention, State Parties have never really shown the political will to use these and enforce IHL in the occupied territories.
Rather, enforcement of IHL is routinely presented by the international community as prejudicial to the “peace process” and the Palestinian leadership has often bought into this position.
A vivid example of this occurred in June 1999, when the first ever international meeting was convened for the State Parties to the Fourth Geneva Convention on Israeli violations in the occupied territories - a meeting that had taken years to materialise.
Political pressure on the PLO lead them to agree not to object to adjourning the meeting after fifteen minutes. A statement released by the conference later stated that the meeting was postponed “taking in consideration of the improved atmosphere in the Middle East as a whole” – that being the election of Ehud Barak of Israel’s Labour party replacing Benjamin Netanyahu of the Likud party.
Ironically, it was under Ehud Barak’s same leadership that many severe violations of IHL occurred subsequently, including large expansion of settlements, and also aerial assassinations and bombings of civilian sites when the Second Intifada broke out a year later.
Another problem with the dominance of IHL in the legal paradigm is that while there is a reduction of the occupiers’ obligations a year after cessation of hostilities, there is no significant reduction of its privileges and “military necessity” authorities. This is the case even when the occupation becomes protracted and takes on illegal characteristics like annexation and discrimination.
This lacuna in IHL has provided a base for Israel to assert (and Israeli courts to legalise) an indefinite set of governmental authorities and privileges that it uses to expand the settlements and limit Palestinian political and economic development. Examples of these include: Israel’s ongoing control of building and planning in Area C and East Jerusalem, its continued use of military seizure orders to take large amounts of land to build the Wall and settler roads, and its annual quarrying of seventeen million tons of Palestinian stone- over nineteen percent of which is taken to Israel.
Framing the Palestine problem as primarily an international humanitarian law issue also helps justify the international humanitarian assistance industry in the occupied territories worth hundreds of millions of dollars of taxpayer monies worldwide.
In 2013 alone, the humanitarian industry requested from donors $400 million to implement 157 humanitarian projects -- only17 by local NGOs and the remaining 140 by international NGOs and by UN agencies. Twenty million dollars was requested by UN agencies just to coordinate and support this assistance.
Unlike other types of international assistance, the humanitarian assistance has no real long-term benefit for Palestine, since it basically aims to alleviate symptoms of the ostensible humanitarian crisis, and not address its root causes, in this case Israel’s colonisation enterprise.
International donor states state that they fund this “Band-Aid” type of assistance to prevent a deterioration of the situation. Yet the more time that passes and the international donor states fail to end the Israeli occupation, this assistance effectively serves as a compensation for their political impotence in resolving the root causes of the problem.
Moving beyond occupation law
As historic Palestine has become completely fragmented, so too has its legal paradigm. Political and legal attention has been narrowed into the IHL paradigm that cannot end the Israeli occupation of the West Bank without a peace agreement, and, irrespective of the peace process, fails to address the rest of the Palestinian cause.
What is needed is to incorporate relevant IHL principles and enforcement mechanisms into a more comprehensive and relevant legal paradigm.
Such a paradigm could include international principles against colonialism and the Apartheid Convention. If applied to Israel’s actions, for example in a second Advisory Opinion from the International Court of Justice, both of these paradigms could advance the “illegalisation” of the occupation, and thus justify the demand for its termination even before a peace agreement is reached.
Another paradigm to include is the right to self-determination, which is defined as the right of all peoples to “freely determine their political status and freely pursue their economic, social and cultural development.”
“Freely determine” should encompass the elimination of all physical and bureaucratic barriers for Palestinians to meet, discuss and choose their political status including their representatives.
Relevant to Palestinians worldwide, the right to self-determination is a paradigm that fosters unity for all Palestinians. Under international law, the right to self-determination is an inalienable right. It is considered the primary human right -- a precondition to the enjoyment of all other human rights.
An Advisory Opinion is only one tactic to move forward. Enforcement of some of these principles does not have to depend solely on the good will of international parties. International civil society and Palestinians themselves can utilise these paradigms to challenge the current IHL discourse, push their leadership to adopt the broader paradigms and take creative actions to encourage a paradigm shift.
On 8 May, an international law conference will take place at Bir Zeit University, which will address these very issues. The conference entitled “Law and Politics: Options and Strategies of International Law for Palestine,” is organised by the Birzeit Institute of Law, the Civic Coalition for Palestinian Rights in Jerusalem and the Decolonizing Palestine Project. The conference aims to:
“…create space for Palestinians to discuss options and strategies of international law from a theoretical and practical perspective. It will examine the currently dominant international humanitarian law paradigm, its merits, limitations and possible alternatives. Against the background of Palestine’s recent admission to the United Nations as a non-member observer state, it will critically reflect on the role and impact of the dominant paradigm on the Palestinian people, examine alternative paradigms appropriate for the analysis of Israel’s regime of prolonged occupation, and discuss practical, legal and political strategies that can build respect of the human rights of the Palestinian people, in particular the rights to self-determination and reparation, and the respective international obligations of Israel and third parties.”
Both the present and former UN special rapporteurs on the situation of human rights in the occupied Palestinian territories -- Richard Falk and John Dugard respectively -- will participate and present papers. This conference is expected to take the first steps towards transforming the Palestine legal paradigm to a more comprehensive, relevant and effective legal strategy for Palestine.
This article was first published in Jadaliyya