[Prefatory Note; This post is the text of opinion piece published in Middle East Eye on Oct. 27, 2022. It is slightly modified.]
FRANSCESCA ALBANESE’S FIRST REPORT DEVOTED TO THE RIGHT OF SELF-DETERMINATION
For more than a century, the Palestinian people have endured a series of ordeals that have violated their most basic individual and collective rights.
Instrumental to this epic saga of suffering has been the success of the Zionist movement in establishing the state of Israel on the premise of Jewish supremacy in 1948.
Such success depended also on perpetrating a distinct international crime, a consequence of the Zionist Movement seeking to establish not only a Jewish state but a democratically constituted state. This combination of goals could only be reliably ensure and maintained by demographic measures that Jews in Israel would enjoy a permanent demographic majority. Note that other settler colonial states so long as they kept a hierarchical relationship with the native population never pretended to be an inclusive electoral democracy.
As an operational undertaking this required Israel to make a drastic demographic adjustment involving either a large increase in the Jewish presence in Palestine – which was not feasible at the time – or the drastic reduction of the Arab presence, which was course taken.
This logic informed the forced expulsion of 750,000 or so Arab citizens of British Mandate Palestine from that part of historic Palestine set aside for the Jewish state by the United Nations partition plan, itself territorially enlarged by Zionist territorial acquisitions in the 1948 war.
A Jewish majority in Israel was further reinforced and safeguarded by the implementation of a rigid denial of the right of return of displaced and dispossessed Arabs of Palestine in violation of international law. This Palestinian experience of expulsion coupled with the denial of any right of return is what is known as the Nakba (or catastrophe).
Of course, this is not the whole story surrounding the founding of Israel. There was a Jewish presence and biblical connection with Palestine stretching back thousands of years, although the Jewish minority had dwindled to less than 10 percent in 1917, when the British foreign secretary pledged support for establishing a Jewish homeland by way of the infamous Balfour Declaration. Nevertheless, the Zionist narrative, taking various forms, became widely accepted, especially in the West.
Highly relevant to this endorsement of the dominant Jewish narrative was the rise of European antisemitism in the 1930s, culminating in the Holocaust, which made a Jewish sanctuary a condition of survival for a significant portion of Jews in the world. It also increased receptivity to the founding of Israel, reflecting liberal guilt about failing to stop Naziism at an earlier stage and by an Orientalist dismissal of Palestinian nationalist claims.
The historical context certainly mobilized the Jewish diaspora, especially in the US, to back the Zionist project to colonize Palestine, and ever since, to provide geopolitical muscle and massive economic and military assistance over the course of many years to support the security and expansionist ambitions of Israel continuing even as it became strong and prosperous. .
A UN innovation
At the international level, particularly within the UN, there has been constant sympathy and support for Palestinian rights under international law, especially in the General Assembly and the Human Rights Commission (HRC), which carries out the decisions of the Human Rights Council, consisting of 47 elected governments.
In 1993, a country mandate concerned with Israel’s human rights violations in the Palestinian territories of East Jerusalem, the West Bank and Gaza occupied since 1967 was created.
It is from this initiative that the mandate of the special rapporteur (SR) derives.
A special rapporteur is selected by a consensus vote of the HRC on the basis of a rather elaborate vetting process that includes a committee of diplomats from member government that conveys to one-year rotations of country diplomatic representatives who serve as president of the HRC a ranked shortlist of preferred candidates. The candidates are supposed to be selected because of their expert credentials.
The president generally follows the recommendation, which is then submitted to the HRC for an up or down vote, with a single dissenting vote sufficient to reject a candidate.
The SR position itself is a U N innovation, with each individual normally serving two three-year terms.
Although requiring considerable work by way of travel and reports, it is an unpaid position. The up-side of this voluntary status is that SRs are not subject to administrative discipline as UN civil servants. This feature is designed to provide the position with political independence, at least with respect to UN Members and the UN itself, but offers no insulation from hostile media or NGOs, or even governments so long as they do not interfere with the work of SRs.
It should surprise no one that Israel and the US were against establishing the mandate since it was first proposed in the HRC. In recent years Israel has refused to cooperate with SRs even refusing to allow access to Occupied Palestine..
By denying entry into Israel or the occupied territories, the Israeli government denies the UN rapporteur direct contact with the people and situation on the ground, and forces a reliance on public information and meetings in neighboring countries. For those of us who have been to Occupied Palestine, there is no adequate substitute for a direct experience of the place.
It is significant that during the last 15 years, Israel and its supporters have stopped responding to the substance of the carefully documented SR reports and other UN assessments of alleged Israeli violations. Instead Israel and its most ardent apologists have concentrated their political energies on allegations of UN antisemitism and related vilification of successive rapporteurs.
I would explain the shift in tactics in this way. When the Israeli violations became too flagrant and documented by multiple sources it was a. fool’s errand to attempt refutation. Better attack the messenger than address the message. It is most unfortunate that ofteen such a tactic has been effective, diverting the discourse, especially in the media, to questions about whether or not the SR is in fact biased or antisemitic, and burying the serious allegations in the process.
Despite being confronted by this personally unpleasant, abusive, and diversionary Israeli pushback, the reports of SRs have gained influence and legitimacy over the years. They are relied upon by several important governments, as well as by some of the more independent media and many civil society actors including churches, labor unions, and human rights organizations.
Within this context, the new SR for Palestine, an Italian academic jurist and highly esteemed human rights expert, Francesca Albanese, has recently issued her first report, due shortly for presentation to the UN General Assembly in New York. [UN GA Doc. A/77/356, 21 Sept 2021]
It is a most impressive document that comprehensively depicts and offers evidence relating to the most fundamental violations of the basic rights of the Palestinian people.
Against the flow of history
The Albanese Report appropriately gives primary attention to the Palestinian entitlement to the fulfillment of the inalienable right of self-determination. It was this right of self-determination that provided the normative foundation for the anti-colonial struggles in the period of 1950-80. These struggles shared and interacted with the Cold War on the global center stage after the end of World War II.
Albanese takes note of the supreme irony that Zionism managed to go against the flow of history by establishing a durable and legitimated settler-colonial state of Israel at the very moment when European colonialism was elsewhere under assault by national resistance and liberation movements, enjoying media and public support.
Her report has already gained widespread attention and praise both for its spirit of fierce independence, the lucidity of its argument, and the superior quality of its analysis. Such an exemplary performance in the formal start as SR has expectedly also provoked hostile commentary by way of taunts and defamatory accusations. Albanese’s report is accused of deliberately slanted interpretations of law and facts, which enabled her to reach conclusions hostile to Israel.
I would submit that such a complaint is unjustified and believe that any fair reading would confirm this. An objective reading of the Albanese report would conclude, in opposition to her venomous critics, that the author has gone out of her way to gain direct access to Israel’s narrative and sought to present to the reader Israel’s own justifiications of its contested behavior.
Although accepting the emerging civil society consensus to the effect that Israel is imposing an apartheid regime on the Palestinian people, Albanese sets forth an entirely original and illuminating argument for why the elimination of apartheid would not by itself be enough to end the ordeal of the Palestinian people.
Briefly summarizing, the most influential depictions of Israeli apartheid are territorially bounded either to the occupied territories or an enlarged entity that includes Israel proper (often identified as stretching “from the river to the sea”). As Albanese notes, such spatial delimitation of apartheid are not directly relevant to refugees in the occupied territories and neighboring countries, as well as to the several million involuntary exiles living in various places around the world living outside the boundaries of Palestine.
Dismantling settler-colonial occupation
Beyond that, without satisfying the full spectrum of Palestinian basic rights, including economic and social rights, there is no assurance that Israel would not be able to maintain exploitative forms of domination characteristic of settler-colonialism even should Israeli apartheid be dismantled.
For Albanese, it is indispensable to recognize that justice for all the Palestinian people will not be done until their right of self-determination is fully implemented. She analyses this Palestinian right by reference to two principal dimensions: free choice of the form of political governance and permanent national sovereignty over natural resources.
The resounding message of this historically significant report is its call for a solution premised on respect for relevant history and international law
In essence, as articulated by Albanese, the right to self-determination is the right of a people “to exist as independent both demographically (as a people) and territorially (within a given region) and to pursue their cultural, economic and social development through what the territory and associated resources offer.”
In the more prescriptive sections of her report, Albanese puts her analytic skills to work in clearing a path forward for the Palestinians. In doing this she does not exempt the UN from its many past failures to uphold international law in relation to the struggles for justice and the rule of law in Palestine and is insistent that it should do better in the future.
She indicts the UN as having “systematically failed to hold Israel accountable”, thereby enabling Israel’s imposition of settler colonialism accompanied by flagrant, repeated violation of international humanitarian law.
In passing, she also argues that Israel’s defiant rejection of a stream of General Assembly resolutions calling upon Israel to uphold Palestinian rights, including the rights of self-determination “legitimated a Palestinian right of resistance” and undermined the legality of Israel as an occupying power.
The Palestinian People Deserve Respect for their Rights under International Law
The resounding message of this historically significant report is its call for a solution premised on “respect for history and international law.” It is to be enacted by the immediate withdrawal from the occupied Palestinian territories and the payment of reparations for decades of unlawful harm inflicted on the Palestinian people.
Albanese is to be commended for the clarity and forthrightness of this report to the UNGA, but it would be naive to suppose that it will by itself bring overdue liberation to the Palestinian people.
What it does bring is an authoritative and deeply informed legitimation of Palestinian resistance to occupation and a convincing critique of UN weakness when it comes to the implementation of basic rights.
It would be wrong and misleading to conclude from the realization that the UN has been useless in relation to the Palestinian struggle. Even though the UN is helpless to change the behavior on the ground, it remains crucially important in the symbolic and normative domains of legitimacy wars, which have controlled the eventual political outcomes of major anti-colonial wars. These outcomes have astonished ‘realists’ who continue to exert a dominating influence over the formation of foreign policy. Astonished but not persuaded. These realists continue to suppose that the side with the better military technology and smarter tactics should be able to prevail even in anti-colonial wars, and so the bloodstained failures of imperial warfare are repeated, ignoring this record of defeat.
A Concluding Remark
This sense of UN impotence to achieve substantive results whenever the dictates of justice clash – as here – with the vital strategic interests of a geopolitical actor is an operative fact of international life. Such a phenomenon is at play in the Ukraine Crisiis.
At the very least, Francesca Albanese’s courageous report should serve as a wake-up call for the Global South and a reminder to all of us that the anti-colonial movement still faces a formidable challenge.
Global Justice in the 21st Century 
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.
Tags: Israeli apartheid, Jerusalem, Occupied Palestine, one-state solution, Two-State Solution, UN Human Rights Council, UN Special Rapporteur