By Jeff Halper and Itay Epshtain
Publication date: Thursday, September 13, 2012
Over the past 15 years, ICAHD has actively resisted the Israeli Occupation. For almost that long we have argued that the two-state solution is dead and gone, based on our intimate knowledge both of Israeli politics and the massive “facts” that Israel has imposed on the Occupied Palestinian Territory (OPT), and constantly expands. However, ICAHD has refrained from advocating for any particular solution to the conflict, believing that is the Palestinians’ prerogative. We do not rule out the two-state solution in principle (although it is not fair or just), especially if the Palestinians nevertheless decide to go that way. ICAHD supports any solution – be it two-state, one-state or regional – which offers a just and inclusive peace and is acceptable to our Palestinian partners. In fact, because a workable resolution of the conflict must involve the entire region, we have long proposed a Middle East economic confederation including, at a minimum, Israel, Palestine, Jordan, Syria and Lebanon. From that perspective, the creation of a single state in Palestine/Israel may represent only a stage, albeit an unavoidable stage, towards a more comprehensive solution.
But with the two-state solution gone, apartheid unacceptable and a Middle Eastern economic confederation a distant vision, it seems time to seriously consider the only alternative available to us at this time: the creation of a single state between the Mediterranean and the Jordan River. To be sure, the idea has been raised before, but it remains ambiguous. There are fundamental variations and disagreements even among one-state proponents themselves. Political clarity is vital, especially if such a solution is – or is not – inclusive of Israelis. Indeed, does post-apartheid South Africa inspire our joint aspirations or is Algeria the model, whereby the Israeli “colonists” (if they are that) leave or are driven out when Palestine is liberated? If the state is to be inclusive, should it be a unitary democratic state, a bi-national one or a combination? Will the solution be one defined purely by politics, or will the rights and obligations of all parties be guided indeed by international law and human rights treaties?
What follows is ICAHD’s attempt to exploit the current political paralysis to kindle a searching and honest discussion over where we are headed – and, as civil society actors, how we can effectively get there.
From “No Occupation” to “Prolonged Occupation” to “de jure Annexation”
Immediately after Israel occupied the West Bank, East Jerusalem and Gaza in 1967, its legal establishment set about constructing an argument why they should not be given up, why Israel has the right to settle and “evict and Judaize” them (a term used by the Israeli government in official records), and why the Occupied Palestinian Territory is not in fact occupied. The doctrine they came up with was that of the “Missing Reversioner.” The provisions of the Fourth Geneva Convention and the Hague Regulations regarding belligerent occupation, they argued, do not apply in the case of Israel because occupation occurs only when one High Contracting Party (a state that has signed on to the Convention) occupies the territory of another High Contracting Party. Since Jordan and Egypt never exercised sovereignty over the region, and neither did the Palestinians the occupied territory could not be reversed to any sovereign, and Israel’s claim was as good as anyone else’s. Thus, Israel designated the OPT as “disputed,” and denied the applicability of the Fourth Geneva Convention, meaning that it could act with impunity, whether in transferring its civilian population into the OPT, expropriating Palestinian land, imposing its own military rule, or refusing to ensure the well-being of the Palestinian population, defined in the Fourth Geneva Convention as “Protected Persons.”
This Israeli position was reiterated as recently as July 2012, when a committee appointed by the government to explore the legalization of settlement outposts, headed by retired Supreme Court Justice Edmund Levi, reaffirmed the Missing Reversioner doctrine, and concluded that there is indeed no occupation, and therefore no legal obstacles exist to legalizing all the settlement. It is a position, however, that has no international support whatsoever. In its 2004 Advisory Opinion on the legality of Israel’s Separation Wall, the International Court of Justice unambiguously and authoritatively negated the doctrine of the Missing Reversioner. “Under customary international law, the Court observes, these were therefore occupied territories in which Israel had the status of Occupying Power. Subsequent events in these territories have done nothing to alter this situation. The Court concludes that all these territories (including East Jerusalem) remain occupied territories and that Israel has continued to have the status of Occupying Power.”
If we have problems pressing our case that there is no occupation, the Israeli legal establishment then reasoned, let us put forward yet another concept which defines occupation in ways that support our displacement and settlement activities, and its immutable process of annexation. So, in a December 2011 ruling on the legality of Israeli-owned quarries in the West Bank, the Israeli High Court held that the unique characteristics of Israel's occupation, primarily its duration these past 45 years, constitute a prolonged occupation that actually grants additional powers and rights to the Occupying Power under international humanitarian law (IHL). The Court’s misguided interpretation of IHL seeks to modify its provisions in order to allow for economic exploitation of occupied territory. The logic, though twisted, is there: since an Occupying Power is responsible for the well-being of Protected Persons under its control, Israel has an obligation to plan for and service both the Palestinians and the territories in which they live. It would be more reasonable to argue, of course, that the longer an occupation lasts, the more the local population should be consulted on decisions pertaining to its well-being. Over almost five decades of military rule, however, Israel has never indicated the slightest intention of genuinely including Palestinians in decision-making processes that affect their lives. Over the course of many years, the Israeli government, its military and its illegal and violent settlers have demonstrably acted against the interests of the local Palestinian population. Beyond questions of administration, however, the notion of prolonged occupation contradicts another fundamental principle of international law: Palestinians’ right to national self-determination.
“Prolonged occupation” is a self-serving concept devised by Israel to augment its freedom of action in the OPT while diminishing its responsibility toward the inhabitants. When the rules governing occupation were formulated in the Hague Regulations and the Fourth Geneva Convention, they were intended to regulate short-term occupation, in the context of an armed conflict. Even if Israel has invented a new type of occupation, the fact that it is prolonged in no way relieves Israel of its obligations towards its Protected Persons, the Palestinians under its control. The ICJ ruled in its 2004 Advisory Opinion that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory. Having determined the rules and principles of international law relevant to reply to the question posed by the General Assembly, and having ruled in particular on the applicability within the Occupied Palestinian Territory of international humanitarian law and human rights law.”
The concept of prolonged occupation gives Israel enough legal space to transform a temporary belligerent occupation into permanent Israeli rule. Anyone looking at a map of what ICAHD calls Israel’s Matrix of Control or spends just a few hours in the Occupied Territory cannot deny that Israel has used that legal space to eliminate the two-state solution. Its deliberate, decades-long campaign of systematically creating “facts on the ground” has, as it was intended to do, foreclosed any viable Palestinian state while incorporating “Judea, Samaria” and “East” Jerusalem into Israel proper. All that is left are a few minor mopping up operations: displacing another community, completing a piece of the Wall here, adding another Israeli highway there, “thickening” the settlements by adding thousands of new housing units, continuing to kill and imprison Palestinian leaders and activists. Even the pretense of negotiations brokered by an “even-handed” America has been abandoned.
Israel seeks to transform the physical and demographic landscape of the OPT in ways that correspond to its vision of a Greater Land of Israel under Israeli sovereignty. The UN Special Rapporteur on the Right to Adequate Housing, Prof. Raquel Rolnik has referred to Israel’s concerted policies of land expropriation, demolitions, forced evictions and discriminatory development, displacing Palestinians and supplanting them with Jewish settlers as a “land development model […] of dispossession of the traditional inhabitants, and the implementation of a strategy of Judaization and control of the territory.”
Moreover, Israel seeks to annex vast expanses of the West Bank. Israeli Parliament Members, hailing from the Likud ruling party and other members of the coalition government have recently established a parliamentary caucus for the annexation of Area C. The caucus introduced a draft bill calling for the application of Israeli sovereignty to Area C of the West Bank. Deliberations on the draft bill were postponed by the Prime Minister, but are likely to resume in the fall of 2012 when the Israeli Parliament (the Knesset) reconvenes after its summer hiatus. It will take the form of draft bill targeting particular areas, like the Jordan Valley. The parliamentary caucus relates to the "Partial Annexation and Pacification" program advocated for by the former Prime Minister Chief of Staff, which explicitly calls for the de jure annexation of 62% of the West Bank in order to stifle the Palestinian people aspiration for self-determination, and to solidify Israeli dominance.
Continuing efforts to Judaize Area C clearly threaten the realization of Palestinian self-determination, and the feasibility of a sovereign, territorially contiguous, viable Palestinian state emerging in the 1967 borders. In actuality, the window of opportunity for a two-state solution has closed, mainly due to the displacement and access restrictions for Palestinians in Area C, and the continued expansion of Israeli settlements. When Israel invokes doctrines such as the Missing Reversioner or “prolonged occupation,” it is also evident that neither Israel nor the various intermediaries such as the United States have the slightest intention of allowing the creation of a viable Palestinian state. A new plan – that which envisions a one-state solution – is required if a just solution is to be obtained and the inalienable right of both Israeli Jews and Palestinians to national self-determination, as set down in international law, is to be realized.
Apartheid, Warehousing or a One-State Solution
With the end of the two-state solution, only three options remain: apartheid, warehousing or a one-state solution. The first is preferable to Israel – and to its American patron, which is why “any solution must be negotiated” is its mantra, as if Israel has genuinely negotiated in good faith over these many years, as if the Palestinian Authority (PA) is a negotiating partner with genuine leverage to pursue Palestinian national interests, as if the US genuinely played the role of an honest broker. It’s a set-up, but if the PA can be persuaded to keep playing the game, the chances always exists that Israel can create a Palestinian Bantustan on which a weak and compliant Palestinian leadership might sign off. So far that strategy appears to be working, especially if the PA relinquishes territorial claims in favor of economic benefits – Israel’s notion of an “economic peace.”
The term “apartheid” is not merely a contentious political slogan; it is firmly rooted in international law. The crime of apartheid, as it is described in international law, consists of inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over another. That Israel has imposed a regime of apartheid on the OPT has been reaffirmed by many international bodies. The UN Committee on the Elimination of Racial Discrimination, for one, called on Israel in 2012 to take immediate measures to eradicate apartheid policies or practices which severely affect the Palestinian population in the OPT, and which violate the provisions of the Convention on the prevention of racial segregation and apartheid.
Since apartheid, even dressed in the clothes of a “two-state solution,” is obviously unacceptable to the Palestinian people (and hopefully to people everywhere), the second, more likely option, is to merely normalize the status quo, which is the current process of “warehousing.” Indeed, with the Palestinians pacified, their leadership coopted and no political process in the offing, and with a successful Israeli campaign of deflecting international attention to Iran, the danger is that the Palestinians of the Occupied Territory will be warehoused. They will be permanently locked into Areas A, B, Gaza and the ghettos of “East” Jerusalem, the key thrown away, the inmates being fed by the international community, as they are today. Signs are that this strategy is in its final stages of implementation. Plans to formally annex Area C, the 62% of the West Bank where the settlements are located, are being openly proposed in the Israeli government and parliament, and are even being presented to the Americans. Israel will then claim that it has no interest in ruling over Ares A and B, the enclaves run by the PA and which contain 95% of the Palestinians of the West Bank, so by annexing Area C, Israel will claim to have ended the conflict. Surely, it realizes, there will be some squawking over this from the international community, but so it was when East Jerusalem was annexed in 1968. What is important is that no one ever limited Israel’s unilateral and illegal actions there, nor effectively challenged its rule, nor threatened sanctions. Since warehousing consists of an absence of political movement, of meaningful resistance, of aggressive oppression (except for occasional attacks on Gaza) and of massive land expropriation, displacement and settlement (already accomplished), it will easily survive fleeting international criticism. Indeed, warehousing is difficult to mobilize against, since it causes the Palestinian issue to disappear from the international agenda, replaced by the more burning issues of Iran and the economy and crowded out of the public consciousness by the latest forms of entertainment.
The Palestinians, of course, will refuse to be placed in a Bantustan-prison or warehoused, and in their struggle they have one major ally who refuses to let their cause die: us, the international civil society, including the critical Israeli peace movement. We have been there for the Palestinians these many years and it is our joint efforts, expressed in everything from solidarity campaigns, through resistance on the ground, to BDS and ever more effective advocacy, together with Palestinian popular resistance, that Israel, the US and Europe have been unable to “nail down” apartheid or warehousing. Preventing those outcomes has been a major accomplishment for civil society, especially since governments have supported, de facto or de jure, Israeli policies and practices.
But resistance, successful as it is, is not enough. We must see ourselves as political actors, and following the lead of our Palestinian partners we must formulate and pursue solutions that will provide justice, peace and the full range of human rights – civil, political, social, economic and cultural – guaranteed by international law. ICAHD has long promoted what we consider a rights-based approach to resolving the Israeli-Palestinian conflict, based on five fundamental principles that we feel should guide our search for a just and lasting peace:
- A just peace and the process leading up to it must conform to human rights, international law and UN resolutions in respect to both the national and individual rights of both peoples. The Oslo process failed primarily because it was based only on power relations, and if power alone determines the outcome, Israel wins and the conflict, as we are witnessing today, becomes irresolvable. Inequality and oppression are inevitable when human rights and international law are brushed aside.
- A just peace must be inclusive. Two peoples reside in Palestine-Israel, and the collective as well as individual rights of both must be respected and protected. Since both peoples aspire to national self-determination, a right firmly embodied in international law, national expression must be provided for both Palestinians and Israelis. The two peoples are not merely ethnic groups in a larger national society, or simply a collection of individuals, but comprise national entities in themselves. The right to self-determination, to participation without discrimination in public affairs, to develop and advance one’s community economically, socially, culturally, and politically, has been authoritatively upheld by the International Court of Justice (ICJ) in its 2004 Advisory Opinion: “The Court also notes that the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above, pursuant to which ‘Every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] […] of their right to self- determination.’ Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of all peoples to self-determination, and lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter.”
- A just peace requires that the refugee issue be addressed directly. While details may be negotiated, especially if some refugees prefer resettlement elsewhere and/or economic compensation, two conditions are critical if the refugee issue is to be resolved: the refugees’ unconditional right to return, as it is advocated by UN General Assembly resolution 194 related to the Right of Return of Palestinians, must be accepted, so that “goodwill” or “humanitarian” gestures do not replace the refugees’ alienable rights to repatriate, return to their homes and live at peace; and Israel must acknowledge its responsibility for driving out half the Palestinian people in 1947/48, as well as for the expulsions of 1967 and displacement ongoing since – a symbolic admission of responsibility crucial to reconciliation between the people and to eventual historical “closure.”
- A just peace must address the security concerns of all in the region.
- A just peace must be regional in scope. Indeed, Israel-Palestine is too small a unit to address the issues at stake, be they refugees, water, security, economic development, environmental sustainability or others that are by nature regional. Such a broadening of any peace process is necessary if Israel-Palestine is to have a suitable regional environment in which to integrate.
While these elements remain fundamental to a just peace, the danger that the present limbo in the OPT may turn into permanent warehousing presses upon us the need to begin to formulate a solution to the conflict. Just as we have prevented Israel and its allies from imposing a formal regime of apartheid on the Palestinians or warehousing them, so too must we now put forward a just, inclusive, rights-based and feasible alternative to the present stalemate, and work diligently for its legitimization.
One place to begin the discussion is by articulating our views on how a one-state solution might look. We hope that the following, based on human rights, international law and, it is true, a critical Israeli perspective, will contribute to the discussion we must have before we can move forward.
A One-State Solution: ICAHD’s Initial Formulation
If we can find a common vision with our Palestinian partners, ICAHD would support the creation of a single democratic state in Palestine/Israel – while still promoting the eventual emergence of a regional economic confederation. We would start with the elements detailed above, working towards a balance between equal civil and political rights among all the people living in the country (including, of course, the Palestinian refugees’ right of return) and the collective rights, identities and narratives of the citizens of Palestine/Israel.
Finding the individual/collective balance is not easy: the national element in Palestine/Israel cannot be ignored or minimized, but neither do bi-national states work very well. The balance should therefore be weighted towards civil rights and the nurturing of a multicultural society, perhaps on the Canadian model. Beneath the technicalities, however, looms an exceptionally unjust and painful history between Israelis and Palestinians, certainly not one of equals, and it is unlikely that the narratives and experiences of the two peoples will ever be bridged. (That does not mean, however, that a process of reconciliation cannot be undertaken after the political issues are resolved.) But to attempt to resolve all the issues of disagreement at this stage is pointless; it simply throws any constructive political process into an irresolvable maelstrom of claims and counter-claims. There seems to be only one useful starting point for a joint effort to construct a single state for all: the principle of self-determination mitigated by the necessity of creating a single political entity. Beginning with the idea that two peoples share the country and, given their own national identities and needs, must also create a common political space, that extremely difficult task of constructing a functioning state where bi-national states have for the most part failed falls to us who are capable of delaying historical accounting, compensation and reconciliation until after a just and feasible unitary state can be founded. That does not mean replacing genuine issues and needs with the technicalities of state-building – they go hand-in-hand – but rather privileging the common needs of the moment for a future in which redress and reconciliation are possible.
These are our initial formulations regarding an urgent project of peace-making that must engage ever-widening circles of Palestinians and Israelis, with input from others. They are not intended to cover up crimes of the past or present, but rather to identify broad areas of common interests upon which our joint future can be built – followed by redress, reconciliation and historical accounting. If we seek to be political actors playing a key role in resolving the Israeli-Palestinian conflict, we must work together to articulate a genuinely rights-based solution that will not only resolve the issues before us, but will pave the way for reconciliation and regional development. Then we must work to legitimize it to a point where it becomes a viable political alternative.
Beyond that, we must do what we have failed to do until now: block out a strategy of “getting there,” beginning by identifying the international institutions and governments with whom we must work, and finding effective ways of mobilizing them.
The work has just begun. We at ICAHD believe that civil society – Palestinian, Israeli and international – will play a decisive role in achieving justice, equality, peace and reconciliation in our region. We stand ready to contribute what we can to ensure the joint future for our two peoples, and for all the peoples of the Middle East and beyond.