After Oslo, a paradigm shift? Redefining ‘peoples’, sovereignty and justice in Israel-Palestine

Abstract

Since the Oslo Accords, conflict resolution regarding the Arab-Israeli conflict has been guided by two conjoined premises regarding (1) the identity and rights of the two ‘peoples’ involved, and (2) Israel’s sovereignty, or lack of it, in portions of Mandate Palestine. Although seemingly incontestable, in tandem these premises have paradoxically proved ruinous to the welfare of civilians under occupation by fostering notions that peace can be achieved through geographic partition to serve rival ethno-national projects for self-determination. Proposed here is that this approach is fundamentally flawed in accepting as legitimate the Jewish-settler ideology that ethnically dismembered the ‘Palestinian people’, as well as a form of Palestinian-Arab ethno-nationalism that has also become anachronistic in light of contemporary law and norms. Drawing on comparative politics regarding the construction of ‘peoples’ and constructivist international relations theory regarding sovereignty, this article proposes that these premises must therefore be reassessed and principles of collective rights be reinterpreted to suit the current condition of advanced settler colonialism in Mandate Palestine, which compels full political unification.

Notes

1. Israel’s internationally recognised borders generally follow the Armistice Lines established in 1949, but this point was never settled. UNGA Resolution 273 (1949), which recommended admitting Israel to the General Assembly as a member state, includes reference to ‘declarations and explanations’ made during the resolution’s debate which clarify that Israel’s final borders were still under negotiation (UN, ‘Admission of Israel’).

2. The 1995 Interim Agreement (often called the ‘Oslo II Accord’), Article XI ‘Land’, establishes that ‘[t]he two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period’ (UN, ‘Interim Agreement’). In this formula, the correct term for these areas is the singular ‘territory’, rather than the more common plural construction.

3. UNSC, ‘Resolution 242’ of November 1967 provided in the English version that Israel withdraw from ‘territories occupied in the recent conflict’, the absence of a definite article leaving open which territories. In the French version, the definite article was used regarding ‘territories’, indicating that Israel should withdraw from all territory thus occupied. Israel has maintained that the English version is authoritative and that Israel’s withdrawal from the Sinai Peninsula in 1982 accordingly satisfied the terms of Resolution 242.

4. The prohibition on the acquisition of territory by war is traced to UNSC Resolution 242 (1967), which affirms this prohibition in its preamble.

5. The borders of Mandate Palestine went through several diplomatic iterations before crystalising on the boundaries established in 1922, but this history is not considered relevant here. The Oslo II Accord of 1995 uses the language ‘legitimate rights of the Palestinian people’ and ‘mutual legitimate and politics rights’ but does not specify what those rights are. It does not refer to a right to self-determination or to any ‘people’ per se: the ‘Parties’ to the agreement are the Government of the State of Israel and the Palestine Liberation Organisation. No document in the Oslo process mentions a Palestinian state or a two-state solution.

6. The Oslo II Accord, Article XI ‘Land’, suggests that Palestinian ‘legitimate and political rights’ as represented by the PLO are to be expressed only in the oPt. No clause in the Accords provides for a Palestinian state.

7. An immense literature exists in this field. The foundational text on nations as ‘imagined communities’ is Benedict Anderson, Imagined Communities; works stressing the historical importance of print and the dissemination of ideas include E. J. Hobsbawm, Nations and Nationalism since 1780.

8. Drafted by British diplomat Mark Sykes and French diplomat François George-Picot in 1916, this secret agreement was designed to establish British and French spheres of influence in regions that had been ruled by the disintegrating Ottoman Empire.

9. International relations theory on socialisation in international affairs is a large field: a representative foundational article is Ikenberry and Kupchan, ‘Socialization and Hegemonic Power’.

10. The distinction here between civic and ethnic nationalism is drawn principally from Smith, The Ethnic Origin of Nations.

11. International consensus to support the rights of indigenous peoples qua peoples was expressed in the Declaration on the Rights of Indigenous Peoples (2007), which incorporated the phrase, ‘[i]ndigenous peoples have the right to self-determination’ (Article 3) but explicitly detached this right from the right to secession or any measure that would threaten the territorial integrity of existing states (Article 46) : UN, ‘Declaration on the Rights’.

12. Clauses cited by Israel’s advocates for this purpose include a passage in Israel’s Declaration of Independence (1948) affirming that Israel ‘will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture’. No such phrase appears in Israel’s Basic Law, however.

13. Here and in all subsequent quotes from Mandatory documents, emphases are added unless otherwise noted.

14. Minutes by Arnold Toynbee, then in the Foreign Office, on a telegram from Mark Sykes, cited in Ingrams, Palestine Papers 1917–1922, 43.

15. Ingrams, Palestine Papers 1917–1922, 38.

16. Ingrams, Palestine Papers 1917–1922, 102 and 112.

17. Ingrams, Palestine Papers 1917–1922, 56–58, 95–96. Contradictory reports that the Prime Minister had intended ‘Jewish National Home’ to signify a Jewish state were outweighed by the larger body of such correspondence and affirmations that British policy on this point had been consistent.

18. All citations to the 1939 White Paper in the following discussion are taken from the version posted on Yale University’s Avalon Project. Available at: http://avalon.law.yale.edu/20th_century/brwh1939.asp [Accessed 11 July 2015].

19. Emphasis in original.

20. The problematic history of the UN Special Committee on Palestine and its 1947 recommendation is beyond the scope of this paper but nonetheless illuminating, particularly in regard to the history of the Second Subcommittee, comprised of the Arab states members, which voted against partition and for a single non-ethnic democratic state: see the full text of its report ‘Nationalism Not Partition’ in Khalidi, From Haven to Conquest, 63.

21. As Ormsby-Gore put it in 1918, ‘[a]t the present Palestine is not a geographical expression, and the boundaries of Palestine will have to be defined by the [Paris] Peace Conference’: see Ingrams, Palestine Papers 1917–1922, 38.

22. Most Israeli government maps do not show the West Bank and Gaza Strip as separate territories: in August 2015, examples of a fully integrated territory are provided on the Ministry of Tourism website, while the Israeli Ministry of Foreign Affairs website was posting a topographical map of Israel that denotes a border around the Gaza Strip but no border around the West Bank or Golan Heights (see Israeli Ministry of Foreign Affairs, Map of Israel; and Israeli Ministry of Tourism, Map of Israel). Some Zionist doctrine still maintains that the Jewish state was unjustly deprived of territory east of the Jordan River, arguing that this territory was originally part of the Palestine Mandate, which is interpreted as a Jewish state.

23. A substantial literature has been compiled on the Jewish-national institutions of Israel and their role in public law and governance. For summaries of how these institutions function regarding land and settlement, see Tilley, The One-State Solution, Chap. 3; on the specific question of Israel as a Jewish state, see Tilley, Beyond Occupation, 117–120.

24. Sometimes called the ‘Zionism is racism’ resolution, UNGA Resolution 3379 was passed on 10 November 1975 (UN, ‘Elimination of all Forms’); it was revoked, in a one-line resolution that offered no rationale in General Assembly Resolution 46/86 on 16 December 1991.

25. See Tilley, ‘Part I: Applicability of the Definition’.

26. Supreme Court of Israel, ‘George Rafael Tamarin’. See also Tekiner, ‘On the Inequality’.

27. The definition of ‘racial discrimination’ provided in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination includes ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.

28. UN, ‘Resolution 1397’; and UN, ‘Resolution 1515’.

29. The standards for citizenship in Mandate Palestine were established by the 1925 Citizenship Order-in-Council.

30. ‘IV. Conclusions, III: Draft Resolution on the Constitution and Future Government of Palestine’. Recommendation of UN Special Committee on Palestine, Subcommittee 2, 11 November 1947 (A/AC. 13/32); reproduced in Khalidi, From Haven to Conquest, 645.

31. All citations to the Charter here are taken from the on-line version provided by Yale University’s Avalon Project, ‘The Palestinian National Charter: Resolutions of the Palestine National Council July 1–17, 1968’. Available at: http://avalon.law.yale.edu/20th_century/plocov.asp [Accessed 16 September 2015]

32. The Charter’s full text read: ‘The Jews who had normally resided in Palestine until the beginning of the Zionist invasion will be considered Palestinians’ (Article 6). A date marking ‘the beginning of the Zionist invasion’ was never established and in practice would have proved difficult to identify, but was probably imagined roughly to correlate with the 1920s, when Zionist-Jewish immigration to Palestine began to grow exponentially.

33. The irony of insisting on the primacy of citizenship over a transnational nationality regarding Jews should not be overlooked, since Palestinian national identity acknowledges the same pattern of dispersal and multiple citizenships.

34. The concept of exile is very old in Jewish and Judaic tradition, tracing to the supposed mass expulsion of Jews by the Romans in 70 CE, although the concept of ‘return’ has been more a spiritual than literal concept over succeeding centuries. For an interesting historical account of how the Jewish narrative of exile was reinvented in the nineteenth century to serve modern Jewish nationalism, see Sand, The Invention of the Jewish People.

35. For detailed argument as to why this must be taken as a given, see Tilley, The One-State Solution, Chaps. 1–4.

36. See especially polls by the Jerusalem Media and Communication Center, which for many years has tracked Palestinian support for ‘a bi-national state on all of Palestine where Palestinians and Israelis enjoy equal representation and rights’. Poll #81 in April 2014 found that support had dropped to 18.8 per cent from 23.4 per cent in March 2013 and 25.9 per cent in May 2012. Available at: http://www.jmcc.org/documentsandmaps.aspx?id=865. A 2007 survey by Near East Consulting that framed the question as, ‘Support or opposition to a one-state solution in historic Palestine where Muslims, Christians and Jews have equal rights and responsibilities’, found 70 per cent support for this solution among Palestinians. For an overview, see discussion in Eurasia Review, ‘An Opening for Peace’.

37. International Court of Justice, ‘Legal Consequences’, 136 at 182–183, para. 118 (Wall Advisory Opinion). This was a unanimous ruling by the Court. One judge found that the Court should have exercised its discretion and refused to accede to the request for an advisory opinion, and thus dissented from the Court’s formal conclusions, but nonetheless expressly affirmed that the Palestinian people possesses the right to self-determination: see ibid., 240 at 241, para. 4 (Declaration of Judge Buergenthal).

38. Twelve rival models for resolving the conflict in South Africa are described in Horowitz, A Democratic South Africa?, Chap. 1.

39. Jackson and Rosberg, ‘Why Africa’s Weak States Persist’; see also Jackson, Quasi-States.

40. Despite the putative autonomy provided by the 1995 Interim Agreement to the Palestinian interim Self-Government Authority (PA), Israel has retained plenary power over all governance sectors in the oPt by arranging for matters falling under the PA’s ambit to be governed by joint committees on which both sides hold a veto. Since the status quo favours Israel’s interests, this allows Israel to prevent the PA from making changes that impede Israel’s Master Plans for the oPt. For an analysis of how this policy replicates juridical arrangements for the South African Bantustans, see Tilley, ‘A Palestinian Declaration of Independence.

41. Statements by Israel’s leadership in 2014–2015 have confirmed that Israel will not permit a Palestinian state in any form, but that this policy has been consistent over recent decades is suggested by Israel’s steady work to build the oPt settlements. On this history and how the settlement policy is embedded in Israeli government policy, see extended discussion in Tilley, The One-State Solution, Chap. 2.

42. See, for example, Roberts, ‘Prolonged Military Occupation; and Ben-Naftali et al., ‘Illegal Occupation’. Special Rapporteur Richard Falk reflected this debate in a recommendation to the Human Rights Council in his final report: see Falk, ‘Report of the Special Rapporteur’.

43. UN, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ (1960) denounced ‘colonialism in all its forms and manifestations’, which would seem to cover settler colonialism, but did not address its distinct character. It has been indirectly addressed in legal instruments relating to indigenous peoples’ social and cultural rights within existing states.

44. ‘Commonly’ here means language and norms formulated by the United Nations Committee on Decolonisation, which was established to monitor cases of decolonisation, implementing the Declaration on the Granting of Independence to Colonial Countries and Peoples.

45. See Tilley, ‘Have We Passed the Tipping Point?’.

46. International law does engage some domestic concerns, such as the prohibition of crimes against humanity, the ‘responsibility to protect’ doctrine and so forth, but the UN Charter principle that states should not interfere in the domestic affairs of other states remains potent. Debates in the seventeenth century between French and British colonial powers about the legal standing of North American Indian nations illustrate that the erosion of Native American sovereignty was gradual and contested: see, for example, Berman, ‘Perspectives on American Indian Sovereignty.

47. The remapping of Palestine as a Hebraised landscape is brilliantly described in Benvenisti, Sacred Landscape.

48. A cautionary note is due here: Jewish settler demography was certainly not the only reason why the UNGA leaned toward recommending creation of a Jewish state, which initially lacked sufficient support. The majority vote for partition was crafted by heavy-handed political pressure, particularly by the United States: see, for example, Roosevelt, ‘The Partition of Palestine’, extracted in Khalidi, From Haven to Conquest, 727–729.

49. South African Communist Party, The Road to South African Freedom [emphasis in original]; for further discussion of this point see Kasrils, ‘Birds of a Feather’.

50. Pallo Jordan, then South African Minister of Arts and Culture, unpublished lecture (November 2008), Velmare Hotel, Pretoria, project hosted by the Middle East Project of the Human Sciences Research Council of South Africa.

51. See endnote 36.