The Question of Palestine as a Litmus Test: On Human Rights and Root Causes

Abstract

Recent mainstream human rights discourse displays a paradoxical movement. On the one hand, there is a growing movement toward the acknowledgement of the reality of Israeli apartheid. On the other hand, there is growing recognition of the long-standing impunity that enabled the consolidation of apartheid in the first place. The first move may revive faith in international law whereas the recognition of impunity would seem to increase skepticism toward the law’s ability to deliver the promise of accountability and thus increase a sense of futility. The question becomes the nature of law’s predicament and whether better enforcement or more law can remedy it. In other words, the question is whether change in the terms of the legal analysis would lead to a significant change in law’s ability to hold the powerful to account and reduce suffering. This article argues that the Question of Palestine remains a “litmus test” for international law and human rights and their ability to address historical wrongs. Part II contrasts the legalistic and holistic approaches of mainstream international human rights organizations in their apartheid reports in order to illustrate the indeterminacies and limits of apartheid’s application in the Palestine context. Despite differences between human rights organizations’ reports, as well as changes in their own reporting and framing over time, the main failings are “structural” because they reflect the limitations, assumptions, and legitimating effects of the human rights discourse and international legal tools they deploy. Thus, the rest of the article contextualizes these reports in wider trends and assesses their potential legal and political effects. Since these reports seek to provide a comprehensive conflict-mapping account, Part III examines the limits of this search for root causes and the full context in which systematic human rights violations occur. It distinguishes between approaches to root causes that centralize occupation, discrimination, or colonialism, and argues that although the apartheid reports provide better context than has hitherto been offered in mainstream human rights discourse, they do not go far enough. This is because they de-politicize and de-historicize the Question of Palestine when they omit colonialism as a relevant framework to understanding Zionist practices, as evident in the exclusion of Palestinian self-determination from the crime of apartheid’s application. Equally consequential is the omission of imperialism as a root cause, in particular United States (US) support for Zionist colonialism. Foregrounding colonialism and imperialism as root causes uncovers law’s complicity in the infliction of injustice on the Palestinians. Part IV examines the “discourse of failure” that prompts this search for root causes in light of long-standing impunity. This discourse blames the failure on the state or the international community’s political will. It thus reduces the failure to a question of lack of enforcement or selectivity and obscures the role of imperialism by referring to an abstract “international community.” Consequently, it absolves law from complicity despite the fact that impunity and selectivity are endemic in international law and relations. Part V unpacks the selectivity argument in light of recent international action against Russian aggression in Ukraine. It illustrates that the critique of selectivity fails to recognize the rules’ unfairness and that selectivity is a legal – no less than political – condition, as the International Criminal Court’s (ICC) practice illustrates. Consequently, demanding better enforcement and offering more and better law is unlikely to solve the predicament of impunity. If the problem is not law’s absence as much as law’s complicity in injustice, then more law is not going to resolve it.

Keywords: Israel, Palestine, Apartheid, Colonialism, Zionism, International Law, Imperialism, Root Causes, Human Rights discourse, impunity, Amnesty International, Human Rights Watch