Annexation or Not, It's Time All Palestinians Under Israeli Control Had the Right to Vote | Opinion

The Israeli government newly installed in office seems quite determined to proceed with plans to annex parts of the West Bank, occupied since 1967. For nearly all international lawyers, the move is deemed entirely illegal: under international law, the permanent acquisition of territory in war is prohibited. Yet the government's attempt to turn its "creeping annexation" de facto into annexation de jure, requires novel interpretations of these familiar rules. These must address not only the illegality of changes to occupied territory, but the effects of perpetual occupation on individual rights.

On remarkable vantage point for such an interpretation, so far overlooked, has recently been offered by the Committee for the Elimination of Racial Discrimination (CERD). On December 12, 2019 The Committee recommended "that the State party ensure equal treatment for all persons on the territories under its effective control and subject to its jurisdiction, including by guaranteeing equal access to citizenship, legal protection, social and economic benefits [...]". With these words, the committee addressed a "one state reality", in which Israel governs the entire territory between the river Jordan and the Mediterranean. Such control is achieved only through a severe regime of surveillance and restricted mobility, differentiated by a patchwork of political membership: citizens, residents, infiltrators, foreigners.

A New Paradigm in International Law?

At first glance, the recommendation to grant equal political membership flies in the face of decades of UN pronouncements. Does granting citizenship mean the death of the struggle for Palestinian statehood? Doesn't it undermine both Palestinians' and Israelis' right to self-determination? The recommendation that Israel grant citizenship to "all persons on the territories under its effective control and subject to its jurisdiction"—meaning the Palestinian residents of the West Bank—may raise eyebrows. To use the language of UN Security Council Resolution 2334, the recommendation seems to contradict the unequivocal UN condemnations of "all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967". General Assembly Resolutions 224 and 338 conveyed the international community's overt demand that Israel withdraw from the occupied territories under a peace deal. Granting citizenship to residents of the West Bank seems to encourage Israel to retain its forces where they are, and may be held as consonant with Israel's annexation plan.

However, the CERD document still clearly regards the Palestinian territories as occupied. The committee also stresses the right to self-determination of all residents in territories under Israeli control. It emphasizes that Israel's regime of separation between Palestinians and Jews, in which different laws apply to different populations in the same territory is contrary to the Convention for elimination of all forms of Racial Discrimination. So how does one understand the demand to provide citizenship, while maintaining international law's strict rule against annexation?

The answer, which we believe is a compelling one, lies in the reality of indeterminate occupation. Such occupation is so long-term (53 years and counting), that international human rights law simply cannot allow for the occupied population to be excluded from political participation. While the status of the territory remains occupied, those Palestinians who want a voice in choosing the government that has effective control over them, must have voting rights. By demanding or securing those, they would not forfeit their right to self-determination, nor the path to independent statehood. Citizenship should be offered unilaterally as a remedial measure, if Palestinian self-determination remains unrealized.

A promise of national rights cannot preempt individual rights

The right to vote is recognized under Article 25 of the International Covenant on Civil and Political Rights (ICCPR). An important distinction animating the right to vote is between the principle of self-determination and the right of individuals to participate in those processes which constitute the conduct of public affairs. As the UN Human Rights Committee explains,

"The rights under article 25 are related to, but distinct from, the right of peoples to self-determination. By virtue of the rights covered by article 1 (1), [the right to self-determination] peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs."

This analytical distinction is crucial: one can be fully respectful of the Palestinian right to self-determination, while also serious about the rights of individuals to participate in decisions that shape their current reality.

The Israeli government has used the theory of transformative occupation, drawn from the U.S. occupation of Iraq, to circumvent prohibitions on the use of natural resources in the occupied territory for the benefit of the occupier. But this objectionable decision, allowed by Israel's Supreme Court, has a flip side. If the transformative nature of the occupation requires the recognition of long-term needs, it must recognize that political rights cannot be extinguished indefinitely. Further, granting Palestinians the voting rights they deserve, does not necessarily mean that we are looking at a one state future. It remains a possibility, but once people have equal voting rights, they can use them to help establish any political framework they want, including one state, two or a confederation .

To be sure, the right to citizenship—or "nationality" as it is more often called in international legal discussions—is at the very heart of a state's prerogative. Any interpretation of international law that assumes that a state has a duty to give particular people citizenship may thus be regarded as highly problematic.

But one should once again read CERD carefully. Israel has no such duty and is free to withdraw from the occupied territories and disallow Palestinians there from political participation in its institutions. But it does not do so—whether while imposing formal annexation or not—the occupation cannot be an obstacle to individual political rights. CERD therefore recommends that Israel does grant such access to all Palestinians living in the West Bank. It is hard to see how Israel can otherwise avoid violating Article 3 of the Convention on the Elimination of All forms of Racial Discrimination, which bars "racial segregation and apartheid".

Preserving security and stability

No such pronouncement appears with regard to Gaza, where the situation is different: Since the 2005 "disengagement" form Gaza, it is questionable whether Gaza remains "occupied", as a matter of international law. Yet as quoted above, Israel cannot unilaterally alter "the demographic composition, character and status of the Palestinian Territory occupied since 1967". Even if they are not formally occupied, Gazans' political participation in a Palestinian state is actively prevented by Israel. They too should therefore be invited, if they so choose, to participate in Israeli political process. Israel is still the state that determines most powerfully the most basic conditions of their lives.

A final objection concerns the need to preserve security and stability in the area. This too is a condition international law seeks to realize, but perhaps more importantly, as people working and living in the country, we couldn't be more concerned about our own safety. However, one must admit that indeterminate occupation has rendered many of the residents of the area, Palestinians and Jews, unsafe to the extreme. We believe that such remedial universal suffrage will only help the population choose rules that can truly provide it with safety.

Palestinian political participation is necessitated by the protracted occupation, until self-determination is achieved by agreement. This position offers a stance that at once rejects the illegality of unilateral annexation while upholding the right of self-determination for all of us. It also provides an avenue for political participation to Palestinians in the interim, who should no longer be held hostage by their status as "protected persons" in an occupied territory.

Yael Berda is the Gerard Weinstock visiting lecturer at Harvard university and assistant professor of sociology at Hebrew University, Jerusalem. Itamar Mann is associate professor at Faculty of Law of Haifa University.

The views expressed in this article are the authors' own.​​​​​

Annexation or Not, It's Time All Palestinians Under Israeli Control Had the Right to Vote | Opinion | Opinion