Monday, September 26, 2011

Defining Palestinian Statehood

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

As the director of Gisha, an Israeli human rights organization that promotes the right to freedom of movement in the occupied Palestinian territory, I sat riveted to this weekend's television coverage of the submission of the Palestinian request for UN membership. (Prior IntLawGrrls posts available here.)
On my mind was a seemingly trivial question:
Do we need to stop saying and writing the "occupied Palestinian territory" and start saying "occupied Palestine"?
I'll say more about the substance of that decision at the end of this post, but the fact that I – and much more importantly, world leaders – are raising this question highlights a benefit of the statehood bid: pressing the Israeli government (and the rest of the world) to decide what Gaza and the West Bank are and, therefore, who is responsible for safeguarding the rights of the residents of those places.
Here I'll confess to a frustrating aspect of litigating human rights and humanitarian obligations within the Israeli legal system: the pick-and-choose attitude toward international law displayed by the Israeli government.
In the West Bank, Israel claims the authorities of an occupying power, including arrest, detention, confiscation and military courts. But it also settles hundreds of thousands of Israeli citizens there, proclaiming that "in Judea and Samaria, the Jewish people are not foreign occupiers."
Just this month, the Israeli Supreme Court rejected a petition brought by Palestinian landowners who challenged confiscation of their land for construction of an express rail between Tel Aviv and Jerusalem, citing the provisions of the Hague Regulations that permit confiscation of private property in occupied territory for the good of its residents. The court noted but was not overly troubled by the fact that the planned rail-line will be off-limits to the residents of the occupied territory, as it is to be a commuter rail for Israelis only. A similar situation exists in Gaza: Israel claims a right to control who and what enters Gaza's borders, yet claims that it is no longer occupying Gaza and therefore owes only minimal obligations to its residents in exercising power over their lives.
Perhaps one outcome of the statehood bid will be to press the Israeli government to make up its mind: There's a claim that the West Bank and Gaza are a state. If you disagree, please explain what you think they are.
Of course, the very act of calling the West Bank and Gaza a state will not make them any less or any more occupied, nor will it change Israel's powers and responsibilities as an occupier. But the recent flurry of statements proclaiming the West Bank as belonging to the Jewish people (check out this Israeli Foreign Ministry animated clip) suggests a renewed interest in legal definitions, perhaps because they are starting to matter more.
If the West Bank is part of Israel, then its 2-million-plus Palestinian residents must be granted Israeli citizenship, including full political, civil and social rights. If it is occupied territory, then its residents must be granted the full range of protections offered by international humanitarian law, including the protection against citizens of the occupying country being transferred into their land. If Gaza is not a state (under blockade) and not occupied territory, then under what legal authority is Israel controlling its borders?
I still believe that international law can play a role in protecting civilians subject to control by a foreign power. I think that renewed international attention to defining Israel's relationship to the territory where 4 million Palestinians are living under its control could lead to increased protections for those residents. After all, international law is enforced primarily through diplomacy.
By the way, it is not only Israel who adopts a pick-and-choose attitude toward international law – Gisha has repeatedly tried to remind those who claim that Israel, as an occupying power in Gaza, has no right to stop ships from reaching its shores of a basic principle of the law of occupation: it allows the occupying power to determine travel arrangements for the occupied territory, including a ban on maritime travel. International law also requires the occupying power to allow people and goods to enter and leave by other means. Israel is not meeting this obligation, but failure to do so does not negate the authority to stop ships.
Now back to my own struggle to define Gaza and the West Bank, where we offer legal services to residents seeking to overcome Israeli-imposed travel restrictions in order to access schools, jobs, and family members.
I have scheduled consultations with colleagues, read some interesting background material, and talked to other international lawyers about whether Gaza and the West Bank constitute a state.
I have questions about the Montevideo Convention criterion requiring a state to have an effective government. Even if we can get beyond the Gaza-West Bank split, there is the reality that the Palestinian Authority was created by agreement with the occupying power, and its competences are delegated to it by Israel and exercised under Israeli supervision and approval.
I am also sympathetic to arguments that whether Palestine should be viewed as a state is a political question whose resolution depends largely on the ramifications of the UN bid, still in its infancy.
I'll let you know what I discover, but one thing is sure – whatever the Palestinian territory is or isn't, its people have rights that must be protected. I hope the renewed debate over their status will lead to greater protection of those rights.


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