The following is an excerpt from Noura Erakat’s new book Justice For Some: Law and the Question of Palestine. In in Erakat outlines how the Palestinian Authority’s “illusory quest” for statehood “has shaped the Palestinian leadership’s commitment to U.S. tutelage and its reticence to embark on a bolder course based on a politics of resistance.”
In 2018, the prospect of a sovereign and independent Palestinian state is obsolete. As of late 2015, the Israeli settler population in the West Bank numbered more than 600,000, a 200 percent increase since the advent of the Oslo peace process in 1993. Israel’s settlement enterprise carves the West Bank into more than twenty noncontiguous landmasses separating approximately three million Palestinians into as many groups that stand apart from one another, thus undermining any sense of territorial contiguity or national cohesion. In 2000, Israel began constructing a separation barrier, or wall, allegedly to halt the flow of Palestinian suicide bombers within Israel’s undeclared borders. By the time of the wall’s completion in 2020, 85 percent of its length will run through the West Bank and effectively confiscate 13 percent of that territory, conveniently where most of Israel’s largest settlement blocs are located. Israeli military law prohibits the presence and travel of Palestinians between the West Bank and Gaza, thereby entrenching their political and geographic fragmentation. In Gaza, Israel has securitized nearly two million Palestinians and held them captive under a land siege and naval blockade for more than a decade. Palestinians cannot freely travel to East Jerusalem, and that area’s 300,000 Palestinians are subject to an aggressive removal campaign. In the years since 1948, nearly two thirds of the Palestinian population has been driven into a global diaspora, including fifty-eight refugee camps in the Arab world, and is being denied the right to return. Having torpedoed the possibility of a Palestinian state, Israel is now the sole source of authority from the Mediterranean Sea to the River Jordan.
Legal work has been central to Israel’s expansionist project. The Israeli judiciary, diplomatic corps, and civil and military legal advisers have understood the law’s imbrication with politics and have leveraged the state’s diplomatic, military, and economic prowess to perform legal work in pursuit of its political ambitions. Following the First World War, a sovereign exception marking Palestine as a site of Jewish settlement engendered a specialized legal arrangement that justified the juridical erasure of a Palestinian political community. This regime, together with three decades of British imperial sponsorship, enabled Israel to assert its Jewish-Zionist settler sovereignty by force over 78 percent of Mandate Palestine in 1948. 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. When it terminated its emergency regime, Israel enshrined the subordination of Palestinians as second-class citizens in civil law. In 1967, Israel deployed a legal-political mechanism, also predicated upon Palestinian national nonexistence, to establish an occupation premised on sui generis claims to facilitate its steady land grab within the West Bank and Gaza. The Oslo Accords framework established in 1993 engendered yet another specialized regime that has enabled Israel to continue its settler-colonial expansion, this time under the veneer of peacemaking. Since 2000, also in accord with similar claims of unique distinction, Israel has criminalized all Palestinian use of force. At the same time, the state has expanded its right to use force against Palestinians and in the process has forged new laws of armed conflict.
Israel’s success has had an unintended consequence: it oversees an apartheid regime. Without a partition separating Israel from the territories, Israel now has to contend with the reality that its jurisdiction contains a significant native Palestinian population. According to the Israeli Bureau of Statistics, as of October 2012, approximately 5.9 million Jewish-Israelis, including the settler population, and 6.1 million Palestinians were living across Israel, the West Bank, and Gaza. Population projections indicate that by 2035, Jewish-Israelis will constitute only 46 percent of the total population. The inclusion of Palestinians from Gaza and the West Bank as citizens would undermine the Jewish demographic majority inside the 1949 armistice lines (the Green Line). The current arrangement in which Israel rules occupied Palestinians but excludes them from citizenship exemplifies a regime that administers distinct legal systems based on its own racial definitions: in other words, an apartheid regime.
Israeli Prime Minister Benjamin Netanyahu’s predecessors knew the dangers of this legal bifurcation. During his tenure as Prime Minister, Ehud Olmert commented that failure to create a Palestinian state would force Israel to “face a South African-style struggle for equal voting rights, and as soon as that happens, the state of Israel is finished.” After leaving the Prime Minister’s post, Ehud Barak offered this warning: “If, and as long as between the Jordan and the sea, there is only one political entity, named Israel, it will end up being either non-Jewish or non-democratic… . If the Palestinians vote in elections, it is a bi-national state, and if they don’t, it is an apartheid state.”
Not all Israelis are concerned about this reality. Significant sectors of Israeli society have hailed the current status quo as a tremendous victory. Some want to consecrate their accomplishment by officially annexing Area C, which covers 60 percent of the West Bank, where Israel’s largest settlement blocs are located. In 2012, a government committee revived the discourse of Palestinian nonexistence when it concluded there is no occupation because the West Bank belongs to no other sovereign, justifying Israel’s permanent presence in the territory. While de jure annexation risks absorbing the Palestinian population, an autonomy framework has the capacity to ensure that population’s formal exclusion. Under the Oslo framework’s terms, Israel has steadily reduced the Palestinian population in Area C and concentrated Palestinians within Areas A and B. Although it was ostensibly an interim arrangement until the achievement of final status talks, the Oslo framework has become interminable. Its continuation would successfully contain Palestinians and suspend them as non-sovereigns in their autonomous regions and non-citizens of Israel, thereby diminishing the demographic challenge they pose.
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. More recent initiatives have proposed providing economic incentives to encourage Palestinian citizens to leave. Still other proposals seek to swap villages with large concentrations of Palestinian-Israelis with the Palestinian Authority in exchange for Jewish-Israeli settlements.
More sympathetic, or at least more politically astute, Israelis deny allegations of apartheid by acknowledging Palestinians’ grievances but disaggregating their claims. They emphasize that the treatment of Palestinian citizens of Israel is a matter of domestic concern, whereas controversies in the West Bank reflect the challenges of conflict resolution, and Gaza is a national security issue. By emphasizing the statist legal and geographic demarcations separating and distinguishing Palestinians from one another, liberal Israelis refute claims that Israel oversees a singular discriminatory regime. These exculpatory attempts contradict the lived experience of Palestinians themselves.
As early as 2000, after the collapse of the Camp David talks that precipitated the Al Aqsa intifada, a group of Palestinian scholars issued a statement describing Palestinians’ concentration within a “series of small, disconnected areas … being posited as the emerging Palestinian state.” They referred to those areas as “bantustans,” in reference to the model of territorialized subordination of blacks used in apartheid South Africa and Namibia. The statement echoed the Palestinian legal and political analyses that had culminated in the 1975 General Assembly resolution declaring Zionism to be a form of racism (Resolution 3379), and seemed to signal an return to such analyses. However, there are at least two differences distinguishing these 1975 and 2000 articulations and also differentiating case studies looking at Palestine versus South Africa and Namibia.
First, unlike the situation in the mid-1970s when the PLO supported the introduction of Resolution 3379, the Palestinian leadership today has not officially endorsed the anti-apartheid framework. Recognition of a singular legal regime would contravene its ambitions to establish a state. Palestinian officialdom has referred to apartheid and the possibility of a single democratic state only as a threat to compel Israeli compromise in negotiations. Second, in 1976, the international community rebuffed South Africa’s attempts to establish black homelands, decrying them as measures aiming to “consolidate the inhuman policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights.” In contrast, the international community has celebrated Palestinian autonomy as the germ of independence and has contributed tremendous financial and diplomatic support in an effort to uphold an arrangement that is in effect—if not in intention by supporters—oppressive. While Palestinians outside of officialdom have increasingly understood the apparatus of their dispossession and domination as apartheid, the international community has continued to frame it as “interim autonomy,” for the sake of peacemaking. Meanwhile, and under the cover of peacemaking, Israel has intensified its eliminatory structures targeting Palestinian natives.
Despite its seeming success in establishing contiguous sovereignty across most of the area that was formerly Mandate Palestine, Israel’s settler-colonial frontier remains active. Settler-colonial studies scholar Lorenzo Veracini tells us that the ultimate triumph of settler-colonialism is its extinguishment; it becomes so normalized as to be imperceptible. In Palestine, that project remains explicit and vulgar precisely because of the demographic reality as well as the Palestinians’ obstinate refusal to relinquish their claims to native belonging. In a continuation of the policies Israel began in 1947, and which it consolidated into a permanent structure of emergency in 1948, today it and its para-statal institutions remove, dispossess, and concentrate Palestinian natives without regard to legal jurisdictions or geographic demarcations. 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.
The concentration of Palestinians under Israeli jurisdiction onto small areas of land is most obvious in the West Bank, where they are placed and bounded into Areas A and B. It is also evident in Gaza, which has the largest concentration, as well as within Israel itself, where the government has been shaping legislative policy intended to remove nearly 80,000 Bedouin Palestinians from the Negev region and concentrate them into noncontiguous urban townships under the auspices of development. In Jerusalem, the so-called center of life policy mandating that Palestinian Jerusalemites demonstrate an uninterrupted presence in that city to maintain their residency has steadily reduced the Palestinian population. In the rest of the West Bank and Gaza, Israel has outrightly revoked the residency permits of a quarter of a million Palestinians between 1967 and 1994, shrinking the Palestinian population there by at least 10 percent. Within Israel, a legislative ban on family reunification in certain circumstances denies spouses of Israeli citizens who hail from “enemy states” (where a significant number of Palestinians reside) the right to adjust their status—an explicit effort to diminish their presence. These are only select examples of the matrix of laws and policies aimed at Palestinian removal. Palestinians have increasingly described their condition as constituting an ongoing nakba (catastrophe), in reference to the removal and forced exile of 80 percent of the Palestinian population during the 1948 War. The reference recognizes Israel’s eliminatory project as an institutionalized policy and a colonial continuity.
Israel’s settlement and dispossession policies, together, amount to forced population transfer, a violation of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. An apartheid regime is both the consequence of Israel’s settler-colonial ambitions and the modal governance structure for protecting and maintaining its colonial takings. A growing number of international human rights organizations and analysts have scrutinized the resulting conditions, and have come to regard the mal-distribution of natural resources, unequal access to housing, and differential punishments in the West Bank as a racially discriminatory regime. In 2012, the UN Committee on the Elimination of All Forms of Racial Discrimination concluded that the “hermetic character of the separation of two groups” in the Occupied Territories is tantamount to apartheid. In 2017, the UN Economic and Social Commission for Western Asia (ESCWA) caused an uproar when it took this analysis further and concluded that Israel practices apartheid towards all of its Palestinian natives, without regard to legal status or geographic residence. The UN report was the first of its kind to authoritatively make the claim that Israel’s holistic legal regime was not being limited to the Occupied Territories. Israel, together with the United States, forced the United Nations to shelve the report. ESCWA’s Director resigned in protest; the report was leaked and widely disseminated. The Palestinian Authority issued statements condemning the dismissal of the report but did not officially endorse the critique of Israel’s governance as a singular apartheid regime.
It is a cruel, but not unprecedented, twist in the history of co-opted liberation movements and authoritarian postcolonial regimes that the Palestinian leadership has become a part of the Palestinian problem. Today, the buy-in and collaboration of the Palestinian leadership is central both to Israel’s apartheid regime and to the enduring denial of its existence. Palestinian participation in U.S.–brokered bilateral talks sustains the false conception that a sovereign state is within reach. Facts on the ground make evident that establishing a Palestinian state today would be as difficult as, if not more difficult than, dismantling Israel’s apartheid system. The framework of peacemaking sustains the fiction of parity and diminishes the imperative to exert pressure on Israel. In addition, the Palestinian Authority’s representational claims over the Palestinians resident in the West Bank and Gaza, to the exclusion of Palestinian refugees and citizens of Israel, helps uphold the legal and geographic fragmentations separating Palestinians from one another and subverting, in practice but not law, their status as a holistic nation. Historically, the Palestine Liberation Organization (PLO) has represented all Palestinians, but since 1993, the liberation movement has been subsumed into the Palestinian Authority rendering it functionally absent. These fragmentations undergird Israeli claims that its relationship with Palestinians is either a matter of conflict resolution or national security but not of apartheid.
Worse, as part of the Faustian bargain that is the Oslo framework, the Palestinian Authority has internalized the colonial logic that its compliance and good behavior will be rewarded with independence. In fact, its subservience has reified Israel’s domination and has significantly benefited a select political and economic Palestinian elite. As part of its pact, the PA diligently polices its own population to protect Israel’s settler population as well as the civilian and military infrastructure that sustains the settlers’ presence. The PA allocates 30 percent of its national budget to security, which makes up half of its public sector. That is more than it spends on its “health, education and agriculture sectors combined.” The PA’s security coordination with Israel has become so effective that U.S. General Keith Dayton, who trained several classes of Palestinian security officers, lauded the Palestinians for turning their guns on “real enemies,” in reference to Palestinians suspected of posing a threat to Israel’s national interests. There is no reciprocal security arrangement to protect Palestinians. In its futile attempt to demonstrate its capacity to govern, the Palestinian leadership has relieved Israel of at least a portion of its military burden as an occupying power and aided it in in controlling the native population.
This approach has severely altered the post-1965 Palestinian national movement and transformed it into a critical part of Israel’s settler-colonial machinery, rather than being the primary impediment to that apparatus. In his work on the colonial politics of recognition, Glenn Coulthard highlights how settler colonialism, as a form of governmentality, makes this perverse outcome predictable. Indigenous nations who have established their sovereignty through formal recognition established a relational structure with the settler states that ensures those states’ continued access to their lands and resources. Under the framework of bureaucratic administration, indigenous peoples become “instruments of their own dispossession.” Under this arrangement, Coulthard continues, “contemporary colonialism works through rather than entirely against freedom.”
Palestinian officialdom’s uncritical adoption of this managerial approach risks confusing what is being offered in terms of limited autonomy with incremental steps towards freedom. This illusory quest, bolstered by the perks of self-autonomy and access to multilateral fora, has shaped the Palestinian leadership’s commitment to U.S. tutelage and its reticence to embark on a bolder course based on a politics of resistance.
Excerpted from “Justice for Some: Law and the Question of Palestine” by Noura Erakat. © 2019 by the Board of Trustees of the Leland Stanford Junior University. All Rights Reserved.