03 Nov The Ungovernance of Gaza
[Michelle Burgis-Kasthala is a Senior Lecturer in Public International Law at the University of Edinburgh. Her work explores practices of statehood, territoriality and criminal accountability across the Middle East.]
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?‘The Second Coming’, (WB Yeats, 1919)
For those living near Bethlehem whether in Gaza under relentless bombing or in Israel reeling with grief, actual and metaphorical darkness is their shared condition. Perhaps it is also the condition that many within the international law fold find ourselves in. What do we do in the face of this suffering? Is law of any value at such moments? Will our centre of stability – the UN and its attendant legitimacy– hold in the face of such dissension and misunderstanding?
At this time, perhaps, it is too soon to say where international law is and could be in the midst of this crisis. What value is there then at this moment in comparing the numbers of the dead or captive with a clinical debate about the laws of armed conflict? Surely, such exercises do little more than reveal the uselessness of our craft in the face of such misery. Thus, whilst acknowledging the profound suffering of all of those involved at this juncture, I put the present to one side.
Instead, I suggest here that we can understand both the past and the future of Gaza as connected through the notion of ungovernance. I do so for two reasons. First, and in contrast to those ‘singularity of 7th October’ narratives, this is a call to continuity and to context in making sense of what is unfolding. While 7th October and its aftermath is and will be singular in many ways and for many people, any understanding of it must arise from a nuanced appreciation of the competing stakes at play beforehand. Second, linking the past and the future through the present reveals what type of particular governance opportunity emerges right now. Here, I suggest that the present moment provides a far more crystalised and stark embodiment of ungovernance.
Perhaps in contrast to the anarchy depicted above by Yeats above, ungovernance is not a synonym for chaos. Instead, it points to a willing embrace of open-ended, indeterminate approaches to rule. For Desai and Lang, ungovernance ‘entails a set of practices which may actively seek to encounter, produce, and harness, their own indeterminacy (or the experience and expression of it) as a generative principle’. Such generative forms of ungovernance have been at the heart of Palestine’s predicament for decades. It was the Oslo Accords of 1993-1995 in particular that sanctioned a complex regime of (non)rule across the fragmented non-sovereign space of Palestine. Before this agreement between Israel and the Palestinian Authority (PA), the predominant paradigms for international lawyers had been those of belligerent occupation and self-determination. These two paradigms were further reliant on the prohibition against conquest: Israel could not claim a de jure right to the territories it has occupied since 1967. Its military presence was therefore deemed to be one of belligerent occupation as governed by ius in bello and increasingly, human rights law. While the foundational right to self-determination is now impossible to deny at least for those Palestinians under Israeli occupation, it tends to be treated as a distinct legal regime. Only where it can be shown that occupation slips into annexation and thus conquest, could its direct link with self-determination come into play. This is partly what is under consideration now before the International Court of Justice.
Oslo muddied the seeming simplicity arising out of conquest’s prohibition and the concomitant governance responsibilities of the belligerent occupier. It allowed Israel as the only sovereign entity operating across the lands of historic Palestine (stretching between the Mediterranean Sea and the Jordan River) to relinquish oversight for the wellbeing of a stateless people. Any possible Palestinian state(let) could only emerge if it could be deemed by Israel as conducive to its ‘security’, an endlessly elastic notion and an effective veto which has allowed the interests of (Israeli civilian) settlement construction to trump the interests of Palestinian ‘inhabitants’. In Israel’s stead, the newly endorsed PA would administer a radically fragmented and emaciated territory with the help of inter-governmental and non-governmental actors. While the majority of the Palestinian population residing in cities and towns were under the nominal control of the PA, the bulk of (rural) lands have remained under direct Israeli army control. At any moment, this equilibrium can be and has been shattered by settlers or soldiers ‘re’entering Palestinian spaces. This was most starkly illustrated by the flattening of Jenin refugee camp in 2002 during the second intifada and is increasingly happening now in the West Bank while our attention is on Gaza.
One narrative of Oslo is that it was set up as a crucial step to usher in eventual Palestinian statehood. A range of actors were encouraged to perform good governance across a territory lacking control over mobility, water resources, air space and customs revenues. Even if the initial Oslo texts did not address the most contested issues (relating to Jerusalem, borders and refugees), the hope (or lie) was that small displays of quasi-sovereign functions and foreign largesse could build capacity for an eventual realisation of self-rule and the wholesale ending of occupation. Rather than indulge in this state-building fantasy, it is far more useful to read the Oslo moment as one of ungovernance: the blueprints were so imprecise and contradictory within the context of constraint that they themselves produced their own failure. No one could have signed these texts in good faith and speak of Palestinian statehood. The miscarriage (of justice) occurred even before a heartbeat of viable sovereignty was detected.
This is illustrated most acutely in the case of Gaza, the quintessential site of ungovernance for the last thirty years. It is a densely occupied territory home to a large influx of refugees who were pushed out of their homes during the Nakba (catastrophe) of 1948. As a result of this and its ongoing non-sovereign capacity, it is a society excessively dependent on aid and external assistance delivered not by Israel, the occupier, but international organisations, other states and NGOs. Unlike the religiously significant lands of the West Bank, Gaza itself offered Israel comparatively less benefit for its small number of settlers and soldier-‘security guards’ residing there. Consequently, Israel unilaterally withdrew from the Strip in 2005. Its policy ever since has been one of radical irresponsibility experienced by Gazans as structural violence syncopated with episodes of catastrophic physical destruction repeatedly amounting to domicide. Since 2005, intermittent closures transformed into total confinement at the behest of a distant power, untroubled about the maintenance of even the most basic of human needs. Within this matrix of control, any semblance of liberal notions of governance, such as ‘the rule of law’, ‘transparency’ or ‘accountability’ evaporate. There is no prospect of a plan for political community or a sovereign future. The plan is one of no plan: to govern as if not governing by abdicating any sense of commitment or respect for those contained within this ghetto of despair. Can such a disequilibrium resulting from the absence of mutual respect lead to two states and any semblance of peace? That illusion – if ever held in good faith – was shattered on 7th October.
What has remained though is the logic of ungovernance of Gaza. Where once overweening Israeli control permitted an inadequate supply of basic provisions along with a range of non-state service providers and Hamas rule, this has now been unequivocally denied. As part of its ‘first phase’ aiming to ‘limit [or, destroy entirely] the military and government capabilities of Hamas’, Israel deems both civilian blockade and bombing as part of its immediate war strategy. In this calculation, it seems that Hamas militants are not afforded the status of combatants and civilians have lost any protection even while sheltering in schools and hospitals. This space of over 2 million people is now governed almost exclusively by the right to (Israeli) self-defence without any ius in bello caveats. Prime Minister Netanyahu characterises this phase as Israel’s ‘second war of independence’, which in 1948 conterminously resulted in Israel’s founding and the forced flight of over 700 000 Palestinians, the Nakba.
What comes once the dust has settled and Israel declares Hamas’s destruction? Israel’s Defence Minister, Gallant has suggested an interim ‘second phase’ of periodic skirmishes to root out possible remnants of Hamas resistance. Once – if ever – this has passed though, we enter the territory of Gaza’s ungovernance in its perfected form. On 20th October, Gallant stated that the ‘third and final phase will entail the establishment of a new security framework in the Gaza Strip, relinquishing Israel’s responsibility for life in the Strip, and the creation of a new and secure reality for Israeli citizens and residents of the border area.’
Gone from this vision is any semblance of a governance relationship of responsibility and dependence. Gone is even the desire to preserve (Gazan) life which would appear to have been pushed out to an undefined and insecure ‘border area’ or beyond. On 18th October, Israel’s Foreign Minister, Eli Cohen stated that ‘At the end of this war, not only will Hamas no longer be in Gaza, but the territory of Gaza will also decrease.’ Some Israeli civil servants are already drawing up detailed plans for the population transfer of Gaza’s Palestinians into the Egyptian Sinai desert without any prospect of their return. For now, Egypt categorically opposes such a possibility. If Egypt remains unwilling, another suggestion has been to call on the PA itself to step into the void in a context where ‘civil order is starting to break down’ and even UNRWA’s future role is being questioned. Palestinian Prime Minister Muhammed Shtayyeh has already vehemently rejected any role for the West Bank-based PA that would follow track marks of Israeli tanks in the absence of a Palestinian state.
Irrespective of the specific blueprint adopted, the general vision here is to transform any possibility of occupier’s liability into deniability: denial of peoplehood and the quest to live in political freedom. Such a stance though is not about the ending of governance. It is about the active ungovernance of Gaza as the preferred way to manage Israel’s – and Palestine’s – troubled future. Here, the only way to preserve one people’s statehood is through an active and ongoing policy that ensures the impossibility of Palestinian self-government.
While such blueprints are emerging in the heat of battle and must jostle with a range of competing visions, agendas, constituencies and resource-constraints, here I am suggesting that the logic of ungovernance – a beast slouching towards nearby-Bethlehem in the occupied West Bank – will prevail even after the catastrophe ends. If it ends.