( Al-Shabaka ) – Palestinians in Gaza are suffering from a worsening energy crisis due to the Israeli regime’s ongoing siege. As a result, they have adopted different coping strategies, including solar energy technology to offset electricity shortages. Al-Shabaka policy analyst and 2022 Visiting Gaza Fellow Asmaa Abu Mezied examines this reality, and offers recommendations for Palestinian leadership and stakeholders to promote Palestinian economic self-determination in Gaza.

( Al-Shabaka.org ) – Since 2021, Israeli leaders have proposed a new series of economic policies under the approach of “shrinking the conflict.” This strategy aims to afford Palestinians more economic opportunities and so-called freedoms as a way to sustain the Israeli occupation. In this policy brief, Al-Shabaka policy analyst Walid Habbas debunks the framework and explains why Palestinians will not be pacified with economic incentives.

( Al-Shabakah) – The Israeli regime’s defenders across the US are ramping up efforts to criminalize the constitutionally protected right to boycott. Beyond violating the rights of Palestine solidarity activists, this threatens to undermine the tenets of a healthy democracy. Al-Shabaka’s US Policy Fellow, Tariq Kenney-Shawa, examines this development and suggests what lawmakers, civil society organizations, and concerned citizens should do to challenge it. 

Across the US, lawmakers and interest groups are stepping up efforts to shield Israel from accountability for war crimes, occupation, and apartheid. They are doing so by restricting Palestine solidarity advocates’ First Amendment rights to free speech and political boycotts. In June 2022, the Eighth Circuit Court of Appeals ruled to uphold an Arkansas law punishing state contractors who boycott Israel. Since 2014, dozens of states have adopted similar laws designed to punish individuals and companies that refuse to do business with those who profit from the Israeli regime’s occupation. They are also actively silencing calls for boycott, divestment, and sanctions that pressure Israel to comply with international law.  

The message to US citizens is clear: Take action to hold Israel accountable for its crimes and you will pay. The implications are far-reaching: Not only are anti-boycott laws limiting spaces for Palestine solidarity, they represent the first step in a wider assault on the constitutional protections designed to safeguard US citizens’ rights to advocate for justice. Following the Eighth Circuit decision in Arkansas, the issue is now expected to move to the Supreme Court, setting the stage for a ruling that will have significant long-term implications for the rights of all US citizens to engage in any kind of politically motivated boycott and advocate for change.

It also explains how, by targeting the right to boycott, reactionary forces are eroding US citizens’ ability to leverage their long-standing, constitutionally protected rights to demand justice and political change both at home and abroad. With their right to boycott being threatened by an increasingly conservative and partisan judicial system, US citizens must take matters into their own hands to defend their constitutional rights. This policy brief recommends several steps that should be taken in order to do so. 

Anti-Boycott Legislation: The US National Context 

As of October 2022, bills and executive orders designed to penalize those participating in boycotts of Israel have been introduced in 34 states and apply to over 250 million US citizens. The laws are as absurd as they are troubling. In 2017, officials in Texas blocked access to hurricane disaster relief funds from those who refused to renounce their right to engage in BDS, only conceding the rule as a misapplication of the law after facing public pressure. In 2018, Bahia Amawi, a child speech pathologist in Texas, sued the state after losing her job for refusing to pledge that she “will not boycott Israel” or illegal Israeli settlements. 

That same year, The Arkansas Times, a local newspaper based in Little Rock, sued the state of Arkansas after an advertising contract with a public university was withdrawn as punishment for refusing to relinquish their right to boycott Israel. In July 2022, the Eighth Circuit Court became the highest-level court to consider the issue when it ruled against the newspaper, stripping it of its right to boycott. This ruling, which is binding to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, is a sign of what may be to come.

Whether by prohibiting state contracts who support BDS or threatening to cut ties with investment agencies, the Israeli regime’s defenders are forcing US citizens to choose between their First Amendment rights and their livelihoods Click To Tweet

Federal district courts in Arizona, Georgia, Kansas, and Texas have blocked the enforcement of their states’ anti-boycott laws, considering them unconstitutional compelled speech and violations of the First Amendment. However, instead of discarding them on the grounds that the government cannot force an individual or group to support certain political expressions, these laws are being amended and reintroduced. Several states have amended their anti-boycott laws to exclude individuals and sole proprietors; however, larger companies that conduct more than $100,000 worth of business with the state continue to face anti-boycott certification requirements. 

State legislators have also placed financial burdens on companies accused of boycotting Israel through blacklists and pension fund divestments. Efforts to shield Israel from the human rights standards applied across the globe are likewise extending into sustainable investing and corporate governance. In September 2022, South Carolina’s treasurer joined a growing list of officials threatening to cut ties with the multibillion-dollar investment firm Morningstar over claims that their Sustainalytics program’s environmental, social, and governance (ESG) rating is biased against Israel. ESG ratings, which assess ethical corporate practices ranging from environmental standards to labor practices, have proven integral in holding companies accountable regardless of where they operate. Indeed, Sustainalytics drew attention to Israel’s documented human rights violations in the assessments it provided to investors. 

In the face of mounting pressure, Morningstar hired an independent review commission to carry out an exhaustive investigation into any potential bias. The investigation found “neither pervasive nor systemic bias against Israel in Sustainalytics products and services;” however, this has failed to bring an end to the smears against the rating system. Missouri Attorney General Eric Schmitt decried Morningstar practices as “woke ESG investing,” and Arizona Treasurer Kimberly Yee suggested that the very idea of reviewing Israeli companies for the same standards to which all other companies are held was anti-Semitic. This, despite the fact that Morningstar’s chief executive officer, Kunal Kapoor, repeatedly insisted that his company does not support the BDS movement and that the Sustainalytics assessment merely provided a warning for investors, rather than a call to boycott. 

Since then, Morningstar has caved to pressure from the pro-Israel lobby, adopting a host of anti-Palestinian measures that include refraining from both references to the West Bank as “occupied” as well as reliance on reports issued by the UN Human Rights Council. Clearly, to the pro-Israel lobby, Israeli companies should not be held to the same human rights, labor, and environmental standards as other companies. As a result, whether by prohibiting state contracts who support BDS or threatening to cut ties with investment agencies, the Israeli regime’s defenders are forcing US citizens to choose between their First Amendment rights and their livelihoods.

Who is Behind These Bills? 

The ongoing proliferation of anti-boycott bills, recently described by Human Rights Watch as “part of an increasingly global campaign” against Palestine rights advocates, has been spearheaded by the Israeli regime itself. Over recent years, Israel has successfully bypassed US foreign interference laws by establishing non-governmental organizations through which it funnels millions of dollars to US groups who then advocate for anti-BDS legislation. But the Israeli regime is not alone. The war on boycotts of Israel is being led by the same reactionary lawmakers and interest groups actively engaged in undermining the tenets of a healthy democracy. 

Some of the most vociferous proponents of anti-BDS efforts in the US are conservative interest groups and evangelical Christian organizations that are engaged in a nationwide campaign to roll back hard-fought liberties. For example, the American Legislative Exchange Council (ALEC), an ultra-conservative venture backed by the Koch brothers, drafts legislation for state and federal governments on behalf of corporate interests. In addition to unconditionally shielding Israel from accountability and drafting anti-BDS bills for conservative lawmakers, groups like ALEC have also targeted public education, climate activism, and LGBTQ+ rights, while defending the “Stand Your Ground” laws, bans on Critical Race Theory and the Supreme Court’s June 2022 reversal of Roe v. Wade. Meanwhile, groups like Christians United for Israel (CUFI) smear BDS activists through advocacy campaigns on university campuses, as well as in churches and across social media. These alliances prove that being pro-Israel in America also means being complicit in conservative efforts to sustain white supremacy, roll back reproductive and LGBTQ+ rights, and weaken democracy. 

Being pro-Israel in America also means being complicit in conservative efforts to sustain white supremacy, roll back reproductive and LGBTQ+ rights, and weaken democracy Click To Tweet

What is more, efforts to roll back the right to boycott have also represented a bipartisan affair. In 2016, New York’s former governor, Andrew Cuomo, signed an executive order blacklisting businesses that refused to do business with Israel. He put it bluntly: “if you boycott against Israel, New York will boycott you.” Three years later, Senator Joe Manchin (D – WV) co-authored the Combating BDS Act alongside Senator Marco Rubio (R – FL), which aimed to give legal cover to various state anti-BDS laws before it was blocked on the Senate floor. In August 2022, New York State Assemblyman Dan Rosenthal joined 18 Republicans in their campaign against Morningstar for warning investors of Israel’s human rights record. While the bipartisan tradition of providing unconditional support to Israel is waning, democratic establishment holdouts continue to side with conservatives against progressive voices, both in the electorate and in the halls of Congress.  

Constitutionally Protected Rights Under Threat  

US citizens have long leveraged their right to boycott as a means of making their voices heard. From the pre-Civil War boycott of goods produced with slave labor, to the 1955 Montgomery bus boycott that called for an end to racial segregation, boycotts have proven a vital tactic in challenging human rights abuses and fighting for political change in the US. The tactic has also been wielded against injustice abroad; indeed, economic, cultural, and even academic boycotts proved instrumental in bringing an end to the apartheid regime in South Africa. However, many exhibit a disturbing selective intolerance for the right to boycott when it comes to holding Israel accountable. 

Political boycotts are widely viewed as a cornerstone of the First Amendment, both by the US public and as a matter of legal precedent. In NAACP v. Claiborne Hardware Co. (1982), the most regularly cited precedent on the issue, the Supreme Court ruled that a state’s right to regulate economic activity “could not justify a complete prohibition against a nonviolent, politically motivated boycott.” That case began in 1966, when the local NAACP chapter in Claiborne County, Mississippi, coordinated a boycott of white-owned businesses, calling for local government and business leaders to meet their demands for racial justice. White business owners affected by the boycott sued the NAACP and the action organizers for economic damages. 

After the case made its way through the lower courts, the Supreme Court ruled that the NAACP’s boycott was protected by the constitution because it was composed of elements protected by the First Amendment — namely, speech, assembly, and petition. Justice John Stevens emphasized the boycott’s end goal in the ruling, noting: “the purpose of petitioners’ campaign was not to destroy legitimate competition,” but rather, to “vindicate rights of equality and of freedom.” In part, the court found it persuasive that the boycott was wielded for an expressive purpose: a list of racial justice demands. 

In the NAACP v. Claiborne case, the Supreme Court found that through constitutionally protected acts of speech, assembly, and petition, “petitioners sought to change a social order that had consistently treated them as second-class citizens.” By this logic, the right to boycott Israeli goods produced in the West Bank — an act that inherently involves the aforementioned constitutionally protected activity — falls squarely within US citizens’ constitutionally protected rights. While courts in Arizona, Georgia, Kansas, and Texas confirmed this logic, the Eighth Circuit Court ruling in Arkansas serves as a reminder of how easily precedent can be overturned. 

Understanding the Eighth Circuit Court Ruling 

In 2018, The Arkansas Times sued the state after being asked to sign a pledge not to boycott Israel in order to maintain an advertising contract with the University of Arkansas. After the suit was initially dismissed, the newspaper appealed, and a three-judge panel from the Eighth Circuit overturned the ruling, finding that the statute “imposes a condition on government contractors that implicates their First Amendment rights.” The state then requested that the full Eight Circuit – known to be one of the most conservative circuit courts in the country – rehear the case, resulting in the June 2022 ruling against The Arkansas Times. 

While affirming that requiring someone to “give up a constitutional right” in order to receive a government contract does “impose an unconstitutional condition,” the Eighth Circuit Court went on to reinterpret precedent – namely, the protections set in NAACP v. Claiborne. The ruling argued that constitutional First Amendment protections apply only to the expressive actions that accompany a boycott. In other words, the speeches, petitions, and marches that promote a boycott are protected by the First Amendment, while the actual act of economically boycotting an entity is not. Along this line of reasoning, the Eighth Circuit decided that the act of economic boycott itself was considered an example of “non-expressive” conduct.

The Eighth Circuit’s decision has attracted widespread criticism from those who claim that the judges misrepresented the precedent entirely. NAACP v. Claiborne clearly establishes that the right to boycott is protected by the First Amendment, and when Supreme Court judges analyzed each of the associated elements of the boycott in that case, they did not differentiate between accompanying speech and the act of boycott itself. Justice Jane Kelly, who authored the Eighth Circuit’s dissenting opinion, took this logic further. According to Kelly, by instructing the State to consider a company or individual’s prior speech and actions to determine whether they are participating in a boycott of Israel, the Arkansas statute might deter entities from engaging in constitutionally protected acts of speech and protest unrelated to boycotts. In other words, companies and individuals might feel pressured to avoid protests and petitions that criticize Israeli policy out of concern that they may fall under the state’s definition of a boycott of Israel, “thereby limiting what a company may say or do.”  

Wider Implications 

While the judiciary can prove instrumental in countering attempts to curb constitutionally protected rights, such as the right to participate in the BDS movement, US citizens should not depend upon it alone to safeguard civil liberties. That is, while only 59 of the 261 anti-boycott bills introduced have so far been passed at the state and local levels, the pro-Israel lobby continues to adapt. As long as BDS remains under assault, so too is the right to use boycotts as a tool for advocacy on a range of issues. In other words, the ongoing crackdown on freedom to boycott has wider implications, even for US citizens who do not support the BDS movement.

The willingness to trample upon the rights of Palestinians and their allies is opening the door to a larger assault on civil society and the core tenets of a healthy democracy Click To Tweet

In fact, several states have already used anti-BDS legislation as a template for “copycat laws” that would criminalize other boycotts and forms of protest, such as preventing businesses from boycotting fossil fuels and firearms industries. For example, Kentucky’s SB 205 prohibits the state from entering into contracts with companies unless they submit written certification that they will not engage in a boycott of energy companies. Similarly, Indiana’s HB 1409, if passed, will prevent the state from entering into a contract with companies without written certification that they will not discriminate against a firearm entity or firearm trade association in their business dealings.

Efforts to curtail the right to boycott represent one tactic amid an overall strategy by reactionary elements on both sides of the partisan divide to undermine democratic values in the US. If they are successful, these forces will undoubtedly direct their efforts at other forms of protest and free speech that are being leveraged in calls for justice. Since 2017, 38 states have enacted anti-protest bills, mostly in reaction to the Black Lives Matter (BLM) movement and environmental protesters. Heightened voting restrictions in key swing states are making it increasingly difficult for US citizens to carry out their civic duty. As a result, black activists and other disadvantaged communities are disproportionately targeted. The willingness to trample upon the rights of Palestinians and their allies is opening the door to a larger assault on civil society and the core tenets of a healthy democracy. 

Taking Action 

The Eighth Circuit decision in Arkansas, which came two days before the Supreme Court overturned Roe v. Wade’s guarantee of the right to abortion on June 24, 2022, serves as another reminder that US citizens should not count on the judiciary alone to defend their civil liberties. With this in mind, it is critical to raise awareness, mobilize grassroots activism aimed at pressuring lawmakers, and develop stronger checks to a flawed system. More specifically: 

• Members of Congress should fulfill their constitutional duty to defend the rights of US citizens, including the First Amendment right to participate in political boycotts. This  means voting against pending federal anti-boycott legislation like the ones introduced by Congressman Lee Zeldin (R) in March 2022 and Senator Tom Cotton (R) in July 2022, both of which are aimed at elevating state anti-boycott legislation to the national level. 
• Activists, civil rights defenders, and concerned citizens should contact their representatives to express opposition to laws that restrict their right to boycott. They should highlight the intersectional nature of this assault on social and political expression, and organize alongside other groups being affected by copycat legislation. More information about how to get involved can be found at Palestine Legal, the US Campaign for Palestinian Rights (USCPR), and the American Civil Liberties Union (ACLU). 
• As workers across the country unionize at the highest rates in decades, civil society organizations should prepare union leaders and members to collectively mobilize against attempts by employers to revoke constitutionally protected rights. Trainings and briefings should prepare union leaders to explicitly incorporate the right to boycott into their labor demands and provide support to Palestinian or pro-Palestine workers who are targeted for their engagement in boycotts or other forms of political protest. 
• Activists, academics, and NGOs should coordinate efforts to produce informational material for public campaigns aimed at raising general awareness and providing US citizens with tools to advocate for their constitutionally-protected rights. The recent documentary film Boycott (2021) serves as an example of how to mobilize free speech activists, as well as the general public, who may still be unaware of the wider consequences of these coordinated anti-BDS campaigns when it comes to the assault on constitutionally protected rights. 



Tariq Kenney-Shawa

 

Tariq Kenney-Shawa is Al-Shabaka’s US Policy Fellow. He holds a Masters degree in International Affairs from Columbia University and a Bachelors degree in Political Science and Middle East Studies from Rutgers University. Tariq’s research has focused on a range of topics, from the role of narrative in both perpetuating and resisting occupation to analysis of Palestinian liberation strategies. His work has appeared in +972 Magazine, Newlines Magazine, the Carnegie Council, and the New Politics Journal, among others. Follow Tariq on Twitter @tksshawa and visit his website at https://www.tkshawa.com/ for more of his writing and photography. 

Exiled Palestinians’ right to Palestinian nationality is protected under international law, irrespective of racist Israeli apartheid policies. How can Palestinians and their leadership in the diaspora activate this right through different legal and political channels? Al-Shabaka’s Commissioning Editor Nadim Bawalsa offers recommendations for how to secure exiled Palestinians their rights to and in Palestine, from wherever they may be.

( Al-Shabaka) – Nationality and citizenship are different concepts under international law. While citizenship is a formal arrangement into which individuals enter with a state government, nationality is considered innate to individuals, and is protected outside of the purview of the state. However, since its inception in 1948, the Israeli apartheid regime has been strategically manipulating the two in order to deny exiled Palestinians—as well as other oppressed Palestinian communities—their rights to Palestine from wherever they may be.¹

Today, over seven million exiled Palestinians have the legal right to be considered nationals of Palestine by birth and/or bloodline, irrespective of Israel’s racist nationality and citizenship laws. This includes five million refugees registered with UNRWA, as well as several million other Palestinian nationals with secondary citizenship or residency statuses in other countries. That is, if exiled Palestinians and their political representatives activate this internationally protected right through effective legal avenues, they would secure the legal status of being considered Palestinian nationals from exile, thus challenging Israel’s apartheid policies and laying the groundwork for future Palestinian nationality and citizenship legislation.²

This policy brief situates the ongoing political and legal crisis of exiled Palestinians’ nationality in the context of international law. It stresses the fundamental differences between citizenship and nationality, and shows how the two have been used interchangeably by British and then Israeli colonial and settler-colonial authorities to continue denying nationality and citizenship to Palestinians across the world. To this end, it does not focus on Palestinians within colonized Palestine whose rights to citizenship and nationality are dictated by the Israeli regime in 1948 territories, and by the Palestinian Authority (PA) and Israeli regime in the West Bank and Gaza. The brief thus offers recommendations for what Palestinians in the diaspora and their representatives in the Palestine Liberation Organization (PLO) should do to challenge Israel’s settler-colonial apartheid policies and secure exiled Palestinians their right to be considered as Palestinian nationals with rights to and in Palestine.³

Nationality, Citizenship, and International Law

While the right of return of Palestinian refugees is enshrined in UN resolutions, the right of all exiled Palestinians, including refugees and those naturalized as citizens of other states, to be considered nationals of colonized Palestine from across their diaspora—and thus, to demand legal representation and rights as Palestinians from abroad—must be activated. To understand why, we must grasp the core differences between nationality and citizenship, two concepts the British mandate and Zionist regimes have consistently and strategically used interchangeably to obscure nationality rights and bar exiled Palestinians from any claims to Palestine. Delineating the difference is thus crucial and must form the basis of the Palestinian response to these Israeli apartheid policies.

Citizenship, which is conferred on individuals based on place of birth, the nationality of their parents, or naturalization through residency, is determined by governments in order to grant rights and responsibilities as members of the nation-state. In this way, individuals applying for state citizenship must undergo a rigorous vetting process and must meet that state’s eligibility requirements. States may also contest the rights of individuals to citizenship, thereby stripping them of citizenship under certain stipulations.

Via Pixabay.

States, however, cannot denationalize a national. Under international law, nationality is broadly defined as the link between an individual and a territory. That link, referred to as the “genuine link” by the International Court of Justice (ICJ) since 1955, is determinable by bloodline (jus sanguinis), location of birth (jus soli), or long-term residency (jus domicile). Nationality is innate, unchangeable, and protected: article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Indeed, this right is so universal, several states even extend the option to apply for citizenship through jus sanguinis to non-citizen nationals residing anywhere in the world.

Palestinians’ Historical Right to Palestinian Nationality

The right of Palestinians to belong as nationals to Palestine from anywhere in the world has been recognized since the ratification of the 1923 Treaty of Lausanne on August 6, 1924. While the treaty is the first legal document to promulgate Palestinian nationality globally, the 1869 Ottoman Nationality Law was the first to legally confer nationality on residents of Palestine jus sanguinis, jus soli, and jus domicile. Therefore, when British authorities laid siege to Jerusalem in December 1917, residents of Palestine were considered Ottoman Palestinian nationals, and they remained as such pending the Allied forces’ decision on what to do with the dismembered empire.

This status also applied to tens of thousands of Ottoman Palestinian nationals who had been emigrating from Palestine to the Americas for economic and political reasons since the 19th century. But on July 24, 1923, the Allied forces and the government of the newly formed Turkish republic signed the Treaty of Lausanne, officially delineating the borders of the republic. In exchange for the Allies’ recognition of Turkish sovereignty, Turkey relinquished all its imperial claims to its former territories, including the Arab provinces, now under European colonial mandates.

Consequently, former Arab subjects of the Ottoman Empire ceased to be Ottoman nationals, including those residing abroad. While article 34 of the Treaty of Lausanne made provisions for this, enabling individuals to declare the nationality “of the territory of which they are natives,” Britain contravened the treaty, as it had promised the Zionist Federation to establish a Jewish “national home” in Palestine in the 1917 Balfour Declaration.

As a result, it needed to ensure the steady flow of Jews to Palestine and their naturalization through residence as Palestinian subjects of the British Mandate for Palestine. British authorities thus legislated the first ever Palestinian citizenship ordinance in order to issue Palestinian citizenship documents to Jewish settlers. To be sure, this was in accordance with ​​article 7 of the Mandate for Palestine, which stated that the Government of Palestine shall enact a nationality law with “provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine.”

In July 1925, Britain promulgated the Palestinian Citizenship Order-in-Council, which regulated Palestinian citizenship during the mandate. While the ordinance required British authorities to extend Palestinian citizenship to all qualifying applicants, they instead prioritized conferring the status on tens of thousands of incoming Jewish settlers (through jus domicile) at the expense of tens of thousands of Palestinian migrants (who had jus sanguinis and jus soli rights to citizenship). To justify this practice, British authorities regularly cited Palestine’s limited economic “absorptive capacity,” as well as the migrants’ inadequate proof of an intention to reside permanently in Palestine, absence from Palestine since before 1920, or, simply, their “patent undesirability.”

On March 8, 1937, two decades into Britain’s occupation of Palestine, the Government of Palestine reported that more than 28,000 Jews had been issued Palestinian citizenship documents between 1931 and 1936, and that out of a total of 4,941 citizenship documents granted in 1936, 4,847 were for Jews. By contrast, about 9,000 applications for citizenship had been submitted from Palestinians in Latin America alone by 1937; of those, not more than 100 were accepted. Palestinian migrants across the Americas, who amounted to roughly 40,000 by 1936, effectively became stateless Palestinian nationals carrying obsolete Ottoman documents.

Over the course of its 30-year occupation of Palestine, Britain persistently manipulated nationality by denying it through citizenship. And although Britain violated the Treaty of Lausanne in doing so, the League of Nations left the administration of Palestine entirely to the discretion of the British Crown. The governance of Palestine effectively fell outside of international law.

Palestinian Nationality Under the Israeli Regime

The Israeli regime’s ongoing contravention of international law since 1948 in denying millions of Palestinians throughout the world their rights to Palestinian nationality has its roots in a similar practice predating it by three decades. To wit, upon its creation, the new regime swiftly denied the 750,000 Palestinians who were exiled in 1948 their rights to Palestinian nationality; it did this again following its expulsion of 300,000 Palestinians from Palestine in 1967.

The right of Palestinians to belong as nationals to Palestine from anywhere in the world has been recognized since the ratification of the 1923 Treaty of Lausanne Click To Tweet

Like its predecessor, the Zionist regime has deliberately manipulated citizenship and nationality in order to fulfill its demographic goal of securing a Jewish state. That is, like British mandate authorities, the Israeli regime has continually presented itself as the only authority with the right to confer both citizenship and nationality on all subjects with legal claims to belong to colonized Palestine.

These illegal acts are strategically obscured by a series of laws, the most significant of which are the 1950 Law of Return, the 1952 Nationality Law, and the 2018 Jewish Nation-State Law. In 1950, the new Israeli regime promulgated the Law of Return, which offered every Jew across the world the right to immigrate to the new Jewish state. This law was followed by the 1952 Nationality Law, which confirmed nationality for Jews worldwide under the Law of Return. As such, in 1952, the Israeli regime effectively promulgated Jewish nationality globally.

In this way, while Israel may have a citizenship regime in place for non-Jews to acquire Israeli citizenship through birth in 1948 territories, it remains a state for Jewish nationals above all. This was reaffirmed in the 2018 Jewish Nation-State Basic Law, which stated that the right to national self-determination is “unique to the Jewish people.” Consequently, the Israeli apartheid regime has ensured that Palestinians who have acquired Israeli citizenship can never become incorporated as nationals of the state, making it easier to denaturalize them.

Moreover, to forestall any exiled Palestinians seeking citizenship rights as former subjects of the British mandate, which had issued British Palestinian passports, the 1952 law retroactively repealed any citizenship conferral prior to the establishment of the Israeli state in May 1948. Thus, the Israeli regime effectively reset citizenship laws upon its establishment, rendering obsolete all existing documents related to Palestinian nationality and citizenship. This is illegal under international law, which requires that any “successor state” confer the nationality of a given territory on the peoples connected to it.

The Israeli regime also ensured that no Palestinian expelled in 1948 can qualify for Palestinian nationality or Israeli citizenship, since they are neither Jewish nor can be naturalized from afar. Under the 1952 law, to qualify for Israeli citizenship through residence, Palestinians have to have been inhabitants of 1948 territories by March 1, 1952, and they have to have remained inhabitants from the day the state was established until the day the nationality law was passed. None of the Palestinians expelled in 1948 qualify under this provision.

In Defense of the Right to Palestinian Nationality

The global population of Palestinian nationals who, since the Treaty of Lausanne, have had a legally recognized “genuine link” to the territory of colonized Palestine and, therefore, to belong to it as nationals, can stake claims to these rights from across the diaspora through different legal and political channels. That is, their birth and blood rights to Palestinian nationality remain intact, and a legal and political avenue to challenge the Israeli regime is still viable. Indeed, their predecessors who were denied Palestinian nationality through citizenship during Britain’s occupation of Palestine were aware of this.

As the political and legal representative of the fragmented Palestinian people, the PLO must act as the guarantor of exiled Palestinians’ rights to Palestinian nationality Click To Tweet

Throughout the British mandate, Palestinians in Palestine and abroad repeatedly protested British policies through petitions submitted to the Government of Palestine and to the League of Nations. On February 23, 1927, for example, a group of Palestinians in Monterrey, Mexico, authored a six-page petition addressed to the high commissioner for Palestine, Herbert Plumer. In the document, which was drafted by members of the Centro Social Palestino and signed by over 300 Palestinians residing in Mexico, the petitioners demanded Britain recognize their rights to Palestinian nationality. They threatened to resort to the League of Nations, the arbiter of international law:

We were born in that territory; have always wished to be Palestinians; and we are sure, if as a last resort, it shall become necessary to carry our petition before the League of Nations, that august body will grant us the right to consider ourselves nationals of Palestine.

When it came to Palestinian nationality, Palestinian petitioners regularly referenced article 34 of the Treaty of Lausanne, reminding British authorities of their obligation to abide by international law—or, in the least, the treaties to which they were signatories. In June 1927, for example, a delegation of Palestinian nationalists from Bethlehem and Beit Jala that formed the Committee for the Defense of the Rights of Palestinians Residing in Foreign Countries, presented a petition to the Government of Palestine in Jerusalem. They situated Palestinian migrants’ rights to Palestinian nationality within article 34 of the treaty:

The logical conclusion to be deduced from the stipulations of the article is that the emigrants of this land who belong to the majority, enjoy the right to Palestinian nationality. We do not for a moment consider that the British Government would want to deprive them of this right.

Palestinian petitioners in Palestine and abroad set a precedent for demanding justice based on international legal treaties, and the British mandate regime continually disregarded them with impunity for the duration of its occupation of Palestine.

Seizing on Statehood and the Treaty of Lausanne

Until 2012, when the UN recognized Palestine as a de jure sovereign state, Palestinians in exile had limited resources to claim Palestinian nationality. But with statehood, the PLO finally drafted a citizenship law in 2012 recognizing the conferral of Palestinian nationality based on the Treaty of Lausanne, including for Palestinians in exile: “Palestinian citizens are those persons who acquired or had the right to acquire Palestinian nationality as of 6 August 1924.” However, the Palestinian Legislative Council (PLC) never considered the law due to the legal complexities involved; namely, identifying how Palestinian citizenship would be conferred on a fragmented population of refugees across the world, and of occupied nationals in the West Bank and Gaza who have varying residency statuses and rights to movement and access. Moreover, as per the Oslo Accords, the PA regulates the statuses of Palestinians in the West Bank and Gaza, and all residency conferrals must be approved by the Israeli regime.

As the political and legal representative of the fragmented Palestinian people, and as an entity that has recognized the importance of nationality, the PLO must act as the guarantor of exiled Palestinians’ rights to Palestinian nationality. But before it can pursue Palestinian nationality through legal avenues, the PLO must work with the Palestinian people to create a population registry, starting with Palestinian refugees registered with UNRWA. In fact, Karma Nabulsi’s 2006 project marked a significant step toward establishing this type of connection between exiled Palestinians and the PLO. This work must be continued.

While international law has repeatedly failed to protect the rights of Palestinians—indeed, the rights of countless colonized and marginalized populations across the world—Palestinians throughout the diaspora should nonetheless push for the recognition of their rights to Palestinian nationality. As a first step to safeguarding their rights, Palestinians should demand that their leaders in the PLO diplomatic corps—members of which are tasked with representing Palestinian refugees and exiles across the diaspora—stake claims to their constituents’ rights to belong to Palestine, materially and otherwise, by:

• Creating forums for Palestinians across the world to gather and set the criteria to determine who qualifies to register for Palestinian nationality. While the Treaty of Lausanne makes provisions for this (jus sanguinis, jus soli, and jus domicile), it is incumbent on Palestinians to articulate these rights in their own terms, much like indigenous communities in North America have been discussing for decades. That is, assigning indigeneity through blood reifies a colonial practice, and so, oppressed communities must come together in dialogue, as Christina A. Li puts it, to “better acknowledge the roles lived experience, cultural connection, pre-colonial forms of knowledge production, and blood-based classifications all play in shaping indigeneity.”
• Issuing a population registry of exiled Palestinians. An official registry is the only way to ascertain the number of Palestinians in the diaspora who qualify for Palestinian nationality.
• Drafting a comprehensive nationality law that is based on the rights of Palestinians to their nationality, as determined by international law and by consensus. This would lay the groundwork for Palestinian citizenship conferral.
• Supporting Palestinians residing in foreign countries and holding secondary citizenship who demand to be recognized as Palestinian nationals by their host states.
• Demanding Israel be held accountable for contravening international law in denying millions of Palestinians it expelled from Palestine in 1948 and 1967 their rights to Palestinian nationality. This must be done regionally and internationally, in every state where Palestinians reside.

1. To read this piece in French, please click here. Al-Shabaka is grateful for the efforts by human rights advocates to translate its pieces, but is not responsible for any change in meaning.
2. Legal and political analysis in this policy brief is in part based on an interview conducted with human and refugee rights expert Susan Akram, which the author transcribed and edited. The author would like to thank Susan Akram and Kate Rouhana for their assistance in this research.
3. The historical sections of this policy brief reflect research the author included in his book, Transnational Palestine: Migration and the Right of Return before 1948, (Stanford University Press, 2022).

Nadim Bawalsa is Al-Shabaka’s Commissioning Editor. He is a historian of modern Palestine, and author of Transnational Palestine: Migration and the Right of Return before 1948 (Stanford University Press, 2022). His other work has appeared in the Jerusalem Quarterly, the Journal of Palestine Studies, NACLA Report on the Americas, and as well as in edited volumes. He earned a joint doctorate in History and Middle Eastern & Islamic Studies from New York University in 2017, and a Master’s in Arab Studies from Georgetown University’s Center for Contemporary Arab Studies in 2010. In 2019-2020, he was awarded a PARC-NEH fellowship in Palestine.

Via Al-Shabaka

( Al-Shabaka ) – Bipartisan legislation passed by the US Congress in 1997 limits the quality and availability of satellite imagery of Palestine-Israel. The Kyl-Bingaman Amendment (KBA) to the US National Defense Authorization Act was passed under the pretext of protecting Israel’s national security. It prevents US satellite operators and retailers from selling or disseminating images of Palestine-Israel at a resolution higher than that available on the non-US market. The amendment’s interpretation has been confusing and contradictory in terms of meaning, geographical scope, and legal implications. Its result has been over two decades of limited access to clear satellite imagery of Palestine-Israel.

The kinds of research carried out with geospatial data include environmental, geographic, and humanitarian surveys. From an archaeological, geographical, geological, and botanical perspective, high-resolution imagery enables researchers to understand, identify, and document landscape changes. The KBA is in fact an act of censorship, posing serious obstacles for the preservation of cultural heritage and the monitoring of the decades-long Israeli occupation, including documenting home demolitions, territorial disputes, and settlement growth.

Moreover, the KBA has become obsolete and does not serve its intended purpose. In the 22 years since the KBA was passed, the satellite imagery sector has developed significantly, such that a growing number of non-US satellite imaging companies now offer very high-resolution images of Palestine-Israel with a resolution of 0.4-0.7 meters (in line with the global average) as compared to the 2-meter restriction imposed by the KBA on US companies. Meanwhile, US federal agencies are slowly losing their ability to successfully restrict access to imagery by third parties on the basis of national security and/or foreign policy interests.

The KBA harms US business, since US companies are not able to compete internationally due to the regulatory restrictions on the sale of detailed imagery of the region. Indeed, the Aerospace Corporation warned of the amendment’s effect on the US market in 2017: “As foreign competitors reach and possibly surpass the resolution level that US operators can sell without restriction, policymakers must reconsider whether government-imposed restrictions on the availability of the highest quality US products still make sense.” In other words, while these restrictions may have been introduced in line with Israeli national security concerns, technology has overtaken policy and US operators are being disadvantaged.

The Kyl-Bingaman Amendment has become obsolete and does not serve its intended purpose Click To Tweet

The availability of satellite imagery through open-access platforms only confirms the hindrance created by the KBA. In fact, so absurd is the KBA that Israel itself provides free high-resolution satellite imagery of the territories it controls (modern-day Israel, the Occupied Palestinian Territory, and the Golan Heights), rendering the KBA utterly pointless while also belying the claim that the KBA serves Israeli national security interests.

Reassessing the KBA

Since Michael Fradley and Andrea Zerbini’s groundbreaking 2018 journal article and Al-Shabaka’s policy commentary of the same year, both of which call for a reassessment of the KBA, the amendment has come under greater scrutiny. However, there is little evidence to suggest that a policy change is imminent. Rather, the US Department of Commerce and its National Oceanic and Atmospheric Administration (NOAA) – the bodies tasked with administrating the KBA – continue to evade and defer discussions about its efficacy.

The KBA was supposed to be reviewed regularly, but only in 2017 – a decade after its inception – did NOAA finally undertake a formal review, issuing its findings in late 2018. NOAA concluded that high-resolution imagery of Palestine-Israel was not “readily and consistently available” from non-US sources, and that as such it could not recommend a change to the amendment.

While a detailed report on NOAA’s methodology has not been published, the review method appears to have consisted of NOAA staff attempting to purchase imagery and subsequently reporting the results. However, their logic was circular, as the KBA itself was the major obstacle NOAA staff faced, as US citizens, in their attempt to acquire high-resolution images. Foreign researchers, on the other hand, have been able to purchase uncensored high-resolution imagery from both non-US sellers and US resellers, demonstrating the anachronistic nature of the legislation. While one can only speculate the exact reason for NOAA’s reticence, there is likely to be pressure from the Department of Commerce and the current White House administration to maintain or even strengthen the KBA. This is a clear instance of politics overriding common sense.

Recommendations

1. NOAA should publish a report on the methodology used in their 2018 report as a matter of urgency, and undertake a more rigorous review of the KBA.

2. Disposing of the KBA and modifying the regulations of the Department of Commerce and NOAA would level the commercial playing field between US and non-US imagery providers. This would allow satellite operators to share high-resolution images of Palestine-Israel on widely-used open-access platforms and ensure their continued international competitiveness. It would also enable archaeologists, researchers, and humanitarians to accurately document changes on the ground and allow for better accountability of the Israeli occupation.

Zena Agha served as Al-Shabaka’s US Policy Fellow from 2017 – 2019. Her areas of expertise include Israeli settlement-building in the occupied Palestinian territory with a special focus on Jerusalem, modern Middle Eastern history, and spatial practices. She has previously worked at the Economist, the Iraqi Embassy in Paris, and the Palestinian delegation at UNESCO. In addition to opinion pieces in The Independent, and The Nation, Zena’s media credits include the BBC World Service, BBC Arabic and El Pais. Zena was awarded the Kennedy Scholarship to study at Harvard University, completing her Master’s in Middle Eastern Studies.

Via Al-Shabaka

( Al-Shabaka ) – Over the course of the past decade, a new regional architecture has come into focus in the Middle East and North Africa. The US has shown greater signs of withdrawal and retrenchment from the region. T​​ensions have arisen and subsided between regional powers, proxy wars continue to proliferate, and alliances shift consistently between players. The revolutions that erupted throughout the region starting in 2011 sputter along in the shadow of a new order, which is still being created, but the contours of which have been elucidated with the normalization agreements signed between Gulf states, Morocco, Sudan, and Israel. These accords build on more than a decade of clandestine relations between these countries, perhaps with the exception of Sudan, and surface at a time when popular uprisings have been dealt near-fatal blows throughout much of the region. The growing relations between Israel, a settler-colonial apartheid regime, and Arab autocrats herald an important pillar of the future regional landscape in which Palestinians must wage their struggle for liberation.

Bonds of Anti-Democratic Rule

The alliances, which are expanding between Israel and Arab states, are based on a shared regional vision of (as described by its proponents) economic development and growth, stability, and religious tolerance. In reality, this vision is one rooted in a commitment to anti-democratic hegemony, where the prevailing regimes maintain their grip on the populations over which they rule through a heavily securitized approach. By necessity, at the very core of these agreements are exchanges of invasive information technology and surveillance tactics that can quash dissent and any challenge to the status quo.

Central to the normalization agreements is a commitment by regional powers to fill the perceived vacuum of US withdrawal, and to take matters into their own hands to sustain the prevailing regional order. This is done through, among other tactics, the export of Israeli security systems — tested on the Palestinians under its apartheid regime — globally, and regionally to Arab states that employ them against activists, journalists, and others seeking democratic reform. The Israeli model of sustaining an apartheid regime while successfully fashioning itself as a democratic state that is welcome on the global stage — a state which is economically developed and diplomatically powerful — is a model for which many autocrats in the region and beyond yearn. The alliances are based on Israel extending — through its military, economic, and diplomatic influence — the knowhow for its allies to deflect from their authoritarianism and racialized capitalism, and to present themselves as modernizing, increasingly liberal and tolerant states — all this, while they oppress dissent and pursue policies that create vast economic inequality and anti-democratic rule at home. In the case of Morocco, its relations with Israel have the further benefit of normalizing its occupation of the Saharawi people.

The Unity Intifada has shown (that) once Palestinians rise as a single people, they have the capacity to overwhelm a regime that had, until then, been perceived as invincible Click To Tweet

These expanding alliances must be placed within the context of the revolutions that swept through the region beginning in 2011 and that continue in fits and starts. For the vast majority of the peoples of the region, the emerging order of so-called “securitized stability” has not addressed the principal demands that animated mass protests. Quite the contrary: authoritarian rule persists, and has taken on a degree of bloodletting and systematic murder not previously envisioned; states have collapsed or assumed more draconian authoritarian tactics; unemployment and inequality remain widespread; corruption is rife; political plurality is non-existent; and demographic challenges coupled with climate change promise to take these pressures beyond their breaking point. Yet, rather than address these issues, regional powers are committed to sustaining power and expanding their capacity to oppress popular opposition.

The horrors that followed the regional revolutions have, in the short to medium term, given more credence to the oft-repeated remark in the region that stability under strongmen is more precious than democratic openness and social justice — given what the price for freedom and dignity has been. There are hardly, if any, examples of a positive end to the revolutionary fervor that swept the region, and myriad cautionary tales in Syria, Egypt, and beyond. Within this prevailing sense of hopelessness, the point now, under the emerging powers, is to entrench the counter-revolution. Despair is widespread, and the disconnect between the regimes and the street is as vast as ever. The newfound alliance between Arab authoritarianism and Zionist settler-colonialism — which itself is merely a reconfiguration of the alliance between US imperialism and Arab authoritarianism — is merely a means of utilizing oppressive tactics to manage this divide.

Palestine’s Regional Relevance

In many ways, the Palestinian struggle sits on this fault line between the street and the regime — a fault line that exists most acutely in Palestine itself, between an authoritarian regime embodied in the Palestinian Authority (PA) and the Palestinian people struggling for liberation. But more so, Palestine exists on this fault line in a regional sense. The normalization accords were based on the assumption that the Palestinian struggle has been effectively marginalized. Yet this assumption was patently false, and has been disproven by the Unity Intifada, which erupted in May 2021. More than anything in the past decade, the Unity Intifada has totally reconfigured basic assumptions many have come to hold as truths about Palestine, including that the Palestinians have been pacified and defeated, and that they lack the capability or interest to protest. Another assumption that was negated is that Palestinians have acquiesced to their fragmentation. Indeed, the Unity Intifada has shown not only that Palestinians are a single people facing a single regime intent on their elimination, but that the people are able to rise in a sustained manner across the land, from the river to the sea, to protest their oppression. The principal takeaway is that, once Palestinians rise as a single people, they have the capacity to overwhelm a regime that had, until then, been perceived as invincible. For Palestinians, the Unity Intifada revealed, perhaps for the first time, the cracks in Israel’s apartheid regime.

Precisely because of this, and expectedly, the response of the Israeli regime was to carry out widespread arrests of Palestinians — directly in 1948 territories and through its partner, the PA, across the West Bank — while it used overwhelming firepower in yet another failed attempt to pacify Gaza. The concerted effort to detain vast numbers of people across both sides of the Green Line was an indication of an attempt to incapacitate the ability of Palestinians to organize and mobilize, and to reverse the eruption of the uprising by forcing Palestinians back into the status quo. Israel also leveraged its surveillance tactics and initiated measures against Palestinian civil society, namely, by designating six leading Palestinian organizations at the forefront of efforts to hold Israel to account — including through legal challenges being pursued at the International Criminal Court — as terrorist organizations. In the absence of a Palestinian leadership committed to liberation, the strategic mobilization of the Palestinian struggle has shifted to civil society organizations and grassroots collectives, and hence, the Israeli effort to dismantle them, with American and European acquiescence. In some ways, this is the final hurdle that Israel must remove to ensure there remains no effective resistance to its rule.

In this way, the Israeli (and official Palestinian) response to the Unity Intifada elucidated exactly the model that the Israelis and their Arab partners are employing to deal with dissent and with a civil society actively seeking to safeguard its human rights. The intifada also showed that the question of Palestine is not marginal for the masses, regionally or globally. That is, the other lie at the core of the normalization agreements is that Palestine is a non-issue for the populations of the region. However, over the course of the intifada, popular protests erupted in major cities throughout the region, as well as the world. The attempt by ruling elites to sideline the question of Palestine does not reflect popular sentiment, but rather, autocratic rule.

The Paradox of Palestinian Movement Building

We are living in a moment where the globe is becoming more multipolar, even as economic integration is unprecedented. Authoritarian regimes and right-wing ethnonationalist parties are rising to power and entrenching their rule. Challenges, such as COVID-19 and climate change, demonstrate the need for globally coordinated responses at exactly the same time that great power rivalry is once again erupting into military confrontation in Europe. Furthermore, the Western reaction to Russia’s invasion of Ukraine laid bare the hypocrisies of the so-called liberal Western order, whereby the US and the EU were swift to speak of the rules-based order and the rights of refugees in a manner never before seen when it comes to Palestine.

The implications of these global shifts for Palestine, and for allies committed to social justice and progressive values, are staggering. The struggle for Palestinian liberation is a matter that is intimately connected to regional and global politics, and as such, cannot be viewed as a standalone issue that can be addressed separately from the major geopolitical and socioeconomic forces shaping our world. In this light, there are three interrelated points to be made that may raise more questions than answers.

The first is that the Palestinian struggle for liberation is well into its post-Oslo phase, where peacemaking and diplomacy on the state-level were seen as a means through which liberation can be achieved. The struggle today is an asymmetric, popular-led struggle for liberation. This is not only because the official Palestinian leadership is compromised, or because regional players have officially forfeited the Palestinian question, but also because there is very little appetite among states globally to push forward policies that advance Palestinian rights. The current power of the Palestinian people is on the popular level, and here, there is vast potential. Palestinians must focus on building alliances with movements, organizations, and political parties, regionally and globally, that are like-minded and committed to principles of decolonization and emancipation. This is particularly relevant now, as the global order is experiencing major shifts and reconfigurations, and the post-Cold War order of US hegemony and entrenchment in the region is coming under pressure. How should we as Palestinians recalibrate our engagement? In the Global South, in Western progressive parties, and throughout the region, there are alliances that can support Palestinian mobilization and organization, and causes to which Palestinians can also lend support. In some ways, this is a natural progression for the Palestinian movement, which historically took the form of an anti-colonial struggle, and that now must answer the question of what decolonization means in the 21st century.

The second is that Palestinians must, paradoxically, build a movement that is broad, and that encompasses the breadth of the Palestinian people in their different ideologies and lived experiences as a largely diasporic people, while maintaining a singular focus and vision for what decolonization in Palestine means. This is a major challenge. Palestinian civil society is showing huge advances, whether in countries such as the US, where the narrative is shifting gradually but consistently, or in Palestine itself, where the Unity Intifada continues to showcase the work that is being done on the ground. The next phase is to leverage this popular work and to converge its disparate successes into a singular vision of liberation. To do so, Palestinians must live the values we preach around freedom, justice, and equality within our movement. How can we establish new, democratic, free, and representative structures to lead the next phase of our struggle and transform our popular mobilization into a political vision? And how might those structures build on the legacy of the Palestinian struggle to date while adapting to the global realities we are now facing?

Thirdly, in our effort to secure our internationally recognized rights, we as Palestinians have often turned to international law and Western countries as arbiters of justice. But Western powers, like Arab states, have historically failed to uphold their commitment to the Palestinian struggle, and have enabled and supported Israel’s oppression of Palestinians and the expansion of its colonization of Palestinian lands. Western states and regional regimes are driven by self-interest and realpolitik, not by morality or justice. Similarly, Palestinians are hoping to build on the resounding success of the Boycott, Divestment and Sanctions (BDS) movement to expand popular pressure in support of Palestinian rights. Yet international law and boycott movements, while important tools in the struggle for liberation, will never be the site of our liberation. In thinking about the state of the movement today, how can we shift our focus beyond the tactics of liberation — for example, international law and boycott — to developing a political strategy of liberation?

If the regional revolutions and Unity Intifada have taught us anything, it is that the power of the masses is immense, and can succeed in bringing down regimes and creating major revolutionary change. At the same time, that power has been lacking in its ability to create lasting political change and systems of governance that are pluralistic and forward-looking. The forces invested in the status quo are powerful, and there will always be regional and international meddling in the battlefields of the region, particularly in Palestine. Palestinians must hold onto these lessons. And as the counter-revolution fortifies, Palestinians and their allies in the region must think about the new world order we inhabit, and expand the infrastructure of the movement we are currently building so that it can be adaptable, well-connected, and just.

Tareq Baconi serves as the president of the board of Al-Shabaka. He was Al-Shabaka’s US Policy Fellow from 2016 – 2017. Tareq is the former senior analyst for Israel/Palestine and Economics of Conflict at the International Crisis Group, based in Ramallah, and the author of Hamas Contained: The Rise and Pacification of Palestinian Resistance (Stanford University Press, 2018). Tareq’s writing has appeared in the London Review of Books, the New York Review of Books, the Washington Post, among others, and he is a frequent commentator in regional and international media. He is the book review editor for the Journal of Palestine Studies.

This commentary is based on a lecture delivered by Al-Shabaka policy analyst, Tareq Baconi, during Birzeit University’s Ibrahim Abu-Lughod Institute of International Studies’ annual conference. Held in May 2022, the three-day conference, titled “The Palestinian Cause in a Troubled Region,” brought scholars and experts from Palestine and beyond to examine recent global and regional trends and their implications for the Palestinian cause. Baconi’s intervention analyzes some of these developments, situating the Palestinian struggle for justice and liberation within the contexts of changing US foreign policy toward the Middle East, the popular revolutions of the region, and normalization deals between the Israeli regime and authoritarian Arab states.

( Al-Shabakah ) – In her new edited volume, Rethinking Statehood in Palestine: Self-Determination and Decolonization Beyond Partition, Al-Shabaka policy analyst and Associate Professor of Political Economy at the University of Massachusetts Boston, Leila Farsakh, brings together a diverse group of intellectuals to critically engage with the meaning of Palestinian statehood. By going beyond partition, which fundamentally underpins the two-state solution, Farsakh and the contributing authors show that the components of Palestinian statehood, including citizenship, sovereignty, and nationhood, must be articulated within the context of decolonization.

As Farsakh argues in the book’s introduction: “Decolonizing Palestine would require articulating the components of a new political framework that acknowledges the violence and injustices of the past and the present while prioritizing citizenship rights over territorial sovereignty.” But how can Palestinian self-determination be envisioned outside of the notion of territorial sovereignty and nation-statehood? This, Farsakh points out, is an ongoing question with which Palestinians everywhere will continue to grapple.

With the death of the two-state solution and the failure of the Palestinian Authority (PA) to bring about liberation and justice, how can Palestinians in the West Bank, Gaza, 1948 territories, and the diaspora reimagine their self-determination outside of the nation-state framework? Which alternatives exist and what are the challenges they might present?

Al-Shabaka sat down with Farsakh to discuss the findings of her groundbreaking book, and to delve into what rethinking Palestinian statehood actually looks like.

Your book examines the trajectory of Palestinian attachment to the state model as a means toward liberation. Why has this attachment persisted, and why is the state model ultimately unable to bring about Palestinian self-determination?

Palestinian attachment to statehood stems from the fact that it affirms the right to self- determination, and thus Palestinians’ right to determine their political destiny and affirm their existence as a nation. Israel has been denying this right since 1948. Statehood became a central goal of the Palestinian national movement after the 1967 war and UN resolution 242 of November 1967. This resolution, which became the basis for peace settlements between Israel and its neighbors, stipulated that Israel retreats from “territories occupied in the recent conflict” in exchange for “acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area.” But the resolution did not mention the Palestinians or any of our rights that are protected by UN resolutions 181 and 194.

Palestinians must articulate how we will devise a new political strategy that unifies our community, including refugees and those living inside 1948 territories Click To Tweet

Then, in 1971, the Palestine Liberation Organization (PLO) defined its goals as the establishment of a Palestinian state inclusive of Christians, Jews, and Muslims within historic Palestine. In doing so, it posited that the only way for Palestinians to return home and liberate their land from Zionist settler-colonialism was through the establishment of a Palestinian nation-state. In this respect, the PLO was not different from most liberation movements in the twentieth century, which associated liberation from colonialism with the creation of independent nation-states.

The Palestinian claim to statehood has been supported by the Arab League since 1974. And both the 2002 Arab Peace Initiative and the 2003 Road Map to Peace affirmed that the creation of an independent Palestinian state in the 1967 occupied territories was not only legitimate but the only means to end the so-called Israeli-Palestinian conflict.

Leila Farsakh, Rethinking Statehood in Palestine. Click here.

But the failure of the Palestinian state project to bring about liberation stems from two main facts. The first is the PLO’s acquiescence to the partition paradigm, championed by the international community since 1947, as the only means to solve the conflict. In 1988, the PLO gave up its goal of establishing a democratic state in all of Palestine in favor of a Palestinian state in the West Bank and Gaza as its symbolic declaration of independence. The second factor lies in Palestinian acceptance of negotiations with Israel on the basis of the 1993 Oslo Accords, instead of confronting Zionism and demanding, in the least, full Israeli withdrawal from the occupied territories.

This “peace process” reformulated rather than ended Israel’s colonial structure of domination. It allowed Israel to put Gaza under siege for over 15 years and to nearly triple the settler population in the West Bank, including East Jerusalem, from 250,000 Jewish Israelis in 1992 to nearly 700,000 in 2020. It also fragmented the Palestinian political entity with the creation of the PA that de facto superseded the PLO, compromising Palestinian liberation and the right of return in the process. The Palestinian state was thus bound to be neither viable nor sovereign, despite being recognized by 138 states.

The different chapters offer alternatives to the state project. What are some of the challenges that Palestinians must overcome in order to bring about a viable alternative to partition?

My book argues that Palestinians need to move away from the partition paradigm, or the two-state solution, in any attempt to fulfill their rights. Some Palestinians believe that the pursuit of statehood should be abandoned altogether, since the state remains, in essence, a violent and repressive political entity. They argue instead that the politics of sumud (resilience on the ground) and grassroots mobilization affirm Palestinian indigeneity. Others, including myself, argue that the alternative lies in redefining the state rather than imagining that it can be transcended. It needs to be contained by making it democratic, inclusive, and accountable to its citizens.

The challenge facing Palestinians lies in defining the shape of the democratic state they want to create and in devising a political strategy to generate local, regional, and international support for it. The challenge in this regard is not only legal or constitutional—defining whether the democratic state in historic Palestine will be a federal, confederal, binational, or unitary state—but, above all, it is political. That is, Palestinians must articulate how we will devise a new political strategy that unifies our community, including refugees and those living inside 1948 territories. We must also articulate the economic, political, and legal steps that need to be taken to dismantle the apartheid colonial structure Israel created in order to build a new political order.

This means that Palestinians need to confront the question of Zionism, rather than abstract it as the Oslo process did, and to explain how Israelis and Palestinians can be equal citizens within a democratic state. There is much to learn from South Africa in this regard, even if it did not resolve the persisting problem of economic inequality. Building a liberated future for Palestine entails dismantling colonial privileges and structures of domination as much as it entails defining the rights of Jews or Israelis who want to remain in Palestine as equal citizens, without stripping them of their identity or compromising the Palestinian right of return, which is protected under international law.

In your chapter, you stress the importance of rearticulating the relationship between the nation and the state. Why do you believe this is important, and what would it signify for statehood across historic Palestine?

Since 1918, when Woodrow Wilson internationalized the concept of self-determination and laid the foundations of a world order composed of nation-states through his Fourteen Points, the nation and the state have been intrinsically linked, when in fact they do not need to be. The nation-state has proven to be problematic, since it is bound to exclude those who do not belong to the nation. It is inevitability discriminatory, especially when it is not democratic and whenever it defines citizenship on the basis of ethnicity rather than territorial residency rights. As Mahmood Mamdani argues, the nation-state is a part and parcel of colonialism. It inevitably produces natives and settlers, and nationals and outsiders, who are unequal in rights and powers.

The only way to decolonize Palestine is…to move away from the nation-state as a model of statehood or a goal of liberation Click To Tweet

The state is fundamentally a juridical and political order that is territorially delineated. The nation, on the other hand, is a more expansive term used to define a body of people with shared characteristics, whether historical, ethnic, cultural, or otherwise. The term nation also encompasses a given people’s right to self-determination. This right does not need to be territorially confined, since sovereignty lies with the people.

The only way to decolonize Palestine is thus to move away from the nation-state as a model of statehood or a goal of liberation. As the experience of the past 30 years has demonstrated, the creation of a truncated Palestinian state within the framework of partition has excluded Palestinian refugees and Palestinian citizens of Israel from the definition of the Palestinian nation. At the same time, such a state is not democratic and cannot protect the citizenship rights of Palestinians in Gaza or the West Bank. Only by collectively constituting a democratic state that ensures the equal rights of all of its citizens, irrespective of their ethnicity, can we guarantee that people’s rights are protected and their freedom ensured.

You also stress the central role that the Palestinian citizens of Israel could play in a future liberation project. Why do you believe it is time for Palestinian citizens of Israel in particular to lead the liberation movement?

The juncture in which the Palestinian cause finds itself today suggests that the Palestinian citizens of Israel are well placed to play a central role in leading the liberation struggle, just as the refugees did in the aftermath of the 1967 war, and as the Palestinians in the West Bank and Gaza did with the First Intifada in 1987 and during the Oslo process. The Palestinian citizens of Israel can fill this role largely because the two-state solution has failed and the alternative moving forward is the creation of one democratic state in historic Palestine, irrespective of whether or not it will be a binational state. They are the ones who best understand the realities of Israeli political structures. They can thus bridge the gap between Palestinians and Israelis in advancing a one-state solution.

This being said, I do not know if the Palestinian citizens of Israel will, or want to, take the lead in the liberation project. It is also important to remember that all Palestinians have a role to play in their struggle for justice and equality, as the ongoing Unity Intifada has clearly demonstrated.

Your book ultimately shows that Palestinians across historic Palestine and throughout the diaspora must agree on a new and collective national project. What should this project look like and what would it entail for existing Palestinian leadership?

Palestinians across historic Palestine and throughout the diaspora agree on the failure of the two-state solution. While some still argue that the Palestinian state project can be saved by reforming the PA, it is clear by now that the statehood project in the West Bank and Gaza cannot protect Palestinian rights and only serves the interests of a small group of Palestinians comprised of the PA and its cronies, as well as regional and global capitalist investors.

The challenge confronting Palestinians moving forward lies in agreeing on a new, collective national project that transcends partition and that is still politically feasible. Such a project cannot be produced, however, without first reviving the PLO and its institutions, given that it is the only representative political structure that includes all Palestinians inside and outside historic Palestine. For this to happen, a new generation of Palestinians needs to take the reign of the PLO and confront the PA, which has marginalized the PLO and abandoned the liberation project.

Al-Shabaka policy analyst, Leila Farsakh, is Associate Professor and Chair of the political science department at the University of Massachusetts Boston. She is the author of Palestinian Labor Migration to Israel: Labour, Land and Occupation (Routledge, 2012), and of Rethinking Statehood in Palestine: Self-determination beyond Partition (California University Press, 2022). She has worked with a number of organizations, including the Organization for Economic Cooperation and Development (OECD) in Paris and MAS in Ramallah, and she has been a senior research fellow at Birzeit University since 2008. In 2001, she won the Peace and Justice Award from the Cambridge Peace Commission.

Via Al-Shabakah

( Al-Shabaka) – The Unity Intifada of May 2021 emphasized the centrality of Palestinian popular mobilization in the struggle against Israel’s settler-colonial apartheid regime. It is imperative that discussions of an anti-apartheid movement in Palestine remain true to the Unity Intifada’s decolonial praxis: to confront Zionism’s “racist settler colonialism in all of Palestine” and to challenge Israel’s fragmentation of the Palestinian people as a tool of domination.

This policy memo examines decolonization in the context of international law and increasing recognition of Israeli apartheid. It offers recommendations for how Palestinians and allies should strategize an effective anti-apartheid movement through legal avenues and posits that an anti-apartheid movement across colonized Palestine and in exile can help Palestinians regain their political agency and reassert their unity.

Strategizing Anti-Apartheid through International Law

Any effective anti-apartheid movement in Palestine must be premised on the long-standing Palestinian rejection of Zionism as a racist and settler-colonial project. For decades, Palestinians have been centering decolonization in their struggle for liberation. Indeed, without a vision for decolonization, scholars have warned that an anti-apartheid struggle can, at best, achieve a “restructuring” of the regime rather than its dismantlement.

However, recent human rights reports by international and Israeli groups largely disregard the legacy of Palestinians’ decolonial struggle. As a result, they advance liberal conceptions of equality at the expense of strategizing decolonization through legal avenues. And while international law prohibits apartheid as racial discrimination, a crime against humanity, and a serious breach giving rise to third-state responsibility, it does not criminalize colonialism per se.

While international law is limited in its confrontation of colonialism, it remains a valuable tool that should not be overlooked. Namely, international law prohibits key elements of the Zionist settler-colonial project, including population transfer, apartheid, annexation, and the acquisition of territory by force; it further enshrines the right of the Palestinian people to self-determination and Palestinian refugees’ right of return. A Palestinian anti-apartheid movement must strategically deploy these legal norms to confront Israel’s state criminality and its violations of international law.

Palestinian civil society campaigns have achieved a growing recognition of Israeli apartheid within the UN human rights system, including by member states of the Human Rights Council. Additionally, the Committee on the Elimination of Racial Discrimination has found that Israeli policies targeting Palestinians across colonized Palestine violate the prohibition on racial segregation and apartheid, as submitted by a Palestinian-led civil society coalition.

On May 27, 2021, against the backdrop of the Unity Intifada, the Human Rights Council established its first ever Commission of Inquiry into “all underlying root causes” of Palestinian oppression, including “systematic discrimination and repression based on national, ethnic, racial or religious identity.” This investigatory body is unprecedented in its mandate and scope; it covers all of colonized Palestine and constitutes one of the most important avenues for campaigning and advocacy against Israel’s settler-colonial apartheid regime. The Commission of Inquiry is expected to submit its first report to the Human Rights Council in June 2022, and at present, welcomes submissions on the root causes of systematic discrimination across historic Palestine.

Furthermore, the International Criminal Court (ICC) has jurisdiction over the crime of apartheid as part of its ongoing investigation into the situation in Palestine. The crime of apartheid has never been prosecuted internationally or at the domestic level. And although the ICC’s jurisdiction in Palestine is limited geographically and temporally, there is strategic value in pursuing accountability for Israel’s crime of apartheid at the ICC.

While popular mobilization by Palestinians across colonized Palestine and in exile will ultimately be key to Palestinian liberation, international law can help to advance this effort by building external pressure and generating tangible consequences for Israel’s ongoing crimes. The apartheid framework offers an avenue for accountability and enables Palestinians to challenge Israel’s fragmentation and build a united struggle.

Recommendations

To strategize a Palestinian anti-apartheid movement and hold Israeli perpetrators accountable for the crime of apartheid against the Palestinian people, Palestinians and allies should:

• Support and expand civil society campaigns calling for effective measures to counter Israel’s settler-colonial apartheid regime, including through divestment and sanctions.
• Urge the UN General Assembly to restore anti-apartheid mechanisms, particularly the Special Committee against Apartheid, to address Israel’s crime of apartheid.
• Expand the mandate of the UN Special Rapporteur on Palestine to include the Palestinian people as a whole, comprising human rights violations on both sides of the Green Line and against Palestinians in exile.
• Pursue Israeli perpetrators for war crimes and crimes against humanity at the ICC, including for the crimes of apartheid and population transfer.
• Call on third states to activate universal jurisdiction mechanisms to prosecute perpetrators of the crime of apartheid in their courts.
• Demand that the latest UN Commission of Inquiry recognize Israeli apartheid and Zionist settler-colonialism as the root causes of Palestinian oppression.

Rania Muhareb is an Irish Research Council and Hardiman PhD Scholar at the Irish Centre for Human Rights at the National University of Ireland, Galway. Her PhD research examines the relevance of the apartheid framework to the Palestinian struggle for decolonization. Between 2017 and 2020, she worked as a legal researcher and advocacy officer with the Palestinian human right organization Al-Haq. Rania holds an LLM in international human rights and humanitarian law from the European University Viadrina Frankfurt (Oder) and an undergraduate degree from Sciences Po Paris.

Via Al-Shabaka

( Al-Shabakah ) – Through its participation in the 2021 UN Climate Change Conference (COP26) and other international forums, the Palestinian Authority (PA) continues to promote a state-centric approach to climate change that ultimately blocks legitimate climate and environmental justice in Palestine. In effect, Palestinian leadership has reduced the Palestinian liberation struggle – inherently a struggle for climate and environmental justice – to a failed state-building project since the 1993 Oslo Accords.

Justice is rarely addressed in these international conventions and forums, leaving Palestinians confined to the logic of international donors who seek to manage the occupation instead of pressuring Israel to end it. The normalization and depoliticization of Israel’s climate apartheid characterize the existing approach to addressing Palestine’s climatic and environmental issues, and they must be countered by Palestinians and international climate justice advocates alike.

Normalizing and Depoliticizing Climate Apartheid

In Palestine, the peacebuilding framework has shaped cooperation programs that depoliticize environmental and climate issues, and thus, fail to disrupt Israel’s settler colonial practices. Indeed, donor-funded initiatives like EcoPeace and the Arava Institute have for years used slogans such as “the environment knows no borders” and “bringing people together.” Fundamentally, these initiatives only serve to disregard what is clearly a situation of climate apartheid, and to promote climate change as yet another arena where cooperation and dialogue are the answer in lieu of radical political change.

Palestinian environmental organizations and their allies have long criticized these initiatives for normalizing and legitimizing the Israeli occupation under the guise of sustainable development, trust-building, and greening the environment. They have highlighted that by normalizing and depoliticizing climate change, these initiatives promote the idea that environmental issues can be solved with technology and market-based incentives alone.

Climate change, however, is not a natural phenomenon; it is compounded by political and economic decisions. In the case of Palestine, the effects of climate change are influenced and exacerbated by Israeli settler colonialism and theft of natural resources. But rather than support Palestinians in their struggle to secure their water rights, for example, the EU and other international donors have for decades emphasized the potential of technical solutions to increase water availability and resolve “water scarcity” in Palestine.

Under the current climate change financing mechanisms, this damaging discourse prevails. For example, the Green Climate Fund, a multilateral financial mechanism of the UNFCCC, is currently supporting a five-year project focused on increasing water availability for sustainable agriculture in Gaza through the use of treated wastewater. This is another techno-fix that disregards and normalizes the political reality that Gaza faces due to Israel’s crippling blockade and siege, which in turn isolates it from the rest of Palestine in natural resources and geographical continuity.

These practices also affect Arabs outside of the West Bank and Gaza. In ratifying the Paris Agreement, Israel has committed to a 25% reduction of its 2005 greenhouse gas emissions by 2030, and aims to achieve this goal by developing green energy projects in the occupied Golan Heights and the Naqab desert, among other areas. Syrian residents of the Golan (Jawlanis) face threats to their access to land and water due to an Israeli plan to develop a large-scale wind project on what remains of Jawlani agricultural lands. And as of January 2022, Israel is uprooting Palestinians from their homes and lands in the Naqab as part of a project to flatten dunes and plant trees. This greenwashing perpetuates the depoliticization and normalization of what is fundamentally Israel’s ethnic cleansing of Palestinians.

Recommendations

The 2021 Unity Intifada brought renewed efforts among Palestinians to challenge their forced fragmentation. Similarly, the Palestinian environment transcends geopolitical boundaries, and thus, climate change across Palestine must be understood as an inherently political reality defined by decades of Israeli settler colonialism and theft of natural resources.

Re-politicizing the climate and environment, and challenging discourses of peacebuilding and collaboration are crucial steps in centering climate justice within Palestinian popular mobilization. To do so:

• The donor community should cease support for green normalization projects that ignore the political reality and power disparities between Palestinians and Israelis.
• Palestinian leadership and the donor community should instead invest in the justice-based advocacy of Palestinian civil society organizations, such as PENGON and Al Haq, which are raising awareness and mobilizing for intersectional environmental, water, and climate justice.
• Palestinian climate justice advocates should challenge the techno-managerial approaches of international forums like COP and its related climate funding mechanisms.
• Local and international climate change activists should focus on addressing historical climate and environmental injustices in Palestine in order to hold Israel accountable for its theft of Palestinians’ natural resources.
• Palestinian leadership and the international community should support the mobilization of local, national, and international resources to pressure Israel to acknowledge and commit to adhering to Palestinian’s water and land rights.

Muna Dajani

Dr. Muna Dajani holds a PhD from the Department of Geography and Environment at the London School of Economics (LSE). Her research focuses on documenting water struggles in agricultural communities under settler colonialism. She is a Senior Research Associate at the Lancaster Environment Centre (LEC) where she works on a project entitled “Transformations to Groundwater Sustainability” (T2GS), exploring grassroots initiatives of intergenerational holistic groundwater governance. She has contributed to numerous studies on the hydropolitics of the Jordan and Yarmouk River Basins. She also co-led a collaboration project documenting the story of the occupation of the Syrian Golan through developing an online knowledge portal featuring collective memories of the popular struggle that took place there.

Via Al-Shabakah