As the level of brutality of the Hamas-Israel conflict further intensifies, and its effects become measured by the scale of defiance of international humanitarian and criminal law, it is vitally important that we retain the intellectual ability to step back from the horrors of the current confrontation and reflect on two fundamentals that must define any conversation on any type of settlement over the long term. One is Israel’s right to exist within secure borders under international law; the other is the equally sacrosanct legal right of the Palestinian people to self-determination. The recent request for an Advisory Opinion by the International Court of Justice on the Occupied Palestinian Territory (OPT) will certainly contribute to shedding further light on the implications of these parameters.
But truistic as they are, legally and politically, these basic ideas also speak to wider dimensions of reality that are often overlooked in short term political discourse.
Firstly, it is a fact that the protracted Israeli-Palestinian conflict features an established state – Israel – against an entity, the ‘Palestinian people’, that is entitled to become a state in the name of national liberation. The conflict is (and has always been) about states, and the creation of new ones. It is a remarkable yet tragic restatement of the need for stronger and more stable statehood as the building block of the world order, not a call for its dismantlement. It is a reaffirmation of the need for reasonably entrenched borders, and respected homelands, not a call for their destruction. The UN Partition Plan of 1947 was unapologetically built around the recognition of an ‘Arab’ state and a ‘Jewish’ state, living side by side and in peace with each other. Whatever we make of that plan (almost instantly rejected by the Arab League and other Arab leaders on grounds of Arab unity), the prospect for a ‘two-state solution’ triggered by the 1993 Oslo Accords was (and still is) steeped in the 1947 idea of a state that carries with it some distinctive sense of national identity, beyond purely political institutions. The underlying logic of the 1947 Plan came off the back of the post-WWI ‘national’ arrangements reached at the Paris peace conference in 1919, including respect for the rights of minorities within the newly established states. In short, the Israeli-Palestinian case involves statehood and territorial integrity and forces us to reflect on the ‘national’ dimension of that statehood. It paradoxically defies calls for a ‘post-national’ legal and political order, at a time when, ironically, visions of such an order are said to be winning the day.
Secondly, it is a fact that the Palestinian movement is deeply divided, and that identifying the political and practical agency of Palestinian self-determination remains highly problematic. It is equally clear, though, that the Palestinians do have the right to self-determination under international law, and that this right primarily means putting an end to the Israeli occupation. Where do we go from here? The unspeakable deliberate and large-scale attacks on Israeli civilians by Hamas on October 7th are nothing less than a crime against humanity. It is an uncomfortable truth that the attacks, informed in no small part by religious fundamentalism, added to an overall strategy aimed to destroy the other side, to destroy the state of Israel, not to force the latter to return to the negotiating table. It is a basic rule of international law that no right can be exercised by annihilating the right of the other party, although both sides may have to accept reasonable limitations on their own individual entitlements because of a negotiated settlement. Hamas’ criminal attacks are not only militarily pointless, standing no chance of wiping out Israel from the geographical maps; they are also politically and legally pointless from the perspective of Palestinian self-determination.
Thirdly, it is a fact that the right to external self-determination is not a call for a specific regime provided that minimal rules of international law are respected by the right-holder. Back in 1947, the two-state solution was unequivocally about creating two democratic states, each with a democratic constitution. While the Oslo process committed the Palestine Liberation Organization (unlike Hamas) to some form of democratic order in a future, universally supported Palestinian state and acknowledged Israel’s right to exist within secure boundaries, it is certainly the case that Israel cannot make Palestinian self-determination conditional upon a unilaterally defined or manipulated end-state of the OPT. Historically, the process of decolonization never subjected independence (or other status) to the colonizer’s consent or the democratic viability of the self-determining unit, even though this often meant that the foreign yoke came to be replaced by dictatorships or authoritarian control. Isaiah Berlin put it well when he noted that ‘all oppression is hateful, yet to be ordered about by a man of my own community or nation, or class or culture or religion, humiliates me less than if it is done by strangers’. The objective and legitimacy of external self-determination – of liberation from foreign rule in law or in practice – must come before anything resembling a Western-style (or indeed any type of) democracy is considered or conceivable by the Palestinians themselves. This may fall short of the democratic liberal nationalism that underpinned the 1947 Partition Plan but is fully consistent with later practice which did not allow liberation to be put on hold indefinitely.
As the spiral of violence continues, with Hamas still holding over 200 Israelis captive and the Israeli government coming under intense criticism for its prolonged air strikes in Gaza, for the displacement of Palestinian civilians, for settlers’ violence, and for further alienating Palestinian society in an already volatile geopolitical context, any talk of a possible reinstatement of the peace process further down the line appears way off the agenda. Yet, when this latest cycle of violence is over, it will be the responsibility of global leaders and international institutions to work towards not only achieving criminal accountability for current atrocities, wherever committed, but also fostering a sense of political and institutional realism – a sense of history – in the way the conflict is framed, support is offered, and solutions are sought.
Gaetano Pentassuglia is Professor of International Law, Centre for the Study of Law in Theory and
Practice, Liverpool John Moores University; Honorary Senior Fellow, University of Liverpool. He sits on
the Steering Committee of the OSCE Network of Think Tanks and Academic Institutions.
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