Israel's "lawfare" against the Palestinian people is rooted in a ficticious narrative of having a "right" to exist. Joseph Massad
Israel's entire basis for beginning negotiations lies in the false premise that it has a "right" to exist
The Israeli-Palestinian negotiations, now entering their twentieth year had been hailed from the start as historic, having inaugurated a "peace process" that would resolve what is commonly referred to as the "Palestinian-Israeli conflict". For the Palestinians and the international community, represented by the United Nations and the myriad resolutions its Security Council and General Assembly issued since 1948, what was to be negotiated were the colonisation of land, the occupation of territory and population, and the laws that stipulate ethnic and religious discrimination in Israel, which, among other things, bar Palestinian refugees from returning to their land and confiscate their property. In their struggle against these Israeli practises, Palestinian leaders, whether in Israel, the Occupied Territories, or the diaspora, have always invoked these rights based on international law and UN resolutions, which Israel has consistently refused to implement or abide by since 1948. Thus for the Palestinians, armed by the UN and international law, the negotiations were precisely aimed to end colonisation, occupation, and discrimination.
On the other hand, one of the strongest and persistent arguments that the Zionist movement and Israel have deployed since 1948 in defence of the establishment of Israel and its subsequent policies is the invocation of the rights of Israel, which are not based on international law or UN resolutions. This is a crucial distinction to be made between the Palestinian and Israeli claims to possession of "rights." While the Palestinians invoke rights that are internationally recognised, Israel invokes rights that are solely recognised at the national level by the Israeli state itself. For Zionism, this was a novel mode of argumentation as, in deploying it, Israel invokes not only juridical principles but also moral ones.
In this realm, Israel has argued over the years that Jews have a right to establish a state in Palestine, that they have a right to establish a "Jewish" state in Palestine, that this state has a "right to exist," and that it has a "right to defend itself", which includes its subsidiary right to be the only country in the region to possess nuclear weapons, that it has the "right" to inherit all the biblical land that the Jewish God promised it, and a "right" to enact laws that are racially and religiously discriminatory in order to preserve the Jewish character of the state, otherwise articulated in the more recent formula of "a Jewish and democratic state". Israel has also insisted that its enemies, including the Palestinian people, whom it dispossesses, colonises, occupies, and discriminates against, must recognise all these rights, foremost among them its "right to exist as a Jewish state", as a condition for and a precursor to peace.
Rights are non-negotiable
Israel began to invoke this right with vehemence in the last decade after the Palestine Liberation Organisation had satisfied its earlier demand in the 1970s and 80s that the Palestinians recognise its "right to exist". In international law, countries are recognised as existing de facto and de jure, but there is no notion that any country has a "right to exist", let alone that other countries should recognise such a right. Nonetheless, the modification by Israel of its claim that others had to recognise its "right to exist" to their having to recognise "its right to exist as Jewish state" is pushed most forcefully at present, as it goes to the heart of the matter of what the Zionist project has been all about since its inception, and addresses itself to the extant discrepancy between Israel's own understanding of its rights to realise these Zionist aims and the international community's differing understanding of them. This is a crucial matter, as all these rights that Israel claims to possess, but which are not recognised internationally, translate into its rights to colonise Palestinian land, to occupy it, and to discriminate against the non-Jewish Palestinian people.
Israel insists that these rights are not negotiable and that what it is negotiating about is something entirely different, namely that its enemies must accept all its claimed rights unequivocally as a basis to establish peace in the region and end the state of war. However, the rights that Israel claims for itself are central to what the Palestinians and the international community argue is under negotiation – namely, colonisation, occupation, and racial and religious discrimination. But these three practises, as Israel has made amply clear, are protected as self-arrogated rights and are not up for negotiations. Indeed they are central to the realisation of Israel's very definition. To negotiate over them would mean to nullify the notion of a "Jewish State". As this is the case, then what does Israel think the negotiations between it and the Palestinians have been all about since the Madrid peace conference inaugurated them in 1991? Let me revisit the history of these claims in order to understand Israel's point of view and make clear what the basis of the negotiations are.
Israel's rights and the historical record
The Zionist movement has often argued that establishing a Jewish State for world Jewry was a moral and historical necessity that must be protected and enshrined in law, something it tirelessly pursued over the decades. However, this did not mean that its foundational texts proceeded from this juridical or moral principle. Indeed in his two foundational texts, The State of the Jews and Old-New Land, Theodor Herzl, the "father" of Zionism, never invoked the notion of Jewish "rights" to argue for a state of and for the Jews, whether in Palestine or Argentina, the other location he proposed. Herzl did speak of a "solution" to the Jewish Question but not of a "right". And neither did the first Zionist Congress Herzl convened in 1897 and the Basel Program it issued, which did not cite such a "right". This also applies to the three international foundational texts that Zionism worked hard to bring about. The first such text, the Balfour Declaration, issued on 2 November 1917 by the British government, rather than use the language of rights used the language of affect, promising that the British government "views with favour" the establishment in Palestine of a "Jewish national home", and that its declaration was a "declaration of sympathy with Jewish Zionist aspirations". This was followed by the Mandate for Palestine, issued in 1922 by the Council of the League of Nations, which based itself on the Balfour Declaration, and also did not recognise any Jewish rights to a state or even to Palestine. What it did recognise was "the historical connection of the Jewish people with Palestine" as "the grounds for reconstituting their national home in that country", again asserting like the Balfour Declaration before it, that this should not prejudice the "rights" of non-Jews. The third and more major text, the November 1947 Partition Plan resolution issued by the UN General Assembly proceeded from a moral preamble, namely, that the General Assembly considered "that the present situation in Palestine is one which is likely to impair the general welfare and friendly relations among nations" and hence the need to provide a "solution" to the "problem of Palestine".
Unlike these Zionist and international foundational documents which did not employ the language of rights, whether internationally recognised or self-arrogated, the Zionist movement insisted on its use in its own foundational document of the state, namely Israel's so-called "declaration of independence", formally titled "The Declaration of the Establishment of the State of Israel". The declaration, which was signed by 37 Jewish leaders, 35 of whom were European colonists, and only one of whom was born in Palestine, misinforms us that "In the year… 1897… at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country." As the documentary record shows, however, neither Herzl nor the Zionist Congress proclaimed such a right at all. Yet the "Declaration of Independence" proceeds to tell us that:
"This right was recognised in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home… On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable."
.As none of these documents has affirmed such a right at all, the imputation to them that they did falls more in the realm of a Zionist investment in the new language of international relations within which the notion of rights became enshrined after World War II, not least in the Universal Declaration of Human Rights. This also coincided with the emergence of rights discourse in the same period as the hegemonic form of claim-making. Indeed, Israel's "Declaration of Independence" is so invested in this mode of argumentation that it invokes the European Enlightenment's notion of "natural" rights when it asserts in its preamble that "This right [to a Jewish State] is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State." The framers of the "declaration" conclude that "By virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of the Jewish State in Eretz-Israel, to be known as the State of Israel."
It is important here to point out that the logic of this document is its insistence that its invocation of the Jews' right to establish a Jewish state in Palestine has a clear legal and moral genealogy, of which it is merely the conclusion, and that such a right was finally granted "irrevocabl[y]" by the Partition Plan. That none of this was true did not deter the framers, who, in asserting a right they arrogated to themselves, were now instituting a mode of argumentation that would be the most powerful rhetoric in establishing Israeli facts on the ground.
The meaning of the "Jewish State"
The United Nation's Partition Plan was a non-binding proposal that was never ratified or adopted by the Security Council, and therefore never acquired legal standing, as UN regulations require (although as far as the Palestinian people are concerned the United Nations had no right at any rate to partition what was not theirs to partition, much less to do so without the consultation of the Palestinian people themselves, thus denying them the right to self-determination). Nonetheless, it is important to consider what the Plan meant by "Jewish State" and "Arab State" due to the fact that the Israeli government uses this document as authorising its very establishment and subsequent policies. For Israel to rely on the Plan for its establishment and its policies, it would need to establish if the Plan proposed that the two states that would result from partition be exclusively Jewish and Arab demographically, or that their laws should grant rights to Jews or Arabs differentially and discriminate against non-Jews or non-Arabs. Expectedly, this was not the case. Even though Israel proceeded to institute a battery of racially and religiously discriminatory laws against its Palestinian Arab citizens (about 30 such laws exist at present), and set on to expropriate the large majority of lands in the country owned by Palestinian Arabs, the Partition Plan never proposed or authorised it to do so. The plan rather stated clearly that "No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex" (Chapter 2, Article 2) and that "No expropriation of land owned by an Arab in the Jewish State (by a Jew in the Arab State)… shall be allowed except for public purposes. In all cases of expropriation full compensation as fixed by the Supreme Court shall be said previous to dispossession." (Chapter 2, Article 8). When the Israeli "Declaration of Independence" was issued on May 14 1948, the Zionist forces had already expelled about 400,000 Palestinians from their lands and they would expel another 350,000 in the coming months. From this it follows clearly that not only is Israel's claim to establish a Jewish State that established demographic majority by ethnic cleansing was not authorised by the Partition Plan, but neither was its claim to be a Jewish state, in the sense of a state that privileges Jewish citizens over non-Jewish citizens legally and institutionally.
The proposed Partition Plan on which Israel bases its establishment initially envisioned a Jewish State with an Arab majority, which it later modified slightly to include 45 per cent Arab population and therefore it never envisioned it as free of Arabs or "Arabrein", as the Israeli state had hoped it would be and as many contemporary Israeli Jews contemplate today. Indeed as Palestine was divided into 16 districts, 9 of which were located in the proposed Jewish State, Palestinian Arabs were a majority in 8 of the 9 districts. Nowhere does the Partition Plan's use of the term "Jewish State" authorise ethnic cleansing or the colonisation of one ethnic group of the confiscated lands of another, especially as the Plan envisioned Arabs in the Jewish state to be a perpetual large "minority" and thus stipulated the rights that should be accorded to minorities in each state. But the fact that Arabs were a large minority and could conceivably, within a few years, have overtaken the Jewish population in the Jewish State remained uncontemplated by the Plan. For example, the Plan did not consider the consequences of the fact that if Jewish nationalism would define the Jewish State, how then could it accommodate almost half its population who had a different notion of nationalism and whom its excludes from its state nationalism a priori? And were the Palestinian Arabs in the Jewish State not adherents to Palestinian nationalism, they could not become, even if they so wished, Jewish nationalists, as they are excluded from Jewish nationalism ipso facto? How then could the Jewish State not discriminate against them?
This demographic situation would not have been a problem for the Arab State, as the Partition Plan envisioned that the Arab State would have a mere 1.36 per cent Jewish population. While the Zionist movement understood the contradictions of the Partition Plan and based on that understanding it set out to expel the majority of the Arab population of the projected Jewish State, they were unable to make the state Arabrein, which has complicated matters for them as time passed. Today over 22 per cent of Israel's population are Palestinian Arabs who are barred from inclusion in Jewish nationalism and suffer from institutionalised discrimination against them as non-Jews. Of course, had the state been Arabrein, there would not be a need for Israeli laws that discriminate between Jews and non-Jews, including the Law of Return (1950), the Law of Absentee Property (1950), the Law of the State's Property (1951), the Law of Citizenship (1952), the Status Law (1952), the Israel Lands Administration Law (1960), the Construction and Building Law (1965), and the 2002 temporary law banning marriage between Israelis and Palestinians of the Occupied Territories. Here Zionists, including prominent Israeli historian Benny Morris, have argued that it is the very presence of Arabs in the Jewish State that propels the Jewish State to enshrine its racism in all these laws. Otherwise, had Israel succeeded in expelling all Palestinians, the only law it would have needed to preserve its Arabrein Jewish status would have been an immigration law stipulating it.
Ultimately then Israel's claimed right to set up a Jewish State translates immediately into the right of Jews to colonise the lands of the Palestinians, which necessitates the prior confiscation of their lands so that they can be colonised by Jews, the reduction of the number of Palestinians through expulsion and the enactment of laws that prevent their repatriation, and the neutralisation of the rights of those not expelled through institutional and legal discrimination.
Here it is important to stress that for the architects of the Partition Plan, a "Jewish State" meant a state ruled by Jewish nationalists who adhere to Zionism but whose population is almost half Palestinian Arabs whose lands cannot be confiscated for Jewish colonisation and who would have equal rights to Jews and not suffer any racial or religious discrimination. For Israel, the meaning of a "Jewish State" is quite different as it seems to mean the expulsion of a majority of the Arab population, a refusal to repatriate them, the confiscation of their land for the exclusive colonisation of Jews, and the enactment of discriminatory laws against those Palestinian Arabs who remained in the country. When Israel insists today that the Palestinian Authority and other Arab states recognise its right to be a Jewish state, they do not mean that they should recognise its Jewishness in the way the Partition Plan envisioned, but rather in the way Israel understands and exercises this definition on the ground. It is important to note in this regard that it remains unclear which meaning of "Jewish" president Obama (and president Bush before him) has in mind when he demands that Arabs and Palestinians must recognise Israel's right to be a Jewish state – the Partition Plan's sense or Israel's.
The rights of the Palestinians
In contrast to Israel's invocation of rights that are not internationally sanctioned, the Palestinians invoke a number of internationally recognised rights that challenge Israel's self-arrogated rights. For example, Palestinians affirm their right to live in the Jewish State from which they were expelled, a right upheld by the 1948 Universal Declaration of Human Rights which stated unequivocally that "Everyone has the right to leave any country, including his own, and to return to his country" -Article 13(2), and in the Fourth Geneva Conventions passed in 1949. Furthermore, the United Nations General Assembly resolution 194 resolved in 1949 "that the [Palestinian] refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible." In 1974, UN General Assembly Resolution 3236, passed on 22 November 1974, declared the Palestinian right of return to be an "inalienable right". The right of refugees to return was also enshrined in 1976 in the International Covenant on Civil and Political Rights when it stated that "No one shall be arbitrarily deprived of the right to enter his own country" (Article 12). Moreover, Palestinians cite the Partition Plan against Israel's confiscation of their lands for the exclusive use of Jewish colonisation as well as resolution 194 among other UN provisions against a state's confiscation of the land of a people based on ethnicity. Indeed, many Palestinians invoke the same legal instruments that Israel uses to reclaim the stolen and confiscated property of European Jews before World War II. Moreover, Palestinian civil society groups in Israel continue to challenge persistently Israel's racially discriminatory laws in Israeli courts, so far with little success.
The rights that Israel claims do not only affect Israel's Palestinian population and the Palestinian refugees living in the diaspora. Even though Israel's negotiations with the Palestinian Authority are said to address the Occupied West Bank and Gaza Strip only (and not East Jerusalem), it seems that these Israeli claimed rights also apply there. To begin with, Israel has insisted since 1967 that Jews have the right to colonise the West Bank, Gaza, and East Jerusalem, and that this is not a negotiable right. Indeed, to get its point across and to make sure it is not misunderstood, since the signing of the Oslo Accords in 1993, Israel has more than tripled its Jewish colonial settler population in the West Bank and more than doubled it across the Occupied Territories, including East Jerusalem, totalling approximately half a million colonists. Israel continues to confiscate West Bank Palestinian lands for colonising purposes and suppresses all Palestinian resistance to its colonisation. Moreover, and in addition to the continuing confiscation of Palestinian lands inside Israel, in East Jerusalem, and in the West Bank, Israel has extended it discriminatory laws and enacted new ones to privilege the colonising Jewish population of the West Bank and East Jerusalem over the Palestinian Arabs. This includes an apartheid-style separation between Arabs and Jews, including the construction of the Apartheid Wall, the construction of Jewish-only roads across the West Bank, and the differential access to water resources, never mind confiscated land, to Jewish colonists. The United Nations has invoked the fourth Geneva conventions and passed numerous resolutions (the most famous being UN Security Council resolution 446 passed in March 1979) calling on Israel to dismantle its Jewish colonial settlements and nullify its confiscation of lands to no avail.
Israeli leaders have maintained that their colonisation efforts did not detract from their moral commitment to peace. On the contrary, Israel is clear that it was the Palestinian Authority who is to blame for the cessation of negotiations. Current Israeli prime minister Benyamin Netanyahu is not only committed to negotiations, but he, like his predecessors, insists that the Palestinian Authority's protests that Jewish colonisation must stop for negotiations to begin is nothing short of an infringement on the rights of Israel, and an imposition of "pre-conditions" for negotiations, which he cannot accept.
On the question of the occupation and whether the negotiations are supposed to end it, Israel has maintained that its occupation of East Jerusalem, which it initially expanded twelve-fold (from 6 to 70 square kilometres) at the expense of West Bank lands (and which was more recently expanded to 300 square kilometres, encompassing a full 10 per cent of the West Bank) is permanent and that its occupation of the Jordan Valley and of another ten per cent of the West Bank that now lies to the west of the Apartheid Wall are also permanent. Israel insists that the negotiations are about a rearrangement of the nature of the occupation of what remains of the West Bank that could facilitate a form of autonomy for the Palestinians that would not include sovereignty but which it might be willing to call a "Palestinian State."
The recently Al Jazeera leaked Palestine Papers have shown that Palestinian Authority negotiators offered more concessions on all these fronts and, that despite such "flexibility", Israeli negotiators rejected all such offers. Indeed, Netanyahu has since the late 1990s insisted that the basis of the negotiations should no longer be the formula of "land for peace" but rather "peace for peace", affirming Israel's refusal to end its colonisation, occupation, or discrimination. More recently, he proposed that the negotiations be over "economic peace", wherein his commitment to peace is offered as a moral stance that safeguards Israel's self-arrogated juridical rights from being subject to negotiations.
As I have argued before, Zionism and Israel are careful not to generalise the principles that justify Israel's rights to colonise, occupy, and discriminate, but are rather vehement in upholding them as subsets of an exceptional moral principle. It is not that no other people has been oppressed historically, it is that Jews have been oppressed more. It is not that no other people's cultural and physical existence has been threatened; it is that the Jews' cultural and physical existence is threatened more. This quantitative equation is key to why the world, and especially Palestinians, should recognise that Israel needs and deserves to have the rights to colonise, occupy, and discriminate. If the Palestinians, or anyone else, reject this, then they must be committed to the annihilation of the Jewish people physically and culturally, not to mention that they would be standing against the Jewish God.
Negotiating the non-negotiable
Israel's right to defend itself means its right to safeguard its rights (to colonise Palestinian lands, occupy them, and discriminate against non-Jews) against any threats that could endanger these rights, foremost among them the threat of negotiations. Its right to defend itself is a right to uphold these rights and is therefore a subsidiary, if essential, right deriving from its right to be a Jewish state. The logic goes as follows: Israel has the right to colonise and occupy Palestinian land and to discriminate against Palestinians whether in Israel within its pre-1967 boundaries or in the additional territories it occupied in 1967, and if this population resists these measures and Israel responds with military violence causing massive civilian casualties, Israel would simply be "defending" itself as it must and should.
Informed by the European Enlightenment understanding of rights, especially John Locke's discussion of alienable versus inalienable rights, wherein, according to him, indigenous populations, in contrast with European colonists, lack such rights given that they live parasitically on the land and do not improve it, Israel's arrogation of these rights to itself entails its insistence that Palestinians, in line with Locke's assertions, possess no right to resist it. Thus, Israel's moral and juridical defence of itself are combined in this context, wherein Israel has the right to colonise and occupy the lands of the Palestinians, and to discriminate against them based on the principle of exceptionalism and European colonial supremacy, but wherein the Palestinians do not have the right to defend themselves against Israel's exercise of these self-arrogated rights, and were they to do so, Israel would then have the right to defend itself against their illegitimate defence of themselves against its legitimate and moral exercise of its own rights.
But if Israel has no internationally recognised juridical rights to colonise, occupy, or discriminate nor does it have a universally-sanctioned moral or juridical right to exceptionalism, then the only mechanism by which it is able to make such claims is the absence of international accountability, or more precisely its refusal to be accountable to international law and legal conventions. This refusal to be accountable is protected by its alliance with the United States, which vetoes all UN Security Council resolutions that call on Israel to be accountable to international law, thus rendering international law unenforceable. The most recent such veto was on February 11, 2011 when the Obama administration vetoed the resolution, supported by the other 14 members of the Security Council, calling on Israel to cease its colonisation of West Bank and East Jerusalem lands.
It is in this context that Israel and the US State Department (under Bush and Obama) have gone into high gear in recent years characterising Palestinians' resorting to legal mechanisms and international law to challenge Israel's so-called rights as "lawfare", which they are demanding be immediately stopped. These include a rejection by Israel of the 2002 decision by the International Court of Justice of the illegality of the Apartheid Wall it built in the West Bank, or the war crimes accusations that the UN-issued Goldstone Report levelled against Israel in its war on Gaza in 2008-2009. It is significant that the term "lawfare", which emerged a decade ago, is usually used to mean "the effort to conquer and control indigenous peoples by the coercive use of legal means." That Israel and the US equate the colonised Palestinians with a conquering power and the colonising Israeli Jews as indigenous testify to the serious concern over the danger that legal mechanisms of challenge constitute to Israel's so-called rights.
The discourse of rights, itself various and hardly agreed upon, ultimately has no jurisdiction, and takes place, or does not, in the negotiation (or non-negotiation) of political power. This is clearly manifested in Israel's continued insistence that its "rights" are non-negotiable. With the recent fall of the Egyptian regime and the more recent reconciliation between Hamas and Fatah, it remains unclear how the Palestinian Authority (PA) will proceed. The PA plan to get one more recognition of a Palestinian State from the General Assembly next September, even if successful, will have very little substantial positive results and could very well have negative ones. Unless the PA suspends all negotiations and seeks international legal redress by mounting diplomatic pressure (especially from European and Arab states) on the US government to join the international consensus and stop vetoing international decisions, the rights of Israel will continue to be safeguarded.
What Israel has been negotiating over with the Palestinians is the form, the terms, and the extent to which Palestinians must recognise its rights without equivocation. It is this reality that has characterised the last two decades of negotiations with the Palestinians. Negotiations will never restore the internationally-recognised rights of the Palestinians; on the contrary, the negotiations that the Palestinians entered with Israel two decades ago are ones wherein one party, the Palestinians, must surrender all their internationally recognised rights and recognise instead Israel's self-arrogated rights, which are not recognised by international law or any other country for that matter. Sixty-three years after the establishment of the Jewish settler-colony, this Palestinian act will not only lend the first international legitimacy to Israeli claims, it will constitute in effect nothing less than the first international recognition of Israel's self-arrogated rights. Israel need give up nothing in return
Joseph Massad is Associate Professor of Modern Arab Politics and Intellectual History at Columbia University in New York.
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