A Rejoinder to Avraham Shalev: The Colonial Nature of Israeli Claims to Palestinian Territory

[Alonso Gurmendi Dunkelberg is a Lecturer in International Relations at King’s College London’s Department of War Studies]

Avraham Russell Shalev, a lawyer and researcher with the Kohelet Policy Forum, an Israeli think tank, has written a reply to my post on why Israel has no legal claim to the West Bank. Shalev argues my post is part of a “troubling trend whereby the State of Israel’s history is rewritten as an illegitimate colonial and racist entity, rather than as the fulfilment of international promises towards a dispossessed and persecuted nation”. In this post, I will briefly summarise Shalev’s arguments and offer my rejoinder. In short, I think Shalev misconstrues the application of the principle of uti possidetis to the Israeli-Palestinian conflict to insist on a colonial reading of international law, where the self-determination of colonised peoples is secondary to the expansionist territorial aspirations of nation states. Or, to simply quote from one of Shalev’s most disturbing statements, that: “Palestinian self-determination cannot negate Israel’s territorial claims”.

Shalev’s post is divided into two parts. The first part contests my claim that the Mandate of Palestine constituted a single, non-independent, Palestinian state by arguing that this was impossible, because the Mandate’s (sole?) purpose was the “establishment in Palestine of a national home for the Jewish people”. The second part counter-argues that Israel’s rights over the West Bank are premised on the uti possidetis principle, as successor to Mandatory Palestine. I will address each claim separately.   

The Mandate of Palestine and Coloniality 

Perhaps the most surprising claim in Shalev’s post is his assertion that the Zionist efforts to establish a Jewish home in Palestine were not a colonial endeavour. The Zionist Congress itself founded the aptly called Jewish Colonial Trust as a means to finance its colonial venture as far back as 1899. Similarly, Vladimir Jabotinsky was very clear in 1923 about what he called his “colonising aims”. “Colonisation”, he said, “carries its own explanation, the only possible explanation”. According to him, this process could only have one aim “and Palestine Arabs cannot accept this aim”. It is surprising to me that someone could argue that such an explicitly colonial venture cannot be described as colonial. 

This, of course, does not deny the status of European Jews as a dispossessed and persecuted community – it simply describes the fact that a part of this community employed colonial means against another to further their political aims. As TWAIL scholar James Thuo Gathii argues, “TWAIL-ers do not have a false notion of third world innocence and first world guilt or dominance. Many TWAIL-ers are also critical of many third world governments”. Neither should Zionists have a false notion of Zionist innocence. Being subjected to dispossession and persecution does not mean one cannot or should not be held accountable for other abuses. Otherwise this becomes what Meera Sabaratnam calls an epistemology of innocence, where racialised political hierarchies inherent to international relations are “hidden and ‘naturalised’ as part of the landscape of international politics, rather than forming part of the phenomena worthy of investigation”. 

This is how Shalev can claim, without any remorse, that “[a]n objective examination of the terms of the Palestine Mandate leaves no doubts as to its purpose of establishing a future Jewish state”. A silent “to the exclusion of the rights of the pre-existing Arab community” is simply hidden away as a natural part of how things worked at the time. But it is here, in this epistemology of innocence, that the Mandate system’s coloniality lies.

After all, as Imseis shows, there is nothing in the concept of a “national home for the Jewish People” that requires this exclusion of Palestinians. In fact, as he argues, in 1919, the US King-Crane Commission noted that “a national home for the Jewish people is not equivalent to making Palestine into a Jewish State; nor can the erection of such a Jewish State be accomplished without the gravest trespass upon the civil and religious rights of existing non-Jewish communities in Palestine” (p. 44). Similarly, Imseis goes on, “[a]ccording to a 1939 White Paper, the UK itself acknowledged that the Jewish national home had been established in Palestine by that time”. It was precisely the Zionists’ refusal to accept this determination, he continues, “what lead the British to conclude that the mandate was unworkable and should be handed over to the UN”. In other words, he says, “[i]n a very practical sense, the issue before the UN was how to deal with the impediment that Palestinian demography placed in the way of the establishment of what Zionists intended to be a Jewish State” (p. 57).

Shalev then moves on to say that it is “anachronistic” to claim that a Palestinian state existed in 1923. This is interesting considering throughout his text Shalev relies heavily on examples from the Mandate of Iraq and the Mandate for Syria and Lebanon. The first of these, however, was not constituted through a Resolution of the League’s Council, like Palestine. Instead, it was constituted through an international treaty, between the UK and the “State of Irak”. Mandatory Iraq, in fact, had a King, Faisal I, and Article 1 of the Treaty of Alliance his government signed with the British was signed “without prejudice to her national sovereignty”. Similarly, the Mandate for Syria and Lebanon established that “[t]he Mandatory shall further enact measures to facilitate the progressive development of Syria and the Lebanon as independent states”. As Quigley notes, both the constitutions of Syria and Lebanon declared them states, many years before independence (p. 44). Why is it anachronic, then, to also consider Mandatory Palestine a state?  

Shalev also says that it is “ahistorical” to conclude that the purpose of the Mandate System was to allow for the independence of the state it created (i.e. Palestine).  In his reading, the Arab population appears to have no rights and could simply be excluded because that is how things worked back then. In other words, when the League Covenant expressly states that former Ottoman territories “can be provisionally recognized” as independent nations, there was a hidden “except for Palestine” clause. This clause apparently enabled the UK to modify the Covenant – despite the provisions of its Article 20 – because the creation of a national home for the Jewish People had to be imposed against and to the exclusion of Arab Palestinians. 

This is an extremely colonialist view of these texts. It is well hidden behind positivist arguments, but it is still there, disguised under Shalev’s epistemology of innocence. In reality, as other scholars have done, the more sound alternatives are to conclude that either the Mandate violated the rights of Palestinians, as Wilde does, or that the creation of Israel did not occur as a result of following Mandatory and Covenant rules, but out of secession from the self-determination unit (or non-independent state, in my view) called Palestine, as Crawford does. Shalev’s position, instead, require us to fill in the texts’ silences with unspoken colonial rules, where we all understand, but don’t say, that the underlying logic is that only Jewish settlers and Jewish Palestinians counted as rights bearers. 

Shalev, of course, can do that. He can absolutely conclude that the complete exclusion of Palestinian rights is the correct interpretation of Covenant and Mandatory rules. But then he needs to accept that he is agreeing with a very specific worldview of the time. Not the 1919 King-Crane Commission’s view, not the 1939 UK White Paper’s view, not the UN’s 1947 view, and certainly not the Palestinian view. The view of those who completely erased Palestinian rights was the one shared, for example, by Sir Winston Churchill, who plainly explained to the 1937 Peel Commission, that it was not wrong for a “stronger race, a higher-grade race, a more worldly-wise race” to come in and take the place of the Palestinians, who really should not have a say in the matter. 

My reading, therefore, is not ahistorical or anachronic, but simply aware of the epistemologies of innocence that stain the history of the mandate system. It is a view that consciously chooses to read the documents free from this extra-legal contamination and in the full context in which they existed – i.e. including all contemporaneous voices, even if they were critical of the plan, not just the Eurocentric and colonial ones who promoted it. And in that view, the League Covenant recognised the existence of a non-independent Palestinian state, making a commitment to its short-term independence. The Mandate of Palestine distorted that commitment, infringing on the rights of Arab Palestinians, but never actually changed the nature of that non-independent state. It continued to be the same Palestine, even if the British were to establish in it a national home for the Jewish People. 

Even assuming, contra-Wilde, that the Mandate was not illegal, nothing in its text hints that the state was ceasing to be Palestine to become Israel. The Preamble of the Mandate is clear: the national home will be established “in Palestine”. Its operative text as well: Britain would place Palestine under certain conditions that “will secure the establishment of the Jewish national home”. Never does it say, “from now on, Palestine belongs to the Jewish settlers and its Arab population has no voice or rights under the Covenant”. That is just the colonial quiet part that I reject and Shalev embraces. 

There is simply nothing ahistorical or anachronic in interpreting historical legal texts in the broader context in which they existed – that is called contextualism. There is, instead, something ahistorical and anachronic in doing history by tracing back an evolutionary line that only chooses those interpretations that support a desired and pre-determined result in the present, while ignoring the rest – that is called presentism. 

The Creation of Israel and the Uti Possidetis Principle

Shalev then argues that “the thesis whereby Israel unilaterally seceded from a Palestinian Arab state is a non-starter”. He argues this by reference to the uti possidetis iuris principle, which, as is well-known, provides that colonial administrative borders become international borders of emerging states after independence. According to Shalev, “Israel was the only state that emerged from Mandatory Palestine, and it fulfilled the requirements of the Mandate for the establishment of a Jewish homeland”. This, he argues, means that “Israel’s territorial claims match those of the Palestine Mandate in 1948”. 

Shalev’s argument, once again, asks us to engage in an epistemology of innocence to explain history. He asks us to compare the situation in Mandatory Palestine, in 1948, with the situation in Mandatory Syria and Lebanon, where French forces were violently expelled after the end of the French Mandate by independentist forces. “[V]iolent struggle”, he says, “is also typical for emerging states and as such does not detract from Israel’s rights according to uti possidetis juris”. 

This is, however, not a proper comparator. It was not a Palestinian independence movement that sought Israel’s independence. As I noted above, it was the Jewish communities’ rejection of an independent Palestine as a single state both for Arabs and Jews alike, that contributed to the collapse of the Mandate. As Quigley notes, the UK offered several proposals, all involving some level of temporary continuation for British rule and shared institutions for “an independent Palestinian State in which Arabs and Jews would enjoy equal rights” (p. 89). These proposals were rejected both by Arab states and the Jewish Agency for Palestine – the representative of Palestine’s Jewish and Jewish settler communities. Arab states wanted an immediate declaration of independence and a parliamentary democracy in Palestine. The Jewish Agency, in turn, wanted a Jewish-only state. This is why the UN looked to partition as a potential solution. 

This means that when the Jewish community declared its statehood, it did not claim it for the benefit of all the population of Palestine. The Declaration of Independence recalls specifically UN Resolution 181(II), “calling for the establishment of a Jewish State in Eretz-Israel”, and declares that the “recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable” (emphasis added). In other words, the state they were creating was not Palestine. It was a different one, inspired (but not pursuant to) the UN Partition Plan, conceived solely as a Jewish state. The comparison to Lebanese independentist movements, therefore, is unfounded. Part of an epistemology of innocence.

This is why Crawford argues that “Resolution 181(II) did not purport to divide Palestine into distinct self-determination units, and even had it done so, Israel was not created within such a unit but on more extensive territory” (p. 433). In other words, Israel is not Palestine, but was rather created “in Palestine”. 

There is, therefore, no room to apply the uti possidetis principle, because there is no colonial border to apply. The only existing demarcation for a Jewish state in Palestine is the UN Partition Plan – and that resolution was never implemented. Unlike the (non-independent) State of (Mandatory) Palestine, Israel simply did not exist before 1948. The uti possidetis principle has no application for the purposes of the state of Israel. 

In fact, it rather works the other way around. It is Palestine which has a right to territorial integrity at the moment of independence. As Article 5 of the Mandate states, “no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power”. It is post-Mandatory Palestine, not Israel, that has a right to an uti possidetis right. This is the reason why the Israeli-Palestinian dispute requires negotiations. Because these negotiations may comport Palestine’s renunciation to its uti possidetis rights – what Palestine calls its “historic compromise”.      

In sum, therefore, Shalev’s response criticises me for saying that the purported Israeli claims to the occupied Palestinian territories are based on a colonial reading of international law. He claims this is an ahistoric and anachronic argument, part of a troubling new trend. And yet, as I have shown here, it is instead his view that engages in an anachronic and presentist reading of the history of Mandatory Palestine, where the rights of Palestinians are erased and only those facts which lead to his desired conclusion (that Israel is the only state to emerge from Mandatory Palestine, with a right to all of its territory through uti possidetis) are counted. This is, in turn, what makes his views part of a colonial epistemology of innocence. In essence, Shalev’s own arguments prove my point. 

Unfortunately, Shalev’s arguments are not part of any kind of new trend. They are part of a narrative that has, for decades now, sought to erase Palestinian rights from the legal discourse of international law. It is under these kinds of arguments, after all, that the West Bank is being de facto annexed by illegal Israeli settlements. These arguments, however, are wrong – in the whole sense of the word. And I am glad that Shalev’s response gave me the opportunity to show how and why.