[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.
Global Justice in the 21st Century 
2017: Palestine’s Three Dark Commemorations
16 JanIncreasingly, 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.
Tags: 1967 War, Balfour Declaration, equal and sustainable peace, legitimacy, nab, one-state solution, Settlements, Two State Solution, UNGA Res. 181