Human Rights As A Tool For A Palestinian State

Human Rights Instrumental Efficacy for the Palestinian struggle for national independence: The Case of Contemporary Gaza
{Department of Politics and International Studies, Cambridge University}

Since the nakba of 1948, Gaza is both “exceptional and paradigmatic of the broader Palestinian condition” (Feldman 2007: 129). One million refugees in Gaza account for two thirds of its population (Id.). Being included in no state, its population falls into a citizenship vacuum. Understandably, the Palestinian struggle for national independence is a central theme of political mobilisation in Gaza. It has developed amongst Gazans in a co-constitutive relationship with international humanitarian practices and politics. This essay will consider the instrumental value of human rights as a tool for the Palestinian struggle for national independence. In order to undertake a thicker analysis, I shall almost exclusively focus my attention on the contemporary Gaza strip.

Human Rights: An Integrative Legal Discourse Founded on Human Dignity

An integral and important part of the problem is in the definition of human rights, “a complex of concepts and practices” (Allen 2009: 164). A definition depends primarily on the description of the existing relationship between humanitarian law and the international human rights law. Generally speaking, humanitarian law refers exclusively to “the conduct of military operations (methods and means of combats) as well as the protection of victims of armed conflicts (wounded, sick, prisoners, civilian population, and so on)” (Gros Espiell 2000: 351). More strictly, it is based on the Geneva Convention (1949), and its additional protocols (1977). These documents all share article 3, which is identical or similar to an article in the Universal Declaration of Human Rights (UDHR 1948) and of the International covenants on Human Rights (ICCPR 1966 and ICESCR 1966).

Humanitarian law has always been a central tool in safeguarding human rights through the third article of the Geneva Convention. In contemporary legal theory, humanitarian law and human rights are becoming more and more interdependent, although they remain two distinct branches of international law. Previous debates about this distinction have been transcended since this interdependence has been accepted in international practice on the basis of the recognition “of the common fundamental principle of the dignity of the human person” (Gros Espiell 2000: 347, 352). Therefore, humanitarian law aims at protecting human rights in situations of war, and is included in the objective principles and rules of “international human rights law” lato sensu. I should also mention that the same logic applies to the collective right to self-determination (see Declaration of Alger 1976) since it is included within the main human rights covenants (UDHR art. 15, ICCPR art. 1, and ICESCR art. 1). In this essay I will use “human rights” as an all-encompassing expression that refer to all these interdependent legal regimes, including humanitarian, self-determination, and senso stricto human rights law, as they have all placed human dignity as their universal bedrock.

Finally, it is essential to specify that human rights are more than the objective sets of principles and rules mentioned in the covenants. For the purposes of this essay, they also include the subjective discursive constituents of all these rights (Symonides 2000). Therefore, I situate human rights in line with Isaac’s interpretation of Hannah Arendt’s conceptualization:

She believed that human rights were not a problem of moral speculation or legal philosophy so much as a problem of politics, a matter of mobilizing new and effective forms of solidarity and concern
(Isaac 1996: 61)

The instrumental value of the human rights discourse (i.e. its mobilizing and legitimizing capacity) lies in its potential to undermine politics that are not funded on the principle of human dignity. As I shall discuss, it is this central characteristic that makes it such an efficient tool for the Palestinian struggle.

The main political actors of the Palestinian struggle for national independence in contemporary Gaza are the Hamas and Israel.1 They enunciate their political claims through a chimera of the modern discourses of national security or religious faith, and the alternative discourse of human rights. Before considering the broader context, it is necessary to evaluate the impact of the practices of human rights organisations (HRO) and international organisations (IO) on the Palestinian mobilisation since they shape the relationship between political actors, the international community and the population.

Humanitarianism: the Pernicious Effects of some Human Rights Practices

As part of an assessment of human rights efficacy in the Palestinian struggle for independence, it is essential to understand the impact of its practices on Gazans’ political claims and practices of resistance.

As Feldman demonstrates in the case of Gaza, the category of refugee emerged as a structuring category in the “rearticulation of Palestinian political identity in the aftermath of dispossession” (2007: 132). By arbitrarily dividing people into two categories, refugees and natives, half a century of human rights practices transformed the identities and discourses from which stemmed the political claims of the Gazans.

On the one hand, the humanitarian distinction had an impact on the “natives” in the Gaza strip. In the post-nakba economic context, the very fact that they remained at home was the only feature distinguishing them from the refugees. It “would later become an explicit facet of Palestinian citizenship—the notion of steadfastness (sumud), the value of staying put” (Feldman 2007: 152). For the natives, remaining in place was, therefore, an integral part of political action in the struggle for national independence. On the other hand, the humanitarian practices redefined the role of the refugee to that of a victim. Access to the rights to relief, compensation, and return was consequently dependent on extra-legal performatives of victimhood (Malkki 1996: 384), dependent on the status of a “non-agencive victimized community” (Jeffery and Candea 2006).

As Feldman (2007) and Malkki (1996) argue, administrators of humanitarian aid need to establish objective conditions to identify victims. The universal humanitarian subject of aid is imagined as the historic victim that is portrayed in the images of physical suffering (Malkki 1996: 378). Following Malkki’s (Id.) argument, the visual proof of suffering exclusively determined the possible claims of refugees to aid, relief, and return. Symptomatic of humanitarianism, B’Tselem reports are based on many descriptive accounts restricted to violence against civilians. They are classified under different categories, such as torture and abuse during interrogations, beating and abuse, etc. (e.g. B’Tselem 2009b, see also HRW 2009 and Al-Haq.org). The images of pain and mutilated bodies were the only ways to reach and to relate to the international in order to receive consideration and help (see Allen 2009: 173).

All in all, universalized as suffering refugees, Gazans were detached from their situated socio-historic context.2 Human rights practices became humanitarianism in Gaza when it depoliticizes the refugees, and when “political activism and refugee status were mutually exclusive […], as in international refugee law more generally” (Malkki 1996: 385). Humanitarianism, in this form, silenced the refugees’ capacity to express their political claims, and only allowed space for them to share their suffering (Ibid.: 378). However, claims’ enunciation is limited into this specific discourse and only appeals for decontextualised and apolitised restorative responses. Dialectically, international response has been constructed around correcting a violation or returning a right. Human rights practices have had significant consequences for the Palestinian struggle in Gaza since humanitarianism is “able to keep people alive but entirely incapable of changing the conditions that have put them at such great risk” (Feldman 2007: 139).

Beyond Humanitarism: Contextualizing Human Rights’ Role in a Complex Struggle

In the humanitarian apolitical space, Gazans claim access to services through an objective proof of physical grievance such as displacement, mutilation, or homicide. Following this analysis, victimhood establishes itself as apolitical:

Victimhood thus makes a claim for a non-political space, and this is a claim to which many anthropologists have attended. … One might argue in fact that while the suspension of politics was until recently achieved by appeals to “impartiality”, “objectivity”, or “science” (cf. D’Andrade 1995), it is increasingly being achieved by appeals to the ontological primacy of victimhood or suffering.
(Jeffery and Candea 2006)

This theoretical argument issued as a critique from within the anthropological perspective is important to consider (on this topic see also Allen 2009). It allows for the understanding of many of the inherent limitations of contemporary OIs and HRO’s practices in Gaza. It unveils the pernicious consequences of humanitarianism which positions victimhood as the objective or the apolitical cornerstone that is required to legitimize both action and support.

However, this approach does allow space for assessing the role of the human rights discourse and practices outside humanitarianism. In a complex dynamic, other discourses based on politics, such as realpolitik or Jihad,3 are competing with human rights for hegemonic acceptance amongst Gazans and other political organizations. The efficacy of the human rights discourse for the Palestinian struggle can only be appreciated when considered with respect to these competing discourses.

Therefore, an alternative perspective on the intertwining relationship between human rights and political struggle is to consider the discourses as opposing performative entities. Their collision suggests a struggle for hegemonic positioning within their respective discursive foundations. Conceiving politics and victimhood as competing discursive contexts is “to recognize that not only does victimhood attempt to suspend or trump politics, the reverse is also the case” (Jeffery and Candea 2006). Stating the ontological primacy of power politics is as engaging as claiming the universal (and metapolitical) status of human rights politics. From this radical anti-foundational perspective, performatives are not false or just, but can only be considered to be either successful or not at asserting themselves.

These are not two “readings”, but rather two alternative configurations of reality: the question is which alternative manages to establish itself at any given point. … The problem is thus reduced from a metaphysical to an ethnographic one—with a twist. For in this approach, we are forced to recognize the performative power of our own ethnographic accounts
(Jeffery and Candea 2006)

From this perspective, human rights’ practices take on another dimension. In line with what Hannah Arendt conceptualized as political action, human rights’ practices are “intended to secure an elemental human dignity that is systematically jeopardized by the imperatives of national sovereignty” (Isaac 1996: 63). In other words, they have the potential of undermining alternative discursive foundations, which as an instrumental assessment impacts actors’ legitimacy and mobilisation capacity. With respect to the Israeli State, the structuring effect of competition between discourses plays a crucial role in successfully mobilizing support from the international community. In this respect, human rights are integral for Palestinians.

The role of human rights for the Palestinian struggle for national independence was clearly exposed during the last Gaza crisis. Both Israel and the Hamas referred to the different competing foundations for legitimacy.

Israel’s Legitimacy: Human Rights as a Challenge to National Security

Israeli claims of benign interference in Gaza to re-establish order rapidly faded due to the disproportionate use of force. This left the national security principle of self-defence as the last foundation for the legitimacy of IDF’s Operation Cast Lead (27 December 2008 – 18 January 2009). HROs denunciations against the Israeli Defence Forces (IDF) were central in exposing the humanitarian law violations (see HRW 2009). According to the Palestinian HRO al-Mezan (cited in B’Tselem 2009: 3-4), weeks of bombardments and fighting resulted in 1342 Palestinian and 13 Israeli causalities (including 10 soldiers). From the vantage point of human rights discourse (Isaac 1996: 63), the legitimacy this operation relying exclusively on national interest can be challenged.

This approach highlights how the human rights discourse is an instrumental tool in weakening hardliner politics in Israel. Israeli state sovereignty, as a legitimate ground for military action, is limited if (and only if) the ontological primacy of human dignity is successful in asserting itself as the foundation of this competing discourse. Proportionality restraints emanate from this discourse. Therefore, the human rights discourse poses limits to the appeal of national security in order to legitimize bellicose actions or to mobilize international (and Israeli) support.

IOs and HROs have a clear role in restraining IDF’s asymmetric military advantage. It impedes the IDF from applying an unlimited strategy of tabula rasa in the Gaza strip. However, HROs response is symptomatic of the humanitarian flaws since it neither reveals the political consequences of the IDF operation, nor considers the strategic consequences of its violence on Gazans’ acts of resistances. However, it did limit the magnitude of the destruction of this operation on civilians’ lives and assets.

In brief, considering Israel, the existence of legitimate competing discourses per se makes it possible to consider legitimacy and violence from an alternative vantage point. The efficacy of human rights as a tool is not limited to the relief of pain; it allows for an international reconsideration of the legitimacy of military action.

The Hamas: a Jihadist organisation or a vehicle of Palestinians rights?

“the Islamic Resistance Movement erupted in order to play its role in the path of its Lord. In so doing, it joined its hands with those of all Jihad fighters for the purpose of liberating Palestine”
(Hamas Charter 1988)

This initial Jihadist discourse of the Hamas remains relevant while considering the hardliners. However, as counter-intuitive as it may appear, it seems that Hamas political leadership has recently narrowed its ambitions and rearticulated the discourse of the human rights around its religious foundation. Hamas’ incapability to consolidate international support in the West while conserving jihadist rhetoric was a central cause of this shift. The Jerusalem Media and Communication Centre (JMCC 2005) noted the incommensurability of Palestinian political claims with the international discourse: the “Palestinian narrative [...] makes little sense in the dominant news agenda of the ‘war on terror’. Journalists feel great pressure to conform to this news agenda.” Micheal Oatley (2008)4, former head of the MI6, noted how the war on terror label of terrorist organization is dangerous for political actors such as the IRA, the Hezbollah, and the Hamas. It impedes negotiations by taking away a priori from these actors the rational capacity to compromise. To tackle this issue, the Hamas has significantly adapted their discourse to the international vocabulary of human rights. This discourse transcends the Jihadist-terrorist dead-end and allows them to engage the international community on a commensurable ground.

In early 2004, Hamas leader, Sheikh Ahmed Yassin, and a senior Hamas official, Abdel Aziz al-Rantissi, declared that armed confrontation could be ended. A ten years truce could be achieved on the basis of the creation of a viable Palestinian state delaminated on the borders of the pre-1967 Six Day war; therefore, calling for the complete withdrawal of Israeli troops from occupied territories (Amayreh, Al-Ahram weekly online, 2004). The terms of this proposal for truce almost implicitly acknowledged the two states solution. Abruptly, Yassin and al-Rantissi were killed in two IDF’s air strikes in March and April 2004. Despite their deaths, the pragmatic stand taken by Yassin and al-Rantissi continued to be present in the discussions from within the Hamas in 2005 and 2006 (on internal tensions see Levitt 2009). During 2006 election, Hamas declarations revealed a human rights approach towards national independence. The introduction of its political programme is emblematic of this discursive adaptation when it referred to the collective right to self-determination and to live free from oppression. Hamas also referred to resolution 194 when claiming that Palestinians have the right to return (Hamas cited in JMCC 2006).

Breaking with Diplomatic Isolation: Post-crisis Hamas Capacity to Mobilise International Support

Due to the rigidity of the terrorist label in 2006, it seemed that the international community was not ready to endorse Hamas officials as legitimate political actors even after being elected (see BBC, 7 April 2006 on the Quartet’s decision to cut aid). As a result of this Hamas made some efforts to make the new government more acceptable for the international community through the formation of a unitary government with the Fatah and other parties. Since then, the human rights discourse has become increasingly influential in acting as an efficient tool for mobilizing international support.

However, this process was halted following degradation of Gaza’s situation and the military operation Cast Lead. This last crisis was an epitome of the dynamics of competition between human rights and other discourses, and its consequences. This military confrontation appeared to have weakened human rights discourse and moderated opinions within the population in Israel and Gaza. Symptomatically, Palestinian support for the Sudanese plan of the latter dropped from 64% in December 2008 to 58% in March 2009, while Israelis support dropped from 36% to 33% for the same period (PSR 2009).

It is also most probable that both hardliners within the Israeli government and Hamas organisation have increased their influence as a result of the confrontation (The Herald, February 1st 2009). Israeli politicians, such as actual Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman, are opposed to the two states solution (BBC News, 30 March 2009). This political force has based their claims on the nationalist project of a Jewish state, thereby excluding Palestinian return. Hamas political leadership is also divided between hardliners and moderates in Gaza (Levitt 2009). In this context, Ismail Haniyah represented the moderate voice from within the Hamas but “is not believed to hold significant sway” (Id.). A few days prior to the end of the Gaza crisis, he restated the right to self-determination and return as the ultimate goal of the Palestinian struggle in amessage published in The Independent (15 January 2009).

This last episode has confirmed that the actual Hamas political leadership is committed to formulating claims into more legalistic terms of national auto-determination and return. This discourse allows for some international openings that were denied to the Hamas within the war on terror mind frame. It allowed the Hamas to get out of diplomatic isolation since many government representatives have initiated contact with its officials (see The Independent 22 and 28 April 2009 and the BBC news, 23 April and 22 March 2009). While the US still designates it as a terrorist organization, the newly elected Obama administration asked for legal changes in order to allow aid to be administered by the Palestinian Authority even if “Hamas backed officials become part of a unified Palestinian government” (Los Angeles Times, 27 April 2009). EU External Affairs Commissioner Benita Ferrero-Waldner “said Netanyahu should commit to talks with the Palestinians” (BBC News, 30 March 2009). Following international pressure, Netanyahu may bend and approve a two state solution (The Independent, 28 April 2009).

In conclusion, human rights, considered as an all-encompassing discourse, remains an efficient and pragmatic tool for Palestinian independence struggle. Human rights, beyond their pernicious impacts on Gazans’ forms of mobilisation, have prevented Israel from using its overwhelming military power to seek an expedited solution. The human rights discourse also allowed the main political actor in Gaza, the Hamas, to start to break away from international isolation. This is a crucial development since the Palestinians face a humanitarian crisis resulting from reduction in aids. Moreover, partial rechanneling of aid through UN and civil society agencies weaken the Palestinian Authority viability and further deteriorate the probability for Palestinian independence. In contemporary Gaza, the Palestinians need the human rights to mobilise support.

Citations & Bibliography

 

Tagged Arab-Israeli Conflict, Gaza, Hamas, Israel, Jihad, Palestine