Symposium on Unbroken Bond: Tracing the Ties Between African and Palestinian Anti-Colonial Struggles – The Application of International Law to Legitimise Settler Colonialism and Land Grabbing in Zimbabwe and Palestine: An Analysis of the Van Pezold and Ben Sourik Decisions

[Madhav Mallya is an independent legal researcher based in Toronto. He is a former associate professor at the Jindal Global Law School.]

In Van Pezold v Zimbabwe, an investor-state arbitration tribunal ruled that Zimbabwe’s compulsory land redistribution scheme—intended to acquire land from white settlers without compensation and redistribute amongst the native population—violated the international law on the prohibition of racial discrimination, constituting a form of reverse-racism. This decision is reminiscent of the 2002 Beit Sourik decision of the High Court of Justice of Israel, where the taking of Palestinian lands to build an illegal security wall was deemed IHL-compliant. 

With the ongoing humanitarian crisis in Gaza provoking renewed global attention on Israel’s land grabbing practices in Palestinian territory, this short essay uses these two decisions to demonstrate how international law has been applied to further settler colonialism in Zimbabwe and Palestine. While Zimbabwe is an independent sovereign post-colonial state, Palestine’s status is contested by Israel and its Western allies despite unequivocal recognition by the majority of the world’s states and population. For the purposes of this post, I will treat Palestine as a colonised state where Israel continuously usurps land for its own economic benefit, highlighting my reasoning at different points in this essay.

In the first part, I will discuss the history of settler colonialism in Zimbabwe and land grabbing in Palestine, respectively. While these historiographies are factually different, commonalities are evident in how Western colonial powers treated land and private property rights amongst native populations. The second part will discuss how the neutral application of international law in the Van Pezold and Beit Sourik decisions ignored the history of dispossession of native people of their lands by Western imperial powers. The concluding part will contextualise the practice of contemporary settler colonialism within mainstream international law from a broader and historical perspective.

The History of Settler Colonialism in Zimbabwe and Land Grabbing in Palestine. 

As documented by Reginald L. Streater, Cecil John Rhodes claimed the productive farmland of Matabeleland in the 1880s and, through war and famine, forced farming tribal communities onto reserves. By 1924, when Rhodesia—now Zimbabwe—became a self-governing colony, only 14 of 1939 farms belonged to the native population. Moreover, in 1930, the passage of the Land Apportionment Act prohibited native Zimbabweans and white settlers from buying land from each other. This led to a concentration of ownership in the hands of white farmers since only a small percentage of land was set aside for farming by the native population. 

In 1979, Britain held the Lancaster House Conference, the purpose of which was to officially grant Zimbabwe its independence and create a constitution for the new state. Britain agreed to  fund a “willing buyer, willing seller” approach to facilitate land acquisition in Zimbabwe from  white farmers for distribution to the native population. However, the scheme reproduced colonial land policies, with only about 20,000 families settled. By 1992, the Lancaster Agreement expired, and the state had run out of money to fund land acquisition. The Labour Party in Britain refused to fund further land acquisition saying that their new government had  no “links to former colonial interests.” 

By 2000, Zimbabwe’s Constitution was amended to provide for compulsory land acquisition from landowners to expressly redress the history of colonial domination and dispossession. Compensation was available for improvements to the land but not for the land itself. The objective of the amendment was noticeably clear: “the people of Zimbabwe must be enabled to reassert their rights and regain ownership of their land.”

Unlike Zimbabwe, Palestine formally came into the hands of the British as a Mandate Territory in 1922 after the dissolution of the Ottoman Empire. Prior to then, the British Government issued the Balfour Declaration in 1917, which favoured the establishment of a national home for the Jewish People in Palestine without any prejudice to the existing civil and religious rights of existing non-Jewish communities. As observed by Dana and Jarbawi:

…between 1922 and 1945, there was increased Jewish Immigration to Palestine accompanied by increasing violence between Arabs and Zionist groups. Finally, unable to rule a division they had themselves created, the British decided to evacuate and end its mandate. After a partition of Palestine was proposed by the UN in 1948, Israel’s Declaration of Independence and the Arab Israeli War, Palestine fell under the control of Egypt and Transjordan, respectively. After the 1967 Arab Israeli war, Israel captured Gaza and the West Bank. Since then, Israel has systemically constructed settlements on land belonging to the West Bank and Gaza for both security and commercial purposes. In fact, latest news reports point out that Israel has just approved the “largest West-Bank” land grab in 30 years.

The Oslo Accords of 1993 and 1995 clearly state that Israel shall be responsible for external security and matters of international law as well as the internal security of Israelis and their settlements. Tellingly, the accords do not foresee a complete withdrawal of the Israeli military. Though both accords were meant to be in place for a transitional period of five years to lead to a permanent sovereign settlement as contemplated by United Nations Security Council Resolution 242, there have been no elections in Palestine since 2006 and Israeli occupation continues. The language of the Accords does not indicate Israel’s intention of withdrawing and granting Palestine territorial integrity and sovereignty. Rather, the emphasis is on the continued protection of Israeli interests, reaffirming Palestine as a colonial, occupied state. 

Both the Zimbabwean and Palestinian historical narratives have two commonalities. The first is economic exploitation and the second is the presumed racial inferiority of the native inhabitants which validated their exploitation. In the case of Zimbabwe, the white ruling economic class justified dispossession based on the argument that the native inhabitants’ farming methods were inferior. In the case of Palestine, Brenna Bhandar states that “lands that required improvement were a consequence of its stewardship being in the hands of people who themselves required improvement…. racial thinking that relegated Indigenous people to the margins of civility and deprived them of the status required to be owners of their land.” 

Since native peoples belonged to a certain race, settler-colonists assumed they could be exploited, and their lands seized. Though beyond the scope of this essay, a correlation is evident between these imperialist attitudes and the early doctrines of Grotius and Vitoria which justified war and dispossession of lands from Saracens in the new world based on Christian supremacy. One could also argue that this philosophy of racial superiority has been internalised in the development and operation of international law frameworks, which still operate to protect Western capitalist interests. Part III will elaborate on this idea further. 

Using International Law to Justify Land Grabbing and Settler Colonialism.

Van Pezold v Zimbabwe was an investor-state dispute between white investors from Germany and Switzerland who claimed that their commercial farmland was expropriated in a discriminatory manner because it was based on racial considerations. The claim arose out of the compulsory constitutional land acquisition to remedy colonial dispossession. The claimant argued that racial discrimination would always be disproportionate to the objective sought because it breaches an obligation erga omnes. 

Concluding there was a breach of such an obligation, the tribunal rejected Zimbabwe’s argument that situations could arise where racial discrimination was necessary, such as redressing the racial legacies of colonialism. The tribunal determined that Zimbabwe had not provided a legitimate reason for implementing an unjustified policy that “discriminated against the landowners based on skin colour and foreign ancestral heritage, thus precluding the defence of necessity.”

At issue in Beit Sourik Village Council v The Government of Israel was whether orders by the Israel army to seize plots belonging to the petitioners to build the “Apartheid Wall” violated international law. The petitioners argued that the wall illegally annexed their land in addition to obstructing access to their farmlands and livelihoods. The respondents argued that security officials can seize lands for combat purposes under the international law of belligerent occupation. They further argued that the seizure of the land was for security reasons and not political purposes. Agreeing that the seizure was for security concerns, the High Court of Justice ruled that:

…the military commander was authorized—by the international law applicable to an area under  belligerent occupation—to take possession of land, if this is necessary for the needs of the  army…The infringement of property rights is insufficient, in and of itself, to take away the authority to build it. It is permitted, by the international law applicable to an area under belligerent occupation, to take possession of an individual’s land in order to erect the  separation fence upon it, upon the condition that this is necessitated by military needs. To the extent that construction of the fence is a military necessity, it is permitted, therefore, by international law. 

One may argue that the Van Pezold tribunal had to decide an investment dispute in accordance with a Bilateral Investment Treaty (BIT) that prioritised investment protection over colonial injustices. In fact, the tribunal even admitted this limitation. However, the tribunal took a narrow view of the dispute. The tribunal also denied an amicus curiae request by certain Indigenous Zimbabwean groups. Had the tribunal allowed that request and analysed the impact of settler colonialism on the present dispute, it might have set fresh new paradigms to understand the economic and social effects of settler colonialism, even if the outcome of the dispute remained unchanged. 

Milner and Kedar observe that while the Ben Sourik decision did rule that the security objective of the planned route of the wall was disproportionate to the hardship faced by the petitioners, it did not address the question of whether the very existence of Israeli settlements in the West Bank violated international law. Moreover, the court did not address two important questions. First, the temporality of the belligerent occupation; ongoing for more than 30 years and whether the length was reasonable. Second, whether it had authority to decide on land occupation in Palestinian territory or whether that should have been left to Palestinian courts. The absence of these discussions indicate that Israel treats Palestine as a colony. The Beit Sourik decision is also indicative of how domestic courts can interpret international law to further colonial objectives. 

Both decisions discussed above have ignored the zionist elephant in the room: the colonial history of dispossession. While the Van Pezold tribunal disregarded the respondent’s articulation of the colonial history of land dispossession, the history of land grabbing in Palestine was not raised by the petitioners in Beit Sourik nor mentioned by the Court. However, given that international law has been applied to legitimise and continue settler colonialism, would it not be fair to expect that the settler colonialism in question be contextualised within these decisions?

Settler Colonialism and International law From a Historical Perspective. 

In his seminal work, “Imperialism, Sovereignty and the Making of International Law,” Professor Antony Anghie elaborates how the Mandate System was based on Vitoria’s ideas that native peoples were infants who required guardianship, and that international law was concerned with protecting the welfare of dependant peoples. He also notes that the objective of the mandate system was not actually decolonisation, noting that: “the paradox was that when colonial peoples were striving towards their independence, their economic value and significance for the metropolis were becoming increasingly evident.” The legacy of this problematic philosophy is echoed in the contemporary land grabbing practices in Palestine and, indeed, within international law frameworks as well. 

Hidden between the lines in the Van Pezold and Beit Sourik decisions is an implicit assumption that international law and its application will continue serving post-colonial imperial capitalist interests simply because it (international law) is drafted in a manner which does not account for colonial history. International law is prospective in nature and the world must not repeat the injustices of colonialism, yet, what about colonialism’s afterlives? 

Neither decision discussed the broader Right to Self-Determination which includes within its ambit the inherent freedom of all peoples to enjoy, use, and dispose of their  natural wealth and resources. One reason for this glaring absence could be that  the International Covenants on   Civil and Political Rights and Economic, Social and Cultural Rights  do not place the Right to Self-Determination within the context of colonial dispossession. Within these covenants, it is important to draw a distinction between self-determination and a narrow, implied right to the freedom of the use of land. In that context, should these covenants expressly acknowledge and prohibit the practice of settler-colonialism?

The ICJ has just ruled that Israel’s continued presence in Palestine is illegal. Ironically (or not!), at the same time, the Knesset has refused to recognise Palestine as a sovereign state. Several former imperial and colonial powers, including the United States, France, and the United Kingdom, also refuse to recognise Palestinian statehood. This absence of recognition, along with supposedly neutral international law frameworks creates a vacuum and acts as a catalyst for land grabbing and settler-colonialism to continue with impunity. It is because of these dichotomies that we must historically contextualise present colonial practices in Palestine with other similar struggles and experiences to raise important questions and create a global counter narrative.