Legal Honesty as a Solution to the Occupation/Oppression of Palestine

There is a right of protest and the right of each individual to protest in his/her own way is, of course, recognized. Even though solidarity of cause is highly determinative in the outcome of any protest or resistance, the protests and resistance need not be uniform nor should protests and resistance be compelled to conform to any dictate, at least in a progressivist universe.

Norman Finkelstein has been and is a staunch proponent of Palestinian rights, but his defense of Palestinian rights drew much criticism when a no-holds-barred February video emerged. To put it in a nutshell, Finkelstein’s argument is that the only feasible scenario for a settlement of the occupation/oppression (let’s be a little honest and not belittle the Israeli war crimes by calling it a “conflict” as if Israel and Palestine were two equally aggrieved and aggrieving sides) by Israeli Jews of Palestinian Arabs is a legal one.

Finkelstein’s appeal to law, however, appears to appeal to many loopholes, and therefore takes on an appearance of intellectual dishonesty.

Canadians for Justice and Peace in the Middle East (CJPME) felt it was important that Finkelstein have a chance to clarify his stance — a stance that was, for this writer, crystal clear in the video interview — around five points.1

1. Dr. Finkelstein’s support for the two-state solution

CJPME:

Thus, rather than arguing for the two-state solution as a type of dogma, you’re a proponent of it because you see it as the most expedient way of arriving at a solution, imperfect though such a solution may be.

Dr. Finkelstein:

Yes, that is the core reasoning for my support of the two-state solution. It does not reflect my personal beliefs, but rather what I consider politically possible.

In effect, the only basis for building a movement that can reach a broad public is international law.

On this point everyone seems to agree, including the BDS leadership, which speaks of a ‘rights based approach’ anchored in ‘international law.’ But international law is clear that Israel is a state having the same rights and obligations as any other state, and that the two-state settlement is the only basis for resolving the conflict.

Finkelstein resorts to unsubstantiated claims: “everyone seems to agree”? “the only basis for building a movement that can reach a broad public is international law”? Everyone is an all-inclusive term, but I know of plenty of people who would disagree with this, what obviously is, hyperbole.

What is clear from Finkelstein’s video interview is his concern for the continued existence of Israel as a Jewish state. Therefore, he criticizes the BDS leadership and others who call for the return of refugees, he labels insistence on the right of return, as dishonest, disingenuous, and nonsensical because he states that such a move would bring about the destruction of Israel. This also can be criticized as a dishonest claim because while the state of Israel might well continue to exist under a two-state settlement, likeliest it would not continue to exist as a Jewish-controlled state if it were to remain “democratic.”

What is clear is that the Zionists ruling in Israel do not want to settle “the conflict.” Finkelstein’s friend, Noam Chomsky, however, places the blame primarily on the United States government which is rejectionist.2

How is it that one can appeal to adherence to international law when Israel and its major backer, the US, operate in a sphere or impunity as far as adherence to international law?

Finkelstein is, of course, entitled to his opinion as to what is best for Palestinians from an outsider standpoint, but it should be made clear that Palestinians as the occupied and oppressed peoples have foremost the right to determine how they will resist and what settlement for their dispossession is agreeable and/or just, and Finkelstein does acknowledge this.

The Boycott, Divestment and Sanctions (BDS) campaign is a segment of Palestinian resistance. That it might undertake a “rights based approach” anchored in “international law” is one possible tactic.

What is questionable is how Finkelstein applies equal standards to the victim and the victimizer. He is not concerned about right versus wrong, moral versus immoral; he is concerned solely with whether a solution is defendable to the public. There is a logic to this approach, but its verisimilitude relies on demonstrating what is defendable or not and on defining “the public.”

Thus remains the question: is Finkelstein’s unwavering reliance on applying international law tenable? If international law is being ignored and serially violated by the occupier and oppressor, is it fair and just – by any moral or just legal standard – to bind the victims to international law when their persecutor is in perpetual and longstanding breach?

2. Dr. Finkelstein’s concerns about proposals for a one-state solution

… It is not required of Palestinians, nor should they (in my opinion), recognize Israel as a Jewish state or even a Jewish-majority state. I also see no reason why one wouldn’t want to call for full and equal rights for Palestinians inside Israel, although the international consensus does not speak to this issue. However, what one can’t do, in my opinion, is deny the existence of Israel as a state—because such a denial has no basis in law, and in fact constitutes a fundamental breach of it.

Fine, Finkelstein is phrasing his opinions.

I do not deny Israel exists as a state, but I do question the legitimacy by which Israel came into existence as a state (likewise for Canada, the US, Australia, Aotearoa, etc.). Is a state that came into existence by dispossessing the Indigenous peoples legally and morally legitimate? Dispossession is another word for theft, and in every jurisdiction that I know of, theft is considered a crime. Moreover, stolen goods are returned to the dispossessed owners of the goods, as has been done with Nazi thefts from their Jewish victims. Should this be any different in the case of land?

If one wishes to rely on international law, what should one deduce from a law which “legalizes” theft? Could one not imagine a scenario under which an audacious lawyer tries to wrangle his client off a charge of theft by pointing to United Nations General Assembly Resolutions 181 and 273 (although generally accepted as non-binding under international law), which granted Jews (at that time, 5-6 percent were religious Jews in the resident population3) more than half the territory of Mandate Palestine, as precedents?

Israel and the US, nonetheless, stand in fundamental breach of the law concerning the existence of Palestine as a state. Finkelstein did not point this out in the interview. Does not law apply equally to all actors?

As for existence of an Israeli state, if one is referring to UN General Assembly resolution 181, then the borders under discussion should be the 1948 borders. The “pre-1967 borders” is a nebulous concept. Do borders legally change as a result of war? Do the “pre-1967 borders” refer to 1948, or do they refer to the situation after the Israeli-Arab war in 1949, where Israel had 80 percent of the mandate territory?4 It would seem clear that land acquired through conquest has no legal validity. Yet Finkelstein finds that an International Court of Justice decision in 2004 upheld those borders. The so-called Green Line is an armistice line, a line agreed upon for cessation of military activities; it is not an international border, so one wonders why Finkelstein with his reliance on legality does not rely on the UN partition plan which delineated the Jewish and Arab states for Mandate Palestine? Does he aver that land can be legally acquired through military conquest and legalized afterwards? And just how legal is an advisory opinion of the ICJ which was ruling not on the internationality of the borders per se but on the building of the Apartheid Wall inside the Green Line.5

Finkelstein holds that the Palestinians must abide by the two-state solution because “… If one picks and chooses with international law, it enables Israel’s apologists to claim that the Palestinian solidarity movement is hypocritical and not to be trusted.”

It is true enough that Israeli apologists will seize upon any pretext to justify their dispossession of Palestinians. The fact that Palestinians were opposed to the two-state solution from the beginning does not seem to count for Finkelstein. The fact that UNGA 181 prevented the expression of self-determination of the peoples who lived in Mandate Palestine and is in violation of Article 1.2 of the UN Charter:

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace

as well as Article 55 which calls for:

… respect for the principle of equal rights and self-determination of peoples…

That Finkelstein finds the one-state solution most practical does not reflect his preference, and this nuance must be noted. Finkelstein’s position — “I have said on many occasions that I support neither two states nor one state. I support zero states” — is shared by myself.6

Finkelstein’s position is rooted in — not necessarily what he wants, but — what he sees as the solution to “the conflict.”

3. Dr. Finkelstein’s support for the “right of return” of Palestinian refugees

Finkelstein says, “In everything I have ever written on the subject, I have emphasized that Palestinians have a right of return, and no one has the right to tell Palestinians that they should renounce this right as a precondition for negotiations.”

However, Israel will not negotiate on this right — “That is a nonstarter,” says Finkelstein — so, in other words, practicality demands Palestinians drop the claim to their rights.

There is a paradox in Finkelstein’s insistence that law is the basis for resolution of “the conflict,” but practicality appears to overturn the law, and the practicality favors the dispossessor, not the dispossessed. Did not Finkelstein ask in the video interview: “Is Israel part of the law or not?” Why then does Finkelstein not insist on the legal right of return? Especially since he appeals to airy terms such as “a public” and “international consensus” which is what is indicated by resolutions 181, 194, and 273. It seems that legality is secondary to practicality, and that practicality is determined by Israeli willingness to negotiate.

Finkelstein agrees that Palestinians have a right of return, and legally Article 11 of UNGA Resolution 194 calls for the right of return of the refugees.7

The Universal Declaration of Human Rights (although it may not be legally binding, Israel is a signatory) states:

Article 9.

No one shall be subjected to … exile.

Article 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country. [emphasis added]

4. Dr. Finkelstein’s support for the BDS (boycott, divestment and sanctions of Israel) movement

Finkelstein says, “I supported BDS long before there was a BDS movement! …”

CJPME:

1. You disagree with … the BDS founders’ insistence on the return of all Palestinian refugees, and linkage with the rights of Palestinians in Israel.

2. In effect, you consider the specific demands of the BDS founders to parallel those of the one-state proponents. While you agree that the BDS movement puts positive pressure on the Israeli government, you believe the stated “end goals” of the BDS movement to be impractical with the current international political environment.

3. You believe that the BDS founders have a tendency to inappropriately impose BDS, and/or all their “three tier” demands on all facets of the Solidarity movement.

To which Finkelstein replies, “Exactly correct.”

5. Dr. Finkelstein’s comments that certain elements of the Solidarity Movement function like a cult

Finkelstein questions the motivations of some “leaders” within the BDS movement stating:

1) Self-proclaimed leaders of the BDS movement claim to speak in the name of “Palestinian civil society” or “the Palestinian people,” although they have no basis to make such a claim. They then use this fraudulent claim as a club to silence any opposition to their diktat; 2) The movement is riddled with flagrant hypocrisy – a) a leader calls for the boycott of all Israeli universities while he himself studies at Tel Aviv University, (b) a leader claims that BDS doesn’t target individuals or an individual’s beliefs, only institutions, but he then calls for a ban on Daniel Barenboim.

Finkelstein finds “… the vast majority of international activists for Palestinian human rights function independently, and are not “coordinated” or influenced by activists in other countries, let alone Palestine.”

Nonetheless, Finkelstein agrees resolution of “the conflict” can be propelled by “… the tactics of boycott, divestment and sanctions, which seem to have strong appeal especially among church groups.”

Criticism of BDS as a “cult” may have some validity; I am unfamiliar with the inner workings of the BDS movement and cannot respond. However, the internal functioning behind BDS strategizing has secondary importance as to whether the BDS is a valid tactic of resistance to occupation and oppression. He also criticizes the “cult” for reliance upon a “guru.” It is preferable if people would learn to accumulate facts, analyze them (as Finkelstein has done), and form as cogent conclusions as they are able.

Final Words

Finkelstein deserves praise as an individual who has informed himself, who has made sacrifices congruent with his beliefs. In this manner he has risen above the masses. Gurus are unacceptable for critical thinkers, and Finkelstein — I believe — would encourage reasoned argumentation, even though he might be contemptuous of it.

Finkelstein’s arguments deserve consideration, should be open to debate, and they should be open to criticism, as with anyone’s arguments.

Nevertheless — because of Finkelstein’s insistence on relying on law to solve “the conflict” and his departure, at times, from applying the law — he is standing on logical quicksand.

  1. CJPME Interview with Dr. Norman Finkelstein,” Canadians for Justice and Peace in the Middle East,” July 2012. []
  2. See Noam Chomsky, Fateful Triangle: The United States, Israel and the Palestinians (Cambridge, MA: South End Press, 1983, 1999). []
  3. “Only 12 days earlier, Resolution 181, which defined Israel’s borders in the form of a ‘Partition Resolution’ that assigned approximately 56 per cent of the land mass of historic Palestine exclusively to the 5.6 per cent of the resident population adhering to the Jewish religion, was adopted.” See Gary Zatzman, “The 55th anniversary of Resolution 194,” Shunpiking, 2003. []
  4. See Transcript, “Finkelstein on the June 1967 war,” Chicago Public Radio, 6 June 2007. []
  5. “According to this view, the subject-matter of the question posed by the General Assembly “is an integral part of the wider Israeli-Palestinian dispute concerning questions of terrorism, security, borders, settlements, Jerusalem and other related matters”. The Court observes in this respect that the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion, but recalls its jurisprudence to the effect that the lack of consent of an interested State might render the giving of an advisory opinion incompatible with the Court’s judicial character, e.g. if to give a reply would have the effect of circumventing the principle that a State is not obliged to submit its disputes to judicial settlement without its consent.” See “Summary of the Advisory Opinion of 9 July 2004.” []
  6. See Kim Petersen, “Principles Over Realism: The Zero-State Solution,” Dissident Voice, 14 November 2006. []
  7. For further discussion, see Gary Zatzman, “The 55th anniversary of Resolution 194,” Shunpiking, 2003. []

Kim Petersen is co-editor of Dissident Voice. He can be reached at: kim@dissidentvoice.org. Read other articles by Kim.