This Israeli regime is not limited to the Palestinians living in the occupied Palestinian territory (oPt), but it is also targeting Palestinians residing on the Israeli side of the “1948 Armistice Line” as well as those living in forced exile. Reflections on whether a one or two-state solution would be the appropriate means to end the injustice and suffering in historic Palestine overlook the fact that one legal entity has already been established within that specified territory: Indeed, Israel’s treatment of non-Jewish Palestinians throughout Israel and the oPt constitutes an overall discriminatory regime aiming at controlling the maximum amount of land with the minimum amount of indigenous Palestinians residing on it.

The main components of that structure discriminate against Palestinians in areas such as nationality, citizenship, residency rights and land ownership. This system was originally applied in 1948 in order to dominate and dispossess all forcibly displaced Palestinians, including the 150,000 who were able to remain within the borders of the “1948 Armistice Line” and later became Palestinian citizens of Israel. After the occupation of the remaining part of historic Palestine by Israeli forces in 1967, this territory became subjected to the same Israeli regime. In essence, the intention to colonize historic Palestine on the expense of its indigenous Palestinian population goes back to the beginnings of the Zionist Movement, decades before the creation of the State of Israel.

Zionist Movement

The Zionist Movement was formed in the late Nineteenth century with the aim of creating a Jewish home through the formation of a ‘…national movement for the return of the Jewish people to their homeland and the resumption of Jewish sovereignty in the Land of Israel.’[1] As such, the Zionist enterprise combined the Jewish nationalism which it aimed to create and foster, with the colonialism of transplanting people, mostly from Europe, into Palestine with the support of European imperial powers. Jewish history was interpreted towards constructing a specific Jewish national identity in order to justify the colonization of Palestine. Basically, the movement had to define the “Jewish people”, therefore a national identity had to be created and this identity had to be linked to Jewish presence in Palestine during the first century CE. Here it is important to note that like any other national identity it cannot be traced back to a natural development and was instead constructed based on the concept and wishes of its creators. As a result, all Jewish people around the world were part of one and the same nation, who shared the same history; who admired the same national heroes; and who were united in the longing of returning to their place and home of origin. As Ilan Pappe rightly concludes, however, “Zionism was not… the only case in history in which a colonialist project was pursued in the name of national or otherwise non-colonialist ideals. Zionists relocated to Palestine at the end of a century in which Europeans controlled much of Africa, the Caribbean, and other places in the name of ‘progress’ or idealism…”[2]. What is unique to Israel, however, is the effect of Zionism on the people it has claimed to represent. By basing itself on the idea of Judaism as a national identity, adherents of the Jewish faith around the world would become, as per Israeli law, Jewish “nationals,” whether or not they accepted said classification. To date, Israel continues to define its citizenry extra-territorially.

The creation of a Jewish nation state in a land with a very small Jewish minority could only be conceivable through the forced displacement of the existing indigenous population alongside the implanting of the new Jewish settlers. For the indigenous Palestinians who managed to remain within the boundaries of what became Israel, their own national identity was relegated to inferior status. Article 2 of the State Education Law, for example, states that “The objective of State education is… to educate each child to love… his nation and his land,… [to] respect his… heritage, his cultural identity… to impart the history of the Land of Israel… [and] to teach… the history of the Jewish People, Jewish heritage and tradition…”.[3] Beyond being subject to institutionalized discrimination, these Palestinians who managed to remain within the part of historic Palestine usurped in 1948 — of whom today there are over 1.2 million — are forced to be citizens of a state in which they are ineligible for nationality.

As mentioned above, however, the main manifestation of Zionist apartheid has been forcible population transfer. The task of establishing and maintaining a Jewish state on a predominantly non-Jewish territory has been carried out by forcibly displacing the non-Jewish majority population. Today, nearly 70 percent of the Palestinian people worldwide are themselves, or the descendents of, Palestinians who have been forcibly displaced by the Israeli regime.[4] The idea of “transfer” in Zionist thought has been rigorously traced by Nur Masalha in his seminal text Expulsion of the Palestinians: The Concept of “Transfer” in Zionist Political Thought, 1882-1948, and is encapsulated in the words of Israel Zangwill, one of the early Zionist thinkers who, in 1905, stated that “If we wish to give a country to a people without a country, it is utter foolishness to allow it to be the country of two peoples.”[5] Yosef Weitz, former director of the Jewish National Fund’s Lands Department, was even more explicit when, in 1940, he wrote that:

“…it must be clear that there is no room in the country for both people (…) the only solution is a Land of Israel, at least a western Land of Israel without Arabs. There is no room here for compromise. (…) There is no way but to transfer the Arabs from here to the neighboring countries (…) Not one village must be left, not one (Bedouin) tribe.”[6]

Rights and ethics were not to stand in the way, or as David Ben-Gurion argued in 1948, “The war will give us the land. The concepts of ‘ours’ and ‘not ours’ are peace concepts, only, and in war they lose their meaning.”[7]

The essence of Zionism, therefore, is aptly summarized as the creation and fortification of a specific Jewish national identity, the takeover of the maximum amount of Palestinian land, ensuring that the minimum number of non-Jewish persons remain on that land, and that the maximum number of Jewish nationals are implanted upon it. In other words, Zionism, from its inception, has necessitated population transfer notwithstanding its brutal requisites and consequences.

The Zionist Movement, when setting the scene to colonize Mandate Palestine in 1897 under the motto, “people without land will get a land without people”, faced three major obstacles:

• The indigenous Palestinian people who were living in that territory;
• Palestinian property and land rights within that territory;
• Lack of a sufficient number of Jewish people in that territory.

On overcoming these three obstacles, they needed to create a legal system in order to maintain the newly established status quo. The Zionist Movement, and later Israel, had no interest in simply creating a system of domination of one “racial” group over another. Israel’s aim was, and still is, not to exploit the indigenous workforce or simply to limit their political and social participation. Rather, the intention was to establish a homogeneous Zionist-Jewish state predominantly for Jewish people. This was apparent from the early years of the Zionist Movement, illustrated by the fact that Israel has hitherto no defined borders. As explained by Golda Meir, “The borders are determined by where Jews live, not where there is a line on a map”.[8]This statement, in combination with Ben-Gurion’s famous writings in 1937, that “the compulsory transfer of the Arabs from the valleys of the projected Jewish state could give us something which we never had… We have to stick to this conclusion the same way we grabbed the Balfour Declaration, more than that, the same way we grabbed at Zionism itself”[9], offers endless possibilities for transferring Palestinians out and implanting Jewish settlers into the territory. As illustrated by Nur Masalha, between 1930 and 1948 the Zionist Movement planned for the forcible transfer of the indigenous Palestinian population in nine different strategies, starting with the 1930 Weizmann Transfer Scheme up to Plan Dalet carried out in 1948.[10]

In order to deal with the three obstacles identified above, the Zionist Movement initiated a series of pro-active and preventive measures in the form of laws, practices and policies. In the following the most central of these measures will be briefly elaborated:

Privileged Migration

To ensure a sufficient number of Jewish people in the colonized territory, the Israeli Law of Return 1950 was adopted. It provides that every Jewish person in the world is entitled to ‘Jewish nationality’ and can immigrate to Israel and acquire Israeli citizenship. Under the Law of Return, a Jewish national is “…born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.”[11] The Law of Return Article 4(a) provides “The rights of a Jew under this Law and the rights of an oleh[12] under the Citizenship Law, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.”[13] Thus Jewish nationals enjoy the right to enter Israel even if they were not born in Israel and have no connection whatsoever to Israel, on the one hand. On the other hand, Palestinians, the indigenous population of the territory, are excluded from the Law of Return on grounds that they are not of Jewish national origin, and as such do not enjoy the legal status of nationals under any other Israeli law; and have no automatic right to enter the country.

This law aims at simplifying and encouraging the immigration of Jewish persons to Israel in order to achieve the Jewish state envisioned by Zionism. Next to this, the World Zionist Organization plays an important role in organizing Jewish migration to Israel and the oPt. The goals of this organization were formulated prior to the creation of the state of Israel and were fortified in 1952 when the Israeli parliament passed the “Zionist Organization Status Law”, and the signing of a covenant between the government of Israel and the Zionist Executive, according to which the organization’s main areas of responsibility remained those related to immigration, absorption and settlement of Jewish people into the territory of historic Palestine.[14]

Property Rights[15]

Related to the second obstacle mentioned above, the Israeli Absentee Property Law 1950 was used to confiscate Palestinian property, legally owned by forcibly displaced Palestinian refugees and internally displaced persons. The term ‘absentee’ was defined so broadly as to include not only Palestinians who had fled the newly established State of Israel but also those who had fled their homes yet remained within its borders.[16] In fact, the term even included many Jews. However, an ostensibly race-neutral provision exempted absentees who left their home because of, among other things, “fear of Israel’s enemies” – thereby effectively excluding the Jewish population from the application of the law.[17] Once confiscated, this land became state property.[18]

The Israeli Land Acquisition Law, 1953, was enacted in order to complete the transfer to the State of confiscated Palestinian land which had not been abandoned during the attacks of 1948. In the words of former Israeli Finance Minister Elilezer Kaplan, its purpose “…was to instill legality in some acts undertaken during and following the war.”[19] An almost identical process took place in the oPt in the aftermath of the 1967 occupation. Like in Israel, “…the acquisition of Palestinian lands in the West Bank and Gaza Strip proceed[ed] along several lines simultaneously.”[20]

As a result of overall Israeli land strategy, Palestinians today own only a few percent of the land which was Mandate or historic Palestine.[21] The expansion of existing Palestinian localities in Israel and the oPt has been severely curtailed as a result of Israel’s highly discriminatory planning policy. Since the occupation of the West Bank and the Gaza Strip in 1967, Israel has not permitted the establishment of any new Palestinian municipalities.[22]Military Order 418 created a planning and building regime which gives full control to the Israeli State in all areas related to planning and development in the oPt. As a result, Palestinian communities often find themselves separated from their surrounding lands. In contrast, even the smallest Jewish localities have detailed building plans and regulations regarding land use.[23]To summarize the situation: “Israeli space has been highly dynamic, but the changes have been mainly in one direction: Jews expand their territorial control by a variety of means including on-going settlement, while Palestinians have been contained within an unchanged geography.”[24]

Forcible Population Transfer

The central obstacle to the Zionist Movement, the Palestinian people themselves, has been addressed by various means throughout the last six decades. More than seven million Palestinians have been forcibly displaced –including their descendants- from their homes and Israeli laws such as the 1954 Prevention of Infiltration Law and military orders 1649 and 1650[25]have prohibited Palestinians from legally returning to Israel or the oPt. This deliberate and planned forcible displacement amounts to a policy and practice of forcible transfer of the Palestinian population, or ethnic cleansing. This process started prior to 1948, and is still ongoing today.

Almost a half million Palestinians were displaced between December 1947 and May 1948. The greatest outflow of refugees took place in April and early May 1948 coinciding with the start of operations by Zionist paramilitary organizations. ‘The Zionist movement declared the establishment of the state of Israel on 15 May 1948 by which approximately 750,000 Palestinians had become refugees. Most refugees were displaced by Israeli military forces (including pre-state Zionist militia groups) using tactics violating basic principles of international humanitarian and human rights law: attacks on civilians, massacres and other atrocities; expulsion; and destruction and looting of property.’[26] This period in recent Palestinian history is defined as the Nakba, the Palestinian catastrophe.

The Nakba fundamentally altered Palestine. However the idea of forcible displacement of the indigenous Palestinian people did not end with the establishment of Israel in 1948, it rather started that year. Since the Nakba almost every passing year has witnessed a wave of forcible displacement, whereby in some years the wave is higher than in others. So for instance during the year 1967, another 400,000 Palestinian became refugees.[27]

The ongoing forcible displacement of the Palestinian people amounts to a policy and practice of forcible transfer of the Palestinian population. According to the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the former Commission on Human Rights:

“The essence of population transfer remains a systematic coercive and deliberate…movement of population into or out of an area… with the effect or purpose of altering the demographic composition of a territory, particularly when that ideology or policy asserts the dominance of a certain group over another.”[28]

Forced population transfer is illegal and has constituted an international crime since the Allied Resolution on German War Crimes, adopted in 1942. The strongest and most recent codification of the crime is found in the Rome Statute of the International Criminal Court, which clearly defines forcible transfer of population and implantation of settlers as war crimes.[29]

In order to achieve the forcible transfer of the indigenous Palestinian population beyond the boundaries of historic Palestine, many Israeli laws, policies and state practices, as well as specific actions of para-state and other private actors have been developed and applied. This ethnic cleansing is carried out today by Israel in the form of the overall policy of ‘silent’ transfer, and not by the mass deportations witnessed in 1948 or 1967. This displacement is silent in the sense that Israel carries it out while trying to avoid international attention, displacing small numbers of people on a weekly basis. It is to be distinguished from the more overt transfer achieved under the veneer of warfare in 1948. Here it is important to note that Israel’s transfer policy is neither limited by Israel’s geographical boundaries nor those of the oPt.

Today’s silent transfer policy

The Israeli policy of silent transfer is evident in the State’s laws, policies and practices. Israel uses its power to discriminate, expropriate and ultimately effect the forcible displacement of the indigenous non-Jewish population from the area of historic Palestine. For instance, the Israeli land-planning and zoning system has forced 93,000 Palestinians in East-Jerusalem to build without proper construction permits because 87 percent of that area is off-limits to Palestinian use, and most of the remaining 13 percent is already built up.[30] Since the Palestinian population of Jerusalem is growing steadily, it has had to expand into areas not zoned for Palestinian residence by the State of Israel. All those homes are now under the constant threat of being demolished by the Israeli army or police, which will leave their inhabitants homeless and displaced.

Another example is the government-approved Prawer Plan, which calls for the forcible displacement of 30,000 Palestinian citizens of Israel due to an Israeli allocation policy which has not recognized over thirty-five Palestinian villages located in the Naqab (Negev).[31] Israel deems the inhabitants of those villages as illegal trespassers and squatters, and as such, they face the imminent threat of displacement. This is despite the fact that in many cases, these communities predate the State of Israel itself.

The Israeli Supreme Court bolstered the Zionist objective of clearing Palestine of its indigenous population in its 2012 decision prohibiting family unification between Palestinians with Israeli citizenship and their counterparts across and beyond the 1948 Armistice Line. The effect of this ruling has been that Palestinians with different residency statuses -such as Israeli citizen, Jerusalem ID, West Bank ID or Gaza ID which all are issued by Israel- cannot legally live together on either side of the 1948 Armistice Line. They are thus faced with a choice of living abroad, living apart from one another, or taking the risk of living together illegally.[32] Such a system is used as a further means of forcibly displacing Palestinians and thereby changing the demography of Israel and the oPt in favor of a predominantly Jewish population. This demographic intention is reflected in the Court’s reasoning for its decision, where it stated that “…human rights are not a prescription for national suicide.”[33] This reasoning was further emphasized by Knesset-member Otniel Schneller who stated that “The decision articulates the rationale of separation between the [two] peoples and the need to maintain a Jewish majority…and character…”.[34] This illustrates once more the Israeli state’s self-image as a Jewish State with a different set of rights for its Jewish and non-Jewish, mainly Palestinian, inhabitants.

Jewish Nationality

All the different means with which Israel triggers the displacement of Palestinians are linked to the central concept of Jewish nationality, as this is the legal mechanism which enables and guarantees the constant discrimination against the non-Jewish population. This same concept is the link between Zionism and the constructed ‘right’ of the Jewish nation to settle and occupy the territory of historic Palestine. In other words, the concept of Jewish nationality is the lynchpin of Israel’s regime of apartheid as it addresses both aims of Zionism: the creation and maintenance of a specific Jewish national identity, and the colonization of historic Palestine through the combination of Jewish settler implantation and the forcible transfer of all non-Jewish inhabitants.

The way this concept is embodied in law is through the separation of citizenship (‘Israeli’), from nationality (‘Jewish’). This separation was confirmed by the Israeli Supreme Court in 1972.[35] Such a distinction allows Israel to discriminate against its Palestinian citizens and, even more severely, against Palestinian refugees by ensuring that certain rights and privileges are conditional upon Jewish nationality. The main source of discrimination against Palestinian refugees originates from the Israeli Law of Return 1950 and the Israeli Citizenship Law 1952 which grants automatic citizenship to all Jewish nationals, wherever they reside, while simultaneously preventing Palestinian refugees from returning to, and legally residing in, that territory. The Israeli regime has essentially divided the Palestinian people into several distinct political-legal statuses as shown in the examples below. Despite their differing categorizations under Israeli law, Palestinians across the board maintain an inferior status to that of Jewish nationals living within the same territory or beyond.

“Category 1: privileged status:

• Jewish Nationals Living abroad and in Israel Full political, social and economic rights and full access to benefits

Category 2: Inferior status:

• Palestinian citizens of Israel  Living abroad and in Israel  Inferior rights and limited access to benefits.
• Palestinians in the OPT Living under occupation  Denied/ Restricted rights: no/severely limited right to enter Israel/move within the OPT, no/severely limited political, social and economic rights.
• Palestinian refugees living abroad Forcibly displaced, made stateless and no right to return to their homes”[36].

The Way forward

Consequently, Israel does not simply seek domination over the indigenous Palestinians, but rather their forcible displacement. In this light, any discussion on the situation in Palestine has to consider that the essential issue circulates around the lives and rights of existing Palestinian refugees, as well as the prevention of future forcible displacement.

This is why it is significantly important to seek solutions rooted in a strict rights-based approach. A rights-based approach could be best described as normatively based on international rights standards and operationally directed to promoting and protecting those rights. “Under a rights-based approach, plans, policies and programs are anchored in a system of rights and corresponding obligations established by international law”.[37] Therefore, a rights-based approach should integrate norms, standards and principles of the international rights system into the plans, policies and processes aiming at solutions to the specific conflict at hand. In the case of Palestine and Israel this approach would seek solutions based on international law rather than relying on negotiations to bring about a long lasting and just solution. The implementation of international law and standard should be a demand and not be asked for through negotiations. Simply speaking like in any other case of a law violation whether on the domestic or international level, the perpetrator should not receive a privileged position, through negotiations, to reframe the conflict and possible solutions to it. This should be left to the law itself in addition to possible courts or committees. The same way it would be left to national courts to decide on a burglary, international offenses should be met with the same gravitas and determination. In other words, international law violations should meet the same standard as law infringements within national settings.

In fact, this ongoing absence of Israeli accountability in the Palestine-Israel situation undermines the legitimacy of international law, in particular human rights, humanitarian law and international criminal law. It is therefore time to ensure that international law is more than just utopian rhetoric, but instead a robust legal system which protects rights, establishes obligations and most importantly, creates realities which mirror its core values and principles.

Notes

[1]Mitchell Geoffrey Bard and Moshe Schwartz, One Thousand One Facts Everyone Should Know about Israel (Rowman & Littlefield, 2005), p. 1.

[2]Ilan Pappe, “Zionism as Colonialism: A Comparative View of Diluted Colonialism in Asia and Africa”, South Atlantic Quarterly 107:4 (Fall 2008), pp. 611-633, p. 612.

[3]Article 2 of the Israeli State Education Law 1953 (amended in 2000).

[4]BADIL Resource Center for Palestinian residency and refugee rights, Palestinian Refugees and Internally Displaced Persons Survey of 2008-2009 (BADIL 2009).

[5]Nur Masalha, Expulsion of the Palestinians: The Concept of “Transfer”in Zionist Political Thought, 1882-1948 (Institute for Palestine Studies 1992), p. 10.

[6]Benny Morris, 1948 and After: Israel and the Palestinians (Oxford University Press, 1994), p. 121.

[7]Masalha, p. 180.

[8]Noam Chomsky, “Middle East Diplomacy: Continuities and Changes”, Z Magazine (December 1991).

[9]Nur Masalha, Expulsion of the Palestinians: the concept of “transfer” in Zionist political thought, 1882-1948 (Institute for Palestine Studies 1992), p. 210.

[10]Ibid, p. 140.

[11]Joseph Schechla, The Consequences of Conflating Religion, Race, Nationality, and Citizenship, Al Majdal, Winter-Spring 2010, 14.

[12]An oleh is a Jewish term referring to a Jew who is immigrating to Israel.

[13]See, for example, the reports of the UN Special Rapporteur Prof. John Dugard to the Human Rights Council: A/HRC/4/17 and A/HRC/7/17.

[14]Ambica Bathia, “Israel’s Discriminatory Laws”, BADIL Bulletin No. 26 (September 2012).

[15]This section is based on a forthcoming paper by BADIL on the issue of land, planning and zoning laws in the context of Israel and the oPt. On file with author.

[16]Forman, G. and Kedar, A. “From Arab land to ‘Israel Lands’: The Legal Dispossession of the Palestinians Displaced by Israel in the Wake of 1948” Environment and Planning D: Society and Space, Vol 22 (2004), p. 814.

[17]Ibid.

[18]See Salman Abu Sitta, “Dividing War Spoils: Israel’s Seizure, Confiscation and Sale of Palestinian Property” (August 2009), available at: link to www.plands.orgpdf/Selling%20Refugees%20Land.pdf.

[19]See Forman and Kedar,p.820.

[20]Dajani, S., Ruling Palestine – A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine (2005), p. 78.

[21]See BADIL, “Palestinian Refugees and Internally Displaced Persons Survey of 2008 – 2009” (2009).

[22]See Salman Abu Sitta,Tthe Palestinian Nakba 1948 (The Palestinian Return Centre 2000).

[23]See A. Cohen-Liftshitz and N. Shalev, The Prohibited Zone: Israeli Planning Policy in the Palestinian Villages in Area C (Bimkom, Jerusalem: 2008).

[24]Kedar, S., Khamaisi, R., and Yiftachel, O., “Land and Planning” in After the Rift: New Directions for Government Policy Towards the Arab Population in Israel (Ghanem, A., Rabinowtiz, D., and Yiftachel, O. eds), p. 17.

[25]Al-Haq, “Al-Haq’s Legal Analysis of Israeli Military Orders 1649 & 1650: Deportation and Forcible Transfer as International Crimes” (April 2010), available at:http://www.alzaytouna.net/english/Docs/2010/Al-Haq-April2010-Legal-Analysis.pdf.

[26]BADIL Resource Center for Palestinian Residency and Refugee Rights, “Al-Nakba: The Continuing Catastrophe”, BADIL Occasional Bulletin No. 17 (May 2004).

[27]See BADIL Resource Center for Palestinian residency and refugee rights, Palestinian Refugees and Internally Displaced Persons Survey of 2008-2009 (BADIL 2009).

[28]See the human Rights Dimensions of Population Transfer including the Implantation of Settlers, Preliminary Report prepared by A.S. al-Khawasneh and R. Hatano. Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fifth Session, 2-27 August 1993, E/CN.4/Sub.2/1993/17, 6 July 1993, paras. 15 and 17, pp. 27-32.

[29]Emily Haslam, “Unlawful Population Transfer and the Limits of International Criminal Law”, The Cambridge Law Journal Vol. 61, No. 1 (March 2002), pp. 66-75.

[30]OCHA-OPT, Demolitions and Forced Displacement in the Occupied West Bank (2012).

[31]See Adalah, “The Prawer Plan and Analysis” (October 2011), at: link to www.adalah.org2011/Overview%20and%20Analysis%20of%20the%20Prawer%20Committee%20Report%20Recommendations%20Final.pdf.

[32]See HCJ 466/07, MK Zahava Galon v. The Attorney General, et al. (petition dismissed 11 January 2012).

[33]Ben White, “Human rights equated with national suicide”, Aljazeera (12 January 2012) at: http://www.aljazeera.com/indepth/opinion/2012/01/20121121785669583.html.

[34]Ibid.

[35]George Raphael Tamarin v State of Israel 1972.

[36]Ambica Bathia, “Israel’s Discriminatory Laws”, BADIL Bulletin No. 26 (September 2012).

[37]See among others, OHCHR, “APPLYING A HUMAN RIGHTS-BASED APPROACH TO CLIMATE CHANGE NEGOTIATIONS, POLICIES AND MEASURES” (2007), available at: http://www.ohchr.org/Documents/Issues/ClimateChange/InfoNoteHRBA.pdf

*Originally published by BADIL in al-Majdal #50.