“What will we do before this death? Near

our lives we live, and don’t live. As if our lives

are desert lots disputed by the gods

of real estate, and we are dust’s bygone neighbors.

Our lives are a burden to the historian’s night: ‘Whenever

I hide them they come into my view out of absence…’ ”

•  They Didn’t Ask: What’s After Death, Mahmoud Darwish

“ Sphynx: What happens when an unstoppable force meets an immovable object?

   Superman: They surrender.”

• All Star Superman, Grant Morrison and Frank Quitely 

Table of Contents

Truth or Fiction: the Israeli Settler Colonial Project

Deliberation under Duress

………………………………...Power Asymmetry 

………………………………...Occupation of an Embryonic Constitution 

…………………………………Legal Panopticon

…………………………………Interest Convergence

Justice and the Phenomenology of the Colonized

The Spirit of Cosmopolitan Revolution

Today

Abstract : This paper examines the challenges to deliberation between Palestinians and Israelis under the Arendtian and Habbermasian conceptions of ideal communication. It is grounded in Professors Khalidi and Masalaha’s historical commentaries of the region, along with other Palestinian and Israeli sources to determine a historically consistent account of the area’s factual reality. In doing so, the paper considers the asymmetric and coercive power relations between the two states and the impacts of colonial settler-occupation on deliberation and on Palestine’s embryonic constitution. By calling on legal critical race theorists and Canadian indigenous law as the products of completed colonial campaigns, this paper considers the efficacy of different modes of liberation and tracks the genesis of Palestinian property law, situating it in an international legal framework. After developing an account of the contentious political and legal topography of modern day Palestine and Israel, this paper considers the phenomenological impacts of colonization on Palestinian’s experiences of time, statehood and history. In its concluding remarks, a Kantian and Habbermasian account for revolution is considered on a cosmopolitan stage with the aim of necessitating the impartiality of international law as a condition for equitable communication between Palestinians and Israelis in a globalizing world. 

Accepting then Resisting Historical Inertia 

History is a peculiar force; it can be weaponized by its victors to imprison its losers in a fog of erasure, or it can liberate its victims through the painful memory of their ongoing struggle. The factual history of Palestine and Israel is one that is shared by both Palestinians and Israelis, and yet it remains one of the most subversive and contentious issues of the 20th and 21st centuries. Despite this shared factual reality, the region seems split in the meaning of this reality, bound by either interpretation’s existential consequences. Israeli youth are brought up to view this land as a birthright granted by God, and their neighbors as squatters indoctrinated into an anti-semetic and nomadic culture. Palestinian youth grow into the collective memory of over a millenia of Palestinian heritage, rooted firmly in a land whose systematic and continuous colonization and cleansing of Arabs they have no choice but to resist. In Hannah Arendt’s paper on Truth and Politics, she posits that facts in themselves “contain no principles upon which men might act” . Rather, it is the allegiances that surround the facts and their “interpretive context” that move people to act. Palestinians and Israelis have no choice but to be voices of liberation or idleness, especially when these choices will determine the survival of their very culture. In a deliberative context, the Arendtian ‘spectator’, while limited in inciting change in a situation in dire need of it, maintains the clarity of factuality while entertaining both the insurmountable views of its participants. While I would personally rather amplify the voices of Palestinians in their own liberation, I will aim to embody the Arendtian spirit of deliberation in maintaining the detachment of “the spectator” in reaching a conclusion. It is no secret that the Zionist project of steady consumption of Palestinian lands to create a Jewish majority state has been underway conceptually since 1898, and in practice since 1917. With disproportionately violent consequences for the Palestinians, and Israeli citizens, the immovable Palestinian spirit has taken all forms of resistance: peaceful, diplomatic, legal and violent. With the aim of clarifying the conditions of peace between an unstoppable force and our immovable olive tree, this paper will examine the challenges to deliberation between Palestinians and Israelis under the Arendtian and Habbermasian conceptions of ideal communication. Firstly it will discuss the historically consistent terminology of the dialogue, determine the consequences of asymmetric and coercive relations on deliberation and Palestinian state building, discuss the phenomenology of colonized experience – the different layers through which colonial violence debilitates and constrains Palestinian realms of possibility – and conclude with a discussion of the revolutionary spirit in relation to state-building. I will identify three main challenges to peace: the unrelenting and extrajudicial project of a ‘Greater Israel’ beyond its prescribed borders in 1948 and 1967, in the form of a siege of Gaza, apartheid in the West Bank, expanding settlements, and interventions in Palestinian state-building efforts, the counter-productive yet qualified violent resistance of Palestinian militant groups, and the self-defeating interjection of the United States as a biased interlocutor in any peace-process aiming at a two-state solution. 

Truth or Fiction: the Israeli Settler Colonial Project

It is a futile symptom of colonialism to interrupt the cultural continuity of the colonized, and attempt to erase the collective memory of their heritage. In Hannah Arendt’s Truth and Politics  she posits that “the modern political lies deal efficiently with things that are not state secrets at all but are known to practically everybody” . Deliberate falsehoods propound an image that poses as a “full-fledged substitute for” reality. Reality however, unlike cosmetic interpretations of history, is accessible through empirical investigations of both modern material reality, and the archeological, cartographic, literary, genetic and academic accounts of our shared historical facticity. Nur Masalha, a historian and professor at SOAS University London, painstakingly collected four thousand years worth of material evidence of the continuous cultural and multi-religious identity of the Palestinians. In his seminal work Palestine: A Four Thousand Year History he tracks the indigeneity of modern Palestinians from the Late Bronze Age (~1150 BC) through its many transformations into the 21st century. In providing a flyover of the most pressing evidence and the different names Palestine has taken on, I will ground this paper on a concrete understanding of the continuous historical identity and topography of Palestine, one whose character was interrupted and displaced by the foreign doctrine of Zionism conceived in 1897, and realized in 1948. As a direct result of the consistent lobbying efforts of the European Zionist movement for a Jewish ethno-state, the 1922 Mandate for Palestine drafted by the League of Nations, referred in Article 22 to a single people as having a historic connection to Palestine, the Jewish people. This was, effectively, what Israeli sociologist Baruch Kimmerling called “the politicide” of the Palestinians. In the 28 articles of the Mandate, Arab, Christian or Muslim Palestinians appear neither in name nor spirit. It did not matter whether the multi-faithed descendents of the inhabitants of Palestine were now Jewish, Muslim or Christian, Zionism prioritized the creation of a Jewish majority state over the preservation of the indigenous population in Palestine. Until the introduction of Zionism, the name Palestine and the indigeneity of Jewish, Christian and Muslim descendents of the first peoples of Philistia had survived 4000 years of transformations. 

Unlike popular Biblical beliefs, the original inhabitants of Palestine “did not know that they were themselves Canaanites. Only when they had so to speak “left” their original home… did they acknowledge that they had been Canaanites” . Prior to the formation of what would be known as Philistia or Peleset, the toponyms for the region were Retenu and Djahi (Masalha 55). By the time Ramses II and Ramses III reigned in the 19th Egyptian dynasty (~1150 B.C.), the southern coast of Palestine would come to be referred to as Peleset. In 5 inscriptions found in the Mortuary Temple of Ramesses III and another in the Medinat Habu Temple in Luxor, we find consistent mentions of a sea-faring people who lived around the coast of modern Palestine, referred to as ‘Palashtu’ or ‘Pilistu’ in the tablets . In the recently uncovered 3000 year old Phillistine graveyard in Ascalon, we find evidence of the indigeneity of Phillistines that dates even further than the Late Bronze Age . Through an investigation of the Egyptian tablets we find that the people of the Southern Levant were allied with ancient Libyans, and were skillful artisans and large exporters of copper, pottery, wine and olive oil . It can be noted that many of the four-leafed patterns found on the reconstructed pottery of ancient Phillistines can be found in modern Palestinian sewing patterns, or tatreez. Of the villages in Phillistia, ‘Palashtu’, ‘Palastu’ or ‘Pilistu’ referred to in Egyptian tablets and 8 century B.C. Assyrian inscriptions were: “Gaza (Ghazzah), Askelon (‘Asqalan), Ashdod (Isdud), Tantur (Tantura), Gath (Jat), Ekron (‘Aqir),” all of whom survived into the modern age (Masalha 59). Far from nomads, the people of Philistia “controlled the international trade route of the Via Maris (‘Way of the Phillistines’), charged tolls for passage, created one of the earliest coinage systems in the 5th and 4th centuries, and even “dominated the coastal economy” . By 712 B.C., taking advantage of the uprising of the Phillistine city Ashdod supported by the Egyptians, King Sargon II of Assyria invaded and annexed Pilishte. Although Pilishte’s cultural identity survived, and the King of Ashdod was allowed to remain on the throne, it was now a province of Assyria.   

In fact, the name Palestine, in some form or another, became the most prominent and consistent name for the region between Carmel to Gaza. In Classical Antiquity (500-135 B.C.), Herodutus, known in Western academia as the founding father of historical studies, mentioned Παλαιστίνη (Phalastin) and the ‘Syrians of Palestine’ in his Histories to refer to the “autonomous district of Syria,” which included “the regions of transjordan,” “areas in the Sinai and the north, as well as areas east of the river Jordan,” spanning between Phoenicia and Egypt . Herodutus notes of his travels to Phalastin in the 5th century BC, that the sea ports of Cadytis to Jenysus (modern day Khan Yunis in the Gaza strip) were occupied by Arabs. To keep this exposition brief, I will mention the remaining transformations of Palestine’s continuous historical identity in passing. Under the Roman acquisition of Palestine, it was known as Provincia Syria Palaestina and later Caesarea-Palestina  between 135 AD and 390 AD . During the Hellenestic period the widely influential Alexandrian cartographer and writer Ptolemy refers to three distinct cultural and political entities in this region, Phenoecia, Syria-Coele and Palestine (77). It retained this name, along with Palaestina Prima, Palaestina Secunda and Palaestina Salutaris, under the Byzantine administration of the Palestinian province between the 4th and 7th centuries, and throughout the arrival of Arab Christians in Palestine. Under Islamic rule, it became known as Jund Filastin between 638 and 1099 AD, and remained Filastin during the Ayyubid, Mamluk, and Ottoman rules, and then under the British occupation of Mandatory Palestine. 

In the final days of the 19th century the world was undergoing transformations that would define a new age of integrated markets, the dismantling of old colonial regimes, the fall of empires, the rise of new ones, and the accelerated transmission of ideas. Palestine was none-too impervious to these changes; at the turn of the century and prior to its encounter with Zionism, Palestinian agriculture was benefitting from capital investments, from the introduction of cash crops and wage labor, the privatization of land, improving rates of live births and life expectancy. The historical academic investigations of Professor of Modern Arab Studies and History at Columbia University, Rashid Khalidi, describes that Palestine was modernizing, albeit at a slower rate than the western colonial empires, with the advent of new technologies, “the telegraph, the steamship, the railway, gaslight, electricity, and modern roads”. By 1914, Palestine was home to a series of public and private schools, colleges and universities, along with Catholic, Protestant, Orthodox and Jewish schools. The socio-economy of Palestine was, much like most growing economies, stratified into a “nascent commercial bourgeoisie and an embryonic working class” more brazen along the growing coastal cities of Jaffa and Haifa than in inland rural villages . Palestine was modernizing with the world, boasting 32 new newspapers and periodicals between 1908 and 1914 who prized the freedom of press until the heavy censorships of the British Mandate forces in the 1920s , hospitals, department stores and hotels. Up until the 1920s, Jewish, Muslim and Christian inhabitants lived in relative peace and shared an identity as Palestinian citizens under an Ottoman then British Mandate. The Jewish inhabitants were mainly “ultra-orthodox and non-Zionist, Mizrahi (eastern) or Sephardic (descendents of Jews expelled from Spain), urbanites of Middle Eastern or Mediterranean origin who often spoke Arabic or Turkish” . They too considered themselves Palestinians under either Ottoman or British oversight. 

Before moving forward in this laboratory of deliberative practices, the terms of this discussion must be agreed upon. The esteemed Israeli Historian Ilan Pappe insists that the Israeli occupation of Palestine be accurately labeled a crime of colonial ethnic cleansing, as defined in the dictionary of international law, if “past evils are to be rectified” in a manner consistent with the reality of its impacts . In order to determine the validity of this characterization, we must consider the language of the Zionist movement itself. In 1897, Theodore Herztl a Jewish Austrian journalist and political activist, developed Zionism as an alternative to Jewish assimilation in a racist and despondent Germany. The atrocities of Nazi Germany saw the rise in the popularity of Zionism and the establishment of the first Zionist Congress held in Basel, Switzerland in August 1897. Organizations fundraising for the Zionist project saw a three times increase in donations between 1931 and 1935 when Hitler’s regime came to power. In fact, Eichman, one of the chief architects of Nazi institutionalized terrorism, was paradoxically invested in the Zionist project and deeply involved in “the organization for illegal immigration into Palestine”. An involvement perhaps, that would clarify that the equation of anti-zionism and antisemitism would neglect the many zionists who were vehemently anti-semetic, and the many semites who are ardently anti-zionist. In Hertzl’s Der Judenstaat outlining the enterprise of Zionism, Herztl considered two potential homes for the Jewish state. Argentina, “one of the most fertile countries in the world” or Palestine, “the ever-memorable historic home” where the Jewish company would provide “an outpost of civilization as opposed to barbarism” . Ever since the early conceptual days of the Zionist movement, the Hebrew verbs le-hitnahel and le-hityashev, “to settle” and “to colonize” were used “to describe the takeover of land in Palestine” . Herzl claimed the “name of the settlement was to be ‘New Palestine’ ” and it was to be “the permanent property of a colonization company created for the purpose”. 

After the taxing Libyan wars of 1911-12, the Balkan wars of 1912-13 and WWI where 3 million citizens of the Ottoman Empire, 15 % of the population, lost their lives, the empire was on its last legs . In 1917 General Sir Edmund Allenby of the British Army led a campaign for the invasion and conquest of Jaffa, Palestine in November of that year, and Jerusalem by December . After 400 years of Ottoman rule, the Arab world was left to the alien prospects of European governance. It did not take long for Arthur James Balfour, the secretary of state for foreign affairs of England, to proclaim in November 1917 the British Government’s intention to establish “in Palestine… a national home for the Jewish People” with the deceptively naive understanding that “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine” . The trouble for England, and Palestinians, was that the British government also made two other agreements which competed with the Balfour Declaration. Namely, the Husayn-McMahon Agreements of 1916 promising the independence of Arab states to Sharif Husayn of Mecca, and the Sykes-Picot Agreement that same year agreeing to partition eastern Arab countries with France . Were England to have been earnest in its foresight for the colonial Zionist project’s ploy to absorb the entirety of historic Palestine, the Declaration would also have competed with England’s obligations under United General Assembly Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples, a resolution that has become a staple of customary international law . 

Lord Balfour, who was also Britain’s chief secretary in Ireland for 5 years where he earned his nickname “Bloody Balfour” for his policies in England’s oldest colony, helped pass the 1905 Aliens Act intended to prevent Jewish refugees escaping the Tsar’s pogroms from immigrating to England . Alternatively, and under the British mandate, Jews immigrated through illegal or legal routes to occupied Palestine and formed the Jewish Agency for Palestine ([EJ] Arendt 118). The Allied forces oversaw the displacement of over 8 million surviving Jews whose return to their homes meant continued torment and violence. Between the murders of returning Jewish inhabitants in Theresienstadt, and “the nightmare of absolute helplessness and abandonment”, Jews “had only one wish, to go where they would never see a non-Jew again” . The solemn reality is that Palestine was far from this pure Jewish state that Herzl envisioned and was determined to build no matter the cost. The Balfour endeavor, initiated at the behest of Jewish Zionist lobbies in Europe, would be facilitated by the unlimited Jewish immigration policy of the 1922 Covenant League of Nations Mandate for Palestine. Article 4 of the Mandate drafted by the League of Nation made the Jewish Agency or yishuv, a para-state with wide ranging socio-economic and political powers, “including democratic representation…control of education, health, public works”, formalizing the yishuv as a “partner to the mandatory government” equipped with international diplomatic status . Article 6 tasked the British Mandate with facilitating Jewish immigration and settlement , and Article 7 the acquisition of Palestinian citizenship by Jews. After the League’s ‘Mandate of Palestine’ empowered the yishuv in the establishment of what Balfour recognized as the commitment of the “four Great powers” to Zionism, “be it right or wrong, good or bad” with no intention of “consulting the wishes of the present inhabitants of the country” , the Jewish population tripled from 6% to 18% by 1926 .  Between 1909 and 1914 around 40,000 new Jewish immigrants settled in the 52 colonies established by the Zionist movement in the preceding decades to the founding of Israel . After the Nazi regime came into power in 1933, and the US and UK enacted their anti-immigration laws, a staggering 60,000 Jews emigrated to Palestine in 1935 alone, as Khalidi notes, “a number greater than the entire Jewish population” in 1917 . The transfer agreements struck between the Zionist leadership and the Nazi regime allowed German Jews to bring assets worth $100 million with them. As the Jewish population grew more than 30% by 1939, the self-segregating Jewish sector of the Palestinian economy overtook the Arab sector for the first time, the Zionist para-militaries grew considerably, and the massive investments of European Jews, notably from the Rothschild family, allowed for greater and greater land purchases and the accelerated growth of Jewish capital in Palestine . Prior to 1948, Jews owned 6% of Palestinian lands , purchased in bulk from absentee landlords . Following the violent dispossession of lands stolen both by Resolution 181 and military conquest of the land allocated to the natal Palestinian state, the Israeli Lands Authority’s first charter ensured that Arabs would not be able to “buy back nor lease what had once been their property,” nor could any non-Jew for that matter . In effect, the remaining 160,000 Palestinians in Israel were also subject to a secondary citizenship, with alternate laws and rights of land ownership. The martial law imposed on them also meant a “near-unlimited authority to control the minutiae of their lives” until 1966 . 

Meanwhile, Palestinians felt a fielty to a millennia of continuous multi-religious and cultural ancestry tied to the land of Palestine, and held a clear nationalist desire for an independent Palestinian state in chorus with the similar aspirations of Syrian, Lebanese and Iraqi nationalists in post-Ottoman and European colonial movements . These efforts were made evident in the litany of petitions to the British, the Paris Peace Conference, and the League of Nations, by Palestinian representatives, as well as the notable efforts of the 7 Palestinian Arab Congresses organized amongst the local Muslim and Christian societies between 1919 and 1929 to organize the post-Ottoman polity . These demands entailed the independence of Arab Palestine, the rejection of Balfour, the British support for majority Muslim-Christian rule, and ending for “unlimited Jewish immigration and land purchases” . Whether in Jerusalem or London, Palestinians were met with condescending indifference. The result was a wave of strikes, riots and “violence flaring notably in 1920, 1921, and 1929 […] often provoked by Zionist groups flexing their muscle” . It was not until the early 1930s that Shaykh ‘Iz al-Din al-Qassam began organizing militant activist networks in response to the Jewish para-military’s growing strength and British repressions of civil disobedience . It is important to note that this wish for Muslim and Christian rule, or Jewish exclusion, arrived with the Zionist project of isolating the Jewish Palestinian population from the other inhabitants they had lived in relative peace with for millinia. These efforts were evident in the Zionist organization of Jewish only villages, an exclusively Jewish Agency, militia, and even a self-isolating Jewish economy in Mandatory Palestine, designed to develop the Jewish majority state of Israel. The Palestinian response was a “country-wide violent explosion” following a 6 month general strike from 1936-1939 against the increasingly real prospects of the dissolution of historical Palestine by an increasingly powerful Zionist colonial project. Aside from the insubstantial White Papers penned by British officials and countermanded by Zionist pressure in London that led to the Great Revolt, the British government authorities led divide-and-rule campaigns against Palestinian leadership, along with military crackdowns with the aid of the Jewish Agency to qualm the civil unrest . This violent war against Arab revolt cost Palestine 14-17% of adult males’ lives, capacitation, or liberty, and the exile of their prescient Palestinian leaders . 

After the British 1939 White Papers began slowing Jewish immigration to Palestine in an effort to appease the local Arab uprisings, Jewish militias responded by souring their relationship with British authorities with the assassination of Lord Mayne in 1944, the British minister in Egypt, consistent violent campaigns against British troops and administrators in Palestine, and the infamous bombing of the King David Hotel in 1946 which took 91 lives. Unable to sustain the costs of occupation and support of both the Jewish Agency and their meager sympathies for Arab Palestinians, the British Clement Attlee’s government renounced British authority over the ‘Palestine problem’ to the UN in 1947. Although the British Mandate and the United Nations held the express aim of preserving the presence of Arab Palestine as a distinct state, it was clear that the yishuv held different plans for a Greater Israel from the outset. In a 1942 major Zionist conference in the Biltmore Hotel in New York, David Ben-Gurion affirmed for the first time that the aim of Zionism is to establish “a Jewish Commonwealth” in the totality of historic Palestine. With the decline of British Powers, the yishuv was quick to lobby for the support of American politicians, notably gaining the endorsement of President Harry Truman . By this point, the new world superpowers, the US and the USSR, had both supported the partition plan of Resolution 181 which would grant the Jewish state 56% of Palestinian territories . A resolution in which the scornful British government, reeling from their losses at the hand of the Haganah and Igun Zionist militias in Palestine, abstained. Having finally recognized the interests of Arab independence in Palestine from the 1938 White Papers onwards, after nurturing the Zionist project into maturity for two decades prior while actively attempting to abort the embryonic state-building efforts of the indigenous Arab Palestinians . 

Following the UN partition, the Israeli Army faced resistance by 7 invading Arab Armies, led by British officers commanding the Transjordanian army, all unified in the intent to prevent the total occupation of Palestinian territories (as opposed to preventing the establishment of a Jewish State). Despite outnumbering and outgunning the collective Arab forces in 1948, given the Lebanese army’s inability to advance past the northern borders and the outdated Saudi Arabian and Yemeni armies, the Israeli militias conceded the West Bank and East Jerusalem to the Transjordanian forces who intended to occupy the territories and prevent the birth of an independent Palestinian state. It is rather important to note that both the Jordanian and Iraqi forces, the dominant Arab forces who managed to make it across the borders of Mandatory Palestine, were “forbidden by their British allies from breaching […] areas allocated to the Jewish state by partition” . In contrast, no such pressures were exercised by any western or eastern power on Israeli forces to prevent the clear invasion of territories allocated to Arab Palestinians. By the end of the war of 1948, of those who were not now refugees, the remaining Palestinians were subject to three foreign political regimes. Israel had succeeded in its occupation of 78% of historical Palestine, Egypt had assumed control of the Gaza strip until 1967, and Jordan had finally completed its years long ploy to absorb the West Bank and East Jerusalem until it withdrew authority completely in 1988. King Abdullah of Transjordan, King Farouq of Egypt and King ‘Abd Al-Aziz ibn Sa’ud of Saudi Arabia’s direct and indirect dealings with Jewish Agency leaders to negotiate their own acquisition of Palestinian lands prior to the war of ‘48 were a betrayal in themselves. Renewed Palestinian state building efforts after the war by former members of the Arab High Committee, including Ahmad Hilmi, were interrupted by Jordanian authorities who had no interest in relinquishing control of the West Bank and East Jerusalem to an independent Palestinian state . Meanwhile, the AHC, the Palestinian leadership body founded in 1936, was stripped into parts by British authorities in 1937, and reformed after WWII, leaving them politically divided and ill-equipped for effective diplomatic appeals in the aftermaths of the war. In contrast to the deeply well integrated Zionist efforts at lobbying American and British leaders dealing with the destitutions of the Nazi regime, the AHC’s case presented by one of the greatest Arab Historians of the 21st century, Albert Hourani, to the Anglo-American committee, fell on deaf ears . Despite the later successful attempts of newly ‘independent’ Arab states at absorbing Palestinian territory into the purview of their kingdoms, some Arab leaders used what little leverage they could pull together against the colonial powers whose dependency they had not entirely broken off from to pressure the establishment of an Arab Palestinian state. Notably, King ‘Abd Al-’Aziz of Saudi Arabia received the unfulfilled pledge of President Franklin D. Roosevelt weeks before his death to protect Arab Palestinians and take their wish for sovereignty seriously. A pledge that hung over the American oil trade agreements of 1933, which went through anyways despite President Truman’s failure to respect Roosevelt’s promise to the King . 

By 1949, 80% of the Palestinian population was uprooted from their homes and lands by threat of death. Between 720,000 to 1.3 million Palestinians were now refugees. Over the span of a year, the original 17% of the land intended for the Jewish state in 1937 in the Peel commission, as well as the 51% of the land actually allocated in 1948 by Resolution 181 of the UN General Assembly, had grown through violent acquisition to 78% of the territory known as Palestine just 12 months prior . It was clear from the first few months of the Nakba that the Zionist project had no intention of co-existing with independent and self-determining Muslim and Christian Palestinians, not then, nor today. Between November 30, 1947, to the day the Israeli state was established on May 15, 1948, the Haganah and Irgun, the Zionist paramilitaries, dealt decisive blows against the “poorly armed and organized Palestinians and the Arab volunteers” long before the intervention of the Arab armies. The first stage, named Plan Dalet by the Zionist militias, involved the violent depopulation of Jaffa, Haiffa, Arab neighborhoods in West Jerusalem, and the other “largest Arab urban centers” throughout the spring of 1948. Tiberias fell on April 18, Haifa on the 23rd, Safad on May 10th, and Beisan on May 11 . It is important to note that most of these territories were already illegal violations of the appointed territories in Resolution 181. Under the threat of wide-spread destruction, mortars, snipers and the threat of massacres as the slaughter of 100 citizens in Dayr Yassin on April 9th, 77 of whom were “women, children, [and] old people,” the 60,000 Arab residents of Jaffa were evacuated to make room for the expected influx of Jewish immigration. This exodus was not limited to Jaffa, another 60,000 fled Haifa, 12,000 from Safad, 30,000 from West Jerusalem, 6,000 from Beisan and 5,500 from Tiberias . All with a single hope in heart: ana raji’, I will return. In addition to the homicide of living bodies, the Hagganah and Irgun resorted to the targeting of Palestinian Arab institutions, the “urban economic, political, civic and cultural centers” . By the end of the Nakba, a mere 22% of historic Palestine remained unconquered. That number has been diminishing consistently ever since, through expansion of settlements or violent conquest in the hopes of completing the Zionist project of a Jewish Home in ‘Greater Israel’ by erasing the 4000 years of continuous Palestinian history and identity beginning in the Late Bronze Age. A project that has dispossessed and usurped the territorial rights of Palestinians who have descended from the original Jewish, Christian and Muslim ancestry who cultivated the land and culture. 

David Ben-Gurion and Yitzhak Ben Zvi, first prime ministers and presidents of Israel, were “European Ashkenazi Jews who settled in Palestine” and took on Ottoman nationality after studying in Istanbul where they would take on the Arabic and Turkish languages. In response to the land offered to the novel Israeli state, the leader of the Zionist movement in Palestine, Ben-Gurion, expressed to his colleagues dissatisfaction with the land acquired . Modern day Israel has continued to make the choice of expanding settlements into Palestinian territories, even at the expense of the security of its polity. In 1971, the Israeli government under the Golda Meir administration refused a peace treaty offered by Egypt because it would stand in the way of Israel’s colonization of Sinai . In doing so Israel has breached numerous international laws, treaties and ratified UN resolutions which condemn the “annexation of territories as a consequence of military occupation,” and render the annexation of Jerusalem and the Golan Heights “null and void and without international legal effect” . In response, the Israeli Foreign Minister Yitzhak Shamir declared in the Jerusalem Post in 1983 that Israel “did not conquer the territories from their legal owners…[because] what is part of your country you do not annex” . The state of Israel has frequently justified its settlement of Palestinian territories as having been promised exclusively to the Jewish people by God. Nevertheless, earlier Israeli officials’ statements were more forthright on the nature of Zionism and its emergence from historical facticity. Ze’ev Jabotinsky in 1925 clarified that “If you wish to colonize a land in which people are already living, you must find a garrison for the land or find a benefactor who will provide a garrison on your behalf […] Zionism is a colonizing venture and therefore, it stands or falls on the question of armed forces” . The erasure of the colonial nature of Zionism and the millinia of continuous Palestinian identity is a subversion of the factual reality of the region. Deliberate falsehoods propounded by modern Zionist amnesia are tricky, because they remain forceful justifications for the continued dispossession of Palestinians from land, life, and liberty, under the Zionist world view. 

In this case, the legal reality of both a Palestinian claim to its own lands, and by the same international mechanisms which ensure it, the legitimacy of an Israeli state within its prescribed territories, is blurred. Habermas argues that a reconstructive sociology of democracy “does not need a philosophy of history to support it”, rather it is sufficient to track the “legitimating force of the democratic genesis of law” . The legal identity of a Palestinian state precedes its occupation by both the Ottoman Empire and the British Mandate. In parallel, the same UN Resolution 181 that breathed legal and constitutional legitimacy into the Israeli state did so on the same grounds that recognizes the state of Palestine as a legally, geographically and socially enshrined entity. Arendt suggests that “one can spot a lie by noticing incongruities, holes, or the junctures of patched-up places” .  An Israeli state cannot reconcile the idea that the land has always and exclusively belonged to the Jewish people with the longstanding presence of Palestinian culture, people, traditions and institutions alive and well in Palestine. That is, Israel cannot reconcile these presences without erasing this Palestinian history from the collective memory of the region. If Israel were to have been formed in Argentina as Herztl considered in his planning of the Zionist Project, a Jewish citizen of Argentina would never have been able to make a legal claim to any piece of land in the nation of Palestine. Alternatively, a citizen of modern day Macedonia could not make a reasonable plea to annex parts of Egypt in the name of Alexander the Great’s once great empire in 300 B.C. The establishment of UN General Assembly Resolution 1514 made it a commitment of customary international law to prevent new, modern or active colonial campaigns. Without these measures, to prevent countries like Russia from conquering Ukraine, or Israel from completing its colonization of Palestine and the prevention of a Palestinian state, our international legal systems are trivialized. Lest we forget that these systems of international legal accountability were put in place after the loss of over 58 million human beings on the anarchic international stage that allowed our two World Wars. The Israeli state actively attempts to rewrite the factual fabric of the region by laying a historical and necessarily legal claim to a land that was once inhabited by a Jewish majority population before Phillistia underwent its many demographic transformations while retaining its identity as Palestine. Inhabitation of the land however does not produce a constitutional state of Israel, especially when the legal status of the land flows neither from the birthright of being born Jewish nor from a morally bankrupt colonial inquisition by the United Kingdom. The original acrimony was that of British colonialism, the persistent crime is that of unrelenting expansion and military occupation of the West Banks and Gaza, under the guise of a legally and historically legitimate territorial claim. 

Deliberation under Duress

Habermas envisions deliberative public sphere as being “inflated into a structure shaping the totality of society”. Ideally this sphere of deliberation would be infiltrated by the legal system, however this would impair democratic procedures whose “contexts it cannot itself regulate” . An example of this difficulty of such legal penetrations in discourse is it would constrain the capacity of the counter-public to form and challenge institutionalized and legal modes of oppression. Theoretically, this sphere of deliberation could extend to the international community, and the conventions set out by Habermas remain relevant in mediating discourse between two nations such as Palestine and Israel. Practically this would find its limits in a realist account of the anarchic international world order whose sole means of accountability to the consequences of deliberation is the international legal system. In addition to stressing the importance of the international legal and deliberative community in structuring our cross-national deliberations, Habermas’ develops some valuable conditions for processes of deliberation in accordance with Cohen. Deliberation must be regulated by an interlocutor that mediates the “exchange of information and reasons among parties”. The role of this interlocutor is reminiscent of the Arendtian spectator that withholds any fealty to the outcomes of either side of the deliberation, siding instead with rational objectivity and sobriety to the factual truth . Deliberation must be “inclusive and public”, whereas all members of the deliberative sphere that can be affected “have equal chances to enter”. Deliberation must also be “free from any external coercion” and agents must be free to form their own judgements without the interference of other actors. Deliberation must also maintain equality amongst its participants, ensuring a symmetry of consideration irrespective of the power they hold . If all these conditions for deliberation were present, then discourse between Palestine and Israel could have possibly succeeded in a peace treaty. However, the following discussion will elaborate that the presentation of Palestinian-Israeli tensions as a symmetric conflict has obstructed the deliberative peace process. Any real possibility for peace requires Israel to abandon its project of unrelenting expansion and the sense of ‘security’ it receives from interrupting efforts of Palestinian state building. Instead, Pappe finds that the Israeli government understands that without these disingenuous efforts at a “peace process, Israel would become a pariah state and would be exposed to international boycott and even sanctions” . As it stands, the dramatic asymmetry both on the stage of deliberation and power, the “dishonest brokering of the United States” as chief interlocutor , and the Israeli efforts at dissipating Palestinian domestic and international voices for justice, have failed the peace process. 

Power Asymmetry 

After the 1982 war in Lebanon aimed at dismantling the PLO, the sole resistance force against 10 years of Israeli assimilation of the West Bank and Gaza that began after the 1967 war, the first Intifada sparked in December 1987, when 4 Palestinians were killed in the Jabalya refugee camp . Unlike the violence of the second Intifada, the first consisted of a country wide unarmed uprising and civil disobedience, “strikes, boycotts and withholding taxes” led by a Unified National Leadership. This grassroots network consisted of “men and women, elite professionals and business people, farmers, villagers, the urban poor, students, small shopkeepers, and members of virtually every other sector of society” . With the eyes of the world on Palestine, the stark visual contrast between teenage Palestinian demonstrators with stones and the heavily armed Israeli forces following Defense Minister Yitzhak Rabin’s “force, might and beatings” doctrine, made clear the nature of the occupation. The Intifada lasted 6 years until 1993, when the United States, pressured by the shifting public opinion towards Palestinians, organized the Madrid Peace conference of October 1991 . The image of the Israeli victim to its irrational and barbaric neighbors shattered, and revealed the steady expansion of two hundred settlements since 1967, the dispossession of homes, the asymmetric struggle of the occupied territories, and the violent suppression of Palestinian flags, colors, trade unions, vocal support for the PLO, or any form of protests. Such resistance was met with “violence, invited collective punishment, house demolitions, imprisonment without trial under the rubric of ‘administrative detention’ that would last for years and even extrajudicial murder” . Even successful mayoral candidates in Nablus, Ramallah, Hebron and al-Bireh were removed by the military occupation, further antagonizing local Palestinians . By 1988, the PLO’s leadership in Tunis formally renounced its one-state aspirations and adopted the Palestinian Declaration of Independence at the proceedings of the Palestinian National Council in Algiers on November 15. The text was the direct effort of Palestinian academics and intellectuals, notably Mahmoud Darwish, Edward Said and Shafiq al Hout; a document accepting the two state solution of 1967 outlined by UN SC242 and SC338 as the foundation for a peace conference . By December, Yasser ‘Arafat of the PLO recognized the right of Israel for existence “in peace and security, and renounced terrorism” as the imposed condition for US mediated negotiations . An effort that would go unacknowledged by Israel for 3 more years. Nevertheless, a peace process was underway, one that would neglect the Habbermasian conditions of equitable access to deliberation, an impartial mediator, and equal consideration of interests when arriving at a resolution (all too evident in the destructive fallouts of the Oslo Accords for Palestinians).

Habermas argues that deliberation requires a symmetry of power. Now, that is not to say that a state like the United Kingdom could not deliberate with the Ivory Coast because they are radically asymmetric in their power distributions. Rather, if the UK’s power structures were dependent on the diminishment and repression of Ivorian power, then deliberation between the two nations on the alteration of these power dynamics could prove biased and unmitigated. The traditional response would be to bring in an objective interlocutor that is detached from both nations’ interests in order to mediate the exchange. If the interlocutor however, is deeply invested in the military and economic success of the United Kingdom’s repressive policies, then one would have to question the outcome of their intervention, especially when the outcome further entrenches the asymmetric relation that the Ivory Coast suffers from. From the outset, the conditions of the negotiation process neglected the ideal conditions of communication in the Arendtian and Habbermasian models, or any common sense of justice. The most important, rudimentary and substantial aspiration for Palestinian self-determination was non-starter under the indirect Israeli veto through the US-led mediation. The mutual recognition of Israel and the PLO occurred in September 1993 in Washington, where both parties signed the Declaration of Principles between Israel and the PLO as the foundation for a peace treaty based on UN resolution SC242. Two years later, the first, and last Israeli President to acknowledge the existence of a “Palestinian people, accepting the PLO as their representative,” but not their independence or statehood, would be assassinated in October 1995 by his opposition, Yigal Amir – a staunch proponent of the religious-nationalist motivation to enact a Greater Israel at the expense of the living, breathing Palestinians – whose party would come to dominate Israeli politics ever since . SC242 contained no mention of the “Arab state specified in UNGA Resolution 181 in 1947,” nor the right of return for refugees “mandated by UNGA Resolution 194 of 1948.” The legalistic ill-will of SC242 preserved the Israeli ambition to expand past the 1967 borders by mandating “withdrawal from ‘territories occupied’” in 1967 (rather than ‘the territories occupied’). As the basis of negotiations, 242 was biased  against the genuine Palestinian right and wish for liberation and self-determination . Given the PLO’s significantly stunted negotiation position after the Gulf states withdrew their financial support when the PLO aligned itself with Saddam Hussein’s Iraq during the Gulf wars, an alignment that was strong armed by Hussein’s regime, the PLO was set up for a bad deal in Madrid, Washington and culminated in the reinforced structural occupation that the Oslo Accords sedimented in Palestine . 

Communicative asymmetry was evident when the PLO and the Bush regime initially “acquiesced to [Yitzhak] Shamir’s condition that there would be no independent Palestinian representation,” not a PLO member, citizen of Jerusalem nor members of the diaspora. Shamir, the prime minister of Israel in the late 80s, much like his successors in Likud, Ariel Sharon and Bibi Netenyahu, and other parties in the right leaning Israeli political spectrum, opposed (to varying degrees) the formation of a Palestinian state at all costs. It was only after Bush’s secretary of state James Baker responded to Shamir’s position on Palestinian participation in negotiations, by publicly offering Shamir the White House’s landline stating “when you’re serious about peace, call us,” that Shamir  agreed that the PLO be represented by a joint Jordanian-Palestinian delegation . That was, at least until 1993 when Shamir found it strategically favorable to allow the PLO’s own delegation, Husayni and ‘Ashrawi, to participate in negotiations given their limited legal and diplomatic knowledge, despite vilifying and debasing all grounds for their credibility as peace partners for years prior. This move only came after the Palestinian-Jordanian delegation, after months of US mediated bi-lateral peace processes in Madrid and Washington with Israel, in which notably Rashid Khalidi a Professor of Modern Arab Studies at Columbia University, was instrumental, put forth a comprehensive proposal for a Palestinian Interim Self-Governing Authority (PISGA) in the Washington negotiations of 1992. Unlike the Oslo Accords, which would effectively reinforce Israel’s occupation in Palestine by reserving “all power over security, land, water, airspace, population registers, movement, [and] settlements”, until the present day in 2024 the PISGA aimed at grounding Palestinian self-determination and democratic elections in the West Bank, Jerusalem and the Gaza strip on the fertile grounds for state-building of “complete jurisdiction (but neither sovereignty nor full security control) over the air, land, and water of the entirety of the Occupied Territories,” settlements “(but not settlers),” and Palestinian inhabitants. The PISGA required the halting of settlement expansions and the withdrawal of Israeli troops to their prescribed boundaries under international law. Israel was unwilling to retract from the Zionist doctrine of “exclusive Jewish right to the entirety of [historical] Palestine”. The American mediators were also ‘unable’ to deviate from US President Ford’s 1975 commitment to Rabin to reject any peace proposal that challenges Israel’s position. As a result, all substantial aspirations for liberation from a decades-old slow, expanding and violent colonization and occupation, were left out of Oslo. The right of Palestinian self-determination, “sovereignty, the return of refugees, an end to occupation and colonization, the dispossession of Jerusalem, the future of the Jewish settlements, and control of land and water rights” were relegated to a mythic “final status” negotiations intended for 1997, extended to 1999, and has not seen daylight since.

Oslo divided the remaining Palestinian territories into three sectors: Area A (18% of Palestinian lands) under the administration and security control of a Palestinian Authority whose primary responsibilities are to settlers and Israeli interests; Area B (22%) under PA administration and Israeli military control; And Area C (60%) “under complete, direct and unfettered Israeli control.” These three sectors were designed to divide the West Bank from Gaza, and fragment the West Bank with military checkpoints and electrified fences carving out which plots of the Palestinian Territories are accessible or foreclosed to Palestinians. The PA’s official role, devoid of authority, sovereignty or jurisdiction became, as Gen. Shlomo Gazit described Yasser ‘Arafat’s two choices in 1994, either to be a “Lahd or a super-Lahd” – a reference to Antoine Lahd, a Lebanese commander of the Israeli-controlled, armed and sponsored South Lebanese Army “tasked with helping to maintain Israel’s occupation of South Lebanon from 1978-2000”. By the time of the Oslo Accords, the newly welcomed PLO delegation failed to appreciate that the limited self-rule reinforced, and in fact entrenched, Israeli military rule of Palestinian lands, waters, borders, taxes, governance and mobility that Oslo implied by ‘autonomy’. This time around, the costs of occupation and rule by military force was relegated to the Palestinian Authority whose security forces were under strict oversight to answer directly to the Israeli state, expanding settlement, and settler interests. 

It became evident through negotiations that Shamir and most of his successors in the Israeli government were unserious about a peace process that would necessarily require the abandonment of the Zionist doctrine of Jewish governance of entire historic Palestine. Even as the Madrid conference was underway, Shamir’s government continued the expansion of settlements and denial of Palestinian entry into Jerusalem. In response, and with a sympathetic yet truly restrained good faith towards Palestinian interests in liberation, the Bush administration withheld a ten billion dollar loan intended to aid in the resettlement of Russian Jews. A longstanding symbol of equitable peace meditation that would entirely disappear when Baker would be called back to oversee Bush’s re-election, when Bill Clinton took office in November, and the peace process was co-opted by US mediators less sympathetic to, and less experienced in, Middle Eastern politics. By November, it became clear that the climate of the State department had changed; those sympathetic or even simply knowledgeable of the necessary conditions for peace with the Palestinians would be increasingly vilified by politicians sponsored  by the American Israeli Public Affairs Committee (AIPAC) lobby, which labeled such state representatives as anti-Israeli or anti-semetic for not pushing the Israel-centric view of steady consumption of Palestinian land and autonomy into non-existence. The only solution acceptable to the Israelis, one entirely inconsiderate of Palestinian liberty, was Begin’s 1978 vision in Camp David for an ‘autonomous’ Palestinian people living on Israeli occupied land. In other words, a single Israeli state in historic Palestine for the Jewish people who were the sole legitimate sovereign peoples allowed to exist and self-govern politically, legally, and territorially. A hardlined position that would cost generation after generation of Palestinians their lives, lands and rights to self-determination until the present day. 

Whether Clinton’s clear neglect of Palestinian interests, and blind support for the Zionist cause of uncessing colonization, has been an unfaltering trait of US mediation is subject to inquiry. The relationship between Zionism and the emerging American superpower was initially activated in the formation of the Anglo-American committee of Inquiry in 1946, tasked with the urgent Jewish refugee crises rising from Europe. The committee found it preferential to migrate displaced Jews to Palestine than to accept the influx of refugees. In Israel’s early days, when he was pressed by large coalitions of American policymakers, including Secretary of State George Marshall, “Dean Acheson, George Kennan, and other senior officials,” to take more seriously the harm that this unconditional support for Zionism would pose on US interests in the Arab World, President Truman responded, “I am sorry gentlemen, but I have to answer to hundreds of thousands who are anxious for the success of Zionism. I do not have hundreds of thousands of Arabs among my constituents”. An attitude that would not falter with future Presidents who were increasingly answerable to hundreds of thousands of Arab constituents. These internal pressures however, were well reflected in the absence of massive US military and economic support, and a trigger-happy UN veto insulating Israel from accountability to international law.  Nevertheless, the shift in US policy towards blind support for the Israeli state was brazen from the 1970s onwards. 

By 1975, Kissinger’s commitments to Israel “locked US policymakers’ feet in cement” when determining policy towards Palestine. This effort made synonymous the US’ role as interlocutor and its US policy of unconditional alignment with the functional interests of Israel. Israel, in effect, entered these peace negotiations with veto powers over what concessions it was willing to make with the Palestinians, whose rights to self-determination, sovereignty and statehood were, to this day, never recognized . International security studies consider at least five dimensions of security “military, political, economic, societal and environmental” . These dimensions of security can either represent the state’s coercive force or its defensive capabilities. In turn, the leverage of that power in processes of international deliberation can aid in the state’s interests to either protect their borders or serve to expand them. In 2020 alone, the United States gave 3.8 billion dollars in military funding to Israel as a part of the $38bn package agreed on by the Obama administration in 2016 . Israel is a key global supplier of advanced weaponry, “including drones, millises, [and] radar technology”. This vast and well-equipped military has been instrumental in ensuring a successful military occupation of Palestinian territories since 1967. Israel’s alliance with the US also expands its social power of the state significantly. Article 27 (3) of the UN Charter granted the US and other permanent members the power to veto Security Council resolutions (UN Charter). Since 1972, the US has exercised its veto powers over 53 times against overwhelmingly ratified resolutions that condemn the Israeli colonial settler project. Security Council resolutions 242 (1967), 478 (1980), 497 (1981) all stand by the  “inadmissibility of acquisition of territory by war” . The Security Council and the International Court of Justice have both found Israel in breach of the Geneva Convention as it pertains to the Protection of Civilian Persons in Time of War (1949) . Article 49 of the Convention prohibits the transfer of civilian populations to occupied territories. In response, a US-backed Israel has taken the position that “the fourth Geneva Convention is not applicable to the Israeli occupation of the West Bank and Gaza'' in 1949, nor to the occupation of Jerusalem in June 1967 . It is rather important to note here that this unconditional support has never been the result of an existential threat to the Israeli state, but rather the profitable interests of the American and Israeli military and energy industrial complex. Even in 1967, it was made clear to President Lyndon B. Johnson at a meeting in Washington on May 26 by representatives of three distinct intelligence groups that if Egypt were to attack Israel, Johnson concluded “you will whip hell out of them.” 5 years after the war, 5 Israeli generals confirmed their assessments, reflecting much of the same conclusions as the US intelligence has, that “Israel was not imperiled by annihilation” .

Breaches of a ratified UN Charter that mandates all signatories should “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State” can be considered facts. The interpretation of the contexts of these facts remains politically charged. Israeli reporters and society at large have often charged the UN, its Human Rights Council, its International Court of Justice, and Security Council, with being anti-semetic, or more aptly, anti-zionist. The litany of investigations and resolutions on Israeli breaches of international law (including: The Hague Conventions and Declarations of 1899 and 1907, The Covenant of the League Nations, The Geneva Protocol of 1924, The Kellog-Briand Pact of 1928), and human rights violations seems disproportionate to other nations. Despite this clear disproportionality in allegations against Israel made by the international community, Israeli government after government have not altered the policies claimed to be in breach of international law. The sole power that has prevented these allegations from becoming convictions has been the US. Not only does military and socio-economic power have the capacity to obstruct the natural conclusions of international forums of world-spectators, but it also has the ability to rewrite the factual fabric. Power writes the stories we hear, who is a resistive combatant and who is a terrorist, who was killed ‘because they wanted to step in front of the gun’ and who was murdered. However, as Arendt puts it, these “images have a relatively short life expectancy”, they are unstable and require constant upkeep, while factual truth benefits from being freely accessible through actuality . So long as the actuality of Israeli settlements and military occupations persist, their breaches of international law remain unchanged.

Max Webber defined a state as a “human community that successfully claims the monopoly of legitimate use of physical force within a given territory” . The exercise of Israeli military and social power has been used to obstruct the facts of Palestinian statehood that precede deliberation. In parallel, the Oslo Accords allowed the Palestinian Authority (PA) to establish a police force of up to 30,000 members “who were authorized to carry light weapons.” The Palestinian Authority has no military, no land army, no navy, nor an air force . In effect, the continued Israeli military occupation that Oslo facilitated, dissipates a Palestinian monopoly of legitimate force, and denies the Palestinian Authority a Webberian conception of statehood, and a centralized social coercive power that serves Palestinians under Palestinian laws. The Oslo Accords displaced Palestine’s independence within “an existing unipolar world order” where the US was the dominant force and Israeli expansion was inevitably on the event horizon for Palestine . By 1993, at the time of the Oslo Accords, the Soviet Union and its allies were still reeling from the Cold War and were no longer available to assist the Palestinian national movement militarily, economically, or diplomatically” . After the Gulf War, Palestinian support of Iraq, given the PLO’s dependency on Iraqi military, economic and political support , led to the withdrawal of economic support from other Arab nations. In addition, leading into the Abhram Accords, Gulf states have found it more profitable to enter into economic alliances with Israel and the US at the expense of Palestinian liberatory objectives . Until 2019, the US was the biggest contributor of financial aid to Palestine. Under the Trump administration, aid to Palestine and Palestinian refugees through the UNRWA ended . In addition, the IMF and World Bank, “both US-dominated”, are instrumental in the redevelopment of crippling economies . Leaving Palestine at the mercy of its occupier’s allies. 

Occupation of an Embryonic Constitution 

The 1994 Cairo agreement on the Gaza strip and the Jericho area implemented the 1993 Declaration of Principles on Interim Self-Government Agreements. It sought to reinstate Palestinian legal and political control over the territories covering the Gaza Strip and Jericho under Article V. However not all legislative, executive, and judicial functions were renounced by the Israeli Military Government. They reserved the right to control foreign relations, external security and insulated Israeli settlers from Palestinian civil suits . It is important to note that while Palestinians are still subject to Israeli Law, Israelis have been impervious to Palestinian Law until 2020. 

Under the Oslo accords the Palestinian Liberation Organization was given a 5 year autonomy period where they would draft an interim constitution, the Basic Law. This law would serve as a benchmark for Palestinian independence supported by a constitution. The Basic Law did not come into effect until 2002. The Basic Law was not acceded to because it was contextualized within a “unipolar world order with the United States as the sole superpower, and an ongoing Israeli occupation in the Palestinian Territories” . The outcome is inconsistencies in the pith and substance of the Basic Law exposing clashes between Palestine’s autonomy in 1998, and its aspiring independence. This constitution would have served as a legislative framework under which Palestine would attain an internationally recognized statehood, from which Palestinian corporations would draw legal personhood and contractual identity, and Palestinian institutions and civil societies would fall under. Constitutions serve the role of making a state into a Rechtsstaat or an état de droit, which holds both the constituents and the state accountable to a set of national values and legislative benchmarks. This agreement legitimated Israeli military rule as well as the “well documented international human rights violations that ensued” from this patriarchal effort at assisting a Palestinian democracy . The policies affected by the military occupying force, and the constraints placed on Palestinian political and civil society, suggest the intentions of the Israeli state and the Western interlocutors were not to facilitate a Palestinian democracy but rather the Israeli expansion into Palestinian territories. These continuous efforts at undermining Palestinian independence have obscured the objectives of a deliberative process intended to result in peace. 

The Basic law sought to begin a long route towards state-building that required a formal body of centralized democratic power. The President would be elected by the people and kept in check by the Palestinian Legislative Council, and in 1993 onwards by a Palestinian Independent Commission for Citizen’s Rights. The law would ensure the society was pluralistic, equality before the law would be respected and individual liberties insured. It also established laws that would protect citizens’ rights to physical integrity, political activity, freedom of worship, expression, freedom of the press, rights to fair trials, rights to access courts, and economic and commercial freedom. Habermas viewed a democratic constitution “not [as] a possession we simply accept” but rather “it is a project we must carry forward in the consciousness of a revolution both permanent and quotidian” . A democratic republic such as Palestine under a living Basic Law requires effective democratic institutions in order to performatively legitimize its rule and develop a healthy civil society. 

Despite earnest efforts to proceed on the path of a fully fledged constitutional democracy, this process was interrupted as crucial Palestinian state-building tools have been seized by the Israeli state. The ongoing occupation and massive land seizures in 1967 allowed Israel to command a significant number of the water supplies available to Palestinians territories and thus their agricultural output . In addition, the Protocol of Economic Relations (1994) offered Israel the right to collect and withhold $180 million Palestinian taxes as a negotiation tactic, effectively eliminating the PLA’s ability to stabilize the economy or pass fiscal policies. Israel halts trade between Palestinian cities and imposes tariffs on their sale in Israel, withering their chance at building a sustainable market. In addition, the “frequent Israeli border closures is a deliberate tactic to hurt the Palestinian economy” . Moreover, circulation of Palestinians and goods between Palestinian cities requires a permit that must be obtained from the often dismissive Israeli Military. According to Kanthan Shankar, the World Bank Country Director for the West Bank and Gaza, the economy still suffers from restrictions on movement, access, and trade-- the biggest impediment to investment and access to markets” . The unemployment rates have reached 47% in Gaza compared to 16% in the West Bank . The dramatic rise in unemployment rates in Gaza were also accompanied by the rise in crime rates amongst the youth that found it easier to be employed by gangs than a practically non-existent industrial sector . Habermas argues that the law and political power “must fulfill functions for each other”. The law “requires a normative perspective, and power an instrumental one” . With no formal legislative protection against the dissipation of the Palestinian Authority’s power, this gave way for the consistent undermining of these rights by Israeli policies and forces. Without such a mechanism to combat Israeli transgressions on Palestinian rights, and Palestinian transgressions on Israeli rights, Palestine is left at the mercy of international protection. 

Deliberation under a Legal Panopticon

Foucoult describes the prisoner of a panopticon as being at the receiving end of asymmetrical surveillance: “He is seen, but he does not see; he is an object of information, never a subject in communication”. The asymmetrical power relations between Israel and Palestine, especially in regard to their judicial authority, renders Palestinians the objects of legal consequence but never the subjects of legal retribution. In some zones, Palestine has been accorded complete authority over its rule of law, in other zones shared jurisdiction with the Israeli state, and on some Palestinian territories complete jurisdiction to the Israeli authority. Military order 947 gave Israeli settlers the capacity to establish “civil administrations” on Palestinian territories with the aid of the military that would help dismantle the lawfully elected municipal councils and mayors after 1967 . In addition, Article 3 of Order 898 allows settlers to make citizens' arrests if they suspect Palestinians of committing a felony punishable by 5 years imprisonment under Israeli Military law . Israeli settlers would be able to enforce Israeli law, hold a centralized monopoly of force on Palestinian territories whose resistance would be deemed terrorism. In tandem, by 1980 the UN Special Committee reported “rampage by Israeli settlers on a large scale, damaging property, afflicting personal injuries and in certain cases death in the occupied territories (A/35/631, 373). The injured included the Mayor Shaqaa of Nablus and Mayor Khalad of Ramallah in 1980. The 1981 Report of the Special committee confirmed that the Israeli state and military forces were supporting these attacks on Palestinian territories . And yet, Palestinians were denied any legal recourse, be it in a Palestinian, Israeli, or authoritative international court.

According to agreements signed between Israel and the PLO, including the 1993 Declaration of Principles on Interim Self-Government Agreements, the PA’s territorial and functional jurisdiction does not apply to Israeli citizens, including those living in the settlements. It was not until 2020 that the PA declared that Israeli citizens can now be sued for their illegal settlements. Palestinian law now permits the prosecution of a foreigner, including settlers “who reside within the Palestinian territorial jurisdiction over the occupied land.” Given that illegal settlements are a war crime punishable by law in accordance with the Fourth Geneva Convention and the statute of the International Criminal Court, Shalaldeh says that  “If the [Israeli] side refuses the jurisdiction of the Palestinian courts, formal procedures will be followed and in absentia rulings will be issued, in accordance with Palestinian laws.” Israeli failure to carry out the PA court decisions will allow Palestinians to bring them before the International Criminal Court . A bold move to be sure, it is questionable whether Israeli settlers, military tribunals, or civil courts will accept these in abstentia rulings and prosecute on behalf of Palestinian courts.

In 1979, in the landmark case of Dweikat et al v The Government of Israel, the High Court of Israel held the land acquisitions are no longer valid under unilateral military seizures, but instead required a ‘legal basis’. Prior to this case, the Military order 291 of 1967 issued by the West Bank’s area commander “suspended all operations of the settlement of disputes over land law,” effectively placing all Palestinian lands under military prospective occupation for ‘security reasons’ . The Elon Moreh settlement in the West Bank was no longer conflict-ridden however, rendering the security justifications of military land grabs ineffective. After a settler protested the constitutional validity of this settlement on security grounds rather than ideological ones, the Court “held that the Hague Regulations of 1907 were binding on Israel’s governance of the territories occupied in 1967”. The outcome was a self-imposed illusion of constitutional limitation on Israeli settlements. The court held that any property will be considered state property unless proven otherwise by a Palestinian claimant. Military Order 172 gave a military committee the jurisdiction of hearing these appeals. Not only did the court assume in absentia authority over Palestinian lands that have yet to be formally claimed, but also put the onus on Palestinian claimants to prove this land belongs to them before a historically indifferent military tribunal. 

The question remains, why the Palestinian legal system was subject to these state-wide land grabs of private land? Until the Jordanian regime amended the Palestinian laws governing land, the system in place was the Ottoman Land Code. Under the Ottoman code, all land was beholden to the raqabah (the ultimate ownership) of the Amir . It was not until the Jordanian law No.49 of 1953 “removed all restrictions previously existing on the use” of that land . The state’s authority over private lands, however, facilitated the Israeli state to illegally assume itself the successor to the Amir’s authority by military conquest. Rather than having to contend with individual land claims, Israel could absorb the title of owner by mere declaration and place the onus of proving private land claims on Palestinian citizens. 

Although a reasonable exploration of property law in Palestine places the land in Palestinian hands, a combination of Israeli military power and quasi-constitutional entrenchment of an independent legal system, allowed for unilateral deciscions in a process of legal deliberation. It is worthwhile to note, that I refer to the Israeli territorial oversight as the result of “quasi”-constitutional entrenchement because Israel has yet to produce a constitution, given that this would require fixed territorial boundaries it is not yet ready to abide by given its incomplete colonial project of a Greater Israel. Both the Ottoman system and later local Palestinian and Jordanian governments “acknowledged that the land surrounding the village was for the use of villagers”. In fact, when the High commissioner of the British occupation of Palestine absorbed the title of sultan and owner of all lands in Palestine, this control was quickly renounced back to a provisionary Palestinian government. The government of the British Mandate re-defined Palestinian public lands under Article 2 of the 1922 Order-in-council as “all lands in Palestine which are subject to the control of the government in Palestine by virtue of treaty…” . This effectively placed public lands under Palestinian governmental control prior to the inception of Israel. Despite this evidence, the Israeli high court selected the evidence necessary to afford itself pseudo-legal proprietorship over a Palestinian land it occupied under military control. Traditionally, Palestinian land disputes were settled by a system of customary law with no formal codification or registry of land claims . In a parallel example, indigenous tribes of the American continent lacked the bureaucratization of the law that European colonial authorities necessitated in their legal world view. This made it easier for colonial authorities’ claim to land under the British legal system and placed the onus on indigenous tribes to bring their appeals to the largely indifferent local authority to prove their land claims .

The difference between Canadian Indigenous interactions with Canadian federalism clarify the impact of legal asymmetry on deliberation. The Indigenous communities deal with the retrospective consequences of colonization come and ‘past’, in turn, the Canadian government recognizes the responsibility of historical colonial injustice. In contrast, the Israeli colonial project is incomplete, ongoing, and yet to reflect on itself as unjust. This respect for the original crime of Canadian settlement on First Nation lands means that there is express intent in navigating those shared borders in a way that is favorable to the autonomy of the Indigenous community. In Nowegijick v the Queen p.36 [129] the precedent acts as a guideline for resolving uncertainty in the favor of Aboriginal interest . In fact, S35 of the 1982 Charter of Canadian human rights absorbs responsibility over Indigenous prosperity into the federal agenda . According to Al Benoit, the Chief of Stadd of the Manitoba Metis Federation “the concepts of recognition [of Indigenous autonomy] and revitalization are intimately linked” . For independent legal authorities to convene in the same jurisdiction, an intimate and mutually appreciative relationship of collaboration is required. While the 1994 agreements layed out the foundations for a strong relationship between Palestine and Israel in which each recognizes the legitimate existence of both independent and self-contained legal systems, the outcome was far from. 

The functional problem with the interjection of Israeli Law into Palestinian civil life is that the colonial project has neither been halted nor deemed unjust, and thus no fiduciary responsibility over the Indigenous community has been taken up by the Israeli legal system. The inherent problem of having an authoritative Israeli military law in Palestine is that “the legislative authority can be attributed only to the united will of the people”. As Habermas argues,”all right and justice” must flow from the “united and consenting will of all” . Only this force can legislate, not a foreign body of citizens that antagonize the Indigenous community. Rousseau’s concept of autonomy was that “a law exists only for the one who has made it himself or agreed to it; for everyone else it is a command or an order”. Israeli Military law was not made in the popular nor consensual will of Palestinians, and thus pervades the legitimate rule of law in Palestine. In fact, at the centre of Palestinian interests for liberation sits the right of return. The Israeli Absentee Property Law stands in the way of the right to Palestinian return. It stipulates that any Palestinian that has left the West Bank “before, during or after the time of the 1967 war” has forfeited their claim to the land that was historically occupied by them .