Human rights in Palestine: from self-determination to governance

ABSTRACT

This article traces a number of historical junctions to show the limited normative and political purchase of human rights in addressing Palestinian demands for sovereignty and self-determination. The article shows how Israel speaks about and addresses itself to normalised settler colonial conditions that constitutively exclude Palestinians. Under these conditions, law and rights are wielded as technologies of rules that presuppose and articulate hierarchies of standings and claims that preclude Palestinian sovereignty and self-determination. Even though, historically, Palestinians have attempted different methods to engage international law and human rights, they repeatedly came up against a geopolitical structure of domination nested in a normative order that either relegates them figuratively outside its border or includes them only as an object of governance.

KEYWORDS:

• Self-determination
• governance
• anticolonialism
• Palestinians
• settler colonialism
• human rights

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Correction

In 1985, Ephraim Dowek, the Israeli Ambassador to the United Nations in Geneva, issued a strong statement condemning a report produced by a little-known Palestinian organisation Law in the Service of Man in collaboration with the International Commission of Jurists (ICJ) on Israel’s systematic use of torture against Palestinian prisoners.¹ In his statement, the Ambassador expressed dismay at the willingness of a respected organisation like the ICJ to take part in what he construed as a slandering exercise prepared by ‘a notorious front organization created by local PLO [Palestine Liberation Organisation] sympathisers’.² For the Ambassador, sympathy with the PLO rendered the report inadmissible. Regardless of the Israeli objection, the ICJ stuck by its junior Palestinian partner. The report drew broad attention to Israel’s misrule in the Occupied Palestinian Territories. The Law in the Service of Man itself became globally known as Al-Haq (The Right), one of the most respected and innovative human rights organisations in the global south. And human rights—as a discourse, a transnational moral politics, and an institutional network—began to make inroads into the question of Palestine.

Recently, in a repeat of the 1985 accusation, Israel proscribed Al-Haq—alongside another five Palestinian human rights and non-governmental organisations—for supposedly being associated with the Popular Front for the Liberation of Palestine (PFLP), a constituent member of the PLO.³ The proscribed organisations and their international supporters viewed the charges as a deliberate attempt to intimidate and silence them.⁴ While there is abundant evidence that this is true, Al-Haq co-founder Raja Shehadeh suggested that there is something more fundamental at stake in ‘this unfounded and patently untrue accusation’.⁵ For Shehadeh, the accusation imputes ‘that Al-Haq was not a genuine human rights organisation’.⁶ Regardless of how hard the organisation worked on substantiating its findings and legal analysis, Israel cast doubt on its genuineness and credibility. In both occasions of accusation, Israel invested little effort in refuting the details of Al-Haq’s findings; rather it largely sought to delegitimatise the organisation by association with the PLO—the widely recognised ‘representative of the Palestinian people’⁷—in the first instance or one of its factions in the second.

Regardless of the merit of the factual truth presented by Al-Haq, Israel’s accusations imply that its alleged association with the PLO prevents the organisation from embodying the moral truth that human rights express and symbolise. From the outset, Shehadeh and his colleagues were aware that ‘[a]ny claim made by a Palestinian as a Palestinian could be easily dismissed—as untrustworthy, partisan, and driven by a nationalist goal rather than by a genuine search for the truth’.⁸ A Palestinian as a Palestinian, it appears, cannot claim, speak, or embody the universal truth of human rights. There is much more at stake here than a conflict between the supposed impartiality of human rights and the partiality of a national liberation struggle. At a more foundational level, in Zionist thought and practices, Palestinians could not be a party to a genuine exchange from which universal understanding and normative prescription could arise because they ‘did not exist’ as the former Israeli Prime Minister Golda Meir flagrantly put it.⁹ The denial of Palestinian existence is integral to the Israeli reason of state.

A telling example of this denial is a 1949 letter to the Committee for the Designation of Places Names in the Negev by Israel’s first Prime Minister David Ben Gurion, in which he clarified the logic behind erasing any reminder of Palestinian existence. According to Ben Gurion, Israel is ‘obliged to remove the Arabic names for reasons of state’.¹⁰ Ben Gurion informed the Committee that rendering Palestinians politically and morally nameless is inseparable from dispossessing them of their land and sovereignty. As he put it: ‘[j]ust as we do not recognize the Arab’s political proprietorship of the land … so also do we not recognize their spiritual proprietorship and their names’.¹¹ For Ben Gurion, Meir, and Dowek, a Palestinian as a Palestinian names a challenge to the settler colonial reason of state that Israel expresses and represents. In order for this reason of state to prevail, it has to render the Palestinians as ‘disembodied spirits, fictions without presence, without traditions or future’, to cite Yasser Arafat’s words to the United Nations General Assembly (UNGA).¹²

It was five years after Arafat addressed the United Nations that Al-Haq was established in Ramallah in 1979. By then, human rights had ‘come to define the most elevated aspirations of both social movements and political entities—state and interstate’.¹³ The new organisation had no intention to compete with the PLO or ‘establish human rights work as a better form of expressing political opposition to the occupation’.¹⁴ In his diary published in the wake of Israel’s devastating 1982 attack on the PLO in Lebanon, Shehadeh insisted that he and the PLO fighters ‘are fighting for the same thing’ but with different tools.¹⁵ For Shehadeh, who is a trained lawyer, international law and human rights were underutilised complements to the mass and militant struggle that the PLO had been waging since the mid-1960s, with the added value that law transcends the asymmetry of power that typified the Israeli-Palestinian conflict. In the estimation of the young lawyer:

The reason why everyone suffers the destructive control of the powerful is because they don’t have the protection of the law. I want to promote the rule of law. When just laws are made they will apply equally to everyone, strong and weak, rich and poor.¹⁶

Promoting the rule of law promised to provide Palestinians with protection while furnishing them with an equal standing that the much more powerful Israel had been denying them for so long. In this meditation, Shehadeh prefigured current hopes to employ international law for the purpose of Palestinian liberation. International law scholar Ralph Wilde described this sentiment: ‘if only the law were enforced, emancipation would be realized’.¹⁷

This article examines the role of human rights in Palestine through the lens of a key discernible difference between Shehadeh’s new organisation and the PLO’s respective approaches to the question of self-determination. By tracing the development of Palestinian engagement with international law, it is shown that while the PLO, following the anticolonial principle, tried to uphold self-determination as the first step towards achieving Palestinian rights; Al-Haq, on the other hand and particularly in its formative years, ‘refrained from attending to self-determination in any detail or calling for an end to the occupation as such’.¹⁸ This was, in all probability, a way to evade Israeli intimidation and the stigmatisation of ‘being political or expressing nationalistic aspirations’.¹⁹ It nonetheless seems clear that, even if the lawyer and the fighter both fought for the same aspirations, they differed in their approaches to realising them.

This has not been inconsequential. It is shown that since the early 1980s, the form of human rights that Al Haq utilised has become a dominant normative and political framework through which the Israeli-Palestinian conflict has been conceptualised and approached. At the same time, Palestinian self-determination seems further away than ever. Human rights impact the framing of the conflict, inform the status claims of both sides, and provide evaluative judgments of their respective actions. Although human rights lends great sympathy to the Palestinians, Israel insists that the default normative and political identification of human rights are the preserve of the Jewish State. It is argued that the Israeli insistence mobilises a sanctioning of settler colonialism, a disavowal of anticolonial self-determination, and an aversion towards anticolonial activism, all of which are built into human rights discourses.²⁰ Israel addresses itself to a normalised settler colonial condition that historically dispossessed colonised peoples of their land and sovereignty.²¹ Under the settler colonial condition, law and rights are wielded as technologies of rules that presuppose and articulate hierarchies of standings and claims that disqualify indigenous peoples as claimers and bearers of rights. In contrast, settler colonial societies occupy privileged ‘ethico-political’²² status as bearers of rights and enforcers of law. In this capacity, Israel declares itself as a natural member of a putative ‘international community’ which stands as a ‘moral-political entity organizing the international order according to principles of law, fairness, rights, and humanitarianism’.²³ Palestinians have attempted different approaches to engage the international community, law, and human rights, however they have repeatedly come up against a geopolitical structure of domination nested in a moral-political order that either relegates them figuratively outside its border or includes them only as an object of governance. In this context, I show that, while international law and human rights have afforded Palestinians some opportunities to make claims, the correspondence between the ethico-political status of Israel as a settler colonial society and the international community as a moral-political entity limits the normative and political purchase of human rights in supporting Palestinian liberation and overturning the settler colonial relationships of domination.

Self-determination and becoming a Palestinian once again

The centrality of self-determination to the Palestinian struggle was a response to a political and ‘juridical erasure’ of the Palestinian people that went back to the British Mandate.²⁴ In the wake of the Nakba, international law and institutions restated this erasure by referring to the dispossessed majority of Palestinians only as refugees.²⁵ Palestinians, as refugees, were declared to be entitled to humanitarian care under international law through the formation of a specific agency to support them—the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). Palestinians engaged this agency while viewing it to be ‘part of the machinery of dismemberment and dispersion’.²⁶ The minority of Palestinians who remained in the new state were ruled by Israel as ethnic Arab, Muslim, and Christian, but never as Palestinians. Those Palestinians were subjected to a bifurcated regime of settler colonial citizenship that involves ‘two kinds of citizenship: … One is incidental citizenship, given to Arabs who remained in Israel after the Nakba. The other is essential citizenship, given to Jews as Jews’.²⁷ In general, after 1948 while Jewish settlers claimed exclusive sovereign political rights, Palestinians were regulated by international and Israeli laws as humanitarian and governed subjects. In both cases, their rights were detached from their status as a people endowed with political personhood and agency. For example, the Israeli Law of Return (1950) and the Citizenship Law (1952) are both based on Jewish affiliation. Even if a Palestinian acquires citizenship, as a non-Jew she/he is not a national of the state. The Nation-State Law (2018) furthers this trajectory by stating that ‘the Land of Israel is the historical homeland of the Jewish people’ and consequently ‘the exercise of the right to national self-determination in the State of Israel is unique to the Jewish People’.²⁸

Faced with an adversary determined ‘to secure territory while destroying the sense of peoplehood of those supplanted’²⁹ and an international community that admitted them only as humanitarian subjects, for Palestinians, following 1948, the question of peoplehood acquired critical importance not as a juridical category but rather as an existential and political necessity. Rather than seeking mere humanitarian and minoritarian recognition, they sought to re-establish their collective existence as a historical fact and a political actor. In doing so, they repeated a strategy that Palestinians had used since the time of the British mandate of resisting the ‘the name[s], the status on offer’ because they were ‘irreconcilable with their political understanding’ of themselves as a people with inalienable right to self-determination.³⁰

The national resistance movement that crystallised after the 1967 War reflected the drive to accentuate the political personhood and agency of the Palestinians. Edward Said, the most forceful anti-colonial Palestinian voice in the West, claimed that since 1967 ‘he [the Palestinian] has become a politicized consciousness with nothing to lose but his refugeedom’.³¹ Writing in 1969, Said highlighted the reconstitution of the Palestinian political subjectivity which he called ‘becoming a Palestinian once again’.³² As Said put it ‘today two ways of life enclose all other ways, which finally connect the main two. These two are being a refugee in a camp and being an active member of one of the resistance groups’.³³ This link gave birth to what the Palestinian anthropologist Esmail Nashif calls the ‘sovereign victim’—an annunciatory or declarative heroic figure that embodies the experience of the Palestinian collective as the suffering subject while expressing its political claims as a bearer of sovereign prerogatives.³⁴ The PLO was the institutional embodiment of this annunciatory figure. Its 1968 National Charter asserted the sovereign prerogatives of the Palestinian people who have ‘[t]he right to determine their destiny after achieving the liberation of their country in accordance with their wishes and entirely of their own accord and will’.³⁵

In contrast to a regional order dominated and parcelled by nation-states, the Palestinians asserted the political primacy of their peoplehood. As Susan Marks writes in another context, Palestinians, as a sovereign people, ‘not only insist[ed] that governments recognise certain important group rights, but also claim[ed] for themselves the right to formulate those rights’.³⁶ Through the representative status of the PLO, Palestinians led a determined campaign to gain recognition as formulators of rights and politics. On the ground, this drive clashed with the prerogatives of the State across the region. Against enshrined settler sovereignty, Palestinians named indigenous sovereignty; against regionally valorised state sovereignty, Palestinians stood for popular sovereignty. In both cases, they presented ‘a double challenge to the state-oriented conception of international law’.³⁷ Through regional mechanisms such as the Arab League and international forums such as the United Nations or the drafting of the Additional Protocols to the Geneva Conventions, the PLO sought to secure an equal standing as a nonstate representative of the Palestinian people. In line with anticolonial legalism, Palestinians sought to position themselves as active subjects of international law rather than its passive object.³⁸ The potential of human rights to contribute to this project was, at least initially, far from obvious.

The dynamic of difference: settler colonialism and human rights

Settler colonialism is a project of worldmaking by dispossession of land and sovereignty. It is conceptualised as an embodiment and extension of the rule of law in a lawless world.³⁹ In our own time, human rights are ‘the paradigm through which all of international law is viewed’.⁴⁰ Israel, as a Jewish state, is often seen as laying ‘a universal claim … by speaking for humanity in the voice of the victim’.⁴¹ In these circumstances, the name ‘Palestine’ itself became, according to Edward Said, ‘uncomfortably, indeed scandalously, close to the Jewish experience of genocide’.⁴² However, Israel as a settler colonial state lays a second forceful claim to universality by speaking for the law in the voice of its enforcer: the settler. If the first universal voice (that of the victim) is employed by Israel to question the status of the Palestinians as ‘the victims of the victims’,⁴³ the second universal voice (of the settler as embodiment of the law) is used to refute the possibility that a Palestinian as a Palestinian could embody or speak about the universality of the law or to be its proper subject. A Palestinian as a Palestinian is either an imposter who attempts to claim unmerited universal attributes or a usurper of universality. Although the first voice has weighed heavily on the representation of the conflict, it is the second that has effectively produced an ‘anomalous position’ for the Palestinians; as the settler monopolised the ability to speak in the name of the law, Palestinians—‘neither the bearers of national rights nor of human rights’—were disqualified from both national sovereignty and universal equality.⁴⁴

What is at stake in this battle is not the experiential gap between two victims but rather the unbridgeable distance between settler sovereignty and Palestinian peoplehood. This is a battle between a sovereign actor that claims the imperial racial hierarchical right ‘to purposively and deliberately lay down the law to all the other actors, including itself, that share its situation or sphere’ and a people fighting for its land and sovereignty.⁴⁵ In this latter capacity, a Palestinian as Palestinian presented a constant challenge to Israel’s settler sovereignty. Throughout its history, Israel hardly contested the substance of human rights norms themselves. Rather it frequently strived to present its own existence as the fulfilment of human rights and the Palestinians as the opposite. Using the first voice, in the wake of the atrocities of World War Two, Israel presented itself and was widely viewed as the restorer of human rights ‘through the restoration or the establishment of national rights’.⁴⁶ The second voice ensured that these rights accrued to the Jewish community in Palestine on the account of being ‘already civilized, and as carrying with them a bundle of rights and obligations’.⁴⁷ The second voice rendered Palestine a ‘figuratively empty place’⁴⁸ in which Jewish settlers not only made the desert bloom but also carried the burden of introducing the law to fill the civilisational emptiness of the Holy Land. In this emptiness, Israel came into existence as the fulfilment and enforcement of the law. Conceived as lacking the very qualities that Israel embodies, Palestinians appeared as an excess violation of the law, a grave infringement on the rights and obligations of settler sovereignty, burdening it with the responsibility to protect law and order. To that end, asserting and performing Israeli sovereignty is intertwined with protecting the normative order that underpins this sovereignty.

Israel challenged the legitimacy of Palestinian anticolonial resistance by reducing it to terrorism—a discourse of criminalisation derived from the logic of law and order. The terrorism discourse mobilises the ‘dynamic of difference’ that international law, according to Anthony Anghie, posits as ‘a gap, a difference between European and non-European cultures and peoples, the former being characterised, broadly, as civilised and the latter as uncivilised (and all this implies in terms of the related qualities of each of these labels)’.⁴⁹ In line with this delineation, Zionism and the State of Israel, deemed Palestinians as non-European (lawless) and as rebels (outlaws), and, in both cases, unable to make legitimate claims. In both capacities, they are more likely to be defendants than plaintiffs under the law.

The ‘dynamic of difference’ that Anghie detects in international law informed the cautious and evasive manner in which the Universal Declaration of Human Rights (UDHR)⁵⁰ attempted to address the question of anticolonial revolutionary violence. It is not easy to divorce Israeli intimidation of Al-Haq, in its formative years, from what Emma Stone Mackinnon describes as the disavowal of self-determination and rebellion built into the UDHR in 1948.⁵¹ The third clause of the UDHR’s preamble states that ‘whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.⁵² For the drafters of the preamble, as Samera Esmeir argues ‘rebellion is the space of compelled political action’ as opposed to the morally uncompelled and uncompromised free action that human rights represent.⁵³ Not only are human rights imperatives superior to anticolonial forms of actions but human rights themselves are the first resort against such action. Viewed through the prism of this logic, anticolonial rebellions were desperate actions which human rights can ‘police against … by prevailing in the law’.⁵⁴ In short, the UDHR foregrounds order and privileges law’s preservation and enforcement; it prefers the lawfulness of policing over the unruliness of anticolonial politics.

The UDHR was drafted at a time when more than half the world’s population remained subject to colonial rule and so excluded from the drafting process. It was a site in which ‘US racial politics and French imperial politics’ found a common cause in disavowing rebellion.⁵⁵ The American and French representatives, according to Emma Stone Mackinnon’s archival research, sought to ensure that ‘[r]ights were something to be provided by national, and colonial, governments, not something to be demanded beyond or in defiance of the nation’.⁵⁶ Stressing this point, the famed French representative in the drafting committee, Rene Cassin, maintained that ‘the right to rebel did not extend to Algerians. France’s actions in the colonies were aimed at spreading respect for rights’.⁵⁷ In Cassin’s estimation, Algerians under French colonial rule were duty bound ‘to obey the law’.⁵⁸ Accordingly, to rebel was to forfeit the legitimacy bestowed by the law. In this light, as Mackinnon notes ‘[a]nticolonial violence [was conceived as] evidence of a lack of respect for rights, and therefore proof of the lack of a legitimate claim to self-determination’.⁵⁹ The likes of Cassin were the same members of the international community that granted Israel default sympathy in its disavowal of Palestinian resistance and the concomitant denial of the Palestinian claim to self-determination.

The inadmissibility of Palestinian self-determination

While drafters like Cassin sought to preserve self-determination for the dominant few, anticolonial thought and practice sought to reinvent it in the service of non-domination. In its early iteration, self-determination was a constitutive feature of the ‘ethico-political judgment’ bestowed on settler colonial self-government.⁶⁰ Earlier liberal formulations of self-determination privileged settlers ‘as fully rational autonomous agents and granted [them] civilizational standing’.⁶¹ Based on this capacity and standing, settlers were licensed to exercise self-government. In contrast, colonised communities were viewed as lacking in certain ‘anthropological capacities’ that require prolonged schooling to overcome ‘political incompetence’.⁶² Objecting to this schooling logic, anticolonial actors formed ‘a vision of an egalitarian world that guaranteed the condition of international nondomination in which popular sovereignty could be exercised’.⁶³ In this new framing self-determination was neither a civilisational nor pedagogical achievement; rather, it was a prerequisite for a democratic ‘worldmaking’ project in which colonised peoples participate in formulating rights and policies.⁶⁴ While self-determination did not make it into the UDHR, in 1966 anticolonial activism at the United Nations succeeded in introducing it as common Article 1 of the International Covenant on Civil and Political Rights (ICCPR)⁶⁵ and the International Covenant on Economic Social and Cultural Rights (ICESCR).⁶⁶ A democratised United Nations was a primary site of this worldmaking project and the Palestinians were at once beneficiaries and participants in this project.

Under the new condition, the UNGA was refashioned as a political and experiential forum in which people of what was then called the ‘third world’ spoke in view of one another. These were the institutional and historical settings from which and to which Palestinians asserted their existence and affinities. Yasser Arafat’s 1974 speech to the UNGA was an example of the institutional and discursive effort to refashion both the United Nations as an institution and human rights as a discourse that foregrounds a reinvented self-determination. Arafat acknowledged that the anti-colonial effort to reconstitute the international order was the condition that made it possible for him to give a speech at the United Nations. As he put it:

The question of Palestine is being re-examined by the United Nations, and we consider that step to be a victory for the world Organization as much as a victory for the cause of our people. It indicates anew that the United Nations of today is not the United Nations of the past, just as today’s world is not yesterday’s world. Today’s United Nations represents 138 nations, a number that more clearly reflects the will of the international community. Thus, today’s United Nations is more nearly capable of implementing the principles embodied in its Charter and in the Universal Declaration of Human Rights, as well as being more truly empowered to support causes of peace and justice.⁶⁷

Arafat was able to speak from the rostrum of United Nations because the newly admitted nations sought to place this international institution in the service of solidarity and non-domination. Tellingly, Arafat commenced by greeting the Algerian president of the General Assembly session for being ‘in the vanguard of the freedom fighters in the heroic Algerian war of national liberation’⁶⁸ At the heart of this development was the turning of the principle of self-determination, which did not make an appearance in the 1948 UDHR, into a foundational right in 1966. For Arafat, the elevation of a reinvented self-determination as a foundational principle of human rights was a product of a revolutionary rupture rather than a normative and institutional continuity. The rupture challenged the legacy of the dynamic of difference in international law and effectively invalidated the disavowal of anticolonial rebellion.

If, as Hannah Arendt once suggested, ‘the fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective’, it was the egalitarian internationalism of anti-colonialism that gave the Palestinians as Palestinians ‘a place in the world’.⁶⁹ Having asserted their peoplehood and political agency through armed resistance and mass mobilisation, Palestinians followed the anticolonial model in seeking to invest ‘themselves and their actions with a sovereign juridical stature’ through the institutional and discursive opening created by the postcolonial condition.⁷⁰

But, in being part of this historical milieu the Palestinians gained another anomalous position as an ‘anticolonial liberation struggle that did not end up in a postcolonial independent state’.⁷¹ Being out of sync with the trajectory of decolonisation wedged the Palestinians between the fall of self-determination, the primary right endorsed by the anticolonial struggle and the 1970s rise of human rights as ‘a system of values and institutional system of global governance’.⁷² Under the new conditions, the Palestinian movement persisted as a ‘post-historical’ remnant that had outlived the normative and geopolitical conditions of its emergence. In this context, the PLO clung to the recognition it gained but lost the sway it had in formulating politics. The new anomaly required Palestinians to act differently and in a different capacity: from being a declaratory figure demanding inalienable national rights, to a performative figure seeking to ‘gain legitimacy from how their audiences judge them, in effect, from how they perform’.⁷³ The terms of that performance were increasingly assessed using a discourse of human rights that while not omitting the right to self-determination demoted it.

The idea behind the founding of Al-Haq, according to co-founder Charles Shammas, was enlisting the support of international actors ‘under normative language that they themselves understood’.⁷⁴ But even though Shammas and the other founders of Al-Haq were committed to Palestinian aspirations, the normative language that they deployed was one that had abandoned the anticolonial insistence on the primacy of self-determination. From the 1970s onwards ‘ideas of self-determination as either a human right in itself or as a starting point for human rights’ were not excluded, as they were from the UDHR but rather demoted in importance.⁷⁵ A noticeable expression of this abandonment is the failure of human rights mechanisms or procedures to address violations of the right to self-determination. Ralph Wilde observes that ‘the UN Human Rights Committee refuses to address self-determination on an individual level in individual complaints’ however

when the collective dimension of the right is violated, this is overlooked in favour of an exclusive focus on the individual dimension in country reporting. Either way, then, the more fundamental questions of violations of the collective right of self-determination are not addressed.⁷⁶

Wilde further notes the silence of major international human rights organisations on the question of self-determination and ‘the absence of the right of self-determination in the American and European regional instruments’.⁷⁷ The failure, silence and absence are all manifestations of a persistent disavowal. Anticolonial activism has interrupted the disavowal for over a decade at UNGA but has not overturn it. Viewed in this light, the Israeli intimidation of emerging Palestinian human rights activism is entwined with this broader institutional and normative disavowal of self-determination, as a human right or prerequisite for achieving human rights.

In parallel with the take-off of human rights in Palestine and the global demotion of self-determination, the Carter Administration officiated the 1979 Camp David Accords between Israel and Egypt. Seth Anziska argues that this agreement played a catalyst role in curtailing Palestinian self-determination. The Carter Administration sought to distinguish itself by declaring human rights to be a natural expression of American idealism in foreign policy.⁷⁸ In this capacity, it projected itself as the locus of an international community based on law, rights, and humanitarianism. The Administration identified three kinds of individual rights to promote and protect but self-determination as a collective right was not one of them.⁷⁹ This conceptualisation of rights coincided with Israeli insistence, prior and during the negotiation, that ‘the Palestinians as individuals possessed rights … but had no rights or status as a people or a nation’.⁸⁰ This conceptualisation and stance, according to Anziska, shaped and informed all subsequent efforts to solve the conflict in the Middle East. In the Camp David Accords, Israel—with the support of the American Administration—imposed limited ‘autonomy’ as a rubric for addressing the Palestinians, while facilitating the extension of Israeli sovereignty inside the occupied territories.⁸¹ In the past few decades, this Israeli rubric formed the basis of what came to be evasively coined ‘the peace process’, a process that foregrounds Palestinian compliance with international norms and mechanisms as a prerequisite of statehood. The effect of Camp David, Anziska concludes, is the ongoing denial of Palestinian sovereignty and self-determination under the watchful eye of the international community.

In 1982, in order to translate its Camp David gains into facts on the ground, Israel invaded Lebanon with the objective of diminishing the PLO (with American collusion and regional acquiescence). Edward Said, a member of the Palestinian National Council (PNC) at the time, observed in response to the attack that ‘the object of … violence’ and what has been ‘inadmissible’ is the very ‘existence of the Palestinian people whose history, actuality and aspirations, as possessed of a coherent narrative direction pointed towards self-determination’.⁸² It can be argued that while the founders of Al-Haq viewed their intervention in terms that were complementary rather than oppositional to the PLO, the new organisation operated in a revisionist global environment that displaced the primacy of self-determination and in a geopolitical situation that ruled Palestinian self-determination inadmissible.

A problem of government

Perhaps unknown to its founders Al-Haq was at the centre of inaugurating human rights as a ‘field’ of practice, in the sense outlined by Pierre Bourdieu, that involves international networks, documenting methods, professional training, normative standards, and a style of activism. ⁸³As Anthropologist Lori Allen notes, Al-Haq ‘helped establish human rights as a general discursive framework, an institutional form of activity, and a novel mode of political appeal in Palestine’.⁸⁴ Over time, a field of practice cohered as a relatively autonomous sphere of social activity that inevitably had cultural and political consequences. More than simply complementing the field of political and normative practices championed by the PLO, sociologist Lisa Hajjar claims that human rights from the mid-1980s provided ‘new ways of thinking, talking about, and intervening in the conflict’.⁸⁵ On the whole, Palestinian resistance was reframed, according to Hajjar, ‘as demands for human rights’.⁸⁶ Instead of a revolutionary warfare of mass mobilisation and repatriation, the emphasis was now on meticulous documentation of violations and seeking redress and recognition through legal avenues and normative precepts. This new reframing assumed the existence of a receptive normative order through which Palestinians could make claims and seek enforcement. Concomitantly, a shift took place from investing in the transformative law-making capacity of international institutions like the UNGA to ‘a greater tendency to invoke international law, and compliance with the law … as an end in itself’.⁸⁷

Hajjar argues that the 1979 establishment of Al-Haq set in motion ‘a counternarrative about the nature of the conflict as, foremost, a problem of government’, as opposed to other interpretations of the conflict ‘as a problem of terrorism, security, or land’.⁸⁸ This redefinition of the conflict as primarily a question of misrule or mis-governance that ‘strays from the liberal ideal of transparent and accountable government’ expressed a profound shift.⁸⁹ This new framing challenged Israel’s self-representation as a benevolent occupier that ‘enjoyed international reputation for being benign and scrupulous in its respect for rule of law’.⁹⁰ The recent series of reports by major international human rights organisations on Israel as an apartheid state is the highpoint of this counternarrative.⁹¹ However, as a problem of government, Israel’s violations largely appear as regulative and discriminatory in nature, rather than as expressions of a settler colonial logic that, in colonising land, deprives Palestinians of self-determination. Amnesty International’s landmark 2022 report Israel’s Apartheid Against Palestinians, for example, states that the organisation ‘limits its analysis to legal frameworks that explicitly address institutionalized racial discrimination’ and makes clear that this is because ‘Amnesty International does not take a position on international political or legal arrangements that might be adopted to implement [the right to self-determination]’.⁹² Like the evasive peace process, the framework adopted by Amnesty relegates the existential question of Palestinian self-determination to undefined arrangements. The report takes the one-state condition that Israel has created on the ground as given, and restricts itself to highlighting the multiple forms of discrimination various Palestinian communities are subjected to and calling for equality. The report does not address the formative settler colonial condition that has historically worked by elimination rather than discrimination. Discrimination is remedied by better regulations. However, settler sovereignty is a zero-sum game of domination that demands subordination. In the struggle for greater legal equality, Palestinians risk affirming Israeli settler sovereignty ‘in order to invoke a regulatory regime that is not concerned with the corresponding question of their own right to collective freedom’.⁹³

On the ground, human rights methods, norms, and style of activism have not only re-posed the conflict as a question of government but, in some cases, counterintuitively, they have participated in the colonial process of governance. Michael Sfard, a human rights lawyer who represented Israeli and Palestinian human rights groups including Al-Haq, provides a striking illustration of this entanglement, through which human rights lawyers became involved in humanising and legalising the occupation, as he recalls his role in the litigation against the Separation Wall in the West Bank:

The fence litigation posed a hard dilemma for human rights lawyers. While it failed to prevent the harm caused by the fence, its reduction of that harm by a substantial degree should not be underestimated. On the other hand, the lawyers behind the litigation became part of the creation of the barrier. Like a hill or an engineering impasse, we too were a factor that shaped the route. I did not like this insight. It took me a while, but at some point it dawned on me that I was one of the architects of the barrier, that there were sections where my signature might as well appear next to the Ministry of Defense Barrier Administration and the High Court of Justice, even though I objected to these sections, even in their mitigated format.⁹⁴

Mouin Rabbani, a former volunteer at Al-Haq in the 1990s offers another troubling insight: according to Rabbani the organisation’s strict adherence to human rights standards ‘translated into an emphasis on micro-violations to the detriment of [conveying] the bigger picture or engaging with questions specifically of national rights’.⁹⁵ Both insights suggest that in Palestine, human rights may expose violations and reduce harm but they are also entangled in the governance of Palestinian land and shaping Palestinian claims. Human rights appears to admit Palestinians as plaintiffs, providing them with two closely related options: either they submit themselves to an Israeli court of law, as Sfard’s example above illustrates, or they defer to the authority of international law to address ‘micro-violations’, as Rabbani observed. The first mobilisation of human rights dedicated itself to the task of preserving liberal legalism as a juridical instantiation of settler sovereignty. The second channelled Palestinian claims ‘through the liberal legal logic of global governance’, which never delivered on its promises.⁹⁶

The new framing of Palestinian human rights overlapped with the effort to settle the Israeli-Palestinian conflict in line with the rubric of the Camp David Accords. This effort culminated in the signing of the 1993 Oslo Accord between the PLO and Israel. In this Accord, the utterly exhausted PLO traded away its status as the representative of the Palestinian people in order to form the Palestinian National Authority (PA) as an ‘autonomous authority’ in limited parts of the West Bank and Gaza. Meanwhile, Israel continued to be, as a matter of fact, the ultimate sovereign that rules over the whole territory of historic Palestine. The Oslo Accord yielded a process in which the PLO accepted the schooling logic of global governance in exchange for paternalistic recognition. This recognition elided the Palestinian movement’s early challenge to the state-oriented conception of international law, in the name of a people ‘claiming for themselves the right to formulate … rights’ before being recognised by them.⁹⁷ Under Oslo’s terms of reference, ‘Palestinians were not a people but became one through recognition. This is different from a declaratory recognition that recognises them as already being a people’.⁹⁸ To put it plainly, Oslo offered the Palestinians a very late enrolment in the colonial classroom of ‘freedom … if they are deemed “ready”’.⁹⁹ In exchange for this belated enrolment, the PLO relinquished the anticolonial cardinal rule against colonial pedagogy: self-determination first, as a prerequisite of egalitarian relations.

Instead of national liberation or independence Oslo codified demographic separation under a ‘single hegemonic authority’.¹⁰⁰ Orna Ben-Naftali argues that:

The Oslo process has not been about Israel’s withdrawal from the West Bank, much less about the dismantlement of settlements; it has been about the fragmentation of the OPT [Occupied Palestinian Territories] and the reorganization of Israeli power: henceforth, Palestinians would cease to be of interest to Israel, other than for the purpose of their exclusion … The separation thus affected, is not about separating the state of Israel from a nascent Palestinian state. It is about separating Palestinians from their land, from other Palestinians and from Israelis. It is not about borders between states; it is about bordering the Palestinians in order to realize Israel’s sovereignty throughout much of their land.¹⁰¹

In this situation, Jewish Israelis are citizens with full political rights and Palestinians in the West Bank and Gaza are subjects with some civil and humanitarian rights, always exposed to ‘the administrative and coercive power of the state’.¹⁰² In other words, Oslo formalised ‘the legal and political separation of Israelis and Palestinians’ and produced a ‘bifurcated form of governance’.¹⁰³ The all-too-visible bifurcation accentuates the contradictions of Israeli liberal legalism but, at the same time, made self-determination appear a passé abstraction compared ‘with the institutions through which rights and resources are distributed’ on the ground.¹⁰⁴ The diminished PLO, in its failed attempt to achieve independence, seemed to collude with Israel in separating the two populations. The conflict was increasingly ‘understood as a conflict over legal rights’ within the bound of the only existing state that distributes rights and obligations unequally.¹⁰⁵

The effective one-state condition prompted calls for the ‘paradigm of collective sovereignty and separation … to be radically rethought’.¹⁰⁶ Tobias Kelly articulates this call by arguing that, under current conditions, the ‘creation of subjects with rights’ was ‘undermined by the contradictions in the claims of collective sovereignty that gave those rights meaning and political backing’.¹⁰⁷ The risk of such a radical rethinking is that in order to overcome the contradictions of collective sovereignty, the Palestinians, as the weaker party, may have to forsake their historical struggle against dispossession, in the process affirming and invoking a governing regime with a vested interest in denying their collective freedom. It is correct to argue that the current impasse is a product of the impossible space between Palestinian popular sovereignty and Israeli settler sovereignty. However, there is a constitutive difference between the two contending sovereignties and their respective trajectories. While the Palestinian trajectory is largely shaped by contingent historical conditions that foreclosed other possibilities, the Israeli trajectory was almost exclusively shaped by the dominative and eliminative logic of settler colonialism.

The most notable result of the Palestinian movement’s acceptance of what Edward Said described as ‘the schooling effects of the international environment’, was, as he notes, ‘the transformation of a liberation movement into a national independence movement’.¹⁰⁸ Independence as envisioned by anticolonialism was the normative caveat of this historical concession. This normative departure point was enshrined in the UNGA’s 1960 Resolution 1514, the Declaration on Granting of Independence to Colonial Countries and Peoples.¹⁰⁹ Adom Getachew argues that this resolution ‘announced … an anti-imperial world order in which the rights to independence and equality constituted the legal basis of non-domination within international society’.¹¹⁰ Rather than enshrining separation, the Bissau-Guinean revolutionary leader and intellectual Amilcar Cabral hailed the Resolution as creating the conditions in which anticolonial struggle ‘has lost its strictly national character and has moved onto an international level’.¹¹¹ But the sheer force directed against this project (Cabral himself was assassinated in 1973) and the relentless violence unleashed against the Palestinian movement served to strip independence of its internationalist, democratic, and anti-domination content. Independence as separation was the residue—the outcome of a historical defeat. While defeat may be a product of inferior force it should not be analytically equated with political and normative failure.

Separation and domination, on the other hand, are intrinsic to the thought and practice of Zionism as a settler colonial project. In the Zionist ideology, separation, as exemplified in the pre-state Zionist policy of ‘exclusive land and labour’, is ‘perceived as the norm’.¹¹² In the US’s settler colonial experience, the reservation system of separation was a way-station on the road to attempted elimination. ‘Subjugation and isolation’, Mahmood Mamdani argues, ‘robbed the Indian way of life of vitality and meaning … Indian culture was to an extent preserved, but it was placed in a museum, where it could no longer meet the problems of the moment or evolve to meet those of the future’.¹¹³ Similarly, separation combined with near absolute domination allows Israel to engage in wide-scale ‘procedural’¹¹⁴ or ‘invisible’¹¹⁵ forms of slow violence with ‘insidious effects … that can kill not only a (national) body, but its very soul’.¹¹⁶ For the late Israeli Prime Minister Yitzak Rabin, the Oslo arrangements correspond to the long-standing Zionist views of ‘separation as a philosophy’.¹¹⁷ Separation, in this case, is a technology of sovereign domination tied to the settler colonial imperatives of elimination.

Following Oslo, ‘Palestinians as a stateless nation began to witness the formation of nationless [nominal at best] state’.¹¹⁸ The statist project completely eclipsed the popular imperatives that sustained the revolutionary character of the Palestinian liberation movement. Oslo ushered in a performance-based, globally-officiated, state-building project under occupation in which ‘Israel’s sovereignty is given; Palestinian sovereignty must be earned’.¹¹⁹ At this juncture, human rights were enlisted as evaluative indicators of Palestinian readiness and deservedness of statehood and sovereignty. For example, ‘between 1999 and 2008 external aid to the West Bank and Gaza Strip increased by over 600% to $3.25 billion per year’ with rights-based organisations receiving the highest proportion of this aid (30%).¹²⁰ Palestinians were inducted to ‘identify, decipher and rationally act before [human rights as] knowable law [of humanity]’ to refashion themselves as ready and deserving liberal subject.¹²¹ What ensued was a tacit convergence of human rights and governance as performative indicators of legibility and eligibility. At this stage, Palestinians entered the uneven but integrated world of liberal governance ‘as occupied subjects, namely, subjects who are never included within the power to which they are subjected (as opposed to the citizen), not completely expelled from it (as opposed to the foreigner, or even more so, the enemy)’. The occupied subject, as Julie Peteet puts it, is thus ‘in an ever-lingering state of potentiality’.¹²² In this situation, sovereignty and self-determination are perpetually deferred.

The right to exist as a people

Edward Said, in a 1992 interview titled ‘People’s Rights and Literature’, doubted the ability of human rights to provide sufficient resources to address the specificity of the Palestinian condition. As he put it,

we are in a unique position of being a people whose enemies say that we don’t exist. So for us the concept of “rights” means the right to exist as a people, as a collective whole body, rather than as a collection of refugees, stateless people, citizens of other countries.¹²³

Instead of rights stipulated in humanitarian and governmental terms, Said insisted that, for the Palestinians, achieving national rights ‘is step one’. He argued that for the Palestinians

as a “people”, there are two things open to us: one is subservience and finally suppression and extinction; the other alternative is to exist in a national state with the rights that are allowed to most peoples in the world today.¹²⁴

Said here adopted the anti-colonial formulation of independence, sovereignty, and national rights, which as Adom Getachew has argued, did not foreclose solidarities beyond the nation state but ‘propelled robust visions of internationalism’.¹²⁵ Today, in a world in which individual rights have taken precedence over collective ones, Said’s sensibilities might seem anachronistic. But his view was characteristic of the predicament of the Palestinian fight against a globally triumphant settler colonialism that renders the Palestinian, as the title of his memoir attests, Out of Place.¹²⁶ The anticolonial moment gave the Palestinian as Palestinian a provisional place to stand and speak from. Anthropologist Ilana Feldman is one of many to note that the very ‘fact of continued Palestinian existence [is] perhaps the signal Palestinian political achievement over these decades’.¹²⁷ This achievement is largely an anticolonial achievement, a success that the Palestinians can still build on to open new emancipatory horizons.

The Oslo peace process is a symptom of the fall of the anticolonial project of self-determination. In Palestine, the weight of ‘the forces arrayed against’¹²⁸ this international project and its own internal contradictions fused with the Israel settler colonial denial of Palestinian rights. Human rights under the influence of anticolonialism provided the Palestinians with a platform to declare their peoplehood and demand their self-determination. After Oslo, in contrast, human rights were used as a performative measure of good and global governance, an assessment tool of elusive ‘readiness’. The World Bank and other international institutions recommended ‘that the implementation of good governance reforms, rule of law, and policies ensuring a conducive climate for investment were necessary preconditions for Palestinian independence’.¹²⁹ The precepts of good governance completely overlooked the anticolonial insistence that ‘the rights of peoples and nations to self-determination is conceived as a prerequisite for the enjoyment of all fundamental human rights’.¹³⁰

As part of the ‘performance-based and goal-driven roadmap to peace’, the American Lieutenant General Keith Dayton oversaw the reform of the Palestinian National Security Forces (NSF). Dayton boasted of creating ‘new Palestinians’:

… what we have created are new men. These new men of Palestine, they have shown motivation, discipline and professionalism, and they have made such a difference … senior IDF [Israel Defense Forces] commanders ask me frequently, ‘How many more of these new Palestinians can you generate, and how quickly, because they are our way to leave the West Bank’.¹³¹

As part of the professionalising of the NSF, Dayton established a human rights training curriculum. Dayton’s ‘new Palestinians’, to the relief of the IDF, are now ranged against those who still refuse to accept subservience, suppression, and extinction. For Dayton’s Palestinians, human rights serve simultaneously as a measure of good governance and a measure of distance from the Palestinian as Palestinian. It is this double measure that Israel mobilises to deny, intimidate and disavow Palestinian standing and claims.

In November 2022 Al-Haq published a landmark report, Israeli Apartheid: Tool of Zionist Settler Colonialism,¹³² that did not receive the same publicity and coverage as the recent reports by Amnesty International, Human Rights Watch and B’Tselem. In the tradition of anticolonial legal activism, Al-Haq’s recent report defines the discriminatory practice of Israel settler colonialism as a ‘mode of domination’.¹³³ The report asserts the Palestinian inalienable right to self-determination. And, notwithstanding Israeli intimidation, it calls on the United Nations, which disavowed that anticolonial legacy,

to begin repairing its own disarticulated approach and structural flaws that have contributed to the denial of Palestinian self-determination, the right of return, and bringing an end to the unlawful situation created through Israel’s settler colonial apartheid regime and its associated international crimes.¹³⁴

This is a worthy task. For it to succeed, it will be necessary to revisit the imperatives of the combined anticolonial projects of nation-building and worldmaking in order to address the persistence of the settler colonial condition in Palestine and the embeddedness of Israeli settler sovereignty in global structures of domination and hierarchy—including in the global structures of international human rights.

Acknowledgements

The author would like to thank Jessica Whyte for her astute feedback and comments on earlier drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the authors.

Correction Statement

This article was originally published with errors, which have now been corrected in the online version. Please see Correction (http://doi.org/10.1080/1323238X.2023.2320174)

Additional information

Notes on contributors

Ihab Shalbak

Ihab Shalbak is Lecturer in Human Rights and Social Justice, Discipline of Sociology and Criminology, at the University of Sydney.

Notes

1 International Commission of Jurists and Law in the Service of Man, Torture and Intimidation in the West Bank: The Case of Al-Fara’a Prison (Al Haq, Ramallah, 1985) <https://www.alhaq.org/cached_uploads/download/alhaq_files/publications/Torture_and_Intimidation_in_the_West_Bank.pdf> accessed 15 March 2023.

2 Commission on Human Rights, ‘Statement by Ambassador Ephraim Dowek on the Report of Law in the Service of Men’, 41st session, February 1985, al-Haq archives cited in Lynn Welchman, Al-Haq: A Global History of the First Palestinian Human Rights Organization (Oakland, University of California Press 2021) 247.

3 Yuval Abraham, Oren Ziv and Meron Rapoport, ‘Secret Israeli Document Offers No Proof to Justify Terror Label for Palestinian Groups’ (The Intercept, 4 November 2021) <https://theintercept.com/2021/11/04/secret-israel-dossier-palestinian-rights-terrorist/> accessed 11 May 2023.

4 See ByMilena A, ‘#StandWithThe6’ Palestinian Civil Society <https://palcivilsociety.com/post/arbitrary-travel-bans-throttle-palestinian-civil-society-directors> accessed 1 May 2023.

5 Raja Shehadeh, ‘By Banning Six Palestinian NGOs, Israel has Entered A New Era of Impunity’ (The Guardian, 29 October 2021) <https://www.theguardian.com/commentisfree/2021/oct/28/ngo-israel-human-rights-al-haq-palestinians> accessed 12 December 2022.

6 Ibid.

7 The United Nations General Assembly recognised the representative standing of the PLO in Resolution 3210 (1974) and Resolution 3236 (1974).

8 Lori Allen, The Rise and Fall of Human Rights: Cynicism and Politics in Occupied Palestine (Stanford University Press 2013) 51.

9 Golda Meir, ‘Interview with Frank Giles: Who can blame Israel’ (Sunday Times, 15 June 1969) 12.

10 David Ben Gurion quoted in Meron Benvenisti, Sacred Landscape: The Buried History of the Holy Land since 1948 (University of California Press 2000) 14.

11 Ibid.

12 Yasser Arafat, ‘Question of Palestine/Arafat Statement’ (United Nations, 13 November 1974) <https://www.un.org/unispal/document/auto-insert-187769/> accessed 30 March 2023.

13 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010) 1.

14 Allen (n 8) 42.

15 Raja Shehadeh, The Third Way: A Journal of Life in the West Bank (Quartet 1982) 57.

16 Raja Shehadeh, Strangers in the House: Coming of Age in Occupied Palestine (Profiles Books 2009) 182.

17 Ralph Wilde, ‘Using the Master’s Tools to Dismantle the Master’s House: International Law and Palestinian Liberation’ in The Palestinian Yearbook of International Law (Brill 2019-2020) 5.

18 Welchman (n 2) 9.

19 Ibid 75.

20 Conceptually, the universal human of human rights is endowed with qualifying attributes, like autonomy and the capacity for reason, that a vast number of non-Europeans, particularly indigenous peoples, are assumed to be lacking. Armed with these attributes, the universal human is licensed to establish his/her sovereign rights by dispossession and expropriation. The disavowal of self-determination and aversion to resistance is most apparent in the drafting of the UDHR and the subsequent anti-colonial attempts to challenge the imperial structures of domination.

21 On settler colonialism in the Palestinian context see, eg, Areej Sabbagh-Khoury, ‘Citizenship as Accumulation by Dispossession: The Paradox of Settler Colonial Citizenship’ (2022) 40(2) Sociological Theory 1511–178.

22 Duncan Bell, Reordering the World: Essays on Liberalism and Empire (Princeton University Press 2016) 4.

23 Lori Allen, A History of False Hopes: Investigative Commissions in Palestine (Stanford University Press 2021) 13.

24 On juridical erasure see Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford University Press 2019).

25 The term ‘Nakba’ (‘Catastrophe’ in Arabic) refers to the dispossession and forced displacement of 80% of the Palestinian population during the 1948 War.

26 Rosemary Sayigh, Palestinians: From Peasants to Revolutionaries (Zed Books 1979) 109.

27 Azmi Bishara, ‘Zionism and Equal Citizenship: Essential and Incidental Citizenship in the Jewish State’ in Nadim Rouhana (ed), Israel and its Palestinian Citizens: Ethnic Privileges in the Jewish State (Cambridge University Press 2017) 140.

28 Basic Law, Israel the Nation State of the Jewish People 2018 (Israel), s.1. See translation <https://www.adalah.org/uploads/uploads/Basic_Law_Israel_as_the_Nation_State_of_the_Jewish_People_ENG_TRANSLATION_25072018.pdf> accessed 28 November 2023.

29 Bell (n 22) 40.

30 Natasha Wheatley, ‘New Subjects in International Law and Order’ in Glenda Sluga and Patricia Clavin (eds), Internationalism: A Twentieth Century History (Cambridge University Press 2017) 282.

31 Edward Said, ‘The Palestinian Experience’ in Moustafa Bayoumi and Andrew Rubin (eds), The Edward Said Reader (Granta 2001) 33.

32 Ibid 16.

33 Ibid 20.

34 Esmail Nashif, ‘The Palestinian’s Death’ in Ahlam Shibli: Phantom Home. Exh. cat. Museu d'Art Contemporani de Barcelona, Jeu de Paume, Paris, and Museu de Arte Contempora^nea de Serralves, Porto (Ostfildern: Hatje Cantz Verlag 2013) 178.

35 The Palestinian National Charter: Resolutions of the Palestinian National Council (1–17 July 1968) art 3; Avolan Project <https://avalon.law.yale.edu/20th_century/plocov.asp#:~:text=The%20Palestinian%20Arab%20people%20possess,their%20own%20accord%20and%20will> accessed 4 September 2023.

36 Susan Marks, ‘Self-determination and People’s Rights’ (1991-1992) 2 King’s College London Journal 81.

37 Ibid.

38 George Abi Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8(2) Howard Law Journal 97–98.

39 This triumphant project is largely Anglophone however Israel is the exception that proves the rule in understanding itself like the USA ‘as a nation under law’ Paul W Kahn, ‘Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order’ (2000) 1(1) Chicago Journal of International Law 2.

40 Ibid 5.

41 Robert Meister, After Evil: A Politics of Human Rights (Columbia University Press 2010) 264.

42 Edward W Said, Reflections on Exile and Other Essays (Harvard University Press 2003) xxxiv.

43 See for example Edward W. Said, ‘Zionism from the Standpoint of Its Victims’ (1979) 1 Social Text 7–58.

44 See ‘What Do Human Rights Do? An Anthropological Enquiry’ (2000) 4(4) Theory & Event <https://muse.jhu.edu/article/32601> accessed 15 April 2023.

45 Peter Hallward, ‘Towards a Pre-History of National Liberation Struggle’ in Rashmi Varma and Sharae Deckard Marxism (eds), Postcolonial Theory, and the Future of Critique: Critical Engagements with Benita Parry (Routledge 2018) 122.

46 Hannah Arendt, The Origins of Totalitarianism (A Harvest Books 1973) 299.

47 Bell (n 22) 39.

48 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People (Harvard University Press 2010) 205.

49 Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27(5) Third World Quarterly 742.

50 ‘Universal Declaration of Human Rights’, General Assembly Resolution Res 217 A(III), adopted 10 December 1948 (UDHR).

51 Emma Stone Mackinnon, ‘Declaration as Disavowal: The Politics of Race and Empire in the Universal Declaration of Human Rights’ (2019) 47(1) Political Theory 57–81.

52 UDHR (n 50).

53 Samera Esmeir, ‘In the Land of the International’ (2016) 48(2) International Journal of Middle East Studies 362.

54 Ibid.

55 Mackinnon (n 51) 57.

56 Ibid 74.

57 Ibid 73.

58 Ibid 73.

59 Ibid 72.

60 See Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (London, Verso 2013); Joseph Massad, ‘Against Self-Determination’ (2018) 9(2) Humanity Journal 161–191.

61 Bell (n 22) 43.

62 Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (University of Chicago Press 1999) 47–8.

63 Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (Princeton University Press 2019) 29.

64 Ibid, 15.

65 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

66 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).

67 Arafat (n 12).

68 Ibid.

69 Arendt (n 46) 296.

70 Hellen M Kinsella, The Image Before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Cornell University Press 2011) 137.

71 Nassar Abourahme, ‘Revolution after Revolution: The Commune as Line of Flight in Palestinian Anticolonialism’ (2021) 4(3) Critical Times 445.

72 Lori Allen and Tobias Kelly ‘Interview with Lori Allen’ (Humanity Journal, 19 April 2021) <http://humanityjournal.org/blog/interview-with-lori-allen/> accessed 21 March 2023.

73 Rania Jawad, ‘Aren’t We Human? Normalising Palestinian Performances’ (2014) 22(1) The Arab Studies Journal 29.

74 Charles Shammas quoted in Welchman (n 2) 66.

75 Mackinnon (n 51) 63.

76 Wilde (n 17) 61.

77 Ibid 59.

78 On the Carter Administration championing of human rights see Barbara Keys, Reclaiming American Virtue: The Human Rights Revolution of the 1970s (Harvard University Press 2014).

79 A 1977 address by Secretary of State Cyrus Vance cited in Victor V Nemchenok, ‘“These People Have an Irrevocable to Self-Governance”: The United States Policy and the Palestinian Question, 1977-1979’ (2009) 20(4) Diplomacy and Statecraft 597.

80 Jimmy Carter, Keeping the Faith: Memoirs of a President (Bantam Books 1982) 276.

81 Seth Anziska, Preventing Palestine: A Political History from Camp David to Oslo (Princeton University Press 2018) 5.

82 Edward Said, ‘Permission to Narrate’ (1984) 13(3) Journal of Palestine Studies 29.

83 In the application of Pierre Bourdieu, to think of human rights as constituting a field, see Nicolas Guilhot, The Democracy Makers: Human Rights and the Politics of Global order (Columbia University Press 2005) 23.

84 Allen (n 8) 36.

85 Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press 2005) 158.

86 Ibid 46.

87 Brian Cuddy and Victor Kattan, ‘The Transformation of International Law and War between the Middle East and Vietnam’ in Brian Cuddy and Victor Kattan (eds), Making Endless War: The Vietnam and Arab-Israeli Conflicts in the History of International Law (University of Michigan Press 2023) 20.

88 Lisa Hajjar, ‘From the Fight for Legal Rights to the Promotion of Human Rights: Israeli and Palestinian Cause Lawyers in the Trenches of Globalization’ in Austin Sarat and Stuart Scheingold (eds), Cause Lawyering and the State in a Global Era (Oxford University Press 2001) 70.

89 Michelle Burgis-Kasthala, ‘States of Failure? Ungovernance and the Project of State-building in Palestine under the Oslo Regime’ (2020) 11(3) Transnational Legal Theory 401–2.

90 Mouin Rabbani, ‘Palestinian Human Rights Activism under Israeli Occupation: The Case of Al-Haq’ (1994) 16(2) Arab Studies Quarterly 29.

91 B’Tselem, ‘A regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is apartheid’ (12 January 2021) <https://www.btselem.org/publications/fulltext/202101_this_is_apartheid> accessed 1 December 2023; Human Rights Watch, ‘A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution’ (27 April 2021) < https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution> accessed 1 December 2023; Amnesty International, ‘Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity’ (1 February 2022) <https://www.amnesty.org/en/documents/mde15/5141/2022/en/> accessed 1 December 2023.

92 Amnesty International (n 91) 38.

93 Wilde (n 17) 15–6.

94 Michael Sfard, The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights (Metropolitan Books 2018) 392.

95 Rabbani (n 90) 29.

96 Lori Allen, A History of False Hopes: Investigative Commissions in Palestine (Stanford University Press 2021) 2.

97 Marks (n 36) 81.

98 Nadim Khoury, ‘Israel and Palestinian Peoplehood: The Power to Eliminate and the Power to Constitute’ (2021) 117(2) Confluences Méditerranée 117.

99 Wilde (n 17) 17.

100 Mahmoud Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press 1996) 18.

101 Orna Ben-Naftali, ‘Zone’ in Ben-Naftali and others, The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory (Cambridge University Press, 2019) 520–1.

102 Tobias Kelly, Law, Violence and Sovereignty Among West Bank Palestinians (Cambridge University Press 2006) 13.

103 Mamdani (n 100) 18.

104 Kelly (n 102) 6.

105 Ibid 1.

106 Ibid 181.

107 Ibid 175.

108 Edward Said, ‘Reflection on Twenty Years of Palestinian History’ (1991) 20(4) Journal of Palestine Studies 9.

109 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, General Assembly Resolution 1514 (XV), adopted 14 December 1960, A/RES/1514/XV <https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-granting-independence-colonial-countries-and-peoples> accessed 23 November 2023.

110 Getachew (n 63) 79.

111 Amilcar Cabral, quoted in ibid 73.

112 Julia Peteet, ‘The Work of Comparison: Israel/Palestine and Apartheid’ (2016) 89(1) Anthropological Quarterly 251.

113 Mahmood Mamdani, Neither Settler or Native: The Making and Unmaking of Permanent Minorities (Harvard University Press 2020) 65.

114 Yael Berda, Living Emergency: Israel's Permit Regime in the Occupied West Bank (Stanford University Press, 2018) 128.

115 Orna Ben-Naftali, ‘Violence’ in Ben-Naftali et al, The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory (Cambridge University Press, 2019) 431–447.

116 Burgis-Kasthala (n 89) 401.

117 Yitzak Rabin quoted in Julia Peteet, ‘The Work of Comparison: Israel/Palestine and Apartheid’ (2016) 89(1) Anthropological Quarterly 251.

118 Riccardo Bocco, ‘UNRWA and the Palestinian Refugees: A History within History’ (2009) 23(2-3) Refugee Survey Quarterly 241.

119 Zinaida Miller, ‘Perils of Parity: Palestine's Permanent Transition,’ (2014) 47(2) Cornell International Law Journal 387.

120 Tariq Da’na, ‘Disconnecting Civil Society from Its Historical Extension: NGOs and Neoliberalism in Palestine’ in Saul Takahashi, (ed), Human Rights, Human Security, National Security: The Intersection (Praeger 2014) 131.

121 Burgis-Kasthala (n 89) 401.

122 Hagar Kotef and Merav Amir, ‘Between Imaginary Lines: Violence and its Justification at the Military Checkpoints in Occupied Palestine’ (2011) 28 Theory, Culture & Society 55, 64 quoted in Burgis-Kasthala (n 89) 404.

123 Edward Said, ‘People’s Rights and Literature’ (1993) 13 Alif: Journal of Comparative Poetics 182.

124 Ibid 183.

125 Getachew (n 63) 28.

126 Edward Said, Out of Place (Granta Books 1999).

127 Ilana Feldman, Life Lived in Relief: Humanitarian Predicaments and Palestinian Refugee Politics (University of California Press 2018) 216.

128 Getachew (n 63) 180.

129 Raja Khalidi and Sobhi Samour, ‘Neoliberalism as Liberation: The Statehood Program and the Making of the Palestinian National Movement’ (2011) 40(2) Journal of Palestine Studies 12.

130 Final Communiqué of the Afro-Asian Bandung Conference, 24 April 1955 <https://www.cvce.eu/obj/%20nal_communique_of_the_asian_african_conference_of%20_bandung_24_april_1955-en-676237bd-72f7-471f-949a-88b6ae513585.html> accessed May 10 2023.

131 Keith Dayton 2009 keynote address at the Washington Institute quoted in Jawad (n 73) 42.

132 Al-Haq, Israeli Apartheid: Tool of Settler Colonial Colonialism (2022) 22 <https://www.alhaq.org/cached_uploads/download/2022/12/22/israeli-apartheid-web-final-1-page-view-1671712165.pdf> accessed May 11 2023.

133 Ibid 42.

134 Ibid 22.