On 15th May Palestinians worldwide will commemorate the ongoing Nakba. Palestinian refugees and internally displaced persons (IDPs) are the largest and longest-standing case of displaced persons in the world today. There are at least 7.7 million displaced Palestinians including 360,000 IDPs in Israel, representing 66 per cent of the total Palestinian population (12.1 million) worldwide. Among them are 5 million who are registered with and assisted by the UN Relief and Works Agency for Palestine Refugees (UNRWA).
The Israeli regime of apartheid, military occupation and colonisation is not limited to the Palestinians living in the occupied Palestinian territories (oPt); it also targets Palestinians residing on the Israeli side of the 1949 Armistice ("Green") Line as well as those living in forced exile. Israel's treatment of non-Jewish Palestinians throughout Israel and the oPt constitutes a comprehensive discriminatory regime aimed at controlling the maximum amount of land with the least number of indigenous Palestinians upon it.
The main components of that structure discriminate against Palestinians in such areas as nationality, citizenship, residency rights and land ownership. Israel initially applied this system in 1948 in order to dominate and dispossess all forcibly-displaced Palestinians, including the 150,000 who remained and who later became Palestinian citizens of Israel. After Israeli forces occupied the remaining part of Palestine in 1967, this territory became subject to the same Israeli regime in addition to military occupation. Israel's settler-colonial regime was not necessitated by military expediency or broader national security concerns; on the contrary, its inception dates back to the beginnings of the Zionist movement, decades before the creation of the State of Israel.
Zionist leaders established a movement in the late nineteenth century with the aim of creating a Jewish home through the formation of a "…national movement for the return of the Jewish people to their homeland and the resumption of Jewish sovereignty in the Land of Israel."
As such, the Zionist enterprise combined Jewish nationalism, which it aimed to create and foster, with the colonial project of transplanting people, mostly from Europe, into Palestine by drawing on the support of European imperial powers. The Zionist movement constructed a specific global Jewish national identity in order to justify the colonisation of Palestine. This identity had to be linked to the first century BC Jewish presence in the land. Significantly, like all other national identities which are a modern concept, Jewish nationality cannot be traced back to a natural origin. Instead, groups of persons constructed nationality based upon their own self-perceptions and desires.
The task of establishing and maintaining a Jewish state on predominantly non-Jewish territory has been completed by continuously and forcibly displacing the land's non-Jewish majority population along with the implanting of immigrant Jewish settlers. Today, nearly seventy per cent of the Palestinian people worldwide are themselves Palestinians who have been forcibly displaced by the Israeli regime or their descendants.
The Zionist movement faced three major obstacles when setting the scene to colonise Palestine in 1897 under the motto, "A land without a people for a people without a land":
- The indigenous Palestinian people who were living in that territory;
- Palestinian property and land rights within that territory;
- and Lack of a sufficient number of Jewish people in that territory.
Overcoming these three obstacles necessitated a legal system able to maintain the newly established status quo in the aftermath of the 1948 Arab-Israeli war. The Zionist movement, and later Israel, had no interest in simply creating a system of domination of one "racial" group over another. Rather, the intention was to establish a homogeneous Zionist-Jewish state predominantly for Jewish people.
To ensure a sufficient number of Jewish people in the colonised territory, Israel passed the Law of Return (1950). It provides that every Jewish person in the world is entitled to Jewish nationality and can migrate to Israel and acquire Israeli citizenship.
Thus Jewish nationals enjoy the right to enter Israel even if they were not born in Israel and have no connection whatsoever to that land. In contrast, Palestinians, the indigenous population of the territory, are excluded from the Law of Return and have no automatic right to enter the country. The Law of Return has aimed to simplify and encourage the immigration of Jews to Israel in order to achieve the exclusive Jewish state envisioned by Zionism.
Israel legislated and deployed the Absentee Property Law (1950) to confiscate Palestinian property legally owned by forcibly displaced Palestinian refugees and internally displaced persons. The term "absentee" was defined so broadly as to include not only Palestinians who had fled the newly established State of Israel but also those who had fled their homes yet remained within its borders. Once confiscated, this land became state property.
Israel enacted the Land Acquisition Law (1953) to complete the transfer of confiscated Palestinian land, which had not been abandoned during the attacks of 1948, to the state. In the words of former Israeli Finance Minister Eliezer Kaplan, its purpose "…was to instil legality in some acts undertaken during and following the war." An almost identical process took place in the occupied Palestinian territories in the aftermath of the 1967 occupation.
Moreover, the expansion of existing Palestinian localities in Israel and the oPt has been curtailed severely as a result of Israel's highly discriminatory planning policy. Since the occupation of the West Bank and the Gaza Strip in 1967, Israel has not permitted the establishment of any new Palestinian municipalities. Military Order 418 created a planning and building regime which gives full control of all areas related to planning and development in the oPt to the Israeli state.
Forced population transfer
The central obstacle to the Zionist movement, the Palestinian people themselves, has been addressed by various means throughout the past few decades. More than seven million Palestinians have been displaced forcibly– as have their descendants – from their homes. Israeli laws such as the Prevention of Infiltration Law (1954) and Military Orders 1649 and 1650 have prohibited Palestinians from returning legally either to Israel or the oPt.
Forced displacement of the indigenous Palestinian people did not end with the establishment of Israel in 1948; rather, it began that year. Since the Nakba, almost every passing year has witnessed a wave of forced displacement, albeit varying in degree. While 400,000 Palestinians became refugees in 1967, in 2008, Israel revoked the residency rights of nearly 5,000 Palestinian Jerusalemites.
This population shift is carried out today by Israel in the form of a policy of "silent transfer". This displacement is silent in the sense that Israel carries it out while trying to avoid international attention, displacing small numbers of people on a weekly basis. It is to be distinguished from the more overt ethnic cleansing achieved under the veneer of war in 1948.
Israel's silent transfer policy today
The Israeli policy of silent transfer is evident in the state's laws, policies and practices. Israel uses its power to discriminate, expropriate and ultimately effect the forcible displacement of the indigenous non-Jewish population from the area of historic Palestine. For instance, the Israeli land-planning and zoning system has forced 93,000 Palestinians in East-Jerusalem to build without proper construction permits because eighty-seven per cent of that area is off-limits to Palestinian use; most of the remaining thirteen per cent is already built up. Since the Palestinian population of Jerusalem is growing steadily, it has had to expand into areas not zoned for Palestinian residence by the State of Israel. All those homes are now under the constant threat of being demolished by the Israeli army or police, which will leave their inhabitants homeless and displaced.
Another example is the government-approved Prawer Plan, which calls for the forcible displacement of 70,000 Palestinian citizens of Israel due to an allocation policy which has not recognised over thirty-five Palestinian villages located in the Negev (Naqab) Desert. Israel deems the inhabitants of those villages to be illegal trespassers and squatters and, as such, they face the imminent threat of displacement. This is despite the fact that, in many cases, these communities predate the State of Israel itself.
The Israeli Supreme Court bolstered the Zionist objective of clearing Palestine of its indigenous population in its 2012 decision prohibiting family unification between Palestinians with Israeli citizenship and their counterparts across and beyond the 1949 Armistice Line. The effect of this ruling has been that Palestinians with different residency statuses, such as Israeli citizen, Jerusalem ID, West Bank ID or Gaza ID (all of which are issued by Israel), cannot legally live together on either side of the 1949 Armistice Line. They are thus faced with a choice of living abroad, living apart from one another, or taking the risk of living together illegally. This system aims to diminish further the Palestinian population. This demographic intention is reflected in the High Court's explanation that "…human rights are not a prescription for national suicide."
The way forward
This Israeli system must be brought to an end and must be judged in accordance with international law and standards. In fact, the ongoing disrespect for international law in the Palestinian-Israeli conflict undermines the very legitimacy of this crucial body of legal instruments, in particular human rights, humanitarian law and international criminal law. As such, it is time to ensure that international law is not a paper tiger, but a legal system which protects rights, establishes obligations and, most importantly, creates realities on the group in accordance with its values and principles. A solution to the ongoing colonisation and oppression of the Palestinian people should, therefore, be found through a strict rights-based approach. Such rights are not guaranteed through political negotiations, but through full adherence to and implementation of international law and access to rights.
A rights-based approach could be best described as normatively based on international rights standards and directed operationally to promoting and protecting those rights. Hence, a rights-based approach should integrate norms, standards and principles of the international rights system into the plans, policies and processes which seek solutions to the specific conflict at hand in order to ensure human dignity and justice. It is characterised by mechanisms, methods, tools and activities which are designed to complement the notion of humanity's struggle for freedom, equality, justice and development for all. Simply speaking, peace cannot be recognised when fundamental human rights and freedoms are violated. In the case of Palestine, this approach would entail solutions based on international law rather than a reliance on political negotiations to bring about a long lasting and just solution. In this light, it should be unacceptable to refer to illegal Israeli settlements in the oPt as "undermining efforts towards peace" – as is regularly the case in political circles – whilst in reality these settlements constitute a violation of numerous international standards and principles. As such, they are but one of a growing number of physical manifestations of Israel's ongoing impunity. This represents an ugly and dangerous precedent, and if the future sanctity of international law and standards is to be protected, their implementation should not be subject to negotiations, but demanded from the outset.
Most important in this context is the right to self-determination. The International Court of Justice refers to the right to self-determination as a right held by the people rather than a right held by governments alone. The right of the Palestinian people to self-determination is deep-seated in international law, most importantly within the International Covenants on Human Rights, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples and the Vienna Declaration. In essence, the right to self-determination is the basis for the implementation of the most important fundamental rights and freedoms such as rights of minorities to enjoy their own culture, religion and language, the right to be free from all forms of racial discrimination or simply to live a life in dignity and free from oppression, occupation and colonisation.
In addition, and equally importantly, all Palestinian refugees have the right to return to their land. International best practice insists that refugees be offered their choice of solution in a voluntary and informed manner. A rights-based approach to assistance and protection, moreover, requires that refugees are consulted and given a right to participate in the design and implementation of national and international interventions. UNHCR has adopted both the principle of voluntariness (refugee choice) in the search for durable solutions, and a participatory approach in its operations. The framework for durable solutions for the Palestinians forcibly displaced during the Nakba is set out in Article 11 of UN General Assembly Resolution 194 which resolves that the refugees be allowed to return to their homes at the earliest practical date and that compensation be paid to those choosing not to return, and for loss or damage to property.
Internationally recognised rights and principles trigger specific state responsibilities at the international level. Third party states have a legal duty to cooperate in the process of bringing to an end Israel's violations and breaches of international law, including the refusal of such states to provide aid or assistance to Israel, or to recognise the illegal situation which has arisen from Israeli acts.
Israel's continuous and calculated strangulation of the Palestinian people must be challenged properly by the international community, and this challenge must come from an assessment of Israeli actions and policy through the lens of international law. The facts on the ground demonstrate that such an assessment will reveal elements of an international crime against humanity, and Israel's regime must be judged accordingly, with the state's impunity for these crimes brought to an end. Yet, the silence – if not complicity – of powerful members of the international community in relation to these crimes continues. The resulting reality represents a worst case scenario: the intense and prolonged suffering of a colonised and occupied population, witnessed in conjunction with an emphatic politicisation and devaluing of international law.
Amjad Alqasis is a human rights lawyer, legal researcher and a member of the Legal Support Network of BADIL Resource Centre for Palestinian Residency and Refugee Rights. Since August 2014, he has been an adviser at Al Haq Centre for Applied International Law.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.