Protecting Palestinians: Postcolonial Reminiscences

PALESTINE - ISRAEL, 5 Aug 2019

Siba N'zatioula Grovogui | The Beirut Forum – TRANSCEND Media Service

Introduction

The idea of an international responsibility to protect Palestinians is patently self-evident. It would seem therefore pointless to revisit the question more than a decade after the 2005 World Summit that formalized the concept of a responsibility to protect. However, it is not. The troubling part of the neglect to protect Palestinians today is that the degradation of the lives of Palestinians and the existential threat to the territorial integrity of post-partition Palestine are the direct consequences of actions by the ‘international community,’ including indulging Israeli occupation, and the response of Palestinians to both.

A Palestinian woman waves a flag in front of Israeli occupation forces during a Land Day protest in the West Bank village of Nabi Saleh, 28 March. Land Day commemorates Israel’s violent suppression of protests by Palestinians against government land expropriations in the Galilee in 1976.
(Shadi Hatem / APA images)

The lack of both accountability for the occupation and the denial of rights to protection and self-determination have multiple origins. The ones that I address in this essay are juridical and moral confusions directly tied to the lexical and jurisprudential ambiguities of the responsibility to protect as it currently stands. Today’s idea of responsibility to protect emerges in the morally and ethically confused contexts of the 1990s when, upon the genocide in Rwanda, presumably guilty consciences formulated the lexically dubious concept under consideration. I say confused because both positive and normative laws were replete with actionable treaties and statutes, jurisprudence, and actual precedents of ‘international actions’ to have permitted interventions in Rwanda at the time. For instance, it is now common sense that ‘Rwanda should have already been on the Clinton administration’s agenda when it took office in January 1993’ and that existant legislation was sufficient for action.[1] Yet, the Clinton Administration did nothing. This non-action itself relates to one of the many senses of the word responsibility that coheres with obligation for which one must be accountable: the act of neglecting to prevent that which one was expected to prevent but also capable of preventing.

The confusions around the implementation of the Responsibility To Protect (R2P) relate to the meaning of responsibility, which determines the nature of the obligation that it entails. These have never been exclusively theoretical questions. In practice, they depend on the international context, or properly its regimes of economies, practices, cultures of interest, morality, and politics that provide the context for international relations – and therefore R2P. To understand the fate of Palestinians under R2P, in this context, one must look at the reasons and manners in which R2P has been muted, actively opposed, or simply pushed to the side, to divert historical responsibility and therefore obligation.

The Responsibility to Protect in Three Clauses

R2P has three central clauses. The first is that the state carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement. I do not have to wait until later to raise the question about what happens under occupation by a foreign power when the would-be protector state is non-existent. The second clause is that the international community has a responsibility to encourage and assist its member states in fulfilling their responsibility to their citizens in lawful and acceptable manners. The implication (again erroneous) is that member states act uniformly according to an agreed international morality. The third clause, which applies as a last resort, stipulates a right for the international community to intervene directly (militarily) to protect at risk populations. The problem left unsaid is that the so-called international community is not a uniformly neutral body, devoid of conflicts of interest, and ready to act upon the trust placed upon it. Unfortunately, therefore, the 2005 World Summit said little about mechanisms for the resolution of conflicts of interest on the part of the ‘executors’ of the collective will, particularly in the context of permanent members of the UN Security Council (UNSC).

Even before one answers the above question in practice, however, there is a juridico-lexical confusion to overcome. R2P has often been associated with a duty, a moral or legal obligation to take an action. The said obligation arises from multiple sources, including spirituality, religion, morality writ large, law, or personal engagement. However, a duty is not the same as a responsibility, as the latter may emanate from sources other than a sense of duty. It often arises also from actions or lack thereof such as neglect. In the latter sense, responsibility implies accountability, including assuming agency, and thus obligating one party toward another: an aggrieved. Relatedly, one of the central confusions of R2P is that it imputes responsibility, in the sense of accountability, on the state alone or internally warrying parties. From this latter perspective, R2P often appears like an obligation of all (of humanity via the custodian of the international community) owed to victims of the actions or inactions of failed, rogue, or ‘criminal’ states or their agents. This erroneous assumption is compounded by assuming only good faith and innocence from the supposed moral custodian of the international community: the legal guardians of the peace (or the Security Council), the morally self-justified entities living the good life under constitutional liberal regimes, and the military mighty – more often than not, NATO. The contrast between victims and deliverers erroneously assumes that the international community is never responsible for the plight of those in need of deliverance and that national communities seldom act out of duty to right wrongs done by the international community.

This central moral dualism inserted in R2P has also infected ethical and legal constructs around it. The key to this occurrence is the not-so-subtle substitution of citizens for populations. This confusion, often imperceptible to the non-initiates, is real. The 2005 World Summit Outcome Document refers to the responsibility of two actors at two levels, one national and the other international. In its formulation, the state has responsibility to protect its populations, most of whom would be its citizens. The document also calls upon the international community to intervene in the event of state failure to protect ‘populations’ viewed as victims of atrocities.

A question pertaining to Palestinians arises in this context. Which state has responsibility to protect them? It is certainly not the occupying power. The logical follow-up question is whether, in the absence of a state, the international community has primary – and not complementary – responsibility for Palestinians. This question highlights deficiencies in R2P. It is why R2P should not obscure the Geneva Conventions. It is also why the applicability of R2P in occupied Palestinian territories needs lexical, moral, and jurisprudential clarity.

The Burden of Encumbering the Right of Others 

The imaginary and, thus far, practice of R2P is based on erroneous assumptions. The most important is that of the existence of putative zones of conflict and zones of peace, separated by the manners in which they treat populations under their control. This assumption has two predicates. The first is that the zones of conflict (read, Balkans and Africa for instance) are blighted by the reign of illiberal, failing, or rogue states. The other is that liberal democratic states afford populations under their control the rule of law and an unambiguous and unrestricted commitment to humanitarianism and human rights. Both these predicates are without merit as we will see below.

The greatest abdication of ‘the West’ toward Palestinians concerns that most elemental humanitarian principle that is central to centuries-old wisdom, edicts, and moral speculations about war: the right of refugees and other inoffensive entities in war zones. The abdication is morally outrageous not in the neglect of responsibility but in the promotion of the rights of the occupying power over those of refugees and related populations. The laws and conventions applicable to refugees are numerous. They include the Geneva Conventions and the International Convention on Refugees, which is background to the United Nations Relief and Work Agency for Palestinians. The fate of that agency today and controversies related to its performance are testament to the neglect of the primary victims of the 1947 partition.

I refer to the above as leading to another question: why did R2P not refer specifically to stateless refugees? The short answer is that R2P marks a high point in the politics of humanitarianism but it did not necessarily represent progress. For instance, R2P could have easily stipulated that the international community is obligated henceforth to enforce all protective measures adopted by the UNSC and the General Assembly regarding populations lacking a state of their own and/or are outgunned by the entities oppressing them. The fact that it did not is attributable in part to the fact that ‘liberal’ and ‘illiberal’ states alike have contributed to the production of the refugee population. The other reason for the silence is the known antipathies of members of the Security Council toward some refugee populations, particularly Palestinians.

In other regards, however, the responsibility to protect Palestinians emanated long before the 2005 UN commitment in the Geneva and refugee conventions of international refugee laws as well as other human rights legal regimes. There is no disputing the root causes of the existential precarity of Palestinians today. Beside the fact of languishing in untenable conditions of refuge for over seven decades, Palestinians are subjected to geo-strategic confinements without decision-making abilities or access to their own resources, natural, agricultural, or financial. These conditions are compounded by military occupation against a struggle of national liberation as well as settler violence to match acts of terrorism on the part of Palestinians. Yet, they all flow directly from an act of occupation that the United Nations has primary responsibility to disallow.

The UN holds a particular obligation to Palestinians in this regard, simply because it took the historical responsibility to partition the land. It also defined the borders that would separate Jews and Arabs. This act was not without consequence. Although it stands to reason that the UN could not have anticipated the nature and extent of the consequences, the UN Security Council bears particular responsibility for the outcomes of its decisions. The Security Council bears this responsibility in its essential functions of conflict prevention, peacemaking, peacekeeping and peace enforcement. The acts inflicted upon Palestinians are the direct consequences of its actions and failure to keep the historical commitment of a state to Palestinians in this sense is both abdication and dereliction of duty. To be responsible in this sense, the UN must be prepared to be answerable to Palestinians because it cannot morally expect Israel, an occupying entity, to be primarily responsible for the protection of Palestinians, even when some Palestinian entities have taken it upon themselves to assume their right to self-determination through armed struggle.

Imploring the UNSC to fulfill its responsibility in this context is simply to expect that which is both moral and legal: that it look to remediate the consequences of partition for refugees and other non-belligerent entities in the West Bank and Gaza. This expectation should be received as an unspoken mandate or an authoritative command from the international community on whose behalf it presumptively acted. In Palestine, after the British mandate, the UN made the calculation that it could partition the land between a people without land that had ancestral connection to Palestine and resident populations. The UN could or should not have expected that the opening up of ‘space to a people in search of a homeland’ would not injure or impose burdens on the population in place. On the other hand, the ostensible beneficiary of the ‘moral largess’ of the ‘international community’ should have been expected as a matter of obligation to exercise ‘restraints’, particularly in the absence of war, legal, just, or otherwise. Under the Geneva Conventions and other international agreements, such restraints are not optional. They are a matter of enforceable obligations arising from principles of international law that cannot be set aside in any context.

Norway: The Cost of Misplaced Faith

The UN is not alone in the predicament described above. The sponsors of the 1993 Oslo Accords also asked concessions of Palestinians on faulty presumptions that resulted in grave injuries to Palestinian entities and their cause. The first presumption, born of Western and liberal mythology, was that a settler power could be trusted to abandon its colonial policies if it could be made to return to its ‘democratic’ roots. There is of course no evidence in history to support the underlying self-perception that colonial powers disengaged when they had strong interests and no real pressure to disengage. (France, Great Britain, and the US still maintain distant outposts without either the consent of, or granting citizenship rights to, their populations).

The second presumption, predicated upon the first, is that the ideology and desire of an occupying power would go into abeyance if the resistance to occupation were put in check. To this end, the Oslo II Accord divided the Israeli-occupied West Bank into three administrative divisions: Areas A, B and C, corresponding to different statuses and distinct modes of governance pending a final status accord. Palestinians retained exclusive administrative control of Area A. Area C, which contains the Israeli settlements, remained under the exclusive control of Israel. In theory, this division was to alleviate conflicts of jurisdiction, but it also legalized dimensions of Israeli occupation, accentuated the desire of settler parties in Israel to want to take more land from Palestinians, and of security entities to contain Palestinian right to self-determination through territorial enclosures. The outcome of the Oslo neo-partitioning is the increasing inability of Palestinians to live and self-govern unmolested by the Israeli state, government, and settlers.

The Oslo Accords have failed in several regards and in manners that its Palestinian opponents had feared. Most spectacularly, their outcomes belie the criteria for postwar peace. The first is the principle of ‘no territorial aggrandizement’, which figures prominently in the Atlantic Charter. The other predicates, which appear in the UN charter and subsequent international agreements, are the following: all postwar and postcolonial settlements are to be grounded in secular and rights-based claims that are respectful of equality and peaceful coexistence. It is to be noted that, contemporaneously with its signing, Palestinians and anti-colonialists around the world had noted that the enforceable clauses of the Oslo Accords seemed to fall on the Palestinians while Israel’s obligations were either optional or left unspecified. The suspicion then was that the Oslo Accords had closer kinship to colonial capitulation treaties, protectorates, and pacification than with transitional peace – as understood and practiced contemporaneously (certainly more like 1940 Vichy Armistice than 1815 Vienna Congress).

Regardless of their motivations, the coalitions of states that convinced Palestinians to adhere to the Oslo Accords also implied an evenhanded approach to the conflict. This is to recognize the security needs of the occupying power while affirming the principle of self-determination for the occupied entity. No one doubts that Israel is more secure within its borders today than it was then. Yet, the harassment, humiliation, expropriation, and expulsion of Palestinians has remained a daily occurrence. The sponsors of Oslo ought to either explain to school kids in Nablus the reasons for continued settler harassment and humiliation or work to stop it. They have that much responsibility to Palestinian children.

US: The Responsibility to Act Responsibly/Ethically

The responsibility to protect is often associated with humanitarian intervention but it need not be. It means at times merely deploying the investigative mechanisms of the international system to ensure the safety and well-being of disinherited populations. This is the area where Western members of the Security Council have abdicated, together with their base-coalitions. The United States, in particular, has opposed its veto to several resolutions demanding investigations into incidents in the occupied territories on the sole ground of friendship with Israel and the supposed hostility of the UN to that country.[2] There are several issues to be debated here. The most important is the conflicts of interest that certain kinds of engagements entail. It was, for instance, obvious at the time of the drafting of the UN Charter that conflicts of interest might hobble the works of the UNSC. Hence, the drafters of the Charter included conflicts of interest provisions in its Article 27.2: ‘Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.’ In paragraph 3 of the same article, the Charter indicates that ‘a party to a dispute shall abstain from voting.’ Article 14 of the General Rules of Procedure further specified that the distinction was intended to permit the ‘flow’ in the decision-making processes. But Russia and the United Kingdom successively vetoed resolutions in 1946 (with regard to Spain) and 1948 (Corfu Channel Dispute) on the ground that the question as to whether a matter was procedural or substantive was itself a substantive question and therefore subject to the veto. This ‘technical’ veto is what is known today as the double veto. It is so-called because the veto intervenes before the subject matter itself is properly discussed. More than any other conduct or practice at the UN today, the introduction and use of the double veto is the single greatest obstacle to justice and peace in international relations.

The US has used the veto proper and the double veto consistently to prevent inquiries into matters in the occupied territories. On such occasions, the US has advanced as its justification its friendship with Israel. Each country and state has the absolute right to make alliances under international law. It is also the case that alliances have multiple legitimate utilities. Yet, the US uses its veto to prevent any inquiries into the occupied territories in a manner that is reminiscent of a Plenary Indulgence: in theology, the complete remission of penance for sin by an infallible entity. This theology survives in international relations from the Middle Ages to date, when some states began to view themselves as successors to Rome, infallible and irreproachable, based on its own self-generated historical mythologies or self-perceptions. The enclosed allusions – or perhaps delusions – are also perfectly legitimate. The ethical implications, however, are inescapable. This is to say that the US is morally wrong to intercede with inquiries, investigations, and protective measures on behalf of any entity simply because it may not like their outcome. Related decisions raise particular questions about the implication of the US in debates over the responsibility to protect Palestinians. Stated differently, given its actions, R2P for Palestinians should have unique resonances for the US. I am not even talking about whether the US is or could be an honest broker in and of the Israel-Palestinian conflict. This is an easy question to answer as the US provides money, military equipment, and intelligence to one and not the other, even when there is actual armed confrontation. I am talking here about the legal and moral obligation not to interfere with the ability of the international community to adjudicate when it (the US) cannot act according to the same logic of justice, either by upholding legal procedure or by ministering to both sides.

It behooves the rest of the world, on behalf of our own humanity, to consider our obligation to the Palestinians under and beyond R2P. In the sense of our common humanity, the world community, by which I mean something other than the formal community assembled under and as international community, has an historic obligation that is also reflected in the 2005 World Forum document: not to let our interests, prejudices, political preferences, and ethnic and confessional identifications cloud our humanity. We hold from the Geneva Conventions and the Nuremberg and Tokyo Trials that the responsibility to protect civilians is not / should not be an option. R2P also does not know boundaries. It is owed when a human entity is in peril–in grave danger, to refer to the Rome Statute. Today, the world owes Palestinians the capacity to survive, to maintain the means and the space to function as human society, and to not be constantly molested as a moral entity. This much must be done before there is peace.

References:

[1] Timothy Longman, What did the Clinton administration know about Rwanda?, Washington Post, April 6, 2015

[2] For instance after the invasion of Jenin and in the aftermath of Operation Cast Lead.

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Siba N’zatioula Grovogui is professor of International Relations and Political Theory at the Africana Studies and Research Center at Cornell University. Grovogui is originally from Guinea, where he attended Law School before serving as law clerk, judge, and legal counsel for the National Commission on Trade, Agreements, and Protocols. He received a Ph.D. from the University of Wisconsin at Madison in 1988. Prior to joining Cornell University’s Africana Studies, Grovogui was professor of international relations theory and law at The Johns Hopkins University. He is the author of Sovereigns, Quasi-Sovereigns, and Africans: Race and Self-determination in International Law (University of Minnesota Press, 1996) and Beyond Eurocentrism and Anarchy: Memories of International Institutions and Order (Palgrave, April 2006). Grovogui is currently completing two manuscripts under of the rubric of Future Anterior: 1) The Gaze of Copernicus: Postcolonialism, Serendipity, and International Relations and 2) Aristotelian Non-Sense: Quilombo, Haiti, and Africana Humanism.

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