[In a recent essay for the London Review of Books, Jewish-American intellectual Henry Siegman writes: “The two-state solution died because [Israeli Prime Minister Binyamin] Netanyahu and successive Israeli governments were determined to kill it, and those who could have prevented its demise lacked the resolve and moral courage to do so.” In response to Siegman, American academic Virginia Tilley argues that the two-state solution was a “futile quest” from the start, owing to the “doctrine of Jewish statehood and the associated domination and oppression of Palestinians required to secure it.” Tilley is a panelist at the upcoming symposium on Israel, Palestine & International Law. Here is Tilley’s letter to the LRB, reproduced with permission.]
Henry Siegman exposes the hypocrisy of blaming Palestinians for (largely symbolic) violence triggered by life under a violent regime, highlighting Israel’s increasingly repulsive attempts to excuse their wanton killing of non-violent protesters by citing the threat of ‘terrorism’.
Yet I don’t believe Siegman himself believes what his essay suggests: that Prime Minister Netanyahu and his right-wing compatriots somehow ‘killed’ the two-state solution. In fact, a two-state solution has never existed in Palestine and can never exist there. Its futile quest only furthers the mass human suffering and crimes against humanity playing out so bloodily in Gaza, Jerusalem and the West Bank.
As Siegman would probably agree, the ‘failure’ of the two-state solution can be attributed to a fatal interplay of geography with ideology. The geographic factor was always obvious: the British Mandate for Palestine, as delineated in 1922 by the League of Nations, was always too small, too densely inhabited and too thoroughly integrated as a social system to allow any partition to succeed without complete economic union. Seeking a solution to rising violence on both sides, in 1936 the British Peel Commission spent a week in the country and became the sole significant authority to recommend the partition of Palestine into two states.
But the follow-up Royal Woodhead Commission, charged with establishing how partition could be implemented, reported after a three-month countrywide survey that it couldn’t succeed for the Arab sector unless the borders between the two states created no barriers whatever to the movement of people and goods. The United Nations General Assembly ‘partition resolution’ accepted this analysis in recommending not simply two states but ‘two states in economic union’.
Yet economic union was always precluded by the ideology of political Zionism and its vision of a ‘Jewish and democratic state’. By definition, the formation of such a state requires confining any non-Jewish population to a politically debilitated minority. This essential precondition drove the Zionist policy to ethnically cleanse Palestine in 1948, bequeathing to the world the thorniest of ‘final status’ issues, the Palestinian refugee problem. Israel must also prevent those Arabs who remained within Israel from ever gaining sufficient electoral clout to challenge Israel’s Jewish ‘character’: hence laws banning Palestinian immigration, limiting Palestinian residence and prohibiting any political party from challenging Jewish statehood. Israel must also preclude open borders with the Palestinian territories, because the free interplay of Arab and Jewish populations would threaten Jewish-Arab miscegenation and ultimately break down all social logics of segregation. Israelis brazenly refer to this as the ‘demographic threat’.
Israel’s approach to a two-state solution therefore remains guided by this conundrum: no truly sovereign Palestinian state can flourish without open borders with Israel, yet open borders would pose an existential threat to Jewish statehood. Hence Israel cannot allow such a state to form. What Israel has agreed to accept is a Palestinian Bantustan: something called a ‘state’ but lacking true sovereignty, geographically fragmented into cantons, subject to Israel’s plenary power, its popular politics turned inward to seek rights from a leadership that rules only on condition that it serve Israel’s security interests. Israeli policies denying the vote to 300,000-plus Palestinian ‘residents’ of Jerusalem and rejecting the return of some six million Palestinian refugees are components of a grand strategy to preclude any electoral threat to Jewish statehood.
Taken as a whole this system matches the international legal definition of apartheid with sobering precision: maintaining racial ‘reserves and ghettos’; denying Palestinians their right to nationality; restricting Palestinian movement, education, work, residence, and the right to leave and return to their country – even banning mixed marriages. Most crucial to a finding of apartheid, these ‘inhuman acts’ are the result not of decisions by Netanyahu or any Israel leadership, but of the doctrine of Jewish statehood and the associated domination and oppression of Palestinians required to secure it.
Apartheid is not ended by partition. As in South Africa, this conflict will not be solved by carving a densely populated land into two states, but by confronting and ending the racist doctrine that comprises the only justification for them. This prospect is anathema to those who still see Jewish statehood through the romantic lens of national liberation or the biblical lens of the Millennium. But dancing around it can only leave diplomacy foundering in perplexity that a sovereign Palestinian state never appears, while the Palestinian death count continues to climb.
Virginia Tilley is Professor of Political Science at Southern Illinois University. From 2006 to 2011, Tilley served as Chief Research Specialist in the Human Sciences Research Council of South Africa. She is the author of The One-State Solution (University of Michigan Press) and editor of Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories (Pluto Press, 2012). Tilley co-authored Israeli Practices towards the Palestinian People and the Question of Apartheid, together with Richard Falk (UN Economic and Social Commission for Western Asia, 2017). Virginia Tilley will be speaking about the Israeli Apartheid question at the Israel, Palestine & International Law Symposium, in Winnipeg, on the evening of Saturday, Sept. 8. Tilley’s essay is reproduced with kind permission of the London Review of Books.
An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation. This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.
The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposeful reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.
In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. Benvenisti; O. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.
Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.
While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible.
If it isn’t, then the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be. The four parts of the proposed test are:
(i) An Occupying Power cannot annex any of the Occupied Territory
In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant (A. Gross: The Writing on the Wall (2017), at 8.)
Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016.
In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.
Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.”
Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem. There are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.
Israel’s predominant reply is that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances (S. Korman, The Right of Conquest (1996), pp. 259-60).
(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.
Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis.
While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposeful conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted that the occupying powers committed to return the governance of Iraq to its people “as soon as possible.” Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.
The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary.
As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation (2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.
(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation
The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else (A. Gross, The Writing on the Wall (2017), at pp. 26-29). The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities.
The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United Nations, B’Tselem, the Association for Civil Rights in Israel and Badil, Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources. Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise, and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalem and Gaza also endure distressing living conditions occasioned by the occupation.
Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.
Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.
In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfill its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, even though the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.
The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.
A determination that Israel – or any occupying power whose administration of an occupation has breached one or more fundamental principles – has become an illegal occupant would elevate the duty of the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.
Michael Lynk is an associate professor at the Faculty of Law, Western University, London, Ontario, Canada. In March 2016, the United Nations Human Rights Council appointed him as Special Rapporteur for the situation of human rights in the Palestinian Territory occupied since 1967. Michael Lynk will deliver the opening, Friday evening talk at the Israel, Palestine & International Law Symposium in Winnipeg on Sept. 7, 2018 — entitled International Law: Power vs. Justice. He will also participate in a Saturday afternoon talk entitled Israel’s Rights & Obligations Under International Law (together with Dimitri Lascaris).