A decade ago, I often commented that the Palestinian portion of the dialectic on Israel-Palestine had painted itself into a corner. After several years of PA management of the occupation revealed that a two state solution was little more than a mirage, Palestinians, and their supporters in the diaspora, still insisted on a pro-state discourse that hampered crticism of the PA, and therefore worked in the favor of the Oslo process, and Israeli plans for the territories. I advocated, probably very prematurely, that a civil rights inspired movement for equality in the territories and in 1948 Palestine was the only logical response. There was obviously no way to move forward on that idea then, because the parameters of the imagined nation precluded it–people wanted their own state, and rightly so. Quite rapidly over the last few years, however, the one state idea, and the civil rights movement paradigm has begun to grab a larger share of the discussion, as Israel’s own intransigence to a two state solution becomes difficult for even apologists to ignore.
This brilliant essay in Jadaliyya, I think, outlines the inherent problems involved in a two-state discourse, and the increasing narrowing of options that seems to be on the precipice of a demand for a one state solution by the Palestinian mainstream. I think it should also be used as the inspiration for re-thinking many, if not all, of our border issues and ideas about citizenship throughout the world. It should be read in its entirety, but I’ve excerpted some key portions here:
Seizing territories in wartime is not illegal in itself, but modern international law forbids their unilateral annexation. Accordingly, the modern law of occupation treats these situations as temporary and seeks to preserve the status quo ante pending a conflict’s final resolution through a peace treaty or other political agreement. Consistent with this logic is the Fourth Geneva Convention’s absolute ban on colonizing occupied territories (“settlements”). This assumption of “temporariness” obviously falls apart in the Israel/Palestine case: not only because the occupation has continued for so long, but because it involves a state committed to the demographic transformation of these territories.
It is no secret that respect for occupation law in Israel/Palestine is in short supply. But it is important to draw attention to two crucial assumptions implicitly embedded in the demand to apply occupation law in this case, assumptions that themselves perform political work even when the demand itself is not heeded; assumptions whose consequences we must reckon with.
The first assumption is that the state of Israel is an international legal entity delineated by the “green line” boundary that existed until 1967, distinct from the West Bank and Gaza Strip. The second is that the Israel at most owes the inhabitants of these territories a kind of basic normality: providing for their humanitarian needs and allowing normal commerce to the extent possible, but without any specific political relationship or responsibility to them. Unilateral annexation, and therefore citizenship, is off the table. Let us call these assumptions of otherness: otherness of the land, otherness of the people. Together, they reproduce the idea that the West Bank and Gaza Strip and their inhabitants are outside of, distinct from, not part of Israel.
Occupation law does not require either of these two propositions, but its widespread use as an analytical framework and normative model undeniably helps normalize them. The demand that Israel stop settlements or the separation barrier because occupation law says so cannot be easily separated from occupation law’s framing principles of temporariness and its assumptions of otherness. One reason why occupation law enjoys widespread appeal – why it can provide a shared language that Palestinian nationalists, liberal Zionists, and the “international community” alike can employ – is because its implementation would be consistent with the so-called “two-state solution” to the conflict.
That this regime discriminates between its inhabitants is well-known, favoring Jews, whether they live inside the green line or outside of it, whether they are from the country or not. But equally important to maintaining this privilege is segregation amongst non-Jews, who are divided into various categories according to a spatial logic. Those inside the green line may, at most, hold Israeli citizenship (ezrahut) with some formal rights, while lacking the true inclusion that comes with possessing Jewish nationality (leom). Next come residents of occupied Jerusalem, who have mobility without citizenship, followed by West Bank residents who have neither, and then finally Gazans at the bottom
Occupation law’s assumption of the otherness of the occupied territory encourages us to treat pre-1967 Israel as a given while limiting attention to settlements and various repressive practices only as so many different “violations.” Even when such violations are treated as systematic, they are detached from the larger context. They focus solely on only the twenty-two percent of the country comprised of the West Bank and Gaza Strip, leaving parallel situations inside the green line to be analyzed separately as “domestic” problems under international human rights law.
Israel persists in the notion that there is a Jewish and democratic majority inside the state, even as the state’s refusal to define its boundaries renders the very idea of “insideness” inherently unstable. Annexing the territories and their populations would destroy this illusion. Thus, occupation law, with its concomitant strictures against annexation, is a useful legal placeholder once divested of any real ability to constrain colonization. Contrary to what some may believe, Israel has never rejected occupation law wholesale; right-wing ideologues may assail it as some kind of security threat, but Israel’s military lawyers and courts continue to selectively rely on occupation law when it suits their purposes.
The scattered areas of PNA jurisdiction and the Bantustans may share many similarities, but there is a crucial difference from the standpoint of international law (to say nothing of their contrasting approaches to the problem of native labor). In South Africa, the state was attempting to alienate parts of its own sovereign territory and, more egregiously, to denationalize its own subjects. International law has spent so much time dealing with states claiming territory that it was unclear how it should even approach states trying to unilaterally rid themselves of territory, as South Africa attempted to do. It became apparent that the regime could not simply create “sovereign voids” in its own territory; it had to convince other states to step forward and affirmatively recognize the Bantustans as independent. Otherwise, the default option was that South Africa maintained its responsibility for those areas and their inhabitants, which is exactly what happened.
Israel/Palestine is different from the South Africa case. Thanks to occupation law’s assumption of otherness, classifying the Gaza Strip and West Bank as occupied territories means that by definition they were not part of Israel to begin with. Moreover, they have the unique status of already being “sovereign voids” in the sense that they did not transition from their status as colonial territories to belonging to any recognized nation-state.
Israel’s 2005 “disengagement” from the Gaza Strip gave rise to a set of debates as to the status of the territory, even though it continued to exercise authority there through regular ground incursions, management of crucial infrastructure and administrative tasks, and control over borders and airspace. Although Israel did not convince the world that the occupation had ended, it created sufficient doubt and confusion to provide political cover for portraying its new relationship with the Gaza Strip as one of parity, between two neighboring states trading rocket and artillery fire. Israel reclassified the Gaza Strip from something like an occupied territory to a “hostile territory” with an even lower level of legal restraint. This helped legitimize a massive escalation of repression, including the tightening of the siege and the 2008-2009 onslaught.
In terms of legitimizing discrimination and conferring discretion to the state, Israel has achieved far more than the apartheid regime could have hoped to accomplish. But all of these rearrangements in the structure of the occupation have distracted from a much more important question. That is the question of why the people of Beit Hanoun in the northern Gaza Strip and Sderot in southern Israel should live as neighbors under the same supreme authority for over four decades, but with entirely different sets of rights.
serious questions remain as to whether occupation law – historically developed and applied mainly around Europe (including parts of the Ottoman Empire such as Bosnia-Herzegovina and Egypt) – is an appropriate tool for facing the challenge of contemporary settler colonialism.
After decades of fruitless negotiations and unceasing colonization, there is a growing awareness of the limitations of partition in addressing the Israel/Palestine conflict. Some celebrate this as a step towards building a single non-colonial state for all of its citizens. Others mourn this development, either because they wish to preserve the Zionist project or because they fear that the demise of the partition option will only herald more bloodshed and suffering without respite. My point here is not to argue that the end of partition is a good thing or a bad thing. My point is that as partition recedes as a viable option, the evolving situation on the ground raises difficult legal questions that require sustained consideration.
jurists, legal scholars, and activists would be well-served to also engage core questions of political belonging, responsibility, and equality in a manner that creatively engages the evolving spatial dynamics of this regime. In exploring the limitations and problems of occupation law, this essay is an attempt to join this difficult but necessary conversation.