As Palestinians stand at the juncture of the death of the so-called ‘peace process’ and the future of their resistance and struggle for liberation, it is necessary to understand the implications of the methods of resistance available and be wary of a legal approach that has the potential to reduce the liberation struggle to the interpretation of law. To be clear, the dilemma is less whether international humanitarian and human rights law or a rights-based approach is valid in any resistance, but more so whether or not it is an effective strategy in the specific context of Palestinian resistance to Israeli colonialism.
Many Palestinians and those in solidarity with the liberation struggle often find themselves frustrated by terms like ‘conflict’ and descriptions and conversations that frame the colonization of Palestine and its parties as equally matched sides of the same unfortunate, outdated coin. All the while, many of us still find ourselves telling the Palestinian story like a recitation of a list of Israeli violations of international law, furthering the image of a bickering match simply in need of third party mediation.
Let us take, as an example of distraction to the struggle, one of the Conventions which Israel is most often cited of being in violation and which Palestinian activists have analyzed and memorized to the letter: the Fourth Geneva Convention. Yes, Israel is constantly in gross violation of the FGC. That fact is no longer a matter of serious debate – restrictions on movement, settlement building, land appropriation, water distribution, etc have all made that reality abundantly clear. However, in regards to these violations, the legal approach neglects what should actually be a matter of serious debate. It makes the fatal mistake of entrenching itself in the outdated concept of occupation.
If tomorrow Israel chose to better abide by many of the articles of the Fourth Geneva Convention that it is most often accused of violating, it would not change that it is able to maintain legally sanctioned rule based on raw military power. The debate then shifts only to an interpretation of appropriate conditions of withdrawal, conditions with no requirement of being based in any sense of justice for a population whose plight goes beyond the post-1967 occupation. The institution of belligerent occupation relies mainly on the naked power of the occupant to enforce a relationship of “protection and obedience between the…military…and the territory’s inhabitants.” The historical foundation of the concept of belligerent occupation describes a regime concerned primarily with military necessity and is a legal product of 19th century Europe as it grappled with re-configuring its own understanding of territorial and constitutional change. By engaging in a debate over laws based in and meant to address a 19th century European land order, not only do Palestinians aid Israel in shifting attention from the nature of their struggle as an anti-colonial one, but they also give legitimacy to an international legal order that has not kept up with the ideals, namely self-determination, which it espouses and claims to uphold.
Israel’s defiance of the Fourth Geneva Convention was one of, if not the, main factors leading to mobilization around human rights abuses. The human rights approach led to the increased reference of international law in challenging the legality of Israeli rule. Human rights conventions offer principles that occupation law does not in that they detail obligations of the state to people under their jurisdiction, as opposed to explicitly limiting those obligations to people within its territory. It has been argued that this principle is evidence of a different intent for application and reflects a desire to see the laws of occupation considered and understood within the laws of human rights treaties in order to create unique obligations for the occupying power and minimize the effects of occupation on local populations. While these are creative and well-intentioned interpretations and arguments, they nevertheless, continue to operate with the goal of making a fundamentally unjust and violent concept, occupation, more “just” and less violent, instead of calling in to question the concept itself as illegitimate.
The occupation is a byproduct of the 1967 war, but it is not the original sin, so to speak, of Israel, nor is its administration, lawful or otherwise, the plight of the Palestinians.
The main risk factor of the rights-based approach is allowing Israel to frame the Question of Palestine as a matter of legal interpretation in an international system in which the State is always at more of an advantage. Even if the State was not advantaged, the rights-based approach avoids adequately tackling the character of the struggle. The Palestinian struggle is an anti-colonial one, and challenging a colonial system, as Fanon points out, is not “a rational confrontation of viewpoints. It is not a discourse on the universal, but the impassioned claim by the colonized that their world is fundamentally different.”
It is true that what the US State Department has referred to as “lawfare” and demanded be immediately stopped has both Israel and the US on its toes, reflecting the challenge legal mechanisms can pose to Israel’s “rights.” However, for all of the “lawfare” that has been and continues to be waged, Israel’s rights language and accusations of bias toward organizations such as the UN has actually caused the international community to adopt a more ‘moderate’ tone and tread lightly as it approaches the topic of Israeli aggression. Israel has employed the language of rights in regard to security and its existence so well that instead of the international community being able to reign in Israel’s defiance, criticisms of high profile individuals, when not weighing Israeli security heavier, are what have been reigned in.
The message to Palestinians is clear: if you want to play the rights game gamble, so can we, and the State, like the House, (almost) always wins.
On the other hand, the rights-based approach does give the Palestinians an effective language with which to discuss their plight and influence perceptions of Israel on the political scene which holds the Zionist project upright. A main strength of turning to rights is the moral resonance which the language of human rights evokes in contemporary society when it is invoked in a public and visible manner. In this respect, rights are understood as political resources. The success or failure of litigation is less important than how those successes or failures are used. International reports such as the 1987 Landau Commission detailing violent interrogation methods, UN resolutions 194, 242 and others, the Goldstone Report on Operation Cast lead in Dec 2008/Jan 2009, and statistics from human rights organizations monitoring the situation in Palestine are used by the activist community to exemplify both the extent of outright defiance by Israel for adherence to international norms, as well as a lack of human concern for the local population. In this sense, the rights-based approach is a mechanism by which to work towards reclaiming the narrative in terms used when discussing Israel. Here, its effectiveness and potential lies in the courtroom of public opinion – not an insignifanct factor in building support and solidarity for resistance movements.
That said, Israeli engagement with the rights discourse goes far beyond a public relations counter to Palestinian efforts, but involves a conception of an entirely different set of “rights” and the prioritization of those rights over all others.
One of these is Israel’s right to security. The same resolution, 242, that calls for Israeli withdrawal from the territories and affirms the unacceptability of annexation, also affirms the need “to work for a just and lasting peace in which every State in the area can live in security” and the “right of [of those States] to live in peace within secure and recognized boundaries free from acts or threats of force.” This “right to security” has overshadowed all other concerns, particularly since the beginning of the Oslo process, in which Israel successfully institutionalized Palestinian participation in ensuring this right. Israeli negotiators have insisted that “peace in itself cannot be a substitute for security” (as if one can have security without peace, or more importantly, without justice) and at the mention of international peacekeeping forces insist that “we can’t trust anyone but ourselves.”
What we see here is a clear understanding that it is irrelevant that there is a human component to how Israel ensures its “security.” What we see here is a creation of a de facto heirarchy of rights. And what are these rights that have been placed at higher importance than the liberty and well-being of a colonized population? It is the right of the colonizer to maintain its position as such.
Israel’s greatest political resource for counter-mobilization has been its “right to exist,” which goes to the very heart of understanding, identifying, and framing the conflict for what it is. Israel invokes its own language of rights that the Palestinian population from whom it expropriates land, discriminates against, and has colonized since the State’s establishment must recognize as a precursor to peace. For when Israel demands proclamation from Palestinian leaderships to recognize their “right to exist as a Jewish state” as a precondition to peace, what is actually occurring is a colonial entity demanding permission from a subjugated population to continue its practices.
Let’s be clear about something, Israel’s right to exist and to defend that existence, i.e. its right to security, also means its right to suspend all other rights of Palestinians’ internationally recognized rights. It is a right to exist as an Apartheid state.
Many insist on the centrality of law to a just and lasting peace and supply examples of other conflicts and the trend to seek resolutions by reference to international legal principle. They point to the benefit that it “requires the parties to a conflict to resolve their differences, and to build their new relationship, through the cornerstone principles of national, human, and individual rights….[and that] it would finally create something close to a level playing-field at the Israeli-Palestinian bargaining table.”
These individuals make an important statement in regards to the need of a rights-based approach in legal and political frameworks for reaching a just solution. However, the only way there will ever be a level playing-field at the “bargaining table” is through a resistance which forces the colonizer to come to the table with said label, not a party whose “right to security” is placed even remotely on the same plane as that of the right to freedom of a colonized population.
For the rights-based approach to resistance to translate into the rights-based framework for resolution for which many advocate, the resistance initiatives must increasingly work to not only discredit Israel by publicizing its violations, they must have the courage to challenge directly the “right” of the colonial power.
Perhaps nothing codified these “rights” more than the signing of the Oslo Accords and the launching of the process that followed. By signing Oslo, the PLO re-situated the conflict as domestic dispute to be resolved at an undefined time and under the circumstance of military might, as opposed to one governed by international law. The Oslo process was more than a political failure, it was also a moment in which the international community allowed and hailed an agreement which “adversely affect[ed] the situation of protected persons” and depriv[ed] them of the benefits of the Convention “by an agreement concluded between the authorities of the occupied territories (later the PA) and the Occupying Power” – standing in direct opposition to the principles of the all important Fourth Geneva Convention. Legal advisers, such as Raja Shehadeh, quit in disgust when he realized international law would not be used as a guiding framework for the Accords.
Given this effect and in the current political reality of an increasingly recognized failure of the peace process, some see new potenital in the rights-based approach as a mechanism by which Palestinian youth and civil society can redirect the discourse and movement out of the twenty year focus on statehood and negotiations and build a platform for addressing the larger injustice. Along these lines, the rights-based framework has been increasingly moving towards coupling their documentation, education, and political organization with accountability.
The Boycott Divestment Sanctions (BDS) campaign against Israel is an example that while shaped by a rights-based approach moves beyond public relations politics by employing direct economic and political, in addition to moral, pressure until Israel complies with international law. It describes itself as “a strategy that allows people of conscience to play an effective role in the Palestinian struggle for justice” and holds true to the principles of ending the occupation, dismantling the Wall, equal rights for the Palestinian citizens of Israel, and the refugee right of return. BDS has been endorsed by political parties, trade unions, organizations, and movements representing refugees, as well as Palestinians in ’48 historic Palestine and the Occupied Territories. It challenges the members of the state system who are unwilling to hold Israel accountable by instead calling on their citizens and civil society around the world to do so. It pushes the rights-based framework away from its main risk factor. The language of BDS does not cower in fear of being accused of being too “radical.” It is not watered down to appease donors more concerned with lending legitimacy to the future of international law than they are with freedom for Palestine.
In the end though, BDS is just one example, a glimpse into a larger picture of reality, of a resistance at the cusp of great possibilities, working to redefine how it can take the “conflict” it has been handed and re-present it to the world for what it actually is.
Our challenge to the colonial world is not a discourse on the universal. The only universal, the only constant is the fact of change. Israel revels in the opportunity to reduce the injustice they induced in 1948 to a prioritization of rights and universals. Palestinians resisting and challenging the colonial world in which they live should be wary of doing the same.
What comes next will require courage. What comes next will require this generation to throw back the rhetoric it has been fed with the same force it kicks away tear gas canisters, with the same defiance with which they place their bodies in the path of unwarranted violence and hatred. What comes next is not about any one or twenty intitiatives or movements. It is about every Palestinian and every one of their supporters placing priority in actions which reflect an unwavering commitment to speaking truth to power, a commitment to the impassioned claim that our world is fundamentally different. And that more importantly, this difference, this injustice, is not best expressed through an endless recitation of legal violations and unkept promises of human rights treaties. It is expressed and echoed in our actions. The law does not free people; people free the law.
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 Bhuta, Nehal. “The Antimonies of Transformative Occupation.” The European Journal of International Law. 16.4 (2005): 721-740. (p. 727)
 Bhuta 729
 Hajjar, Lisa. “Human Rights in Israel/Palestine: The History and Politics of a Movement.” Journal of Palestine Studies. 30.4 (2001): 21-38. (p. 23)
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 Article 2, Paragraph 2 of the ICCPR “to all individuals within its territory and subject to its jurisdiction” as qtd in: Burke, Naomi. “A Change in Perspective: Looking at Occupation Through the Lens of Treaties.” International Law and Politics. 41 (2008): 103-129. (p. 124)
 Burke 129
 Fanon, Frantz. The Wretched of the Earth. New York: Grove Press, 1963. (p. 6)
 Consider recent example of the debate regarding motivations and implications for the alleged “retraction” by Goldstone; See original Goldstone editorial http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html; Erakat editorial http://english.aljazeera.net/indepth/opinion/2011/04/20114413734463122.html; Pappe response http://electronicintifada.net/content/goldstones-shameful-u-turn/9294; Goldstone invited to Israel http://www.thejakartapost.com/news/2011/04/05/official-goldstone-invited-visit-israel.html; Rejection of voiding report http://www.msnbc.msn.com/id/42598020/ns/world_news-mideastn_africa
 Scheingold, Stuart A. The Politics of Rights: Lawyers, Public Policy, and Political Change. Ann Arbor: The University of Michigan Press, 1974. (p. 84)
 Qtd in: Dajani, Omar. “No Security Without Law: Prospects for implementing a rights-based approach in Palestinian-Israeli security negotiations.” International Law and the Israeli-Palestinian Conflict: A rights-based approach to Middle East peace. Ed. Susan M. Akram, Michael Dumper, Michael Lynk, and Iain Scobbie. New York: Routledge, 2011. 185-206. (p. 184)
 General Shlomo Yanai to Mohammad Dahlan at the Camp David summit (qtd in Dajani 190)
 Massad, Joseph. “The rights of Israel.” Al Jazeera English 6 May 2011. http://english.aljazeera.net/indepth/opinion/2011/05/20115684218533873.html
 Akram, Susam M., Michael Dumper, Michael Lynk, and Iain Scobbie. “Introduction.” International Law and the Israeli-Palestinian Conflict: A rights-based approach to Middle East peace. Ed. Susan M. Akram, Michael Dumper, Michael Lynk, and Iain Scobbie. New York: Routledge, 2011. 1-9. (p. 3)
 Qtd in: Roberts, Adam. “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967.” The American Journal of International Law. 84 (1990): 44-103. (p. 58)
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