When it comes to challenging the Nakba in Palestine, international law can be legitimately critiqued as a limited tool at best, and, at worst, part of the problem. International legal institutions and resolutions endorsed the partition of Palestine in the 1940s, gave legitimacy to the Zionist state-building project, and failed to meaningfully address the death, displacement and dispossession that it entailed. In more recent decades, while international human rights and humanitarian law standards generally help to illustrate some of the injustices of Israel’s practices in the occupied territories, their application tends to frame the conversation as a series of disparate violations against persons, rather than as a system of structural violence against a people.
In responding to this deficiency and addressing the deepening fragmentation of Palestine since the Oslo Accords, the more systematic analytic frames of colonialism and apartheid have been invoked by scholars and activists, both beyond and within the field of international law. The dominant currents of discourse in Palestine studies generally may be said to have shifted from the apartheid analogy that gained traction in the 1990s to a renewed engagement in more recent years with the broader paradigm of settler colonialism. The settler colonial analytic is certainly, as Brenna Bhandar and Rafeef Ziadah put it, “an essential lens to understand the myriad forms of dispossession experienced by Palestinians from the late nineteenth century,” and one that allows us to historicize the colonization of Palestine as a process that began long before 1948. For the purposes of confronting the Nakba from an international legal perspective, however, the lens of settler colonialism is limited by international law’s own correlations with colonialism.
International law has indeed essentially functioned since the 16th century as a vehicle for the implementation of colonial policies by the European imperial powers. A prohibition on colonial rule was formally adopted in international law only in 1960 under Third World influence, through a Declaration condemning “colonialism in all its forms and manifestations.” Existing settler-colonial states, however, were immunized from this by virtue of the requirement that a colony be “geographically separate” (that is, beyond existing borders, although not necessarily separated by salt water) from the administering state. This served to allay concerns that settler-colonial states such as Australia or Canada had about the prohibition applying to their rule over Indigenous peoples within their jurisdiction.
As a result, the initiation of new settler colonial projects is normatively prohibited under international law, but ongoing settler colonial processes and already-imposed settler sovereignties – regardless of the aggression, genocide, or ethnic cleansing on which they may have been built – are legitimized. As such, a formalist reading of international law envisages any illegality of Israel’s continued frontier settler colonialism or territorial acquisition only beyond the Green Line at most, not within the 1948 territory. The prohibition of colonialism is thus, like international humanitarian law, geographically limited to compartmentalized segments of Palestinian territory.
But while it has by no means broken decisively from its Eurocentric past, the content of international law does offer some norms that emerged from anti-racist and postcolonial struggles which do counter and criminalize certain derivatives of settler colonialism. For those seeking to draw tactically on international law to confront the Nakba, the international legal prohibition of apartheid can be useful in going further than the prohibition of colonialism.
The Nakba as an ongoing process cannot be contained within strictly defined borders and operates by dividing Palestinians between at least six different types of territorial spaces – Israel inside the Green Line, areas of direct and indirect rule in the West Bank, annexed East Jerusalem, the Gaza Strip, and exile outside areas of Israeli control. The international legal norms against apartheid allow us to look at this overall regime beyond and across territorial borders. The Namibian precedent from the International Court of Justice (ICJ) affirms that the prohibition of apartheid is not restricted to a particular territorial unit, be that the state’s sovereign territory or an extra-territorial space in which it exercises effective control. This is a sharp contrast to an occupation law framework that treats Israel inside the Green Line as completely distinct from the West Bank and Gaza Strip. It also provides a more complete vista than human rights framings, which tend to focus on violations against individuals.
Exposing this apartheid system as an illegitimate modality of governance sharpens our focus on the nature of the Israeli state’s subjugation of the Palestinian people. This contextualization of Israeli apartheid, as it has flowed from the Nakba, allows the dots to be joined between continuing colonization in the West Bank, demographic engineering in Jerusalem, dispossession and racial inequality inside Israel, destruction and de-development in Gaza, and indefinite dislocation of the Palestinian refugees.
By appraising Israel’s rule over the Palestinian people, in all of their places and statuses, as an institutionalized regime of systematic oppression and domination by one racial group over another, the core questions of equality, ethnic privilege and emancipation can be put in perspective. This manifests in its most foundational sense through the citizenship, return and residency laws of the ethno-racial Israeli state, through the material and territorial expropriations which those laws precipitate, and through the implementation of separate legal systems for Jewish-Israelis (civil law) and Arab-Palestinians (military law) in occupied territory. Such racialised discrimination and subjugation are proscribed under the international legal prohibition of apartheid.
Shifting to the apartheid framework can also open new possibilities for advocacy. While other mechanisms of international law such as the ICJ or the UN Human Rights Council have limited their mandate to date almost exclusively to the territories occupied in 1967, the prohibition of apartheid and segregation has allowed the UN Committee on the Elimination of Racial Discrimination (CERD) to censure Israel for its discriminatory legal, administrative and social structures throughout all parts of historic Palestine.
The principled and tactical deployment of international law through the prism of apartheid also offers a template for grass-roots mobilisation and anti-racist solidarity. It reminds us that the importance of a given tactic lies not only in the concrete result in the short term but the platform it lays for the longer term strategic horizon, and the ways in which organizing now shapes the conditions that materialize later. If we think about what the Palestine liberation project might look like after decolonization, or post-Nakba, for example, tactics centred on dismantling apartheid structures elicit a vision that avoids simply mirroring failed nationalist state structures – which are hierarchical, exclusionary, and patriarchal – and imagines instead the possibility of a mode of popular sovereignty that is more open, horizontal, and inclusive.
This is an edited excerpt from John Reynolds, ‘Anti-Colonial Legalities: Paradigms, Tactics & Strategy’ (2015) 18 Palestine Yearbook of International Law 8-52.