Has Palestine Passed the Tipping Point?

Sovereignty and Settler Colonialism in South Africa and Israel-Palestine

Virginia Tilley

Scholars broaching comparisons of South African apartheid with Israeli policies regarding Palestinians invariably confront challenges that the two cases are not sufficiently homologous to justify comparison. Whether raised in good or bad faith, such challenges can be valuable for social sciences and history to explore. For example, some critics have protested that the conflict in Israel-Palestine is not racial in character and that the allusion to apartheid is therefore misplaced and, at best, a spurious rhetorical tool. Whatever its motive, this argument has inspired useful plumbing of legal and social theory: e.g., by requiring greater clarity about how concepts of ‘race’ have evolved in ways that do include the Israeli-Palestinian conflict, why ‘racial discrimination’ has a more comprehensive meaning in international human rights law than it does in other fields, and why this difference matters: for example, regarding a legal finding of apartheid.[1]

One such productive challenge is that the two cases are not homologous regarding state sovereignty. Intuitively, apartheid was universally denounced as a morally loathsome system of racial domination because it was imposed by a state government over part of its own population, people who have the right to full citizenship and equal treatment under state law. By contrast, Israel is not a recognised sovereign in the West Bank and the Gaza Strip but is holding these territories under military occupation. Under international humanitarian law (especially the Fourth Geneva Convention), protected persons in occupied territories are not nationals of the occupying power and are not supposed to be.[2] Hence Israel’s practices regarding the Palestinian population in the occupied Palestinian territories (OPT) may be denounced as racist in various ways, but the Israeli government arguably cannot be guilty of the crime of apartheid regarding people who are not Israeli citizens and who are living in territory that is not part of the state of Israel.

This argument fails for two reasons. The first reason is legal and technical: the presumption that a state can be held guilty of apartheid only regarding its territorial population is simply incorrect, as illustrated by the case of Namibia, detailed below. The second reason is more normative. Although peace talks are supposedly directed toward creating conditions for Israel’s withdrawal from the OPT, Israeli settlements in the West Bank are now so large and invasive as to suggest Israel’s intention to annex much of the territory permanently, a goal confirmed by the Israeli government’s regular announcements of intent to annex the major West Bank settlement blocs.[3] Such plans signify that, whatever the international community may assume and international law prescribe, Israel is pursuing policy in the OPT on the basis of another regime entirely, in which the Israeli government assumes that Israel is already sovereign in the West Bank in all but name and can dispose of the territory as it wills.

Hence the dilemma explored in this chapter. The international community holds that Israel is not the rightful sovereign in the OPT and that the only functional, legal, and legitimate solution to the conflict is Israel’s withdrawal. This view is based on several pillars of international law: especially, the inadmissibility of acquiring territory by force and the right to self-determination (interpreted here as an independent Palestinian state). The role of the international community is therefore to ensure that withdrawal will happen. Hitherto, the method for doing this has been the (notoriously unproductive) ‘peace process’. But this diplomatic theatre has proved fruitless for forty years, a failure so prodigious as to compel suspicions of bad faith regarding Israel’s actual intentions to remain in the territories.

At the same time, as long as Israel is not legally sovereign in the OPT, Israeli spokespeople can argue that international principles compelling equal citizenship and rights for the territories’ population are neither applicable nor appropriate. Consequently, Israel has held off the logical outcome of its holding sovereign powers in Mandate Palestine–such as the South African solution of unitary democracy–while remaining immune to those international laws and norms relevant to its lack of sovereignty. That this impasse allows Israel to preserve both its hold on the territory and its status as a Jewish state further compels questions about Israel’s motives to sustain rather than transcend it.

This chapter questions whether the premise underlying this impasse–Israel’s lack of sovereignty–is indeed the best descriptor of the situation in the OPT. The question raises has significance beyond the present case of Israel-Palestine. International law requires that states negotiate with other parties in good faith about matters under negotiation–natural resources, trade, security, and so forth. But no rule or nor in international law addresses good faith regarding sovereignty itself–e.g., where a state is deceptively abjuring an open claim of sovereignty in order to avoid the obligations or legal consequences that would pertain. In such a case, what are the obligations of the international community? Should the state simply be held accountable, as a foreign power, to withdraw? At what point should a state be held accountable for obligations that accrue with sovereignty, such as providing citizenship and equal rights to its territorial population? Presently, international law and politics is locked into only one response: to insist on withdrawal on grounds that allowing occupation to become sovereignty would endorse the acquisition of territory by force and would equate with colonialism. But this approach may be inadequate where it fails to address the real needs of a population finding itself under the control of a foreign government that does not intend to withdraw, that international politics cannot compel to withdraw, and that indicates in word and deed its intention to eliminate permanently any possibility of viable independent statehood and self-determination for the territory’s population. Indeed, in other such cases, the international community has responded quite differently, as discussed below. If a change in approach is sometimes appropriate or necessary, on what grounds should such a change be made?

The following discussion explores these questions. First, reviewing some key concepts regarding sovereignty and colonialism will clarify that the international community has in fact regularly endorsed settler colonialism. This discussion then informs scrutiny of one basis for Israel’s own claim to legitimacy as a Jewish state, General Assembly Resolution 181. Throughout this discussion, the history of South African apartheid policies will provide an illuminating comparative case study. Taken together, all these elements will support the validity of a proposal to alter international approaches to Israel’s status in the OPT: from foreign power to a government inflicting policies of apartheid on its territorial population.

Empirical and Juridical Sovereignty

Disputes about sovereignty are common in international affairs. They normally involve rival claims between states or between states and non-state actors (like revolutionary movements) for juridical sovereignty: that is, international diplomatic recognition by other states that one or the other party has the right to govern a territory. Recognition is the prize for which conflicts are fought because, in the modern world system, sovereignty alone conveys the rights and privileges that accrue to statehood under international law: e.g., exclusive rights to administer natural resources, control borders, regulate trade, negotiate with other states to resolve regional issues, and so forth. Hence Israel’s gaining United States recognition within hours of its declaration of independence, ushering in recognition by a critical mass of other states, was the vital coup for which political Zionism had struggled for half a century.

So vital is juridical sovereignty that states cling tenaciously to it even where empirical sovereignty – the capacity actually to govern in the territory–is weak or missing. For example, as Robert H. Jackson and Carl Rosberg famously observed, many African states lack empirical sovereignty in the Weberian sense.[4] Some lack it because state capacity is constrained by low budgets and large distances, as in parts of the Congo, while others confront rivals for sovereignty that hold effective control over parts of the country, such as secessionist or independence movements: e.g., Polisario’s challenge to Morocco in the Western Sahara. Where a state’s empirical sovereignty is so tenuous that rivals and secessionist movements regularly arise, the state’s resources will be exhausted on maintaining raw security, reducing its capacity to build more Gramcian forms of hegemony. Where a state loses all empirical sovereignty, it becomes a ‘failed state’, greatly worrisome to international affairs because its population cannot be held to account and the ensuing chaos spills across international borders.

International relations are not commonly worried by the opposite problem: where a state enjoys empirical but not juridical sovereignty. As used here, this category does not include trust territories and dependencies, such as the Marshall Islands and Puerto Rico, as those relationships are codified differently. Rather, it signifies those rare cases where a state otherwise in complete control of a territory may be unable to annex it formally for political or other reasons and so does not claim sovereignty there, but nevertheless holds onto and administers the territory as though it is sovereign. As this situation allows the state to apply its own laws selectively to the territory’s population outside any constitutional framework or obligation to respect the political will of the territory’s population, it is a formula for conflict.

Of special importance to the case of Israel is South Africa’s assuming such a relationship regarding the territory of modern Namibia. On the purely technical question of whether Israel can be held responsible for a crime of apartheid in the OPT, the case of Namibia is definitive, but it raises interesting questions about the role of the international community as well.

Apartheid in Namibia

As for Palestine, the tortuous history of Namibia traces to a League of Nations mandate. After World War I, South Africa sought to annex what was then German South West Africa, previously a German colony, but was instead granted a ‘Class C’ mandate over the territory (see Map 1).[7] After World War II, South Africa petitioned to have South West Africa integrated into its sovereign territory, but the United Nations refused and in 1950 the International Court of Justice (ICJ) advised that the mandate was still in effect and therefore the ‘essentially international character’ of South Africa’s role. The South African government later attempted to annex Namibia by orchestrating a petition by South West Africans for accession. Namibia’s white population supported the petition and some black leaders signed on (although they later claimed they were duped regarding its meaning), but the initiative was defeated by international pressure led by India (then hotly protesting racial discrimination against South Africa’s Indian population). Hence, although South Africa could not gain juridical sovereignty in South West Africa, it remained empirically sovereign and governed the territory effectively as a fifth province.

As South Africa’s National Party developed its doctrine of apartheid into a fully blown system of racial laws, it extended the same system into South West Africa. Early genocides had already decimated the indigenous Herero and Nama resistance and remaining black majority leaders were vulnerable and easy to exclude from any meaningful political voice. By the 1950s, the white population of South West Africa had seats in the South African parliament but the black population had no representation in any form and black African interests had been consigned to a ‘Native Affairs’ desk in Pretoria. In 1964, South Africa’s Odendaal Commission proposed to establish black homelands in Namibia (see Map 2) comparable to the black ‘homelands’ planned for South Africa.[8] As in South Africa, ten homelands were established in Namibia and three were eventually declared to be self-governing.

The added stigma of apartheid galvanised world opposition to South Africa’s hold on Namibia and pressures for its withdrawal increased sharply. Between 1950 and 1970, the case of South West Africa/Namibia came under review four times by the International Court of Justice. In 1966, the UN General Assembly formally revoked South Africa’s mandate on grounds that it was abusing faith with the people of Namibia by imposing racist policies and violating Namibia’s territory integrity. South Africa did not withdraw for another twenty-three years, however, and the ‘question of Namibia’ continued to absorb United Nations attention.

South Africa’s lack of juridical sovereignty in Namibia was no obstacle to international denunciations of its apartheid practices there. At the height of the controversy, the General Assembly passed two resolutions denouncing South Africa for practicing apartheid in Namibia. In 1965, the General Assembly issued a resolution condemning ‘the policies of apartheid and racial discrimination practiced by the Government of South Africa in South West Africa, which constitute a crime against humanity’. [9] The following year, it reiterated the charge of apartheid and demanded South Africa’s immediate withdrawal.[10] In 1970, the International Court of Justice further found that apartheid practices in Namibia contradicted South Africa’s obligations to the territory’s people.[11]

Thus the Namibia precedent lays to rest the objection, noted in the introduction, that Israel is absolved of apartheid a prior by virtue of lacking juridical sovereignty in the OPT. Indeed, the definition of the ‘crime of apartheid’ provided by the Convention for the Suppression and Punishment of the Crime of Apartheid (Article II), which does not mention sovereignty at all, referred to ‘southern Africa’ rather than ‘South Africa’ precisely to include Namibia.

Otherwise, the Namibia case does not clarify Israel’s actual relationship to the OPT. South Africa’s empirical sovereignty in Namibia traced to its earlier legitimate authority as a mandatory power, when South West Africa was defined as a separate proto-state or state-in-the-making. Indeed, South Africa was commanded to withdraw from Namibia on grounds that it was abusing its role as mandatory power by imposing policies of white racial domination and depriving the Namibian ‘people’ of their right to self-determination. The state of Israel was never granted such a mandate: it formed through revolutionary tactics from part of a mandate territory, and the OPT, in their current borders, were never designated as a separate proto-state. To probe Israel’s present status in relation to the OPT, therefore, we must consider Israel’s hold on Mandate Palestine in light of another regime, settler colonialism, which fed (in unadmitted ways) into General Assembly Resolution 181.

Classic and Settler Colonialism

It is sometimes observed that Israel and South Africa are both settler-colonial states. Yet it is not usually specified just what this means for international politics. The term connotes a historical process whereby an immigrant (probably European) population settled en masse in a territory outside its home country and ultimately established a government whose institutions and politics permanently dispossess and marginalise the native peoples. Some scholars have accordingly explored cases of settler colonialism as a category of nation-state formation.[12] But its significance for international relations remains almost entirely unexplored and international law has not addressed it except in one isolated and carefully circumscribed instrument discussed below. The reason is unsurprising: many states are settler-colonial states, including every state in North and South America as well as Australia and New Zealand, and not one of their governments wishes to find that sordid histories of false dealings, genocide and ethnocide, and smouldering indigenous claims to land restitution, still haunt them.

The resulting lacuna is highly relevant to the case of Israel, however, because lacking specific rules and norms regarding settler colonialism, or codified ways to identify and address it as a distinct form of human rights violation, has derailed international reaction to Israel’s policies. This section attempts to open discussion on this important subject by drawing on cases in the Americas and southern Pacific to identify three iconic features of settler colonialism that, taken together, suggest that settler colonialism has historically received a distinct international response. Arguably, it still requires one.

Settler colonialism is a subcategory of colonialism, which is a very broad term and requires some initial attention. In its common late-twentieth-century usage–e.g., as represented by language and norms formulated by the United Nations Committee on Decolonisation[13]–colonialism is understood as foreign rule over territory located outside the internationally recognised borders of the home country that denies self-determination, or even meaningful representation of any kind, to that territory’s indigenous population. As practiced mostly by European powers between the sixteenth and twentieth centuries, what we might call ‘classic’ colonialism was motivated primarily by the search for markets, inspiring the colonising power to claim and administer the colony and its population in all respects with the home country’s interests narrowly in mind. Concepts of terra nullius authorised this legally, although ’empty’ land usually meant ’empty of government’ in the sense of European government (what the Spanish more honestly called ‘sí­n polí­tica’–without political order). Discourses of superiority, regarding race and/or civilisation, were ubiquitous features of colonial rule, as the coloniser sought to make moral sense of dispossessing colonised peoples of their own governments in order to appropriate their land, resources, and labour. A ‘standard of civilisation’ was even developed to quantify their relative standing.[14]

Settler colonialism sustains these classic patterns of racism, domination, and cultural denigration but our case studies indicate that it is distinguished in at least three ways. First and most obvious is the evaporation of the home country from the political equation. The hallmark of settler colonialism is a comprehensive indigenisation of the settler population, in which the settler population detaches politically, psychologically and ideologically from any extra-territorial metropol that can be held accountable for its behaviour and to whose territory it can be expected to return. In re-attaching its mythic origins and destiny to the new territory, a settler-colonial society further develops a particularly tenacious understanding of its own rights to and needs for the territory, which extend to equating settler sovereignty with the settler society’s physical survival. Translating into potent notions of natural and human rights, this powerful identification of the settler society with the land militates powerfully against its withdrawal.[15]

The second factor distinguishing settler colonialism is its inversion of indigenous rights as violating rather than expressing the principle of self-determination. Classic colonial discourse routinely deprived colonised peoples of their sovereignty, yet claimed to bring indigenous peoples the benefits of civilisation and even equal rights and dignity as subjects of the crown (conditional on various criteria of assimilation and loyalty). Since the indigenous peoples’ rights were actually acknowledged (if not met) in this formula, colonised peoples could challenge colonial rule on grounds of its own contradictions. By contrast, in settler colonialism, the need of settlers to make moral sense of dispossessing indigenous peoples permanently of their land in favour of settler ownership inspires locally tailored myths about why the native peoples not only lack any legitimate claim to terra nullius but must be excluded from any hope of ever sharing sovereignty (which might re-introduce their right to get their land back). A canon of standard devices is enlisted to this end: e.g., the standard-of-civilisation morphs into social Darwinist logic, proposing the native peoples’ permanently inferior cultural status relative to the settler society, evidenced by (among other things) their very defeat. Persistent resistance by indigenous peoples is thus interpreted as the bitter and futile irredentism of obsolete cultures: irrational, racist in motive, and beyond any moral pale in targeting an innocent, idealistic and hard-working settler population that seeks only to reclaim the land from wilderness. Any indigenous population remaining in the state’s territory after its independence is therefore a cultural anachronism, tolerated if passive but still suspect for harbouring recidivist , if hopeless, seditious ambitions. Defeat and continuing suppression of such savages is therefore just as well as inevitable. Inversion thus consists of redefining indigenous interests and rights as rightly subordinate to the self-determination of the settler society, whose national project is, by contrast, draped in heroic nationalist symbols.

The third factor distinguishing settler colonialism from classic colonialism is its success in extinguishing indigenous juridical sovereignty permanently by gaining international diplomatic recognition– i.e., juridical sovereignty. Diplomatic recognition is gained when the settler population grows and embeds in the territory to the point of obviating any reasonable expectation by international observers of its withdrawal. The contrast with classic colonialism is stark: international norms reject foreign rule and require withdrawal and restoration of governance to the territory’s population. By contrast, at some tipping point in settler colonialism any idea of restoring government to the indigenous people becomes unimaginable. An obvious illustration is the present United States, which no one today reasonably expects to dismantle and hand over territory, even if now admitted to be unjustly acquired, to Native Americans who now comprise about 1 percent of the territorial population. This tipping point was probably reached in the eastern United States by the late seventeenth century and in the rest of the country by the early nineteenth.

Although settler demography is a compelling factor–and therefore a project pursued deliberately by settler-colonial governments and with particular intent by Israel–it would be risky to assume that demography alone determines such tipping points. Rather, evaporation of indigenous sovereignty in the cases reviewed here was determined by how local settler-colonial state-building tapped into evolving international standards and politics regarding juridical sovereignty. In Latin America, for example, settler colonialism began in the late-fifteenth century with classic colonialism: initial sweeping claims to imperium by European powers over vast territories, swiftly consolidated through warfare and administered by a tiny colonial European bureaucracy that only over subsequent centuries indigenised as a creole elite.[16] By the time Latin American states achieved independence in the early nineteenth century, the indigenous peoples had been reduced to a labouring racial caste that, at least in creole views, had no inherent capacity for sovereignty even where they remained a majority.[17]

By contrast, in what became the United States, European relations with the ‘Indian nations’ were guided by the Law of Nations. Mass immigration and armed conflict extinguished Native American sovereignty incrementally, in advancing waves of treaty-making. Yet, as they lost power, the native peoples were progressively seen by the settler society to lose this international standing as nations. In the early nineteenth century, the Supreme Court law redefined Native American peoples as ‘domestic dependent nations’. In the late-nineteenth century, U.S. federal law shifted to deny that indigenous peoples had ever held real sovereignty. Another variation is New Zealand, where the Maori saw their sovereignty first recognised, later eroded through deceptive treaties, and finally re-acknowledged in ways that redefined modern New Zealand as a bi-national state, although in practice providing only some group rights like redignifying the Maori language.

The cumulative effect of inverting indigenous rights and gaining international recognition is to convert indigenous politics into domestic affairs. Redefining international conflicts (competitions for sovereignty) as domestic affairs is indeed the most powerful gain for any state, as it removes the international persona juridica of competitors for sovereignty and prohibits direct involvement of the international community over any state actions regarding them, short of genocide and apartheid.

The historical period has mattered to this different treatment, of course, but not as precisely as one might think. States composed as European colonies in the nineteenth century (e.g., Algeria, colonised by 1848) were entirely discredited as such in the mid-twentieth century, first through bitter indigenous resistance and eventually wholesale rejection of colonialism by the international community as a threat to international peace. By contrast, Latin American states formed by settler-colonial societies, also formed in the early nineteenth century, have been assumed to be legitimate, even where still transparently oppressing their indigenous populations. Israel itself is a late case of such recognition, as discussed later.

In light of this model, South Africa is an iconic case of settler-colonial state-building, intuitively easy to spot due to the European and white-skinned character of the settler community, but also fitting the model here of indigenisation, inversion of indigenous rights, and international recognition. Not all of the white community indigenized (the English-speaking population tended to retain its British roots). But by the early eighteenth century, the Afrikaner (Dutch-speaking) population had reinvented itself as a people that, especially after persecution by the British in the Boer Wars, considered that it had no home country and, in classic blood-and-soil mode, could survive only on South African land. In Afrikaner pioneer myth, black resistance was discredited in starkly social Darwinist terms, as the irrational cruel attacks by savage brutes on peaceful heroic pioneers. By the late-nineteenth century, white settlement throughout all of modern South African territory was irreversible and, save some death throes in the Zulu Wars, sovereignty by ‘natives’ was considered risible (until the notion was revived by the apartheid government, in the 1960s, as the Bantustan scheme to save white statehood). International recognition flowed easily to all this (although in several incarnations as Afrikaner states engaged differently with British Empire, Commonwealth, and republicanism), converting black resistance to domestic affairs.

Israel also fits this model. Indigenisation has been achieved for the Jewish settler population partly by reinterpreting biblical tradition to support a claim of Jewish indigeneity in Palestine in antiquity and partly by the post-Holocaust premise that the Jewish nation ‘has nowhere else to go’. The Palestinian claim to sovereignty has been discredited through standard settler-colonial notions: e.g., Palestinian Arabs were a backward people that never used the land productively (standard of civilisation), they were not present in the land at all except as migrant labourers (terra nullius), they were defeated by Zionist forces due to their own intrinsic incapacity (social Darwinism), and they remain motivated by irrational hatred for the Jewish people engaged in a heroic project of state-building. The Palestinian-Arab struggle for self-determination has thus been inverted as antithetical to the universal human rights values of freedom, justice, and self-determination expressed by modern Israel. In 1947 the General Assembly confirmed Israel as a successful settler-colonial state by voting to partition the territory into a ‘Jewish state’ and an ‘Arab state’ and in 1949, Palestinian sovereignty was permanently extinguished (within the Green Line) when Israel gained international recognition, converting the problems of Palestinians inside Israel into a domestic issue.

Indeed, one of Zionism’s signal accomplishments as a settler colonial state has been to normalise in international discourse the idea that the Palestinian right to self-determination survives only in parts of Mandate Palestine. Even so, Israel’s admission in 2002 that Palestinian people should have a state somewhere in the West Bank and Gaza Strip was presented by Prime Minister Olmert as a capitulation not to justice for the Palestinians but to Israel’s own security imperatives.

Justice and Human Rights in Settler-colonial States

Although indigenous peoples tend overwhelmingly, even after centuries, to sustain their understanding that they were unjustly deprived of their sovereignty, their views find little sympathy in international relations because they implicate the legitimacy of settler-colonial states. Indigenous movements invoke principles of the United Nations Charter and Universal Declaration of Human Rights: e.g., rejection of colonialism and genocide, illegitimacy of acquiring territory by force, and self-determination. Hence indigenous politics is a particularly touchy question for states and a sensitive matter for international law–which, of course, serves existing states. The only international legal instrument to address settler colonialism is International Labour Organisation Convention (169) Concerning Indigenous and Tribal Peoples in Independent Countries,[18] which specifies its concern with

peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation…'[19]

The trouble for settler-colonial states brooding in this phrasing is promptly undone, however, by a careful caveat to this definition inserted (over bitter indigenous protest): ‘The use of the term “peoples” in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law’. States members of the UN rightly feared that the term ‘peoples’ could invoke the crucial provision of the Universal Declaration of Human Rights (‘peoples and nations have the right to self-determination’) and catalyse revived indigenous movements for autonomy or secession. Accordingly, ILO Resolution 169 treats ‘indigenous and tribal peoples’ as groups whose collective rights require some accommodation. It does not admit that the state itself may need to be redefined.

Because settler-colonialism consistently gains juridical sovereignty, movements for indigenous rights must seek different solutions to their oppressed status. In South Africa, the African National Congress (ANC) and South African Communist Party (SACP) held lengthy internal debates about what they called ‘colonialism of a special type’, as discussed by Ronnie Kasrils in this volume as this extract from a 1962 thesis explains:

The indigenous population is subjected to extreme national oppression, poverty and exploitation, lack of all democratic rights and political domination…The African Reserves show the complete lack of industry, communications and power resources which are characteristic of African territories under colonial rule throughout the Continent. Typical too of imperialist rule, is the reliance by the state upon brute force and terror…Non-White South Africa is the colony of White South Africa itself. It is this combination of the worst features of both imperialism and colonialism, within a single national frontier, which determines the special nature of the South African system and has brought upon its rulers the justified hatred and contempt of progressive and democratic people throughout the world…'[20]

South African historian Pallo Jordan describes these debates as reflecting the last of three stages of resistance in South Africa.[21] In the first phase, which lasted from European colonisation in the mid-sixteenth century through the late-nineteenth century, African peoples fought to repel European assaults on their sovereignty. In the second phase, which lasted roughly until the end of the Zulu wars in the 1880s, African peoples had irredeemably lost ground to European advance and their resistance shifted to defending their social order and local modes of production against incorporation by the European society and its economy. In the third phase, black Africans had lost all sovereignty and were fully absorbed into the settler state and its economy. In other words, the tipping point had been passed and even the native peoples could not anticipate withdrawal of a white settler society that had grown to such size and indigenised with such nationalist passion. Resistance then shifted to appropriating the settler society’s own laws and institutions in a bid for equal rights and privileges. This last stage was formulated as the programme of the ANC and culminated in the 1994 elections that eliminated white rule. Third-stage resistance was effective because it was consistent with international approaches to conflicts resulting from settler colonialism by urging that indigenous individuals have equal rights as citizens.

Viewed through Jordan’s lens, Palestinians in the OPT are engaged in all three stages of resistance at once, a confusion possibly resulting from the relatively compressed time frame of Zionist colonisation. Some Palestinian factions, drawing on the success of Hizbullah in expelling Israeli forces from southern Lebanon, still hope that militancy can force Israel and the settler society to withdraw (first stage). Most Palestinians in the OPT, however, use a combination of open resistance and sumud in an attempt push back the worst intrusions of Israeli military and economic penetration, seeking to preserve their families and Palestinian society in a shrinking but still-distinct socio-political space (second stage). Only a small (but growing) portion is considering shifting to first-stage resistance: viewing Israeli hegemony as largely complete and appropriating Israeli democracy in a demand for full citizenship and equal rights in a non-ethnic state.[22] In this move, they would join (although greatly complicate) a different version of this struggle that has been sustained by Palestinian citizens of Israel for some decades.

The Israeli-Palestinian conflict has been accorded this same treatment inside the Green Line, regarding Palestinian citizens of Israel. Inside the OPT, however, the international community has held to the premise of military occupation: as Israel has not declared sovereignty and this would violate the provisions of Resolution 242, the paradigm is not settler-colonialism. But if settler colonialism commonly converts the rights of occupied peoples to self-determination into rights for equal citizenship, and if Israel has settled the West Bank past any reasonable expectation of withdrawal, is there indeed no tipping point upon which the conflict should be deemed a settler-colonial conflict and the state held accountable for the obligations that accrue with sovereignty, such as providing citizenship and equal rights to the population of the OPT?

The international community has rejected this shift on grounds that it would reward aggression with sovereignty. But the United Nations did recognise Zionist settler-colonialism in part of Mandate Palestine when it voted for partition in 1947 and to admit Israel as a member of the GA in ____. This vital prize of juridical sovereignty recognition was not granted on the basis of Zionist settler myths, noted above, as such myths were then already badly discredited. Rather, it reflected the power politics of settler colonialism, which followed the tipping point of settlement in standard fashion. As General Assembly Resolution 181 is also sometimes invoked to absolve Israel of both apartheid and colonialism, it requires our special attention.

UN Resolution 181

Although the history of General Assembly 181 is relevant to our present concern with international responsibility, it is beyond the scope of this chapter to review, being a tale brimming with Great Power intrigue and Great Game dramatics.[23] It must suffice here to recall that the Zionist movement, through strong lobbying by the United States, succeeded in wresting a partition resolution from the United Nations General Assembly (GA) that would serve Israel’s later claims that the United Nations supported Israel’s creation as a Jewish state. The ‘principle of partition’ also suggests that Israel is not responsible for people who were supposed to served by the Arab state, which was never formed (although now is considered to be forming in the OPT).

Relevant to our present concern with Israel’s status in the OPT are three features of 181 which compromise both claims: (1) the resolution called for partition and two states on terms that rejected ethnic statehood on the model developed by Israel; (2) subsequent GA resolutions tacitly retracted UN endorsement of Jewish statehood; and (3) Palestine was never formally partitioned, in accordance with 181 or any other formal action. Taken together, these facts signify that Israel’s role in the OPT may arguably be sovereignty as a matter of state responsibility.

The first feature is evident simply by reference to the resolution’s text. Resolution 181 endorsed partition of Palestine into two states–a ‘Jewish state’ and an ‘Arab state’–that were to be ethnic only regarding their demographies, providing some mechanisms (such as gerrymandered borders and guidelines for citizenship choices) to encourage titular ethnic majorities. Otherwise, the text of the resolution repeatedly prohibits discrimination on the basis of ethnicity. Hence Resolution 181 never endorsed ethnic statehood on the model that Israel would later adopt, in which Jewish-ethnic rights are juridically privileged in many social sectors. Nor, arguably, would a resolution endorsing this model have passed the General Assembly, given the contemporary rejection of colonialism and the colonial flavour of Zionist settlement in Palestine. The Arab states members strongly endorsed a non-ethnic unitary one-state solution and it is at least probable that an independent Africa would have done the same.

(It is often forgotten that, when the General Assembly voted in partition in 1947, the United Nations had only 56 members and most of the world was not represented. The only African members were Egypt and apartheid South Africa; the rest of Africa was still under colonial rule. Aside from recently independent India, the regions of East Asia, South Asia, and Southeast Asia were not represented either. Hence the 33 states that voted in favour of partition represented just 17 percent of today’s states and was a group smaller than the number of states still refusing to recognise Israel today, totalling 35 at this writing.[24] Legally, United Nations resolutions lose no force over time simply due to the United Nation’s growing membership, but normatively, the globally unrepresentative conditions of its passage bear negatively on Zionist claims that Jewish statehood received, in principle, the imprimatur of ‘world opinion’. A better claim is that UNSC resolutions 1397 (2002) and 1515 2003) calls for a two-state solution and by implication a Jewish state, but this resolution refers to ‘Israel’ and ‘Palestine’ and does not use the terms ‘Jewish state’ or ‘Arab state’.)[25]

The second feature, retraction of approval for a Jewish state, is also clear from the text of Resolution 194 of 19 November 1948, which called for return of Palestinian refugees. Because the territory then held by Zionist forces–being much larger than 181 had recommended and including the entire Galilee–had held a Palestinian Arab majority before the war, an instruction to allow the refugees to return signalled that the UN no longer endorsed a Jewish majority in that territory. In other words, the ‘Jewish state’ as conceived by Resolution 181 was acknowledged to have been rendered obsolete by facts on the ground (and has indeed never existed).

The third feature, that Palestine was never legally partitioned, caps the still-unresolved status of the OPT. After 1967, Israel held territory that had never been legally separated from the Mandate Palestine or recognised juridically as pertaining to any other sovereign power. After 1948, Jordan assumed authority in the West Bank but never formally annexed it and Egypt refused any formal responsibility for the Gaza Strip. Hence, the Security Council, in Resolution 242 of 1967, called for Israel to withdraw from ‘territories occupied in the recent conflict’ but did not specify to which state those territories belonged and famously omitted any mention of the Palestinians, who appeared only as ‘the refugee problem’. The Israeli government has indeed long insisted that the West Bank and Gaza Strip cannot be considered ‘occupied’ in the sense of international humanitarian law because they are not part of another state’s territory. This claim has been brusquely rejected by the Commission on Human Rights and most international lawyers, especially regarding applicability of the Fourth Geneva Convention. But it may be considered afresh here, regarding the present question: whether Israel’s settlement in the OPT should be considered to have passed the tipping point and Israel be held responsible for sovereignty over all of Mandate Palestine, which was never partitioned and where Israel stands as the only state government, enjoying full empirical sovereignty yet escaping the international consequences of excluding Palestinians on the basis of race or ethnicity, in order to remain a Jewish state.


Israel’s occupation of the West Bank and Gaza Strip has digressed so far from the terms of reference of international humanitarian law that it cannot be adequately described in terms of discrete violations. Israel now controls the OPT in all ways consistent with sovereignty except the will of the territory’s population. (‘Disengagement’ from Gaza altered but did not end this control.) Steadily settling the West Bank, Israel’s behaviour is consistent with settler-colonialism. With half-a-million settlers in the West Bank, it could be seen to have passed the tipping point some time ago, were not the international community still wedded to the regime of occupation. Israel’s willingness to ‘yield’ portions of the West Bank to Palestinian state is, in this context, most accurately comparable to a Bantustan strategy: to concentrate black/Arab people within politically suffocating enclaves where their titular sovereignty can absolve the white/Jewish state both of responsibility for their welfare and of the international embarrassment of their exclusion.

One irony emerges from this analysis: that the UN has actually obstructed resolution of the conflict by insisting on Israel’s withdrawal from the OPT. It is incontestable that, legally, Israel holds the territories under belligerent occupation and has illegally transferred Jewish settlers into East Jerusalem and the West Bank. When the Security Council called on Israel to withdraw from ‘territories seized in the recent conflict’, it established that Israel would not be allowed to annex these territories. This measure forestalled, as it specified, the illegal acquisition of territory by force. Yet in enforcing this prohibition, the Security Council unintentionally forestalled application of the normal response to consolidated settler-colonial states: demands for citizenship, equal rights, and democracy for the indigenous people. Ostensibly, Palestinian rights have been guarded and preserved by this firm position. Yet the real-life consequences for the Palestinians have been disastrous. They are left in a seemingly endless limbo, in a portion of the original mandate territory destined for self-determination where no state has a legal claim to sovereignty other than the ethnic state that took form in that territory yet is not held responsible for excluding them from citizenship on the basis of race.

Diplomatic recognition of settler-colonial sovereignty is not argued here to reflect justice. It arguably represents the permanent deprivation of historical justice to peoples who have lost land, livelihoods, community, rights, and collective dignity to an alien onslaught. Rather, it reflects recognition that power politics have irrevocably altered the terms in which justice and human rights can be pursued. The only real defeat of a settler colonial state, once it has formed, is by eliminating its function as a vehicle for perpetuating settler myths and racial discrimination. This transformation is a tough and painful one on all sides, as the bitter struggle in South African attested. The worst outcome, however, is a situation that has passed the tipping point yet closes off this path. Such is the situation in Israel-Palestine, where the settler-colonial state has rendered obsolete one course of justice for the Palestinian people while a combination of factors–including the international community, acting dutifully to preserve international order and norms–has closed off the alternative.

Recognizing that settlement has proceeded beyond realistic expectations of Israel’s withdrawal–that the tipping point has been passed–would require reassessing Israel’s presence as an advanced case of settler colonialism, a condition that incurs different obligations for all parties. Among more immediate implications, this shift of paradigm would alter interpretations of the two-state solution as it is currently taking shape. It would clarify that a Palestinian state is being carved out of territory Israel already treats as part of its sovereign territory, thus supporting with greater rigour the polemically frequent comparison to Bantustans in apartheid South Africa. It would also explain the lack of progress on the ‘peace process’ by clarifying that Israel’s lack of juridical sovereignty in the OPT is not simply a fact of international law but is a strategic claim, functioning as a cynical tool for veiling policies that are not politically admissible otherwise: excluding the territory’s population from citizenship.

[1] At this writing, the Democracy and Governance Programme of the Human Sciences Research Council of South Africa is completing such a study, with the draft title ‘Occupation, Colonialism, Apartheid: Re-assessing Israel Policies in the Occupied Palestinian Territories’, forthcoming in April 2009.

[2] Israel’s status as an occupying power has been confirmed by the International Court of Justice as well as innumerable statements by the United Nations Security Council, General Assembly, the UN Commission on Human Rights and other international bodies and authorities. Much of this legal assessment has accompanied concern about Israel’s violations of related international humanitarian law.

[3] For a recent example, see ‘The Time Has Come to Say These Things’, interview with Ehud Olmert, New York Review of Books, Vol. 55, No. 19 (4 December 2008).

[4] ‘Why Africa’s Weak States Persist: the Empirical and the Juridical in Statehood’, World Politics Vol. 35, No. 1 (1982); also see Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge, 1993).

[5] Accessible at http://www.routledge.com/textbooks/9780415438964/downloads/ihm04c.pdf

[6] Accessible at http://www.lib.utexas.edu/maps/africa/namibia_homelands_78.jpg

[7] The League of Nations Mandate system divided mandates into three categories: Class A mandates, which were presumed nearly ready for independence, such as Palestine; Class B mandates …, and Class C mandates, where

[8] The Commission of Enquiry into South-West Africa Affairs, 1962-1963 was led by Franz Hendrik Odendaal, a white South African, and came to be known as the Odendaal Commission.

[9] GA Res. 2074 (XX) of 17 December 1965.

[10] GA Resolution 2145 (XXI) Question of South West Africa (1966).

[11] International Court of Justice, Advisory Opinion of 21 June 1970, ‘Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)’.

[12] See, for example, Caroline Elkins and Susan Pedersen, eds., Settler Colonialism in the Twentieth Century: Projects, Practices, Legacies (Routledge, 2005).

[13] This committee was established to monitor cases of decolonisation, implementing UN Declaration on the Granting of Independence to Colonial Countries and Peoples.

[14] Gerrit Gong, The Standard of Civilization in International Society (Oxford, 1984).

[15] Exceptions include the French withdrawal from Algeria, which occurred at the cusp of such a settler-colonial transition. The particular viciousness with which France attempted to repress the anti-colonial movement, particularly toward the end of the independence struggle, reflected the intensity of pieds noires indigenisation, although withdrawal was still imaginable and so was ultimately effected.

[16] Spanish conquerors considered the great indigenous states of Latin America–e.g., major Mexican and Mayan city states, Cuscatlán, and the Incan Empire–as local powers to be converted to vassalage or, if they rejected this, destroyed by scorched-earth tactics and even genocide.

[17] Population data on ethnicity is notoriously unreliable in Latin America due to racism that discourages disclosure of indigenous identity and census policy not to list racial or ethnic identities, Hence formal censuses figures are criticized for commonly under-counting indigenous populations. Estimates among anthropologists are that the indigenous population of Ecuador is about 50 percent, of Guatemala about 50-60 percent, of Peru about 60 percent, and of Bolivia about 80 percent.

[18] ILO Convention 169 was adopted on 27 June 1989 by the ILO General Conference at its seventy-sixth session, entry into force 5 September 1991. Because Palestinians in the OPT have not been absorbed into the state of Israel, ILO Convention 169 is inapplicable and, in any case, Israel is not one of the twenty countries that have ratified Convention 169. Hence its significance to the question of Palestine has been neglected.

[19] Article 1 paragraph 1(b) of the Convention (1989).

[20] NOTE TO EDITOR: Highlighted passage may be omitted if it is desired not to duplicate from Kasrils chapter. Otherwise we can insert his footnote from South African Communist Party, The Road to South African Freedom (1962).

[21] South African Minister of Arts and Culture Pallo Jordan, unpublished lecture, … November 2008, Velmare Hotel, Pretoria, hosted by the Middle East Project of the Human Sciences Research Council.

[22] Poll data have put support for a unitary secular-democratic state at between 22 and 30 percent: see the Jerusalem Media and Communication Centre Public Opinion Polls, available at: http://www.jmcc.org/publicpoll/results.html.

[23] See, for example, the diplomatic history detailed in David Fromkin, ‘A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East (Holt, 2001).

[24] States still not recognising Israel are Afghanistan, Algeria, Bahrain, Bangladesh, Bhutan, Brunei, Chad, Comoros, Cuba, Djibouti, Guinea, Indonesia, Iran, Iraq, Kuwait, Lebanon, Libya, Malaysia, Maldives, Mali, Morocco, Niger, North Korea, Oman, Pakistan, Republic of China, Saudi Arabia, Somalia, Sudan, Syria, Tunisia United Arab Emirates, and Yemen.

[25] Respectively, S/2002/1397 (12 March 2002) and S/2003/1515 (19 November 2003).

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