Justice for Some Law and the Question of Palestine

Palestinian refugees, exiled now for seven decades, will return to a memory—in the case of several generations, they will return to their grandparents’ memory. The journey will, by definition, be a project of building something new. Returning to Palestine will be literally going back to an unknown future.

The overwhelming majority of Palestinians have not demanded Jewish-Israelis removal in that future, only a relinquishment of their desire to rule. Decolonization demands that the settler reimagine himself or herself in this environment. If, as Zionists insist, their settlement in Palestine is a return to that land rather than a conquest of it, then they must acknowledge the Palestinians on that land on their terms and in their context.121 Zionists, however, once on that land, have sought to establish a Jewish homeland that is exogenous to the Middle East and closer to, if not an extension of, Europe.

Fulfilling this potential requires centering our gaze upon ourselves, to recognize ourselves as free already, in order to forge a path to a future where our liberation is not contingent or mutually exclusive but reinforcing. That is Palestine’s promise, still.

No community has ever relinquished its privileges voluntarily, and no community has ever submitted to a condition of perpetual servitude and domination. The question should not be how to avoid such violence, but rather what is the optimal outcome that would make it tolerable? What possible futures can Palestinians build for themselves as well as for the Jewish-Israelis that currently dominate them that would make this tortured history a chronicle of hope rather than one of mourning?

This path is not well-paved; in fact, it does not even exist.

She (Angela Davis) writes, “I have never lived under conditions in which struggle was celebrated by anything other than a small minority. It is this aspect of Palestine that I found most beautiful.”

It seems, at least in part, that the struggle for Palestinian sovereignty has similarly been a quest for inclusion in, and recognition from, a world order that left Palestinians behind. In the middle of the last century, Frantz Fanon entreated his fellow subjugated peoples to imagine a better horizon for humanity than Europe was offering in the form of nation-states. Nearly all colonized peoples pursued self-determination in that form nonetheless. Palestinians joined them and participated in three monumental periods when oppressed peoples shed the yoke of imperial domination in pursuit of national independence: in the years between the World Wars, during the height of the anticolonial liberation movements, and again in the early nineties with the downfall of apartheid in Namibia and South Africa. None of those efforts yielded a Palestinian state, and now Palestinians are potentially ready to seek out and explore new and uncharted paths toward liberation.

Middle Eastern Jews belong to the region, yet Israel’s state-building project severed them from it in order to gain acceptance within Europe.

The nascent state embarked on a series of policies to transform the Eastern Jew into the “new Jew,” including the removal of Middle Eastern children from their families—so they could be acculturated to the new values—and the supplanting of a Judeo-Islamic cultural geography with a singular history of European Jews framed as being as universal to all Jews.

The numbers of Jewish-Israelis who are of Middle Eastern origin—from Iran, Iraq, Algeria, Morocco, Syria, Yemen, and beyond—and whose identities have been deliberately obscured by Israel, make this consideration even more pressing and appropriate. In their efforts to liberate Jews from past conditions of inferiority and oppression, Zionist leaders attempted to create a “new Jew” modeled on white European values and culture.

Because Jewish sovereignty is incommensurable with Palestinian presence, it necessarily engenders fragmentation, partition, separation, and population transfer. The inverse is not true: Palestinian sovereignty does not obviate Jewish belonging. Moreover, Palestinians’ primary claim is not to control; it is to belong. The unbending refusal to center Palestinian claims and invert the equation of Jewish sovereignty equaling Palestinian oppression is preventing us from turning to more fruitful possibilities.

At its core, a decolonization practice must reorganize the relational terms mediating Israelis—as settler sovereigns—and Palestinians—as natives marked for erasure. The outcome of this practice can vary. Settler-decolonization does not only mean the removal of the settler. That was the case in Algeria. It was not the case in South Africa. Significantly, the demographic realities make the removal of Jewish-Israelis a matter of sensational fancy. In Algeria and South Africa, the native population was the overwhelming majority, whereas in Palestine, the balance, excluding the refugee population, is nearly equal. Moreover, no analogous case of settler-colonialism has featured such a significant exiled native population; Palestinians were removed but not annihilated. They constitute approximately ten million people globally, two thirds of whom live in diaspora and forced exile but who insist on native belonging to Palestine.

Instead, its peace efforts aimed to resolve the Palestinian question by suspending Palestinians in an autonomy framework and pursuing its settler-colonial ambitions by other means. It did not revisit its mythology of righteous conception nor its forced removal and exile of 80 percent of a native population nor its Declaration of Independence that edified a social contract among Jewish settlers to the exclusion of all others.113 Israel established itself by force and insists on maintaining its settler-sovereignty by force. Jewish-Zionist leaders—primarily from Europe—did not come to the Middle East to reestablish their indigenous attachments there. They came as settlers claiming nativity and as conquerors intent on earning acceptance within Europe by establishing a nation-state beyond its shores.

But the Palestinian struggle has not been merely about the League of Nations’ unfulfilled promise of independence; it has equally been about claims to belonging, to being, to existing.109 Indeed, the loss of Palestine and the desire to return to it, poignantly narrated by Palestinian author and revolutionary Ghassan Kanafani, does not bemoan a lack of self-governance but rather the usurpation of home, memory, and attachment to land.

In January 2018, a freedom of information request revealed that Israel has created a “blacklist” of BDS activists and adherents to be barred from entering the country, including members of the U.S.-based organization Jewish Voices for Peace.

Its cultural boycott victories include the cancellation of concerts in Israel by Roger Waters, Lauryn Hill, Elvis Costello, and Lorde. World-renowned physicist Stephen Hawking refused to attend a conference in Tel Aviv, and National Football League defensive lineman Michael Bennett pulled out of a junket to Israel organized by the Israeli Ministry of Foreign Affairs. In addition, several U.S.–based academic associations endorsed the academic boycott of Israel, while the Presbyterian Church USA and the Methodist Church divested their holdings in companies that profited from the occupation. In April 2018, Dublin became the first city to pledge its support for the BDS movement and discontinue its business dealings with several corporations complicit in Israel’s human rights violations.

BDS’s reach has led Israel’s leaders and most ardent allies to describe the popular movement as the second most significant threat to Israel after a nuclear capable Iran.

While Namibians waged a much more strategic and cumulative legal strategy than the Palestinians have, this was not the decisive element in their successful liberation movement. There are three fundamental differences between the cases. First, Namibians rejected South Africa’s peace process as an alternative to the international framework. SWAPO refused to enter South Africa’s exclusive sphere of influence and thus maintained an adversarial position, unlike the PLO, which has been committed to U.S.-mediated bilateral talks for twenty-five years now. Two, SWAPO never relinquished its right to use of force or ceased its armed struggle until Namibia achieved independence. Cuban troops stationed in Angola significantly enhanced the potential of this armed resistance and ultimately created the requisite negotiating leverage to compel U.S. and South African compromise. In contrast, the PLO relinquished its right to arms as a condition for entering the Oslo Accords.

Until the 1990s, The PLO had managed, through civil uprisings, irregular combat, political mobilization, and legal work, to successfully challenge and overcome Palestinians’ juridical erasure and their exception from the promise of self-determination. The PLO’s acceptance of the Oslo framework then stunted and reversed these gains. Since the peace process unraveled at Camp David in 2000, the Palestinian leadership has embarked on several contentious legal campaigns. However, its commitment to achieve independence through U.S. and Israeli acquiescence has diminished the liberatory potential of its most ambitious legal strategies.

Israel’s aims then and now are the same: to achieve and maintain a Jewish demographic majority and also to acquire the greatest amount of land with the fewest possible number of Palestinians on it. It achieves this through civil law in Israel, a mix of administrative and martial law in East Jerusalem, martial law in the West Bank, and all out warfare in Gaza.

This political trend is not merely a right-wing phenomenon. Population transfers, land swaps, and annexation for the sake of ensuring a decisive Jewish majority and Palestinian exclusion have become increasingly normalized concepts within Israeli mainstream discourse. A 2012 poll evidenced popular Israeli support for the voluntary or forcible transfer of Palestinian citizens out of Israel.

Israel used the fiction of Palestinian national nonexistence together with the structure of permanent emergency between 1948 and 1966 to transform its native Palestinian population into present-absent individuals, whose lands could be arbitrarily confiscated for Jewish settlement.

Mahmoud Darwish, the author of the Declaration of Independence, resigned from the PLO Executive Committee, explaining that “there was no clear link between the interim period and the final status, and no clear commitment to withdraw from the occupied territories. I felt Oslo would pave the way for escalation.”124 Edward Said, the renowned Columbia University professor of comparative literature who had translated the Declaration into English, wrote a series of scathing articles denouncing the DOP as “an instrument of Palestinian surrender, a Palestinian Versailles.”

The PLO willingly abandoned the law as one of its primary tools of struggle. More generally, it surrendered a politics of resistance. While that makes sense upon establishing peace, it made no sense in this case, where the DOP stipulated derivative Palestinian sovereignty contingent on Israeli prerogatives without any guarantees that the interim stage would culminate in independence. According to the PLO, the negotiators accepted this arrangement “on faith” that the United States would usher in Palestinian independence, and Israel would withdraw from the West Bank and Gaza.119 However, without a resistance framework, Palestinians would not be able to recalibrate the balance of power to compel Israel to relinquish its control.

This was the cost of entering the U.S. sphere of influence; it meant uncritically accepting the U.S. understanding of the law as an impediment to a political agreement, as well as Israel’s understanding that the law should fulfill a descriptive, rather than a prescriptive, function. By accepting the U.S. and Israeli approach to the law’s relationship to the conflict, the PLO inadvertently endorsed a new exception in the question of Palestine.

The DOP also established that even after withdrawal from Jericho and Gaza, Israel would maintain responsibility for “external security, and for internal security and public order of settlements and Israelis,” meaning that the Palestinians would be left to police only themselves in coordination with the Israeli army. In effect, Palestinians could not protect themselves from settlers or Israeli military offensives, they would never be able to prosecute Israelis, and they would have no control over their own movement into and out of the territory.116 By agreeing to these terms, the PLO accepted a patchwork arrangement over Palestinian civil affairs and natural resources.

Israel refused to release Yasin, and Hamas executed the Israeli policeman. Within a few days, Israeli forces arrested nearly 2,000 Palestinians, including 415 suspected leaders of Hamas and Islamic Jihad. Israeli armed forces handcuffed and blindfolded these 415 detainees and drove them to the Lebanese border where they dumped them in the middle of a freezing night and relinquished any responsibility for them. The international community responded swiftly and harshly; the UN Security Council, with U.S. support, condemned the mass, forcible deportation as a breach of international law.78 Israel’s reprisal against Hamas turned into an unexpected boon for the movement, which received international media attention for the first time. In order to protest Israel’s actions, the Palestinian negotiating team, with the PLO’s backing, suspended its participation in the negotiations.