Tag Archives: one-state solution

Making Peace: Israel/Palestine

9 Apr

[Prefatory Note:  Interview with Samu Tamás Gergő, a Hungarian journalist, April 9, 2019, on conditions of peace for the Palestine/Israel, with some initial emphasis on my experience as UN Special Rapporteur addressing human rights in Occupied Palestine on behalf of the Human Rights Council in Geneva.]

 

 

 

– Mr. Falk, you were an UNHCR special rapporteur on “the situation of human rights in the Palestinian Territories occupied since 1967” for six years. How normal is that, a UN member, Israel worked against your appointment? What is the goal in this job? The UN needs “independent” experts or members from the “two sides” (pro-Palestine and pro-Israel)?

 

The Special Rapporteurs of the UN Human Rights Council fall into two categories: most address thematic issues such as torture, religious freedom, and rights of indigenous peoples; a few deal with country scale problems, including Iran, North Korea, and the Occupied Palestinian Territories. SRs are appointed after the President of the HRC approves consensus vote of the 49 member states for a three year term, generally renewable for another three years. The position is unpaid, and SRs are not international civil servants, which gives them independence and insulates their role from political pressures to some extent. They can be dismissed only if they exceed their mandate.

 

The idea of having SRs is to secure independent and trustworthy information pertaining to a particular concern, especially of controversial issues. Reports are prepared for submission to the HRC in Geneva and the Third Committee of the General Assembly each year. The expectation is for the SR to be objective, and present both sides of contested issues.

 

My role as SR for the Occupied Palestinian Territories was sharply contested from the outset. Israel objected to the very idea of having a SR for the OPT, and did their best to get someone appointed who would report the facts in a manner that was consistent with their propaganda. I found that Israel’s occupation was so clearly and flagrantly in violation of the rules and principles of the Fourth Geneva Convention governing Belligerent Occupation that my reports were consistently critical of Israel’s behavior, especially with respect to extension of settlements to the OPT, annexation of Jerusalem, imposition of collective punishment, and use of excessive force to maintain security.

 

By and large, Israel and its main allies did not challenge the substance of my reports, but directed their complaints at my alleged bias and lack of credibility. The effort was to wound the messenger and avoid the message.

 

– What are the specific consequences of such reports? In addition to forcing the violators of international treaties into self-restraint, is Israel in this case?

 

It is difficult to assess the precise effects of these SR reports. Israel rejects the validity of inquiries under UN auspices, claiming bias and sovereign authority. It also refuses, contrary to its obligations as a UN Member to cooperate with SRs and most UN activity that its administration of Jerusalem’s sacred sites. At the same time Israel is sensitive to the impact of such reports on world public opinion, and relies mainly on Zionist. Watchdog NGOs, UN Watch and NGO Monitor to push back by doing their best to discredit the reports most often by questioning the credentials of the author.

 

The reports on Occupied Palestine did have two broad effects. First, their assessments influence the way issues bearing on Palestinian rights and Israeli wrongs are discussed at the UN, by some important governments, by NGOs, and especially by non-Western media. I remember meeting with the Foreign Minister of Brazil who told me that his ministry relied on these SR reports to obtain their understanding of developments in the OPT.   Over the years the role of SRs has gained in stature as their reporting provides generally reliable information, and their independence, including of the UN bureaucracy has. created credibility and some respect for willing to accept such a position that entails much work, no pay, and can be met with defamatory responses.

 

The. second impact of the reports is to confer legitimacy on pro-Palestinian nonviolent initiatives in civil society throughout the world. The most meaningful such initiative is the BDS Campaign (Boycott, Divest, and Sanctions). There are other initiatives that involve cutting off institutional cooperation between academic institutions in Israel and other foreign countries, such as study abroad programs. Israel is aware that such global solidarity efforts were a principal cause of the collapse of the apartheid regime in South Africa. Israel seems to regard this legitimacy war conducted against their policies and practices as now posing a larger threat than armed resistance by the Palestinians.

 

In particular, Israel has been affected by the increasing acceptance of the view that its form of control of the Palestinian people as a whole constitutes apartheid, which according to the Rome Statute governing the International Criminal Court is one type of Crime Against Humanity, as specified in Article 7. The assessment of Israel as an apartheid state was the principal conclusion of a UN report in 2017 of which I. was the co-author prepared at the request of. the UN under the auspices of the UN Economic and Social Commission for West Asia (ESCWA).

 

Overall, I think we can conclude that these reports are important although they fail to modify Israeli behavior to alter their policies and practices to bring them into conformity with international law. Their importance is informational and with potential impacts on international public opinion, which often translates into soft power, and this has been more important in the end in shaping the political outcome of many conflicts since World War II than has hard power.

 

– What about the imprisoned Palestinians? Are interrogations and other prison conditions in compliance with the international law and Israeli law?

 

Israeli practices with respect to imprisonment has come under constant criticism, especially with respect to the treatment of children, reliance on administrative detention, torture, and unsanitary conditions. Particular attention has been to the Israeli practice of nighttime arrests, taking children from their homes in the presence of their parents, often with accompanying violence that has terrifying effects that are. long-lasting. Children are giving heavy prison terms for minor acts of symbolic resistance to prolonged Israeli occupation, including the throwing of stones at distant soldiers that have been rarely if ever been injured as a result. There are reliable studies of Palestinian children in Gaza that reveal severe demoralization even to the extent of losing a will to life itself. Suicide rates among adolescents and young adults have been rising.

 

Another violation of international standards is to take those arrested to prisons outside occupied Palestine located within Israel. This deprives prisoners of family visits, and isolates prisoners in a cruel manner over prolonged periods of time.

 

There have been frequent long hunger strikes in Israeli prisons protesting conditions. Israel, contrary to international medical ethics, has tried to force feed fasting individuals to avoid their dying in such a way, thereby creating adverse publicity.

 

There are several published collections of prison writings that convey the abuse of human rights associated with the manner in which Palestinians are treated by Israeli administering authorities.

 

– You told me earlier, “extension of settlements to the OPT, annexation of Jerusalem, imposition of collective punishment, and use of excessive force to maintain security” are the main violations of the Geneva Conventions. What is your opinion about the new situation with Jerusalem?

 

I assume that here you are referring to the 2017 initiative by the Trump White House to move the American Embassy from Tel Aviv to Jerusalem. Such a move defies a deeply held longtime international consensus. The UN position is that Jerusalem has. been ‘occupied territory’ according to international law since the 1967 War and it is hence unlawful to alter its status in any way that interferes with its societal character and status. The proposed embassy move was condemned as null and void, with a demand to rescind the decision, by a one-sided UN General Assembly vote. (see GA Res. 11935, 128-9-35 absentions, 21 December 2017). The future of Jerusalem is a matter that according to this global consensus can only be settled by negotiated agreement between the two parties for which there is no present prospect. The United States defied the General Assembly and officially moved the U.S. Embassy to Jerusalem on 14 May 2018. From an international law and diplomacy points of view, the status of Jerusalem remains unresolved.

 

Israel defied this consensus immediately after the 1967 War by unilaterally annexing Jerusalem, enlarging its territory by incorporated large additional amounts of Palestinian occupied land, and declaring that an undivided Jerusalem would be the eternal capital of Israel. This annexation of Jerusalem was condemned by the UN Security Council in Resolution 478 (by vote of 14-0, with USA abstaining, 20 August 1980). As with the embassy move, this Israeli initiative was a violation of the law governing belligerent occupation, as set forth in the 4thGeneva Convention, including especially the unconditional prohibition on states acquiring territory by force of arms. As such, the annexation lacks any legal significance, but it does create a political set of conditions that are difficult to reverse, and become more so, given the long passage of time.

 

Thinking ahead to the future, there will be no genuine peace until the claims of the Palestinians with respect to Jerusalem, which also reflect the wider claims and concerns of especially Islam, but also Christianity, are given formal recognition. The future of Jerusalem is a test case of whether the Palestinian right of self-determination will be someday realized, or will be forever frustrated by Israeli expansionism reinforced by the geopolitical support it receives from the United States, which has been carried to new heights under the Trump presidency in ways that have brought strong denunciations from governments traditionally supportive of Israel and allied with the United States.

 

– As far as I know, you have Jewish ancestry. Does this mean you ethnically Jewish and/or religiously? Nonetheless, you were called “antisemitic”, because you criticized Israel. In is your opinion is the Jewish community in the US mostly Zionist, or is there a relatively strong part of the Jewish community that recognizes the right of Palestine to have an independent, internationally recognized,  and sovereign state?

 

To respond to the personal part of your question first, yes I am Jewish genetically, but neither culturally nor religiously. By this I mean I was brought up in New York City in a secular and assimilationist atmosphere where what was important was to be ‘American’ and ‘human’ rather than to emphasize ethnicity or religious identity. My parents were extreme versions of secularism, and this prompted a reaction that may explain my strong lifelong interest in comparative religion. In my own identity, I consider my species identity as ‘human’ to be primary, and other signifiers,  including nationality, to be secondary.

 

The reason I have been called anti-Semitic by militant Zionist NGOs and their followers is because I support the national struggle of the Palestinian people for their rights, and I have in the context of UN activity described Israel as ‘an apartheid state.’ This description of Israel is based on the academic study of Israeli policies and practices toward the Palestinian people as a whole, and not only those living under occupation, in relation to the crime of apartheid as defined in international criminal law. It is unfortunate, and harmful to Jews, for Zionists to extend the meaning of anti-Semitism from hatred of Jews to criticism of Israel. In my view only when Israel dismantles its apartheid structures of control over Palestinians will sustainable peace be attainable for both Jews and Arabs.

 

Turning to the part of the question concerning the outlook of Jews in America, according to polls more than 85% of Jews do consider themselves to be Zionists in the minimal sense of supporting the existence of Israel as a. Jewish state. But a growing minority of Jews is critical of the Likud/Netanyahu leadership of Israel, and an even larger number would favor a balanced approach by the US Government to the relationship between Israel and Palestine. This latter Jewish viewpoint is usually identified with what is called ‘liberal Zionism’ that tends to favor a two-state solution. In American domestic politics the split is obvious in Washington lobbying groups. AIPAC is unconditionally pro-Israeli, and with rare exceptions refrains from criticism of Israeli wrongdoing, adopting a punitive approach to those who like myself are critical of Israel.  J-Street is a smaller lobbying organization representative of liberal Zionism that is critical of some Israeli policies while being avowedly pro-Israeli, while lending support to the. two-state solution.

 

My own position is critical at this stage of all forms of Zionism. I believe the original failure of the Zionist project was to impose a Jewish state on a non-Jewish society. It is important to remember that at the time of the Balfour Declaration (1917) pledging British support for a Jewish homeland in Palestine the Jewish population was less than 8%, and even in 1947 when the UN General Assembly recommended partition, the Jewish population was about 30%. What this means is that from the very beginning the inalienable right of self-determination of the resident Arab population was being ignored and an essentially settler colonial arrangement was being promoted and later imposed by force.

 

I agree that as of now, however dubious the earlier history, the Jewish population must be accommodated in any future peace agreement, but I am very doubtful that this could or should be done within a framework of two separate sovereign states. Israel by its deliberate actions over many years has made this outcome a practical impossibility. The encroachment of more than 600,000 Jewish settlers onto occupied Palestine cannot be reversed by nonviolent means. In this regard, the only sustainable peace would be a single democratic secular state with the protection of human rights for all. Ethnic or religious states are by definition suppressive of minority rights, and thus inconsistent with the modern commitment to human rights as originally set forth in the Universal Declaration of Human Rights.

 

Such a one-state solution is not endorsed by liberal Zionism as it would mean the abandonment of the core idea of ‘a Jewish state’ as a sanctuary of the Jewish people. It is my view that Jews and others would be better off in a secular environment dedicated to the implementation of human rights for all. True an ethnic state may impose a protective regime for the favored ethnicity but it is likely to arouse enmity among other ethnicities, and over time likely to generate external pressures. The underlying challenge for all communities is to live together humanely on the basis of equality.

 

–What is your opinion, could be peace and two separated but cooperative states in the territory of Palestine/Israel in the near future?

 

Earlier, I was of the view that it is up to the parties to decide how to reconcile their overlapping claims to self-determination in Palestine. I thought that the Palestinians had suffered for too long from external. political actors seeking to shape the future of Palestine. The Balfour Declaration in 1917 and the UN partition resolution of 1947 were both interferences by international actors as to how the conflict over Palestine should be resolved. It was time, I felt, to let the two peoples to work out their own solution. In retrospect, there were problems with my position: First, it was not clear that the Palestinian people were being legitimately and adequately represented within international venues, especially after the death of Yasir Arafat. This raised the question, still not answerable, of who could speak authoritatively on behalf of the Palestinian people. Secondly, the disparity in power, accentuated by the U.S. role as a partisan third party intermediary, presiding over the diplomatic framework, made it unlikely that a sustainable peace could be negotiated by relying upon such a flawed process.

 

In recent years, I have shifted my view to a one democratic state position. Israel through a variety of actions, including expanding the settlements, building the wall, establishing security zones has made it a practical impossibility to establish an independent, equal, sovereign state of Palestine. Furthermore, Israel’s leadership and public opinion feel triumphant, especially with Trump in the White House, and no longer feel the need for a political compromise, and seem to be moving step by step toward imposing their own apartheid version of a one-state solution on the Palestinian people.

 

It is true that the UN and the international community continue to affirm the two-state solution as the only viable outcome if peace is the goal. Why, when it is so obviously a dead-end? To abandon the two-state approach would acknowledge the failure of UN and international diplomacy. Additionally, the durability of two-state thinking results from the influence of Zionism on the international approach to peace. A democratic and secular one-state would necessitate giving up the goal of a Jewish state, requiring a retreat to the original Balfour pledge of a Jewish homeland, and involve a major Zionist downsizing.  Such a retreat is a necessity, in my view, if there is ever to be a political arrangement for Palestine based on the essential equality of the two peoples and creating the conditions for a sustainable peace.

 

The reason for a mood of despair is obvious. What is desirable seems politically unattainable, while what is attainable seems unacceptable. Under these conditions false consciousness is bound to flourish. To overcome this mood of despair, we should not look to the UN or the United States. Our best hope for a just peace for both peoples is a heightening of pressure from civil society to such a level as to prompt Israeli leaders and the Israeli public, as well as diaspora Jewry to. recalculate their own interests so as to incorporate the realization of basic Palestinian rights.

 

  

 

 

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Should the Palestinians Seek Justice NOW at the International Criminal Court?

23 Feb

Should the Palestinians Seek Justice NOW at the International Criminal Court?

 

[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]

 

 

Weakening the Two-State Consensus

 There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.

 

With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.

 

An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.

 

In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.

 

Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”

 

It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.

 

Recourse to the ICC: Pros and Cons

 

The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.

 

The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.

 

There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.

 

Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.

 

There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.

 

Conclusion

 

In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.

 

The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.

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2017: Palestine’s Three Dark Commemorations

16 Jan

 

 

 

Increasingly, Palestinians seem doomed to become subjects, or at best second-class citizens, in their homeland. Israeli expansionism, United States unconditional support, and UN impotence. These factors are combining to create dismal prospects for Palestinian self-determination and for a negotiated peace that is sensitive to the rights and grievances of both Palestinians and Jews.

 

Recalling three notable commemorations to be observed in 2017 may help us understand better how this distressing Palestinian narrative unfolded over the course of the past hundred years. Perhaps, such remembrances might even encourage the rectification of past failures, and encourage flagging national and international efforts to find a way forward even at this belated hour. The most promising initiatives are now associated with a growing global solidarity movement dedicated to achieving a just peace for both peoples. For now, neither the United Nations nor traditional diplomacy seem to have much leverage over the play of social and political forces that lies at the core of the Palestinian struggle. Only the nonviolent resistance of Palestinians to their prolonged ordeal of occupation and transnational civil society militancy seem to have any capacity to exert positive leverage over the status quo and to sustain hope.

 

At the same time, legitimacy and visibility remain important, and here the UN and international society have important roles to play, especially to reaffirm the legitimacy of Palestinian goals and grievances, the importance of political compromise, and the persisting refusal of Israel to show respect for international law, the authority of the United Nations, and the world public opinion.

 

 

1917

 

On November 2, 1917 the British Foreign Secretary, Arthur Balfour, was persuaded to send a letter to Baron Lionel Rothschild, an influential supporter of the world Zionist project, expressing the support of the British government, for the aspirations of the movement. The key language of the letter is as follows:

 

His Majesty ‘s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use its best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

 

An obvious initial observation is why was Britain moved to take such initiative in the midst of World War One. The most plausible explanation is that the war was not going so well, nurturing the belief and hope by British leaders that siding with the Zionist movement would encourage Jews throughout Europe to back the Allied cause, especially in Russia and Germany. A second motivation was to further British interests in Palestine, which Lloyd George, then Prime Minister, regarded as strategically vital to protect the overland trade route to India as well as safeguard access to the Suez Canal. An apparent third motivation was as an expression of gratitude to Chaim Weizmann, a Zionist leader, for his contributions as a chemist to the British war effort. And finally, there were many Europeans, including Balfour himself, who agreed with Zionism that the only lasting assurance of an elimination of anti-Semitism was for Jews to migrate to Palestine.

 

The Balfour Declaration was controversial from the day of issuance, even among some Jews. For one thing, such a commitment by the British Foreign Office was a purely colonialist undertaking without the slightest effort to consider the sentiments of the predominantly Arab population living in Palestine at the time (Jews were less than 10% of the population in 1917) or to take account of rising international support for the right of self-determination to be enjoyed by all peoples. Prominent Jews, led by Edward Montagu, Secretary of State for India at the time, opposed the Declaration, fearing that it would fan the flames of anti-Semitism, especially in the cities of Europe and North America. Beyond this, the Arabs felt betrayed as Balfour’s initiative was seen both as breaking wartime promises to the Arabs of postwar political independence in exchange for joining the fight against the Turks. It also signaled future troubles arising between the Zionist promotion of Jewish immigration to Palestine and the agitation of the indigenous Arab population, as well as producing in the midst of the Arab world a country with great military capabilities in relation to the surrounding region.

 

It should be acknowledged that even Zionist leaders were not altogether happy with the Balfour Declaration. There were deliberate ambiguities embedded in its language. For instance, Zionists would have preferred the word ‘the’ rather than ‘a’ to precede ‘national home.’ Also, the pledge to protect the status quo of non-Jews was seen as inviting trouble in the future, although as it turned out, this assumption of colonialist responsibility was never taken seriously. Most importantly, the Zionists received support only for the ambiguous reality of a national home rather than a clear promise of a sovereign state with full participatory rights in international society. On this latter point, informal backroom British diplomatic chatter agreed that a Jewish state might emerge in the future, but it was believed that this could happen only after Jews became a majority in Palestine, which happened only by way of the permanent dispossession of hundreds of thousands of Arab Palestinians in the course of the violent establishment of the state of Israel in 1948, which was also shadowed by the recent confirmation of the magnitude of the Holocaust.

 

It is worth this backward glance at the Balfour Declaration to realize how colonial ambition morphed into liberal guilt and humanitarian empathy for the plight of European Jews after World War II, while creating an endless nightmare of disappointment, oppression, and rightlessness for the Palestinian population.

 

 

 

1947

 

After World War Two, with strife in Palestine rising to intense levels, and the British Empire in free fall, Britain relinquished its mandatory role and gave the fledgling UN the job of deciding what to do. The UN created a high level group of diplomats to shape a proposal, resulting in a set of recommendations that featured the partition of Palestine into two communities, one for Jews, the other for Arabs. Jerusalem was internationalized with neither community exercising governing authority nor entitled to claim the city as part of its national identity. The UN report was adopted as an official proposal by a large majority of UN members in the form of General Assembly Resolution 181.

 

The Zionist movement purported to accept 181, while the Arab governments and the representatives of the Palestinian people rejected it, claiming it encroached upon rights of self-determination and was grossly unfair. At the time, Jews formed less than 35% of the population yet were given more than 55% of the land. It seems also that the Zionist acceptance of 181 was tactical rather than a principled commitment to confine border to the territory granted to Jews. This interpretation is reinforced by Israel’s refusal to withdraw from the land allocated to Palestine by 181 after fighting ceased in 1948, and instead Israel became a state based on ‘the green line’ borders that greatly enlarged the territorial expanse set aside for Jews in the UN plan.

 

As is widely appreciated, a war ensued, with armies of neighboring Arab countries entering Palestine being defeated by well-trained and armed Zionist militias. Israel won the war, obtaining control over 78% of Palestine at the time an armistice was reached, dispossessing over 700,000 Palestinians, and destroying several hundred Palestinian villages. This experience is the darkest hour experienced by the Palestinians, a continuing occasion of mourning, being known among Arabs as the nakba, or catastrophe.

 

 

 

 

 

1967

 

The third anniversary of 2017 is that associated with the 1967 War, which led to another military defeat of Arab neighbors, and the Israeli occupation of the whole of Palestine, including the entire city of Jerusalem and the Gaza Strip. The Israeli victory changed the strategic equation dramatically. Israel that had been previously viewed as a strategic burden for the United States was now appreciated and acknowledged as a strategic partner with impressive military capabilities, and thus deserving of unconditional geopolitical support.

 

In famous Resolution 242 UN Security Council unanimously decided on November 22, 1967 that the withdrawal of Israeli forces should be negotiated, with certain agreed border modifications understood to be minor, in the context of reaching a peace agreement that included a fair resolution of issues pertaining to Palestinian refugees living throughout the region. There was no expectation that Israel would avoid withdrawal, and immediately obstruct diplomacy by embarking on the unlawful settlement undertaking.

 

During the next fifty years we have come to realize that 242 has not been implemented. On the contrary, Israel has further encroached on Occupied Palestine through the continually expanding settlements and related infrastructure of roads and security enclaves, including the separation wall found unlawful by a near unanimous majority of the International Court of Justice in 2004.

 

A point has now been reached where few believe that an independent Palestinian state co-existing with Israel is any longer feasible or even desirable, making further reliance on ‘a two-state’ solution delusional, playing into Israeli hands by giving additional time to carry forward a hybrid approach that mixes in the West Bank and East Jerusalem a de facto pattern of gradual annexation with an apartheid structure of occupation. Despair follows because no plausible alternative to the two-state solution enjoys political traction, except possibly an Israeli one-state solution imposed upon the Palestinians at the cost of effectively relinquishing Israel’s lingering pretensions of democracy. Whether the alternative political form of an ethnocracy enjoys political legitimacy is questionable from either a human rights or global public opinion perspective.

 

 

Conclusion

 

These dark remembrances reveal three stages in the steadily worsening Palestinian reality. They also reveal the inability of the UN or international diplomacy to solve the problem of how Palestinians and Jews should share the land. It is too late to reverse altogether these strong currents of history, but the challenge remains acute to find a humane outcome that somehow finds a way to allow these two peoples to live peacefully and securely together or in separated equal political communities that do not trample upon Palestinian rights. Let’s fervently hope that a satisfactory solution is miraculously found or achieved before another dark remembrance commands our attention.  

 

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Condemning Israeli Settlement Expansion: UN Security Council Resolution 2334 and Secretary Kerry’s Speech

4 Jan

 

           

On December 23, 2016 the UN Security Council by a vote of 14-0 adopted Resolution 2334, notably with the United States abstaining, condemning Israeli settlement expansion. It was treated as big news in the West because the Obama presidency had finally in its last weeks in office refused to use its veto to protect Israel from UN censure. Especially in the United States, the media focused on the meaning of this diplomatic move, wondering aloud whether it was motivated by Obama’s lingering anger over Netanyahu’s effort to torpedo his efforts to reach agreement with Iran in 2014 on its nuclear program or meant to challenge the incoming Trump leadership to deal responsibly with the unresolved Israel/Palestine conflict and also by indirection to mount criticism of Trump’s reckless pledge to move the American embassy to Jerusalem and his apparent readiness to side openly with extremist Israeli leadership while in the White House.

 

           

The likely lasting importance of the resolution is the evidence of a strong international consensus embodied in the 14-0 vote, with only the US abstention preventing unanimity. To bring together China, Russia, France, and the UK on an initiative tabled by Senegal, Malaysia, and Venezuela, is sending Israel and Washington a clear message that despite the adverse developments of recent years in the Middle East the world will not forget the Palestinians, or their struggle. It is also significant that the resolution calls upon the new UN Secretary General to report back to the SC every three months on progress implementing the resolution and explicitly keeps the Council seized of the issue. Such provisions reinforce the impression that the unresolved Israel/Palestine conflict will remain on the UN policy agenda in the months ahead, which by itself is extremely irritating to Israel.

 

            It is quite obvious that 2334 is largely a symbolic initiative, which is a way of saying that nothing on the ground in occupied Palestine is expected to change even with respect to Israeli settlement policy. Israel responded to the resolution even more defiantly than anticipated partly because this challenge to its policies, although symbolic, was treated as more threatening than a mere gesture of disapproval. Israeli anger seemed principally a reaction to the American failure to follow its normal practice of shielding Israel by casting its veto. It may also reflect concerns in Israel about the growing civil society challenge posed by the Boycott, Divestment, and Sanctions Campaign (BDS) that is gaining traction in recent years, particularly in Europe and North America. In effect, 2334 may be the beginning of a new phase of the legitimacy war that the Palestinian people and their supporters have been waging in recent years in opposition to Israeli occupation policies and practices, not only in the West Bank and East Jerusalem, but also in Gaza and to discredit its diplomacy on the world stage. If Trump delivers on his provocative pledge to move the American Embassy to Jerusalem it is likely to intensify offsetting international efforts to induce the UN to exert greater pressure on Israel to address Palestinian grievances in a manner more in accord with international law.

           

The motivation for the US change of tactics at the UN was greatly elaborated upon a few days later by John Kerry, the American Secretary of State. He mainly connected 2334 with a US effort to save the two-state solution from collapse. Kerry insisted that the two-state solution could still be salvaged, although he acknowledged that it was being put in increasing jeopardy by the steady expansion of Israeli settlements, which he acknowledged as signaling Israel’s ambition to impose their own version of a one-state outcome on the Palestinians. Kerry articulated the widely held belief that the formal annexation of occupied Palestinian territories would force Israel to choose to be either ‘Jewish’ or ‘democratic.’ It could not be both if the 5 million or so Palestinians living under occupation were added to the 1.7 Palestinian minority in pre-1967 Israel. At such a point Israel would either have to grant all Palestinians full citizenship rights, and no longer be Jewish, or withhold these rights and cease further pretenses of being democratic. Significantly, Kerry refrained from saying that such a solution would violate basic Palestinian rights or antagonize the UN to such a degree that sanctions would be imposed on Israel. Secretary Kerry relied on the practical advantages for Israel of making peace with Palestine, and refrained from warning Israel of dire international consequences of continuing to violate international law and defy the unified will of the international community.

 

For a variety of reasons, as suggested, 2334 and the Kerry speech were welcome corrective to the relative silence of recent years in response to the failure of the parties to move any closer to a sustainable peace. It was also a belated indication that at least part of the American political establishment was no longer willing to turn a blind eye to Israeli wrongdoing, at least with respect to the settlements. Yet 2334, and especially the Kerry speech, do not depart from fundamentally mistaken presentations of how to move diplomacy forward. There is no mention of the widely held belief in civil society that the train carrying the two state baggage has already left the station, stranding the hapless diplomats on the platform. In fact, both 2334 and Kerry seek to breathe life into an opposite impression that the only feasible peace arrangement must be based on achieving two independent, sovereign states; no consideration is given to the alternative of a secular one state solution with equality for the two peoples based on democracy and human rights.

 

            The second serious misrepresentation of the situation is the assertion of a false symmetry as between the parties rather than a necessary recognition of disparities in capabilities and responsibilities that have doomed the ‘peace process’ from its inception. The Palestinians are living under a harsh occupation regime, in refugee camps spread around the region, or in a worldwide diaspora, while Israelis are living in freedom, prosperity, and relative security. Israel violates international law in numerous systematic ways, while Palestine endures an oppressive occupation that it is unable to challenge. In this spirit, Kerry declares that both sides are responsible for the lack of diplomatic progress, which overlooks the consequences of Israeli settlement expansion, ethnic policies in Jerusalem, and the blockade of and attacks on Gaza. Reasonable expectations about how to move forward should be grounded in the realities of these disparities and how to overcome them. A start would be to acknowledge that Israeli compliance with international humanitarian law, especially the Fourth Geneva Convention, is a precondition for the resumption of any further negotiations.

 

Considered more carefully, it is probably not surprising that 2334 is somewhat more critical of Israel than the Kerry speech, although the speech is not nearly as ‘anti-Israeli’ as the mainstream Western media would have us believe. 2334 condemns not only recent settlement expansion moves but declares in its first operative clause that all of the settlements established by Israel since 1967 in occupied Palestine, including those in East Jerusalem, have “no legal validity and constitutes a flagrant violation under international law.” Kerry deep in his speech, almost as an aside, acknowledges the continued US acceptance of this wider illegality of the settlements, but simultaneously reassures Israel that it is taken for granted that land exchanges would enable Israel to keep its largest settlements if future peace diplomacy ever does lead to the establishment of an independent and sovereign Palestine. In effect, the fact that these largest settlements built on the best land in the West Bank are widely considered flagrantly unlawful from the time they were established is treated as essentially irrelevant by Kerry with respect to working out a deal on peace.

 

Even more telling, 2334 while affirming the international consensus supportive of a two-state solution does not go on to give any indication of what that might mean if transformed into political reality. Kerry outlines the American vision of such a solution with ideas, which if carefully considered, would make the plan unacceptable to Palestinians even if we make the huge, and currently unwarranted assumptions that Israel might in the future become a sincere participant in a peace process, including a willingness of its government to dismantle substantially the settlement archipelago.

 

For instance, Kerry reflects Washington’s view of a two-state solution by presupposing that if any Palestinian state is ever established it would be entirely demilitarized while Israel would retain unlimited options to remain as militarized as it wished. Such one-sidedness on the vital matter of security is affirmed, despite an expectation that in the course of allowing a Palestinian state to come into existence the 2002 Arab Peace Initiative would be fully implemented. Such a development would allow Israel to count on demilitarized regional security cooperation with the entire Arab world, including full normalization of economic and cultural relations. Even if the Palestinian Authority were persuaded to accept this fundamental inequality in the sovereign rights of the two states, it is doubtful that the Palestinian people would accept such a humiliating and compromised status over time. In effect, the Kerry outline of peace expresses a continuing commitment to pro-Israel partisanship and is less a formula for a sustainable peace between these two peoples than it is a presumably unintentional setting of the stage for an indefinite continuation of the conflict under altered conditions.

 

Yet there are two qualifying considerations that should be taken into account. There are reliable reports that Kerry wanted to make his speech of late December two years ago, and was prohibited from doing so by the White House that feared a backlash that would burden its already difficult task of governance. In effect, as with such famous retirement speeches as Eisenhower’s warning about the military-industrial-complex a half century ago the citizenry is warned when it is too late even to attempt to address the problem until a new leadership takes office. In my view, even if Kerry had been allowed to speak when there was still time to act, there would have been little behavioral effect because Israel is now unconditionally committed to the Greater Israel image of a solution, there was insufficient political will in Washington and around the world to push Israel hard enough, and because the image of ‘peace’ was too one-sided in Israel’s favor as to be either negotiable or sustainable.

 

 

Similar partisan features undermine the credibility of other aspects of Kerry’s advocacy of how best to proceed. While recognizing the importance of the refugee issue, Kerry calls for some kind of solution that allows Palestinian refugees to receive monetary compensation and the right to return to the state of Palestine, but not to their homes or village if located in present day Israel. And no where is Israel’s unlimited right of return available to Jews worldwide, however slight their connection with Israel or Judaism might be.

 

Kerry went out of his way in the speech to demonstrate that the US abstention in relation to 2334 was in no way intended to rupture the special relationship between Israel and the United States. In this vein, Kerry pointed to the fact that the Obama administration had been more generous than its predecessors in bestowing military assistance upon Israel and had over its eight years protected Israel on numerous occasions from hostile initiatives undertaken it various UN venues. His point being that Israel’s defiance on settlements made it politically awkward for the United States to be an effective supporter of Israel and created tension between its preferred pro-Israeli posture and the more pragmatic pursuit of national interests throughout the Middle East.

 

Despite this friction between Washington and Tel Aviv, the US was the only member of the Security Council to refrain from supporting the resolution, limiting its departure from Israel’s expectations by refusing to block 2334, although it apparently toned down the criticism through threatening to use its veto if the language used was not ‘balanced.’ Kerry went out of his way to celebrate the recently deceased former Israeli president, Shimon Peres as a heroic peace warrior, which amounted to a not subtle dig at Netanyahu. Kerry quotes approvingly Peres’ self-satisfied assertion that 78% of historic Palestine should be enough for Israel, which Peres was comparing to the excessive demands for even more land by the settler one-staters. Of course, 78% gives Israel much more than the 55% it was awarded in 1947 by UNGA Assembly Resolution 181. At the time, the entire Arab world and Palestinian representatives rejected this UN proposal as unacceptable despite given 45% or more than double the territory of Palestine after Israeli withdrawal from Palestinian land occupied since the 1967 War. Beyond this, Kerry’s inclusion of land swaps as integral to his version of the two-state solution would result in further encroachments on territory left to the Palestinians, a result obscured to some extent by giving Palestine uninhabitable desert acreage as a dubious equivalent for the prime agricultural land on which the unlawful Israeli settlements are built. At best, territorial equality would be achieved quantitatively, but certainly not, qualitatively, which is what counts.

 

At the same time there are some positive aspects to Kerry speech. It did create a stir by its sharp criticism of Israel’s policies on settlements, as well as open doors to debate and broke the silence that was enabling Israel to proceed with its plans for territorial expansion. It is worth noting that James Zogby, long a dedicated advocate of Palestinian rights who has been surprisingly effective in the face of the constraints of the American setting, has expressed his strong appreciation for Kerry’s speech in the following words: “To some, especially Palestinians, this may seem like ‘too little, too late.’ But as someone who has been a part of the effort to create an American debate on Israeli policies, Kerry’s intervention is both welcome, validating, and empowering. He laid down markers that should help liberals and progressives define a policy agenda on the Israel-Palestine conflict—exactly what we need as we enter the challenges of the Trump era.”

 

Overall, the impact of 2334 is likely to be greater than it would have been if Israel had not reacted so petulantly. Even if Trump reverses the American critical approach to further Israeli settlement expansion, the UN has been reawakened to its long lapsed responsibility to find a peaceful solution for the conflict and end the Palestinian ordeal that has gone on for an entire century since Lord Alfred Balfour gave a British colonial green light to the Zionist project in 1917 to establish a Jewish homeland in historic Palestine. As well, civil society activists that have thrown their support to the BDS Campaign and governments critical of Israel’s behavior are likely to feel encouraged and even empowered by this expression of virtual unity among the governments belonging to the most important organ of the UN System. Of course, there have been many resolutions critical of Israel in the past, and nothing has happened. The harsh occupation persists unabated, the dynamics of annexation move steadily forward, and the Palestinian tragedy goes on and on. Despite this inter-governmental step at the UN, it still seems that the Palestinian fate will be primarily determined by people, above all by various forms of Palestinian resistance and secondarily by the extent of global solidarity pressures. Whether resistance and solidarity on behalf of justice is sufficient to neutralize the iron fist of geopolitics and state power remains the essential challenge.

James Zogby, long a dedicated advocate of Palestinian rights who has persevered in the face of the many difficulties present in the American setting, deserves a respectful hearing for his praise for of the Kerry speech. He has expressed his strong appreciation with the following words: “To some, especially Palestinians, this may seem like ‘too little, too late.’ But as someone who has been a part of the effort to create an American debate on Israeli policies, Kerry’s intervention is both welcome, validating, and empowering. He laid down markers that should help liberals and progressives define a policy agenda on the Israel-Palestine conflict—exactly what we need as we enter the challenges of the Trump era.” Let us join Zogby in acknowledging a few drops of water in the glass containing Palestinian hopes, but let us also recognize that even with Kerry break with silence, lots has to happen before we can begin to believe that the glass is half full.

While keeping open a suspicious eye, it is important to acknowledge positive aspects of the Kerry speech: It did create a stir by its sharp criticism of Israel’s policies on settlements, as well as open doors to debate and broke the silence that was enabling Israel to proceed with its plans for territorial expansion. In the period ahead, we may even become nostalgic for the posture, even if mainly hypocritical, of seeking a peaceful, negotiated future for the Palestinian people. Or maybe the stripping away of illusions will highlight the continued dependence of the Palestinians on struggle and solidarity.

 

 

 

 

 

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