By Rachel Sazanowicz
I had the privilege of traveling throughout the Israeli-Occupied Territory of the West Bank in the summer of 2011. My visit preceded Fatah’s Palestinian bid for statehood presented to the United Nations on September 23, 2011, and it was a major topic of discussion in the community.[i] Conversations revealed many Palestinians’ clear and understandable lack of faith in the international community’s ability to foster the realization of a Palestinian state. What was surprising however, was not the general attitude that a separate Palestinian state was improbable, but that it is actually not preferable. Many Palestinians that I spoke with expressed the opinion that a “one-state solution”, where Palestinians and Israelis live together as equals in a single unified country, is the only place where future generations of Israelis and Palestinians will know true peace.[ii]
After just a short visit to the West Bank it became evident that separation of these two peoples on this tiny land is neither practical nor possible. The current demographic of the West Bank includes three distinct populations. First, there are the refugees that fled from their homes in what is now Israel to the West Bank during and immediately after the 1948 war, many of whom still reside in refugee camps and their descendents. Next, are the original inhabitants of the land who did not flee from their homes following the 1967 war when Israel invaded and confiscated the West Bank (including East Jerusalem), the Gaza Strip, the Sinai Peninsula, and the Golan Heights and their descendents. Finally, parts of the West Bank are colonized by Israeli settlers from all over the world who have settled in the West Bank with the financial support and encouragement of the Israeli government.
On the other side of the separation barrier, the population of Israel is comprised of both Israeli citizens and a sizable presence of Israeli Arabs. The Jewish Israeli population consists of the descendants of the original Jewish inhabitants of the land under Ottoman rule, the early Zionists and their descendants, and recent Jewish emigres to the country. The Israeli Arabs who hold Israeli citizenship are the Christian and Muslim Palestinians that refused to leave their homes leading to and during the 1948 war following the creation of Israel and their descendants. To understand the significance of these demographics to the current “two-state solution”, one must take into account the conflict’s early history. The Zionist movement called for the creation of the State of Israel as a national Jewish homeland with a Jewish majority,[iii] however the confiscation of additional territory during subsequent wars and colonization has meant that Israel has actually acquired more Christian and Muslim Palestinian inhabitants.[iv] Furthermore, the inability of Israel to expel all of the original inhabitants of what is now the State of Israel has ensured a sizable non-Jewish majority.[v] Additionally, due to the build up of settlements over the past 64 years, a large segment of the Israeli population is currently living in the West Bank often violently clashing with the Palestinian population.[vi] The lives of Palestinians and Israelis have become irreversibly intertwined. As the late Edward Said, a prominent Palestinian activist and former Professor of literature at Columbia University, stated over 10 years ago:
[T]he idea of a state for ‘ourselves’ simply flies in the face of the facts: short of ethnic cleansing or ‘mass transfer,’ as in 1948, there is no way for Israel to get rid of the Palestinians or for Palestinians to wish Israelis away. Neither side has a viable military option against the other, which, I am sorry to say, is why both opted for a peace that so patently tries to accomplish what war couldn’t.[vii]
Ten years later, the inherently unworkable plan Said warned against is still the only “solution” on the table.
Curiously, the so-called Separation Barrier has not done much to separate these two peoples either; the route of the barrier does not follow the internationally recognized legal border of Israel (called the Green Line), but instead 85 percent of the barrier extends into the West Bank, swallowing up more and more Palestinian land.[viii] There are over 518,974 Israeli settlers[ix] living in more than 200 settlements in the West Bank.[x] Since Israelis live on either side of the wall, the stated goal of protecting Israelis from Palestinians is questionable. The Separation Barrier does indeed serve its most obvious purpose: when the Barrier is completed, another 9.5 percent of the West Bank will have been “separated” from its Palestinian owners and annexed into the State of Israel.[xi]
The settlements present the most obvious obstacle to the two-state solution. They are de facto Israeli cities made up of exclusively Jewish populations scattered strategically throughout the West Bank and East Jerusalem. These settlements swallow up 42.8 percent of the land of the West Bank, and in many cases are placed strategically by the Israeli government in order to separate Palestinian’s from each other and from their own land.[xii] The placement of these settlements created what some observers label “Palestinian Bantustans” drawing an analogy to the non-viable “homelands” reserved for the black majority in Apartheid South Africa.[xiii] Indeed, security fences cordon off the Israeli settlements[xiv] and separate roads are built or taken from the Palestinians for use by settlers only.[xv] Checkpoints and/or physical barriers block roads. This has the cumulative effect of not only isolating Palestinian villages from the settlements, but also from other Palestinian villages. These isolated villages of the West Bank are no more legitimate or state-like than the Bantustans were in South Africa. The use of checkpoints and road barriers restrict Palestinian’s freedom of movement while making it possible for the Israeli military to institute curfews and lay siege to Palestinian villages quickly and easily. By strategically routing the Separation Barrier and building the settlements on what was someday meant to become a Palestinian state, Israel has redrawn the map of the West Bank, and ensured that no contiguous, viable Palestinian territory exists for a future state to be built on.
Another glaring inconsistency with the two-state plan is that the West Bank and the Gaza Strip are not contiguous territories but are separated by the State of Israel. While contiguity is not one of the four requirements set forth for statehood by the Montevideo Convention on the Rights and Duties of States, the fact that travel is not permitted between the two territories by the State of Israel is a major problem.[xvi] After the capture of the West Bank (including East Jerusalem) and the Gaza Strip during the war of 1967, the Israeli Military declared the territories to be “closed military areas” and free passage between them was forbidden.[xvii] The severity of the restrictions on freedom of movement between the three areas has varied over the years but in 1991, Israel revoked all general entry and exit permits and instituted a policy that required special permits for travel between East Jerusalem, the West Bank, and the Gaza Strip.[xviii] In practice this means than anyone holding a Palestinian territory ID card (including American citizens with current American passports) are not allowed entry into Israel without a special permit.[xix] This makes it almost impossible for Palestinians living in the West Bank to travel to the Gaza Strip. Currently, Palestinians residing in Israel and holding an Israeli passport along with other foreign passport holders are generally allowed entry into the West Bank and East Jerusalem. This however, is not the case with the Gaza Strip, which is effectively under siege. Since the application for statehood was a unilateral move by the Palestinians that is not supported by Israel, there is every indication that the repressive permit system will remain in place regardless of whether the West Bank and the Gaza Strip are accepted by the United Nations as a unified state under one name. While contiguity of territory may not be a per se requirement of statehood, it is hard to imagine a state where, in order to travel within that state, one’s citizens are at the mercy of a foreign government’s permit system.
Is this the makings of a state? The answer is an unequivocal no. The Palestinian quest for justice is a quest for freedom – not a quest for de jure state in law but not in practice. Life for Palestinians living under Israeli occupation is marked by the constant threat of arbitrary arrest and detention, torture, extra-judicial killings, house demolitions, confiscation of land, damage and/or destruction of mosques, homes, olive trees, and other property, and physical assault and death.[xx] As the Israeli Information Center for Human Rights in the Occupied Territories, known as B’Tselem, states on their website:
Israel created in the Occupied Territories a regime of separation and discrimination, with two separate systems of law in the same territory. One system, for the settlers, de facto annexes the settlements to Israel and grants settlers the rights of citizens of a democratic state. The other is a system of military law that systematically deprives Palestinian of their rights and denies them the ability to have any real effect on shaping the policy regarding the land space in which they live and with respect to their rights. These separate systems reinforce a regime in which rights depend on the national identity of the individual.[xxi]
Why then, are Palestinian leaders pushing for statehood when there is no indication that U.N. recognition will ensure that basic human rights are respected? It has become increasingly difficult to uncover the motives of President Mahmoud Abbas who initiated these statehood proceedings at the U.N., but whose authority to do so has been questioned. Abbas was formally the head of the Palestinian Authority (PA), the administrative arm of the Palestinian Liberation Organization (PLO), but the PA’s mandate ran out three years ago. Furthermore, the PA only represented Palestinians living inside the West Bank and the Gaza Strip, not the larger Palestinian diaspora. It is the PLO that is recognized as the sole representative of the Palestinian people – including those living in Israel, the Occupied West Bank and East Jerusalem, the Gaza Strip, and the diaspora. While Abbas advanced the statehood bid as head of the PLO, his former position as President of the PA casts a shadow on his legitimacy to represent the Palestinian people as a whole. In a recent interview, Guy Goodwin-Gill, a professor of public international law at Oxford University, questioned whether Abbas had the authority to push this issue ahead. Specifically, he questioned whether the Palestinian people, through their representation in the PLO, granted this power, and if so on what terms. Professor Goodwin-Gill stated:
I recognize that there is an urgent, pressing need for statehood, particularly in the face of the intransigence of other parties, but I am also concerned that the essentials of modern statehood – democracy, representative government and accountability – may be sidelined, if not sacrificed, perhaps to the long-term disadvantage of the people at large.[xxii]
The authority and legitimacy of Saeb Erekat, another principle author of the bid for statehood, has been publicly questioned as well. Erekat resigned his post as Chief Negotiator with Israel in February of 2011 after controversial papers were leaked from his office showing secret concessions he had made to the Israelis over a ten-year period.[xxiii] The most publicized incident stems from his role in the Abbas government’s decision to effectively bury the Report of the United Nations Fact Finding Mission on the Gaza Conflict (also known as the Goldstone Report). During Israel’s “Operation Cast Lead”, a military invasion into Gaza in 2008, 1,385 Palestinians were killed including 318 minors, more than 5,300 Gazans were wounded, and approximately 3,500 residential dwellings were destroyed leaving 20,000 people homeless.[xxiv] The report was commissioned by the UN Human Rights Council and the fact-finders uncovered strong evidence of war crimes and crimes against humanity such as the use of white phosphorus bombs in civilian areas and the use of human shields.[xxv] There was strong support within the U.N. Human Rights Council to have the report sent to the General Assembly, a move that may have propelled war crimes proceedings. The U.S. and Israel warned Abbas and members of his cabinet including Erekat, that Palestinian support into a war crimes inquiry would “complicate efforts to restart Israeli-Palestinian peace talks”.[xxvi] Under pressure from President Obama and the Israeli government, Abbas and Erekat withdrew Palestinian support for the vote to proceed. They effectively surrendered the rights of their people to seek justice and signaled to Israel and the United States just how much they are willing to give up in future “compromises.” There was an intense backlash by the Palestinian community after this move. Erekat did not, however, resign his position on the PLO’s executive committee, and in this capacity he engineered, along with Abbas, the application for statehood. Ali Abunimah, co-founder of Electronic Intifada, made this statement to Al Jazeera following the bid for statehood:
These people don’t have a right to act on behalf of the Palestinian people, and they are using the United Nations as a roulette table and gambling with the rights of the Palestinians. Who are these people? They are the very same who helped to sideline the Goldstone Report [into the Gaza attacks of 2009], as well as trying to stop the Human Rights Council flotilla investigation.[xxvii]
It is against this back-drop that many Palestinians, including those living within the Occupied Territories and those living outside of the Middle East, ask what will become of their most important right as Palestinians – the Right of Return for the five million U.N.-registered Palestinian refugees and members of the greater diaspora.[xxviii] The Right of Return is enshrined in General Assembly Resolution 194 that was passed in 1948 in response to the creation of the State of Israel, and in recognition of the injustices that occurred during the Arab-Israeli war. Article 11 states:
[R]efugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.
The Right of Return is a critical component of any legitimate peace settlement, and has always been one of, if not the most contentious issue of the conflict. As Edward Said eloquently expressed before his death, “We Palestinians ask why a Jew born in Warsaw or New York has the right to settle here (according to Israel’s Law of Return), whereas we, the people who lived here for centuries, cannot.”[xxix] Israel has repeatedly rejected the Right of Return because it would mean an end to Israel as a majority Jewish state. Sixty-four years later however, many Palestinians, whether living under occupation in refugee camps or in borrowed countries abroad, still cling to the original deeds to their land and the old iron keys to their homes.[xxx] Mahmoud Abbas does not hold the authority to simply sign away the Right of Return. During a protest rally against the statehood bid held outside of the UN this past September, Dima Abi Saab, spokesperson for the U.S. Palestinian Community Network (USPCN), explained to reporters for Al Jazeera:
[The] bid is lacking on many levels, but mainly because it has not taken into account what would happen to the millions of Palestinians living in the diaspora. We at the USPCN believe that these initiatives will not help Palestinians achieve their right of return, nor will it bring Palestinians any closer to liberation.
Abbas and Erekat, along with other members of the government, are increasingly being seen as pawns in an American-backed Israeli game where peace talks are stalled while more settlements are built on Palestinian land. The settlements create “facts of the ground” that make a future Palestinian sovereign state based on pre-1967 borders impossible. The bid for statehood is seen by some as a desperate attempt by Abbas to appear engaged and relevant in the Palestinian quest for justice. Karim Makdissi, an associate professor of political science at the American University of Beirut, in Lebanon, told Al Jazeera:
Essentially it’s a bureaucratic move for survival. The PA as a bureaucracy wants to survive, and they have come to understand that their role on big political issues has become untenable, and they’re increasingly asked why they still exist.[xxxi]
Freedom for Palestinians means not only freedom from the repressive tactics of the now 64 year-old illegal occupation, but also self-determination through a representative and accountable government where the rights of all Palestinians, including those in the diaspora, are recognized and fought for. The current Palestinian government along with deceased leader Yasir Arafat and his advisors, the Obama administration as well as previous American administrations, and countless others have incorrectly characterized the Israeli/Palestinian conflict as a struggle for independence. It is really a struggle for equal rights among Palestinians and Israelis. Palestinian refugees in the West Bank, Gaza Strip, and those living abroad either fled or were forced from their homes in 1948 and subsequent wars and have never realized their Right of Return. The Palestinians who did not flee from their homes and are still living in Israel do so under precarious conditions. They are an Arab minority in the Jewish state, and as such often do not enjoy the same rights and privileges as the Jewish majority.[xxxii] Theirs is certainly a struggle for equality under the law. Finally, Palestinians living under Israeli occupation in the West Bank, and those living under Israeli Military siege in the Gaza Strip are free to exercise their inherent human rights only at the pleasure of the State of Israel. Palestinians, whether living in the Occupied Territories, or within Israel’s borders, or as part of the larger diaspora are struggling for justice and freedom. There has not been any indication from Mahmoud Abbas nor from the Israelis that a separate state would be any guarantee of this.
This conflict seems insurmountable at times because it has been framed as a fight over one piece of land by two peoples, each believing they lay the only valid claim to it. The discourse has been overwhelmingly dominated by a stubborn call for separation. Yet, more than 60 years after the creation of the State of Israel there is still no exclusively Jewish state, and neither is there self-determination for the Palestinians. The object of Zionism was to create a separate, secure Jewish homeland, yet the policies advanced in a quest to gain more land have ensured the presence of a large non-Jewish minority in Israel, and a Jewish minority living in the Occupied territories among an Arab majority. Palestinian leaders for their part, have continued to insist on separation in numerous peace processes and in their bid for statehood, and have consistently failed to ensure the basic human rights of their people. Repeated attempts at separation have accomplished nothing but further entanglement and continued flagrant abuses of basic human rights. If Israelis truly want peace, and what Palestinians desire is freedom and self-determination, the relevant question must become how can Israelis and Palestinians live together in one democratic state marked by equality and respect for human rights.
[i] The Palestinian Authority, lead by Fatah, is seeking recognition from the international community through the United Nation’s General Assembly that Palestine is a state. The PA is not currently seeking membership in the United Nations. A vote for membership in the UN must go through the Security Council and the United States would most certainly exercise its veto power in support of Israel. Adam G. Yoffie, The Palestine Problem: The Search for Statehood and the Benefits of International Law, 36 Yale J. Int’l L. 497, 504 (2011).
[ii] Edward Said was one of the greatest champions of a binational Israeli-Palestinian State. In a New York Times Op-Ed he wrote, “I see no other way than to begin now to speak about sharing the land that has thrust us together, sharing it in a truly democratic way, with equal rights for each citizen. There can be no reconciliation unless both peoples, two communities of suffering, resolve that their existence is a secular fact, and that it has to be dealt with as such.” Edward Said, Op-Ed, The One State Solution, N.Y. Times, Jan 10, 1999, http://www.nytimes.com/1999/01/10/magazine/the-one-state-solution.html?pagewanted=all&src=pm.
[iii] Theodore Herzl is credited as being the father of modern political Zionism. See Theodore Herzl, The Jewish State 52 (1946).
[iv] The original U.N. partition plan of 1947 allotted 56.47% of Palestine to the Jewish state and 43.53% to the Arab state, even though at the time, the Jewish immigrants only accounted for a third of the population. During the 1967 war, Israel illegally conquered more land, doubling the original size of the land allotment. Timeline: A History of Conflict, BBC News, http://news.bbc.co.uk/2/shared/spl/hi/middle_east/03/v3_ip_timeline/html/1947.stm (last visited Apr. 19, 2012).
[v] At the end of 2009 Arab Israelis accounted for 20.3% of the total population of Israel. Israel Central Bureau of Statistics, Israel in Figures 2010 10 (2010) available at http://www1.cbs.gov.il/www/publications/isr_in_n11e.pdf.
[vi] The Palestinian Central Bureau of Statistics estimates that at the end of 2010 there were 518,974 Israeli settlers living in the West Bank (including East Jerusalem) among 2.6 million Palestinians. Palestinian Central Bureau of Statistics, Number of Settlers in the Settlements in the West Bank, by Year and Region, 1986-2010, available at http://www.pcbs.gov.ps/Portals/_pcbs/Settlements/sett_2010_E_tab6.htm. The Israeli Central Bureau of Statistics 2010 report maintains that approximately 311,431 Israeli citizens live in the West Bank (referred to as Judea and Samaria by the Israeli government) and 186,646 in East Jerusalem. The Bureau does not give an official estimate of the Palestinian population of the West Bank. Israel Central Bureau of Statistics, supra note 5, at 4.
[vii] Said, supra note 2.
[ix] Palestinian Central Bureau of Statistics, supra note 6.
[x] B’Tselem, By Hook and By Crook: Israeli Settlement Policy in the West Bank, 12, (July 2010) http://www.btselem.org/download/201007_by_hook_and_by_crook_eng.pdf.
[xi] B’Tselem, supra note 8.
[xii] Human Rights Watch, Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, 9 (Dec 2010) http://www.hrw.org/sites/default/files/reports/iopt1210webwcover_0.pdf.
[xiii] See Haidar Eid, Declaration of a Bantustan in Palestine, Aljazeera, Oct 13, 2011, http://www.aljazeera.com/indepth/opinion/2011/10/201110610189764209.html.
[xiv] In 2004, the Israeli government authorized the construction of “special security areas” around existing settlements that extended 400 meters from the outermost house. Between 2002 and 2008, Israel appropriated 240 percent more land around 12 settlements by constructing these new fences. B’Tselem, Access Denied: Israeli measures to deny Palestinians access to land around settlements, 32-33, (Sept 2008), available at http://www.btselem.org/download/200809_access_denied_eng.pdf.
[xv] This phenomenon is referred to by B’Tselem as the “Forbidden Roads Regime,” where the right to travel in the West Bank is based on national origin. The Israeli military and government has not documented the Forbidden Roads Regime in military legislation or in official documents. Based on their own research, B’Tselem has divided the roads into three categories: completely prohibited, partially prohibited, and restricted use. See B’Tselem, Forbidden Roads: Israel’s Discriminatory Road Regime in the West Bank, (Aug 2004), available at http://www.btselem.org/download/200408_forbidden_roads_eng.pdf.
[xvi] The four requirements of Article 1 of the Montevideo Convention are: a permanent population, a defined territory, government, and capacity to enter into relations with the other states. The Montevideo Convention on Rights and Duties of States art. 1, Dec. 26, 1933, 165 L.N.T.S. 19.
[xvii] See B’Tselem, Restriction of movement: Closures, (Jan 1, 2012), available at http://www.btselem.org/freedom_of_movement/closure.
[xviii] See B’Tselem, supra note 17.
[xix] See Human Rights Watch, Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, (Dec 2010), available at http://www.hrw.org/sites/default/files/reports/iopt1210webwcover_0.pdf (includes information on the permit process).
[xx] See Id.
[xxii] Guy Goodwin Gill, Opinion, Legal Opinion Challenges PLO Statehood Bid, Aljazeera, Aug 25, 2011, http://www.aljazeera.com/indepth/opinion/2011/08/2011825222044579764.html.
[xxiii] Ethan Bronner, Palestinian Leaders Suddenly Call for Elections, N.Y. Times, Feb 12, 2011, http://www.nytimes.com/2011/02/13/world/middleeast/13mideast.html?_r=1&ref=saeberekat.
[xxiv] B’Tselem, Gaza Strip 27 Dec. ’09: One and a Half Million People Imprisoned, (Dec. 27, 2009), available at http://www.btselem.org/gaza_strip/20091227_a_year_to_castlead_operation.
[xxv] U.N. Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48, (Sept. 25, 2009), available at http://www.unhcr.org/refworld/docid/4ac1dd252.html.
[xxvi] Jack Khoury & Avi Issacharoff, Abbas Aide: Deferring Action on Goldstone Report was a Mistake, Haaretz, July 10, 2009, http://www.haaretz.com/news/abbas-aide-deferring-action-on-goldstone-report-was-a-mistake-1.6532.
[xxvii] Nour Samaha, Palestine Statehood Team a ‘Cause of Concern’, Aljazeera, Sept 22, 2011, http://www.aljazeera.com/indepth/features/2011/09/201192212910587149.html.
[xxviii] This figure includes the original refugees who resided in Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict as well as their descendants. U.N. Relief and Works Agency, UNRWA at a Glance, (Dec 2010), available at http://www.unrwa.org/etemplate.php?id=86 [last visited Oct. 13, 2012].
[xxix] Said, supra note 2.
[xxx] See Yara Bayoumy, Father to Son, Keys to Palestinian Home Cherished, Reuters U.S. Edition, Nov, 23, 2007, http://www.reuters.com/article/2007/11/23/us-palestinians-israel-refugees-idUSL2223730920071123.
[xxxi] Samaha, supra note 26.