[Prefatory Note: This post is a much modified and enlarged version of an article published on January 1, 2016 in Middle East Eye. It attempts to address the current quandary that arises from the collapse of Oslo diplomacy and the seeming continuing encroachment of Israel on the territories long believed to provide the Palestinian people with a sovereign state of their own. Such a prospect, now unattainable for both practical and political reasons, contemplated a Palestinian state that would enclose a territory that was 22% of historic Palestine, or less than half of what the 1947 UN partition plan envisioned. For this forthcoming compromise to have become non-negotiable is clear evidence that Israel is in the process of adopting a unilateral solution that is based on the priority of its biblical claims and ethnic origin narrative to the whole of historic Palestine, referred to as Judea and Samaria plus Jerusalem in internal Israeli discourse. In effect, the Palestine right of self-determination is being unconditionally denied, and the Palestinian people given several unpalatable choices with respect to their future.]
While serving as UN Special Rapporteur for Occupied Palestine, especially in my early years between 2008 and 2010, I fully expected to encounter defamatory opposition from Israel and ultra-Zionist, but what surprised me at the time were various efforts of the Palestinian Authority (PA) to undermine my role at the Human Rights Council in Geneva. Its representatives exerted various pressures to encourage my resignation, and made unexpected moves to challenge my reports, especially if they described the actuality of Hamas exercising governing authority in Gaza. At the time I had the impression that the PA was far more concerned with this struggle internal to the Palestinian movement than mounting serious criticism of the abusive features of the occupation. As I was trying my best on behalf of the UN to report honestly on Israeli violations of Palestinian rights under international humanitarian law and human rights treaties, I was puzzled at first, and then began to wonder whether the Palestinian people were being adequately represented on the global stage.
This issue of representation has been rendered acute partly due to Israeli policies of fragmenting the Palestinian people, and then complaining that they have no partner with whom to make peace. Fragmentation indirectly subverts the right of self-determination by rendering ambiguous or unsatisfactory the nature of the self, that is, the people that is entitled to benefit from the right. The emphasis on this interplay between ‘self’ and ‘peoples’ arises from the authoritative language of Article I of the two human rights covenants that both make ‘self-determination’ the most fundamental of rights, which encompasses the others, and confers that right on ‘peoples’ rather than ‘states’ or ‘governments.’
The Palestinians are far from being the only people that is subjugated in ways that deny the ‘self’ the benefit of adequate representation. Consider the plight of the Kurdish people, or should it by now be ‘peoples,’ that can be traced back to the fragmentation imposed on Kurds by the manner in which colonial ambition reconfigured the political communities that has formerly been part of the Ottoman Empire in the ‘peace diplomacy’ that followed World War I. It is the notorious Sykes-Picot framework that was imposed on the region, and significantly responsible for the present turmoil that can be understood as a series of interrelated struggles by subjugated minorities to establish more natural political communities that protect their identities and their rights.
Jurists and politicians can spend endless hours debating whether the claimant of rights is indeed a people from the perspective of international human rights law. Many remember Golda Meir’s famous taunt, ‘Who are the Palestinians?’ There are many unrepresented peoples in the world that are marginalized in various settings, and none more regrettably than the 350 million so-called ‘indigenous peoples,’ victims of brutal dispossession, ethnic cleansing, genocide, and a variety of oppressive forms of subjugation. A truly humane world order would find ways to address historic grievances, while acknowledging that the past cannot be recreated or the present undone. There needs to be some good faith effort to reconcile the pastness of the past with overcoming the suffering being endured in the present. It is this process of reconciliation that Edward Said others articulated as the path to a sustainable peace for Jews and Palestinians.
Whatever the historic narrative that questions the emergence of Israel, as of the 21st century both practical and normative considerations converge on the quest for the dual realization of self-determination for Jews and Palestinians. Note that Zionism is a political project that was embraced by the Jewish people but it is not necessarily a reflection of self-determination for Jews if it encroaches on an equivalent Palestinian right. There is room for compromise, but only on the basis of accepting claims of equality, and refusing to treat the ‘settlements’ as part of the pastness of the past or to regard Palestinian refugees living in camps within and outside of Palestine as enjoying an inferior right of return or repatriation to that conferred on the Jewish people. Reasoning along this line makes it seem diversionary to continue the pursuit of a two-state solution, but this is a matter for the two peoples to decide by themselves if the right of self-determination is to be respected. And this prescribed course of action returns us to the issues surrounding the legitimacy and authenticity of representation. Until this issue is resolved a peace process is problematic if the goal is a sustainable and just peace.
Representation at the UN
Among the many obstacles facing the Palestinian people is the absence of any clear line of representation or even widely respected political leadership, at least since the death of Yasir Arafat in 2004. From the perspective of the United Nations, as well as inter-governmental diplomacy, this issue of Palestinian representation is treated as a non-problem. The UN accepts the Palestinian Liberation Organization (PLO) as the sole legitimate representative of the Palestinian people, although the reality of Palestinian governance to the PA since the Oslo diplomacy was initiated in 1993. A similar split between legal formalism and effective authority exists in international diplomacy although most of the 130 governments have extended diplomatic recognition to the PLO, rather than Palestine, despite its increasingly marginal role in the formation of national and international Palestinian policy in recent years. Ever since the General Assembly accorded recognition to Palestinian statehood in 2012 the question of representation has been settled in favor of the UN within the framework of the UN (UNGA Res. 67/19, 29 Nov. 2012).
This distinction between the PA and PLO is obscure for almost all commentators on the Israel/Palestine struggle, yet it has important implications for diplomacy and the scope and scale of Palestinian representation. The PA, headed by Mahmoud Abbas, is basically preoccupied with the West Bank and its own political relevance, and has seemed perversely aligned with Israel with respect to the fate of Gaza and even the 5-7 million Palestinian refugees worldwide. In contrast, the PLO, at least in conception and until the Oslo diplomacy took over, also in practice, conceived of its role to be the representation of Palestinians of a variety of political persuasions, as well as whether living under occupation or as refugees and exiles, that is, as a people dispossessed rather that a territory oppressively occupied.
The Oslo Diplomatic Fiasco
Among the flaws of Oslo was its affirmation of the delusion that a sustainable peace could be achieved simply by negotiating an end to the occupation of the West Bank, and maybe Gaza and East Jerusalem. The territorial remnant that was left after the Israeli withdrawal would then be viewed Palestine as a semi-sovereign state within these arbitrary borders. This ‘two-state’ international consensus even after its PLO endorsement in 1988 and regional incentives provided to Israel by the Arab Initiative of 2002 was, despite this, effectively killed by a combination of Israeli diplomatic rejectionism and its relentless.
The Israeli rejection of the two state option, which from a Palestinian perspective was at most a minimalist version of peace, was made manifest over the last 25 years by increasing the inhabitants of the settlement gulag, establishing at great expense an infrastructure of settler only roads, and through the construction of an unlawful separation wall deep in occupied Palestine. Yet the 20+ years of negotiation within this framework served Israel well as does the lingering illusion that the only viable settlement is still a rendering of the two-state solution. Sustaining this illusion also helps the United States, and Europe, and perhaps most of all the PA by keeping its international status credible. It allowed Israel the protective cover it needed to continue annexing, building, and cleansing until a point of practical irreversibility was reached some years ago. These defiant actions on the ground undermined effectively the two state mantra without suffering the slightest adverse consequence. This enabled the United States, especially, but also Europe, to sustain the international illusion of ‘a peace process’ while the realities on the ground were making ‘peace’ a dirty word of deceit. It has become a ‘zombie solution,’ where the proposal outlives its viability, and serves purposes other than what it claims.
Most of all, this Oslo charade made the PA seem like it was a genuine interim state-building stage preceding existential statehood. In a situation without modern precedent, the PA achieved a weak form of de jure statehood via diplomatic maneuvers and General Assembly partial recognition under circumstances that lacked the most essential attributes of de facto statehood. Usually the situation is reversed, with the realities of statehood serving as a precondition to its diplomatic and legal acknowledgement. Israel played along with this Palestinian game by denouncing such PA moves as outside the agreed Oslo plan of statehood to be achieved only through negotiations between the parties. Of course, Israel had its own reasons for opposing even the establishment of such a ghost Palestinian state as the Likud and rightest leadership were inalterably opposed to any formal acceptance of Palestinian statehood even if not interfering with Israel’s actual behavior and ambitions.
Interrogating the Palestinian Authority
Yet there are additional reasons to question PA representation of the Palestinian people in the present situation. Perhaps, the most fundamental of all is the degree to which the PA has accepted the role of providing security in accord with Israeli policy within those parts of the West Bank under its authority, which includes the main cities. It is thus hardly surprising that Ramallah suppresses many nonviolent resistance activities of the Palestinians, including demonstrations in support of the beleaguered people of Gaza. As well, the PA zealously apprehends those militant Palestinians alleged to be supporting Hamas or Islamic Jihad, and is accused of torturing many of those detained in its prisons often without charges. The PA has also consistently leaned toward the Israeli side whenever issues involving Gaza have arisen since the Hamas takeover of administrative governance from Fatah in 2007. Perhaps, the high point of this collaborationist behavior was the PA effort to defer consideration of the Goldstone Report detailing evidence of Israeli criminality in the course of its 2008-09 attack (Operation Cast Lead) on Gaza; such a move was widely and accurately perceived as helping Israel and the United States to bury these extremely damaging international findings that confirmed the widespread belief, already substantiated by a series of NGO reports, that Israel was guilty of serious war crimes.
There have been several failed efforts by the PA and Hamas to form a unity government, which would improve the quality of Palestinian representation, but would not overcome all of its shortcomings. These efforts have faltered both because of the distrust and disagreement between these two dominant political tendencies in occupied Palestine, but also because of intense hostile reactions by Washington and Tel Aviv, responding punitively and tightening still further their grip on the PA, relying on its classification of Hamas as ‘a terrorist organization’ that thus making it categorically ineligible to represent the Palestinian people. Everyone on the Palestinian side agrees verbally that unity is indispensable to advance Palestinian prospects, but when it comes to action and implementation there is a disabling show of ambivalence on both sides. The PA, and its leadership, seems reluctant to give up its international status as sole legitimate representative and Hamas is hesitant to join forces with the PA given the difference in its outlook and identity. Since 2009 there have been no elections that would lend grassroots legitimacy, at least in the West Bank, to the PA claims relating to representation.
What Should be Done
In the end, there is reason to question whether PA status as representing the Palestinian people in all international venues deserve the respect that they now enjoy. It is a rather complex and difficult situation that should be contextualize in relation to the Israeli strategy of fragmentation, one purpose of which is a deliberate effort at keeping the Palestinian people from having coherent and credible representation, and then contending disingenuously that Israel has ‘no partner’ for peace negotiations when in fact it is the Palestinian people that have no genuine partner in Tel Aviv as the Israeli leadership has made abundantly clear that it will never allow a viable and truly sovereign Palestinian state to be established.
Among diaspora Palestinians I believe there is an increasing appreciation that neither the PA nor Hamas are capable of such representation, and that greater legitimacy attaches either to the demands of Palestinian civil society that underlie the BDS Campaign or are associated with the person of imprisoned Marwan Barghouti or to Mustafa Barghouti who is the moderate, secular, and democratic leader of the Palestinian National Initiative situated in the West Bank. What these less familiar forms of representation offer, in addition to uncompromised leaders, is a program to achieve a sustainable peace that is faithful to the aspirations of the whole of the Palestinian people and is not compromised by donor funding, Israeli controls, collaborationist postures, and geopolitical priorities. It takes seriously the responsibility to represent the Palestininian people in ways that extend to the Palestinian refugees and to the Palestinian minority of 1.6 million living in Israel as well as to those living under occupation since 1967.
Overall, the picture is not black and white. The PA, partly realizing that they had been duped by the Oslo process and that Israel will never allow a viable state of Palestine to emerge, have resorted to a more assertive diplomatic positions in the last few years, including an effort, bitterly resisted by Israel to make allegations of criminality following from their controversial decision to become a party to the International Criminal Court. Also, it is important that the Palestinian chair at the UN not be empty, and there is no present internationally acceptable alternative to PA representation. Perhaps, an eyes wide open acceptance of the present situation is the best present Palestinian option, although the approach taken to representation is in the end up to the Palestinians. It is an aspect of the right of self-determination, which as earlier argued is the foundation for all other human rights. At the very least, given the dismal record of diplomacy over the course of the last several decades, the adequacy of present representation of the Palestinian people deserves critical scrutiny, especially by Palestinians themselves.
Two final observations are in order. First, it may be useful to distinguish what might be called ‘Westphalian representation’ from ‘populist representation.’ Westphalian representation is the outcome of intergovernmental diplomacy and controls access to international venues, including the UN. Populist representation may or may not reinforce Westphalian representation, and is based on the outlook of civil society if taking the form of a consensus. At present, there is some tension between these two ways of conceiving of representation. There is also the issue raised by the exclusion of Hamas from the operation of Westphalian representation despite its exercise of governmental control over a significant portion of the Palestinian territorial reality.
Secondly, it is relevant to appreciate that the PA seems to be pursuing a ‘two state’ solution by unilateral initiative rather through negotiations and the consent of Israel. Its state-building initiatives in the West Bank combined with its diplomatic statehood initiatives seem designed to generate a sort of ‘state’ that enjoys a certain international status even though the reality of subjugation under apartheid administrative structures remains the experience of the Palestinian people who continue to live with the ordeal of a quasi-permanent occupation.
An Open Letter to Ban Ki-moon
12 Feb[Prefatory Note: The post that follows is a modified version of an opinion piece published by Middle East Eye on 6 February 2016. Its focus on the metaphor of ‘shooting the messenger’ has usually been reserved for critics of Israel, and it is only when high officials depart from their scripted roles as faithful servants of the established order that their behavior results in demeaning rebukes. Israel and its most ardent defenders have been repeatedly guilty of shooting the messenger, thereby diverting attention from the damaging message by defaming the agent who delivered the message. It is a tactic that works, partly because the media finds character assassination more marketable than substantive commentary of a controversial nature. In my case, being frequently a messenger due to my UN role for six years, the nastier side of the attack tactics was to describe me (and others) as ‘a self-hating Jew’ or ‘anti-Semite.’ I tried to stay on message, largely ignoring the attacks, especially within the UN itself, but media coverage was preoccupied with an assessment of the personal vendetta that was difficult to ignore altogether without seemingly to acquiesce in the allegations. I should add that my tormenters extended beyond Mr. Ban Ki-moon and included others on the UN Watch mailing list including Susan Rice, then U.S. Ambassador at the UN, and high officials from other white settler countries, including Canada and Australia. Even the supposedly liberal Samantha Power, although previously a friendly acquaintance, joined the party, calling me biased and ill-suited for the position in statements to the press. She based her attack on the harshness of my criticisms leveled at Israel in my reports that highlighted the mismatch between their policies and practices as the Occupying Power in Palestine with the standards, duties, and principles set forth in the Geneva Conventions.]
Dear Mr. Ban Ki-moon, Secretary General of the United Nations:
Having read of the vicious attacks on you for venturing some moderate, incontestable criticisms of Israel’s behavior, I understand well the discomfort you clearly feel. Not since the Richard Goldstone chaired the group that released the report detailing apparent Israeli war crimes during its massive attack on Gaza at the end of 2008 have Israel’s big political guns responded with such unwarranted fury, magnified as usual by ultra-Zionist media commentary. Netanyahu has the audacity to claim that your acknowledgement that it is not unnatural for the Palestinians oppressed for half century to resist and resort to extremism is tantamount to the encouragement of terrorism, what he described as giving a “tailwind to terrorism.”
The fact your intention was quite the opposite hardly matters. Or your repeated denunciation of terrorism will be disregarded by these irresponsible critics whose sole objective is take attention away from the issues raised. Israel and its keenest supporters have found that there is no better way to do this than by defaming their critics, branding them as soft on terrorism or even as anti-Semites. And it makes no difference, whatsoever, that you have leaned over backwards during years as Secretary General, almost falling to the ground, to deflect even the most justifiable criticisms of Israel during your time as leader of the UN.
It is hardly surprising that you should respond to these attacks directed at you by way of a New York Times opinion piece that chides Israeli officials and Zionist zealots for ‘shooting the messenger’ and instead of heeding the message.[Ban Ki-moon, “Don’t Shoot the Messenger, Israel.” NY Times, Feb. 1, 2016] What both intrigues and appalls me is that while I was Special Rapporteur for Occupied Palestine during the period 2008-2014 you chose to attack me personally in public on several occasions, joining with U.S. and Israel diplomats calling for my dismissal and doing the utmost to undermine my credibility while I was working in this unpaid UN position under difficult conditions. At the time I was doing my best to bear witness to some of the same truths about Israel’s unlawful and immoral behavior that recently got you in similar hot water. My UN mandate was to report upon the reality of Israeli violations of international law while sustaining their apartheid regime of oppressive control over the Palestinian people. The Palestinians need and deserve such a voice as provided by the UN to make governments of the world more aware of their responsibility to take steps that will bring this unprecedented ordeal endured by the Palestinian people to an end. In carrying out these duties it is my hope that future UN Special Rapporteurs receive the support that they need from future Secretary Generals.
In my case, hurt and offended by being so unfairly attacked by you, the highest UN official, I was encouraged by some highly placed officials in the UN Office of the High Commissioner in Geneva to seek some kind of explanation from you or your office, and hopefully even an apology. You never criticized my reports on Palestine or objected to my criticisms of Israel’s policies and practices, but rather focused your venomous remarks on some comments attributed to my views as expressed on my personal blog that were concerned with the 9/11 attacks and the Boston marathon bombings.
It was obvious to me from the content of your attack that you relied on a letter written by Hillel Neuer, Executive Director of UN Watch, Israel’s faithful watchdog NGO in Geneva, that gave my rather carefully qualified blog comments deliberately inflammatory twists, but like you seemed wary of engaging in any debate about the substance of my criticisms of Israel’s polices and practices in my reports. I called your office, and was referred to your affable aide de camp. He seemed immediately apologetic even before I was even able to register my complaint and explain to him my actual position on these controversial issues. After listening to what I had to say, he obliquely accepted my concerns by admitting that ‘we didn’t do due diligence,’ by which he evidently meant that the SG and his advisors relied on Neuer’s letter rather than reading what I actually wrote on the blog, which was nuanced and moderate in tone and content. This UN official volunteered a further explanation to the effect that “we were under great pressure at the time from the U.S. Congress, and this was an opportunity to show that we were not anti-Israeli.” He ended the conversation with a promise to talk with you, and get back to me. I am sad to say, this never happened.
This incident occurred while you were campaigning successfully for a second term as SG, and apparently wanted to reassure Washington that you would not rock the boat if reelected. I venture to say that if you had back then voiced such strong criticisms of Israel’s settlement policy or indicated a similar empathetic understanding of Palestinian resistance, you would never have received Washington’s blessings for a second term as Secretary General. I understand that your reticence back then was prudential, even a sensible, although dispiriting, concession to the realities of UN leadership. What I have trouble to this day understanding is your willingness, in old Soviet style, to defame by name a lowly UN holding a position as appointed volunteer, so as to beef up your credentials as a team player when it came to Israel. You even relied through a spokesperson at a news briefing on my status as someone outside the UN civil service to explain why you lacked the authority to dismiss me. Without contacting me in advance for an explanation or afterwards for an apology seems to me to exhibit an extreme version of bureaucratic immorality.
In light of this experience, I felt at the time that you were joining with others in shooting a messenger, and invoked the metaphor, who was seeking to convey some inconvenient truths about Israel’s behavior. These truths are rather similar to your own recent comments about the denial of Palestinian rights, especially with respect to the right of self-determination. The folk wisdom of ‘what goes around comes around’ seems to fit your plight. You who expediently took shots at the messenger are now taking umbrage when the tactic is directed at you. This response is reasonable in this instance but awkwardly inconsistent with your own past behavior. You say, “..when heartfelt concerns about shortsighted or morally damaging policies emanate from so many sources, including Israel’s closest friends, it cannot be sustainable to keep lashing out at every well-intentioned critic.” True, of course, but why only now? And only you?
Actually, although your critical stress on settlements and resistance is welcome and significant, your overall stance still falls far short of adopting a helpful way forward. You continue to insist misleadingly that compromises are called for by both sides in pursuing the goal of reaching a sustainable peace based on the establishment of Palestinian state. I find puzzling the assertion in your article that “..I am so concerned that we are reaching a point of no return for the two-state solution.” In your statement of 26 January to the Security Council you urge Palestinian unity as necessary so that the Palestinians “can instead focus their energies on establishing a stable state as part of a negotiated two-state solution.” Have you forgotten that every step taken by the Palestinian Authority and Hamas to establish unity has been opposed by anger, reinforced by punitive pushback on Israel’s part, a response endorsed by the United States? And wasn’t that ‘point of no return’ reached some time ago, and certainly after what the American Secretary of State, John Kerry, proclaimed as ‘the last chance’ negotiations broke down in the Spring of 2014 after a year of trading allegations and achieving not a single positive result? And how, Mr. Ban, is a two-state solution to be achieved over the opposition and resolve of more than 600,000 Israeli settlers, with more expansion underway and even more promised?
You acknowledge being “disturbed by statements from senior members of the Israeli’s government that the aim [of a Palestinian state] should be abandoned altogether.” What you fail to say is that these ‘senior members’ include Israel’s elected prime minister, its president, its current ambassador to the UN. In light of this unified opposition to a two-state approach by Israel’s highest governmental leaders, how can you encourage reliance on this discredited diplomatic path that has resulted in an ongoing process of severe territorial encroachment on occupied Palestine and subjection to a regime of intensified suffering for the Palestinian people? Clinging to the two-state mantra is not neutral. Delay benefits Israel, harms Palestine. There is every reason to believe that this pattern will continue as long as Israel is not seriously challenged diplomatically and by Palestinian resistance, as well as by the sorts of growing pressures mounted by the international solidarity movement and the BDS campaign.
More widely, and important to understand, shooting the messenger is part of a broader Israel strategy to minimize attention given to substantive criticisms of their behavior. You are merely the latest victim, and one of the most highly placed. The intensity of defamation seems to be roughly proportional to the perceived impact of your criticism. In this sense, Mr. Secretary General, you have scored highly, especially due to your reminder to the Security Council that the UN will “continue to uphold the right of Palestinians to self-determination.” This is not the language Israel’s leaders hoped to hear coming from your lips, and hardly consistent with earlier your record of steadfast support for Israel that included condemning even the Second Freedom Flotilla that sought to deliver humanitarian assistance to Gaza. To be meaningful beyond a ritual affirmation, self-determination must be understood, given present realities, as something more and other than another delusionary embrace of a diplomatically negotiated two-state solution. At the very least, you might have urged the Security Council to consider the applicability of the ‘responsibility to protect’ (R2P) norm to relieving the anguish of Gazan captivity, a timely move considering that Netanyahu has been warning of yet another massive attack, promising that it will be even more lethal than the earlier one-sided massacres.
You also tell the Security Council that “incitement has no place, and that questioning Israel’s right to exist cannot be tolerated.” Fair enough, but challenging Israel’s postures, policies, and practices should be placed high on the UN agenda of unfinished business if what you propose on behalf of the Palestinian people is ever to have the slightest chance of being achieved. We need all to realize what else should not be tolerated: while the Palestinian flag flies outside UN Headquarters, the Palestinian people have lived for almost 70 years under the daily brutalities of occupation, refugee camps, Gazan captivity, and involuntary exile. Can you bring yourself to call this ordeal ‘intolerable’? Then at least you could leave your UN post with a feeling that when your career was no longer in jeopardy you spoke truth to power.
Sincerely,
Richard Falk
UN Special Rapporteur of the Human Rights Council for Occupied Palestine (2008-2014)
Professor of International Law
Tags: Ban Ki-moon, Richard Goldstone, Samantha Power, Shooting the Messenger, Susan Rice, UN Secretary General, Zionism