Simon Sebag Montefiore wrote an article in The Atlantic titled “The Decolonization Narrative Is Dangerous and False”. I will prove otherwise.
I will start with two quotes. I will explain these quotes using international law and so all the pieces of the puzzle will fall into place, why Palestine is a decolonization case.
The first is a quote from my professor of human rights at Utrecht University, a respected lawyer: Gentian Zyberi. He wrote an article about how the International Court of Justice has dealt with the right to self-determination. He says at one point: “The Palestinian case can be seen as an interrupted case of decolonization, where the armed conflict and occupation by Israel and subsequent events have resulted in a denial of the right to self-determination to the Palestinian people.”1Zyberi, G. Self-Determination Through the Lens of the International Court of Justice. Neth Int Law Rev 56, 429–453 (2009). Here he summarizes how the International Court of Justice has viewed the Palestinian Occupied Territories. This, then, is the legal opinion of the 15 leading judges of the International Court of Justice.
The second quote is from the Irish Center for Human Rights, which recently wrote a report for the Committee on the Exercise of the Inalienable Rights of the Palestinian People. This is a UN committee. The conclusions of the report are as follows:
“The study outlines that there are international consequences for Israel’s illegal occupation and its breaches of peremptory norms of international law, and Third States and the international community are obliged to bring the unlawful administration of occupied territory to an end. In doing so, this study underscores the requirements for the full de-occupation and decolonization of the Palestinian territory, starting with the immediate, unconditional and total withdrawal of Israeli occupying forces and the dismantling of the military administration. Critically, withdrawal, as the termination of an internationally wrongful act, cannot be made the subject of negotiation. Full sanctions and countermeasures, including economic restrictions, arms embargoes and the cutting of diplomatic and consular relations, should be implemented immediately, as an erga omnes response of Third States and the international community to Israel’s serious violations of peremptory norms of international law. The international community must take immediate steps towards the realization of the collective rights of the Palestinian people, including refugees and exiles in the diaspora, starting with a plebiscite convened under United Nations supervision, to undertake the completion of decolonization.”2Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), Division for Palestinian Rights (DPR), Irish Center for Human Rights Study on the Legality of the Israeli Occupation of the Occupied Palestinian Territory, Including East Jerusalem
The Law of Decolonisation
The Law of Decolonization refers to the legal rules applied during the process of decolonization. This law establishes that all ‘colonial peoples’ have the right to self-determination. However, this right is limited to certain regions of the world. It concerns the following types of areas that were considered colonial at the end of World War I:
- Western overseas colonies.
- Ottoman and German colonies that were occupied by the victors of WWI.
For these areas, it is said that they meet the blue or “salt-water” test: they are separated from the metropole by water, and they differ significantly in terms of culture, language, religion, etc., from the metropolis.
The peoples in these areas have the right to self-determination. This right means that they are the owners of the territory where they live and, therefore, also have the right to an independent state.
International law obligates states to decolonize these areas. The right to self-determination is an ‘erga omnes’ right (a right that claims assistance from all other states). Therefore, all countries have a legal duty to liberate colonial peoples.
However, the law of decolonization does not apply to areas that have already become independent states, such as the United States, Canada, Australia, New Zealand, Israel, etc. Therefore, international law does not require the decolonization of already existing states.
Also, territories conquered before 1900 do not have the right to become independent states. It was only after 1900 that conquest became illegal. Peoples under occupation have the right to self-determination.
So when Israel supporters shout “What about the Basque Country and other conquered areas? Why does no one say anything about these colonies?” Or sometimes they claim, “Most Islamic countries are Islamic colonies; why don’t they have to be decolonized?” People who employ these whataboutisms have a poor understanding of international law.
League of nations mandates
The mandates were a compromise solution formulated after World War I when the victors wanted to annex occupied areas (Ottoman and German colonies) and convert them into their own colonies. The United States objected for various reasons, both idealistic and selfish, such as the prohibition of American capital in colonies.
The compromise was that the occupiers would administer the ‘liberated’ areas as mandates until they became independent. France and Great Britain, however, viewed the mandates as temporary schemes, planning to convert these areas into colonies at a later stage.3see for instance: Pedersen, S., (2015). The guardians: the League of Nations and the crisis of empire. Oxford University Press
There were three types of mandates—A, B, and C—based on their level of ‘development.’ Type A mandates were already considered provisionally independent states that would be co-administered by the mandatory power. Palestine was such a Type A mandate, and it was ‘administered’ by Great Britain.
The mandates were supposed to be administered in the interests of the local peoples, who would have the right to decide their future. However, an exception was made only for Palestine, which legal scholars found unusual. In Palestine, Jews were allowed to have a national home.
Two things are very important here. According to the language used, the home was only to be ‘within’ Palestine; it was not intended to convert all of Palestine into a home for Jews. Secondly, the term ‘home’ was used, which had no specific legal meaning. In international law, there are states, colonies, and other types of territories, but not ‘homes.’ The meaning of ‘home’ sparked much debate, but in Balfour’s mind, it was akin to a protectorate—a glorified colony.
Over time, more Jews migrated to Palestine. Their population increased from around 4% in 1850 to 32% in 1948, against the will of the local Arab population, exacerbating the conflict.
The war of 1948
In 1947, the UN adopted a partition plan for Palestine in Resolution 181. The plan, which only garnered enough votes by disregarding the abstentions (unlike other similar resolutions), proposed dividing Palestine into two independent states. The Jewish state would receive the major economic zones and constitute 56% of Palestine, despite Jews making up only one-third of the population. Jerusalem would be neutral territory, and the Arabs would receive 45% of the land.
The Arab countries repeatedly sought to have the conflict adjudicated by the International Court of Justice through an advisory opinion. While advisory opinions are non-binding, the Arabs were willing to recognize this opinion as binding. They wanted to pose various questions: Were the Balfour Declaration and the mandate legal? Was the mandate in conflict with earlier British promises of an independent Arab state? Was the UN competent to divide Palestine? Shouldn’t the local population decide the fate of Palestine according to the principle of self-determination?
In 1948, the Arabs wanted to pose new questions: Was Israel’s declaration of independence legal? Who held sovereignty over Palestine when Great Britain departed? Were the Arabs or Israelis the aggressors?4Quigley, John B. 2022. The Legality of a Jewish State: A Century of Debate Over Rights in Palestine. Cambridge, United Kingdom: Cambridge University Press
The Zionists, on the other hand, avoided the legal route and opted for lobbying and war. They accepted the partition plan, but leaders like Ben-Gurion indicated that this was only temporary and that they would later seize more territory. “Our movement is maximalist,” he wrote, “even all of Palestine is not our final goal.” The Arabs refused to divide Palestine with newcomers.
Civil war escalated steadily within Palestine. By the time there were around 400,000 Arab refugees and the Zionists had seized more territory than allocated in the partition plan, Arab countries also entered the war. Their primary objective was to divide the Palestinian territories among themselves. Jordan even struck a deal with Golda Meir that Jordan would capture the West Bank, and the Jews would retain the rest. Jordan stopped at the agreed-upon border.
According to James Crawford, one of the leading jurists of the last century, Israel became a state through a successful secession from the mandate.
Israel is a colonial project
It is true that 2,000 years ago, Jews controlled a territory in Palestine, but international law only recognizes historical rights for peoples who rule a territory continuously and peacefully. The longer this is the case, the stronger the right. The longer a people are absent, the weaker their rights. The Netherlands discovered Mauritius, which was uninhabited, then it left. France also found it empty. Nevertheless, neither the Dutch nor the French have any rights to that land. If all ancient peoples had the right to current states, many countries would be ethnically cleansed. Therefore, Israel is indeed a colonial project.
In 1948, Egypt occupied Gaza, and Jordan the West Bank. In the 1967 war, Israel also conquered these areas, with the false claim that the Arab countries attacked it first. Later, Israel stated it was pre-emptive self-defense.
Interim Conclusion
With this, we can explain the first two quotes. Gaza and the West Bank are territories that would fall under the law of decolonization if they had followed the normal trajectory, like other mandates. They also did not become part of the state of Israel. Therefore, Gaza and the West Bank now must be decolonized.
Colonization of Occupied Territories
We can speak of colonization in a second way concerning the West Bank. Take the study material from Leiden University, a book by the Red Cross (ICRC). The ICRC is seen as one of the most respected interpreters of the law in armed conflict (International humanitarian law). The quote is as follows:
“Prohibition of colonization
[International humanitarian law] also absolutely prohibits the deportation or transfer of parts of the occupying power’s own civilian population into the occupied territory. This prohibition is intended to prevent the colonization of occupied territories by nationals of the occupying power, and the gradual establishment of ‘facts on the ground’ that may eventually result in a de facto annexation of the territory in question. A well-known case in point is the longstanding Israeli policy of establishing settlements for parts of its own population inside the occupied Palestinian territory. The ICRC has consistently taken the position that this policy is in clear violation of IHL and has had grave humanitarian consequences for decades.”5Melzer, N. (2016). International humanitarian law: a comprehensive introduction. International Committee of the Red Cross
From this, it follows that we can speak of a second form of colonization: colonization of an occupied territory.
The Best Interpretation of the Situation
The best way to look at the conflict is that the Palestinians are a colonized people who have the right to be decolonized but are now being re-colonized.
Therefore, the state of Israel does not fall under the law of decolonization, as it is already an independent state, but the occupied Palestinian territories still need to be decolonized. The Palestinians have the right to self-determination and to an independent state in Gaza and the West Bank.
It is also important to see Israel as a colonial project, because many Israel supporters argue that Israelis and Palestinians should negotiate. Israel supporters thereby understand that the occupied territories still need to be divided between Israel and the Palestinians. However, if Israel has already colonized 78% of Palestine, then the Palestinians have – besides the legal right – also the moral right to the remaining 22% and have no obligation to give away more territory.
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