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Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part IV: Asli Bali)

[Image from unknown archive] [Image from unknown archive]

[This is the fourth part of a six-part series associated with a Jadaliyya roundtable discussing the relevance of occupation law to the Palestinian-Israel conflict at this historical juncture. Participants include Darryl LiLisa HajjarNimer SultanyAsli BaliAhmed Barclay, and Dena Qaddumi. A description of the roundtable can be found here.] 

Darryl Li has made a valuable contribution to debates concerning the application of international humanitarian law in the Israeli-Palestinian context. One of the most vexing aspects of the occupation from the perspective of international law is the tension between two widely held views: One view maintains that the appropriate international framework for understanding the obligations of the Israeli government as the belligerent occupant of the territories it gained control of in 1967 is the Fourth Geneva Convention (GCIV). The other maintains that GCIV was not written to address long-term belligerent occupation on the scale and duration undertaken by Israel and therefore does not provide an adequate legal framework for this context. 

The first view, commitment to the applicability of GCIV, has long been an article of faith among international lawyers, particularly those who would resist official Israeli efforts to treat the status of the West Bank and Gaza as “disputed” and who reject Israeli claims that the Geneva Conventions do not apply. (In its advisory opinion on the legality of Israel’s West Bank wall, the International Court of Justice rejected the “missing reversioner” theory that undergirds Israel’s claim that the status of the territories is sui generis and affirmed the applicability of the Geneva Conventions.) This approach was deemed a necessary international legal protection against any attempt by Israel to claim the legal right to either annex or colonize (that is, settle its own population in) the occupied territories. In short, GCIV was deemed not only the appropriate legal framework but also the most attractive option for protecting the rights of the Palestinian occupied population.

The second view incorporates a critique of the idea that humanitarian welfare can be adequately protected through the laws of war when long-term occupation would leave millions of civilians subject to foreign military, political and administrative control. On this account, the occupied Palestinian population’s welfare is insufficiently protected because GCIV does not provide for a social contract between them and their de facto government. The tension, then, arises from the fact that the protections afforded to civilians under international humanitarian law may become an obstacle to the meaningful realization of their human rights under conditions of prolonged occupation. 

Because occupation was understood by the authors of the 1949 Geneva Conventions to be of a provisional nature (with de jure sovereignty over the territory remaining with its civilian population), the law of occupation was understood as an arrangement to meet temporary needs through a balance of the security interests of the occupier and the basic rights of the occupied. Should occupation become durable, however, that balance may no longer be sufficient to meet even minimum human rights standards. In this sense, the law preserving the de jure sovereignty rights of Palestinians has enabled the de facto quotidian denial of the human rights of that same community. The suffering of Palestinians living under the yoke of Israeli occupation for over forty years bears eloquent (and deeply troubling) witness to the urgent need to resolve this tension.

One set of proposed solutions advocated by some international lawyers relies on the introduction of standards drawn from human rights law into a more demanding and comprehensive law of long-term occupation. Under such proposals, the belligerent occupant would assume a greater role in the governance of local affairs than contemplated by GCIV. That role would entail obligations drawn from the (peacetime) human rights regime, such as those related to the protection of human dignity and the rights to education, welfare, health, family, privacy, work, property ownership, freedom of religion and so on. In other words, a separate and higher standard of obligations would be imposed on belligerents that deliberately prolong their occupation of territories seized in war. The balance between the security interests of the occupier and the human rights of the occupied would shift further and further in the direction of the latter with every additional year of occupation. Taken to its logical conclusion, this solution would eventually result in Li’s proposition that the full human rights of the population under occupation in the long-run will require their full enfranchisement.

But this logical conclusion has rarely been articulated, for reasons that are readily apparent. If belligerent occupation becomes permanent and if arguments in defense of human rights eventually require the enfranchisement of occupied population in the state of the occupier, occupation devolves into annexation. For decades Palestinians have resisted precisely this outcome—the annexation of the Palestinian territories (or perhaps, more accurately, the West Bank including Jerusalem) to Israel—because they identify such annexation as coterminous with the extinction of their national rights of self-determination and sovereignty and the abandonment of the cause of a Palestinian state. For instance, those on the Palestinian side who argue for a “one state solution” (reuniting all of the territories of mandate Palestine under a single sovereign) typically frame their arguments in terms of a united Palestine (albeit democratic and secular) rather than an enlarged Israel. Li’s article is refreshing precisely because, through careful analysis of the status quo, he offers an explicit argument for pursuing Palestinian enfranchisement in Israel as an alternative to the two-state solution or the conventional framing of the one-state solution.

Li’s argument centers on one core insight: the full enfranchisement of Palestinians through the annexation of the Palestinian territories to Israel may represent the only viable means for the realization of Palestinian rights of self-determination, sovereignty and self-governance. In other words, under present circumstances only through the creation of a democratic social contract between the state of Israel and all Palestinians subject to its administrative, political and military control (on both sides of the Green Line) are Palestinians likely to achieve meaningful participation in any self-governing polity.

Understanding self-determination (and sovereignty) in terms of a right to direct representation in the political institutions of governance (rather than secession or partition) is broadly familiar in the realm of international human rights. By shifting the focus away from the law of occupation to the question of how Palestinians might achieve the right to participate in the government that controls their territory, Li highlights the fundamental injustice that durable occupation has wrought: maximizing Israeli discretion in its treatment of Palestinians under occupation while legitimizing de jure discrimination against them. As he puts it, the law of occupation has diverted attention from the core question: “why the people of Beit Hanoun in the northern Gaza Strip and Sderot in southern Israel should live as neighbors under the same supreme authority for over four decades, but with entirely different sets of rights.”

An honest and realistic accounting of any one-state scenario will have two logical corollaries at the current historical juncture: the annexation of the occupied Palestinian territories to Israel; and the transfer of the long struggle for Palestinian rights from the inter-state arena—expressed through the language of the laws of war and sovereignty—to the intra-state arena, in the idiom of human rights and anti-discrimination. However, it would be a mistake to interpret this shift as extinguishing Palestinian rights of self-determination and sovereignty. To the contrary, Li suggests that this reconceptualization of the question will enable Palestinians in the here-and-now to make cognizable legal demands for equal status, rights and political self-representation on the territory they inhabit. In other words, Palestinians will enjoy a legal right of political belonging, backstopped by the full spectrum of international human rights law, through a social contract that entitles them to political representation in, and equal rights under, the polity that governs their territory. Enfranchisement would, in this sense, be a realization of the right of self-governance which is at the core of demands for self-determination and the meaning of sovereignty.

Considered in light of the historical record of the relentless expropriation and colonization of the Palestinian territories and the disenfranchisement of the residents of those lands, the law of occupation has facilitated massive repression without affording Palestinians any opportunity to realize their rights. The reversal of the decades-long settlement policies that have enabled half a million Israelis to inhabit Palestinian lands is, as a practical matter, unattainable. The goal of the present Israeli government appears to be maximizing control over the lands and resources of the occupied Palestinian territories (particularly of the West Bank, including Jerusalem) while minimizing Israeli obligations to protect the humanitarian welfare of the Palestinian population. As Li suggests, one logical means of accomplishing this goal would be to adapt the South African bantustan model.

Arguably, this is what the forms of “autonomy” afforded to the Palestinians under the Oslo Accords have accomplished. The Israelis relieved themselves of their duties towards the Palestinian population while herding them into smaller and smaller enclaves (“Areas A” in Oslo parlance) of putative self-rule in a sea of Israeli-controlled lands which their Palestinian inhabitants and owners may no longer access (in “Areas B and C”). By contrast, requiring Israel to confer citizenship rights on the occupied populations would reverse this trend. Palestinian citizenship would either generate far greater obligations on the state of Israel to secure the welfare of all of the inhabitants of the territories (and limit government discretion in the discriminatory disposition of land) or it would result in democratic reversal, with Israel openly embracing a system of de jure discrimination in its constitutional order.

The latter scenario might not result in an immediate improvement in the conditions and rights of Palestinians in the occupied territories, but it would certainly deprive Israel of any claim to international legality or legitimacy in the continuation of its current policies. Such a scenario would at least have the benefit of laying bare the reality of the discrimination underlying Israeli administration of the territories. Further, it would likely provoke a crisis of identity in Israel’s self-understanding as a democracy and galvanize a broader international movement in defense of Palestinian rights.

The Palestinian Authority (PA) is, at present, pursuing a statehood bid at the United Nations. The meaning of this initiative, its scope and implications, have yet to be clarified by the leadership of the PA (as of the time of this writing). Without knowing more about the details of the proposal, some have argued that it may run the risk of ratifying the view that self-government in the Area A enclaves is sufficient to meet the requirements of Palestinian self-determination and sovereignty. Others worry that the statehood bid runs the risk of undermining the right of return of Palestinian refugees, by reducing the rights of the Palestinian community to those living in the West Bank and Gaza. Whether or not these risks are realized, they reflect the severe constraints that four decades of belligerent occupation have placed on a conception of Palestinian self-determination through a “two state solution.”

The most important implication of Li’s analysis, to my mind, is shifting the framing of the self-determination question away from the law of occupation in a way that recognizes (and averts) these risks. Li has put in relief the most important implication of the spatial configuration—resulting from ever-accelerating colonization—that today characterizes the occupied Palestinian territories. Nearly half a century of settlement policy in violation of the law of occupation has resulted in the (territorial and political) diminution of any two-state arrangement at the expense of the Palestinians. Under present conditions, then, enfranchisement as citizens of Israel may be closer to a realization of the rights of self-determination and sovereignty for the Palestinian community than preserving a conception of Palestinian rights grounded in the law of occupation. 

[Click here to read Part V by Nimer Sultany.]

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