Palestine in international law

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By NOURA ERAKAT, DARRYL LI & JOHN REYNOLDS*

Palestinian movements theorized the racial and colonial dimensions of their oppression by developing coping strategies

The centrality of Palestine in international law debates on race, racialization and racism derives, in large part, from the temporal peculiarity of the Zionist movement and its attempt to establish a new colonialist settler state in parallel with the worldwide intensification of formal decolonization and liberal denunciations. against racism. In 1922, the League of Nations stated the objective of creating, in Palestine, a settlement colony for the Jewish people – denying the national self-determination of the indigenous Arab population – in public international law.

The Palestine Mandate erased the status Palestinian national in three forms; first, framing the Arabs as incapable of self-government, second, highlighting the importance of creating a Jewish national home, and, finally, distinguishing Palestine from other class A mandates, due to its religious relevance that exceeded the interests of any group national. A century later, the “question” of Palestine remains open, occupying a central space in anti-racist and anti-colonialist struggles in international law.

Zionism in this context means support for the creation and maintenance of a state for all Jews in historic Palestine, whose demographic majority and preferential citizenship are Jewish. The Zionist movement created Israel through war and the displacement of three-quarters of the native Palestinian population in 1948. This state is an expression of Zionism, and is also its channel for an ongoing process of colonization, settlement and displacement.

As Palestinian jurist and academic Fayez Sayegh observed in 1965, “the dissipation of a cruel and shameful period in world history coincided with the emergence, on the land bridge between Asia and Africa, of a new branch of European imperialism and a new racist variety of colonialism”. Unlike older Anglo-Saxon settler states, which were able to continue their colonial practices with less international oversight, Israel's increasingly anachronistic nature often positions it as a case study in current debates about racism and colonialism.

The Palestinian “question”

The importance of understanding race and colonialism as concepts that perform distinct functions, but with irrevocable interconnections, is highlighted by the Palestine issue. The ongoing debates between legal scholars and scholars in Critical Race Theory traditions (Critical Race Theory) and Third World Approaches to International Law (Third World Approach to International Law) also remind us of this dynamic in other parts of the world. Palestine therefore represents a warning sign about the “racialist turn”. While Third World perspectives on international law have often given little attention to the theoretical implications of the concept of race or have quickly subsumed it under the category of colonialism, we need to be more careful and precise to prevent hasty references to race and international law from merely reaffirming arguments about colonialism or, even worse, from reproducing a methodological nationalism that disconnects race from its global dimensions.

It is necessary to reaffirm, therefore, the fundamental parameter of Zionism being at the same time a racializing and colonial project. Zionism maintains that all Jews in the world are a single group based solely on hereditary descent, independent of any personal or familial ties to the specific territory in question. It inserts a form of property into Jewish nationality – including rights to land, citizenship, employment, life and housing – based on the continuous and systematic dispossession of Palestinians, categorized with fungible “Arab” nomads. The Zionist project therefore implies a racial hierarchy that is also explicitly global: the State of Israel not only favors the Jewish part of its population to the detriment of the non-Jewish part, but also guarantees superior rights to foreign Jews. This interconnection, therefore, has been obscured in the two fundamental debates surrounding Palestine and international law.

One of the most important – and controversial – debates about racism and international law refers to the concept of “apartheid”. Originally a euphemism used by white supremacists African to justify and organize his colonial regime, “apartheid” was turned into a term of opprobrium in international law by the national liberation movements of southern Africa. O apartheid, as a flagrant form of segregation and racial domination, was banned for the first time in International Convention on the Elimination of All Forms of Racial DiscriminationOf 1965.

It was later classified as a crime against humanity in International Convention on the Imprescriptibility of War Crimes and Crimes Against Humanity, from 1968, and codified more completely in 1973, in International Convention on the Suppression and Punishment of the Crime of Apartheid. To date, no international legal body has concluded to extend the concept of apartheid beyond southern Africa in a concrete judgment, although human rights treaty bodies, such as the Committee on the Elimination of Racial Discrimination, confirm its universal applicability. The oldest and most intense debate about the applicability of the concept of apartheid outside its original context – and therefore the main point of debate contestation of its universalization – has been Palestine.

Apartheid without racism?

In recent years, the nature of the apartheid in Palestine has also occupied an increasingly central space in international legal analysis – through the work of jurists, UN mechanisms and Western activist organizations. But much of this production makes no reference to settler colonialism or Zionism, nor even to the constitution of the Israeli state as an apartheid entity since its formation in 1948. Instead, hegemonic interventions frame the situation into a narrative according to What is the characterization of apartheid originates in the more recent past. The reality is that this evolution is less about anomalies and aberrations, and more about continuation and systematization. Therefore, framing them as a new starting point, with relative independence from elementary structures or colonial ideology, enables the narrative that Israeli apartheid arises from flawed practices “without foundation in a racist ideology”.

This notion of apartheid “without racist ideology” is based on long-standing tensions regarding the understanding of apartheid itself in international law. Since the 1960s, international law has conceptualized the practice of apartheid along two parallel lines: an anti-colonial reading emphasizing the denial of a collective right to self-determination by an oppressive regime of racial domination; and a more liberal interpretation, treating it as systemic discrimination against individuals of a certain racial group within the legal system of a State.

Since the formal beginning of the apartheid In South Africa, in 1948, third world intellectuals, political leaders and jurists clearly understood apartheid as a legal-political architecture of colonialism, and not something new or distinct. After 1960, when the third world bloc assumed a majority position at the UN, UN General Assembly resolutions began to consistently employ the language of self-determination and the end of colonialism in all its forms and manifestations. They repeatedly condemned the apartheid as a regime of racial domination constituting an inherent violation of self-determination. O apartheid it was largely understood as a colonial regime of foreign occupation, demanding similar solutions: collective liberation and land restitution.

The individualizing logic of human rights and international criminal law, over time, was imposed following the marginalization, at the beginning of the 1980s, of the most radical currents that demanded the liberation of the third world and whose anti-imperial policy briefly threatened to transform the international right. With this, the essential anti-colonial implications of the prohibition of apartheid were secondaryized. O apartheid, while “colonialism of a special kind” – as described by the South African Communist Party – has been reformulated into (or reduced to) something closer to “racial discrimination of a special kind”.

It is understandable, therefore, that human rights organizations have used the least controversial and narrowest version of apartheid offered by international law. They are thus able to escape the consequences imposed by the material reality of decolonization in the face of an ongoing colonization project. This more liberal understanding of apartheid, focused on criminal law, can potentially be remedied by formal equality, without the need to deal directly with the colonial conquest and the political economy consolidated by the apartheid regime. In this sense, the apartheid it could be “liquidated” without decolonization, restitution or redistribution.

In South Africa, this narrower reading of apartheid produced a form of “neo-apartheid”. In Palestine, this would make it possible to dissociate the apartheid of settler colonialism. Therefore, the centrality of self-determination needs to be at the forefront of debates about apartheid – not just for the sake of Palestinians, but for the sake of all those seeking a comprehensive framework of apartheid. apartheid in the struggles against racism and colonialism.

Zionism as racism

While the ban on apartheid was developed as an anti-racist instrument in international law, a parallel effort was made to designate Zionism as a specific form of racism. Within the scope of UN initiative “Decade against Racism”, a coalition of States sought to insert the word “Zionism” in texts whenever expressions such as colonialism, racial discrimination, foreign subjugation and apartheid appeared. On November 10, 1975, the UN General Assembly approved the 3379 Resolution, recognizing Zionism as a form of racism. The resolution explicitly named Zionism alongside “colonialism and neocolonialism”, as well as apartheid, also citing a resolution from the Organization of African Unity that designated the “common imperialist origin” of the “racist regime[s]” in Palestine, Zimbabwe and South Africa.

Resolution 3379 was based on analyzes of the racist and colonial character of Zionism previously developed within the context of the Palestinian liberation struggle. The main architect of the resolution was Fayez Sayegh himself. Sayegh highlighted how racial purity, segregation, and supremacy constituted Zionism. At the United Nations, Sayegh explained how, for Zionism, “the racial bond made a Jew a Jew”, proving his argument by Read aloud the writings of the founder of modern Zionism, Theodor Herzl. They greatly understood the irony inherent in the Zionist claims of a unique Jewish race, given that they reflected a pillar of anti-Semitism, based on the impossibility of acceptance of Jews in Europe.

The best-known vote against Resolution 3379 came, as expected, from the United States. US Ambassador Daniel Moynihan rejected the idea that Zionism could be a form of racism and insisted on explaining Zionism as a political movement – ​​a point that observers like Sayegh did not dispute, but that Zionists themselves avoid whenever possible by insist that any criticism of Zionism amounts to an attack on Jews as such. Quoting blatantly definitions of racism according to dictionary entry, which invoke biological notions of race, Daniel Moynihan insisted that Jews are not a race in the biological sense. This was, of course, a complete non sequitur.

As Fayez Sayegh and several others have objectively shown, regardless of whether or not Jews are a race in any “objective” sense, what is relevant is how Zionism itself understands Jews. Daniel Moynihan's fixation on biological notions of race was not surprising, given his notoriety in debates about racism and anti-blackness in the United States. A decade before his vigorous defense of Zionism at the United Nations, Daniel Moynihan was the lead author of a widely cited U.S. government report on “the black family,” whose pathologization of black mothers fueled decades of black feminist critique.

Resolution 3379 was approved thanks to the overwhelming support of third world states, but the vote was controversial: seventy-two states in favor; thirty-five against; and thirty-two abstentions. In Israel, the United States and other strongholds of Zionism, Resolution 3379 became a symbol of the control of the United Nations by anti-Israel and Third World insurgent sentiments. Ignored in this balance is the condemnation of Zionism as racism understood explicitly as a constitutive part of the colonial regime.

The year 1975 was, in some ways, the high point of Third World – and, by extension, Palestinian – influence in the United Nations. In the following years, the Palestinian liberation movement did not advance with a legal strategy to address Zionism in international law as a violation of jus cogens, or a crime against humanity, as had been done with the apartheid. In 1991, the Palestine Liberation Organization accepted as a precondition for participating in the Oslo Peace Process renege on the resolution. As a result, bilateral negotiations led by the United States obscured the racial and colonial dimensions of the Palestinian freedom struggle, framing it as a matter of conflict resolution, despite the notorious asymmetry of powers between a nuclear power and a stateless people.

Conclusion

Drawing on traditions from spaces of struggle, alongside the conditions that shape their lives and perspectives, Palestinian communities and movements have theorized the racial and colonial dimensions of their oppression by developing coping strategies. The core demands of Palestinian activists, set out in the 2005 tripartite call for Boycott, Divestment and Sanctions, are not only the end of the 1967 occupation, but also the right of return for Palestinian refugees and the end of the Israeli state's racial regime. . This places the essence of the colonialist state of settlement and apartheid at the center of the struggle for freedom.

While the work of the Palestinian movement has forced recognition of the realities of apartheid and a renewed awareness of Zionism as a form of racism was consolidated, the UN General Assembly's request in December 2022 for a Advisory Opinion to the International Court of Justice, on the legal status of Israel's prolonged occupation, may represent a missed opportunity. It comes after many years of tactical discussion about the potential focus and purpose of an Advisory Opinion, opening up ample opportunity for the Palestinian leadership and its allies to expose the settler colonialism and institutionalized racism of the Israeli state.

By fleeing instead to a debate over the legal status of the 1967 occupation, thus limiting self-determination to a fraction of the Palestinian people, the terms of the request reify the conservative and partisan logic of international law itself. Although any occupation has an impact on the self-determination of the occupied population, a colonial and racist regime that aims for an irreversible demographic transformation aims to destroy this right and the very possibility of its exercise. At this point, it is not enough to analyze the occupation without confronting the racial and colonial regime in which it is inserted.

*Noura Erakat is a professor of international relations at Rutgers University (USA). Author, among other books, of Justice for Some: Law and the Question of Palestine (Stanford University Press).

*Darryl Li is a professor in the Department of Anthropology at the University of Chicago. Author, among other books, of The Universal Enemy: Jihad, Empire, and the Challenge of Solidarity (Stanford University Press).

Translation: Matthew Forli & Aldo Cordeiro Salute.

Originally published on American Journal of International Law.


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