Beyond Negotiations: International Law and BDS

Photo Credit: (AP Photo/Mike Groll)

In 1992, one year before he shook Yasser Arafat’s hand at the Oslo Accords, Yitzhak Rabin announced that his government would call for an end to settlement expansion in the occupied West Bank and Gaza Strip. The promise was so central to the Labor government’s vision of peace that a representative from the allied Meretz Party said the majority coalition had been elected “on the promise that [they] freeze settlements.” Despite this unambiguous rhetoric, Rabin’s government proceeded to oversee the construction of thousands of new colonial homes while laying the groundwork for the appropriation of the E1 Corridor outside of Jerusalem. Accordingly, the population of illegal settlers in the West Bank continued to increase steadily throughout Rabin’s second term as Prime Minister, even as he engaged in negotiations that nominally sought the establishment of the State of Palestine.

This contradiction is emblematic of a central paradox inherent in the framework of Israeli-Palestinian peace negotiations. The “land-for-peace formula” has institutionalized its own irrelevance by failing to address the central issue of Israeli settlers. Thus, human rights advocates have recently begun to pursue accountability for Israel outside diplomatic channels. In this respect, the International Criminal Court and the Boycott, Divestment, Sanctions movement are two rising arenas. While groundbreaking successes for both approaches remain limited, the efficacy of these efforts has been proven, in part, by hostile reactions from both the U.S. and Israel.

Since the initiation of the Oslo peace process in 1993, Israeli settlements have been treated as a “final status issue” meant to be included in ultimate territorial negotiations. In the meantime, most of the 125,000 Israeli citizens already living in the occupied West Bank were incorporated into Area C in 1995. In this region, which includes over 60 percent of the West Bank, 99.7 percent of civilian land grants have gone to Israeli citizens. Moreover, these new settlements have been built to surround major Palestinian population centers, effectively cutting Palestinian-controlled areas into discontiguous segments interrupted by walls, settlements, or bypass roads. Thus, even if other final status issues are addressed via diplomatic negotiations, leaders from both Palestine and the U.S. worry that the future independent state would be rendered inviable by the colonial infrastructure that exists in its midst.

To the extent that this dilemma has been addressed at all, it has historically been met by calls for freezes on settlement construction, which are usually ignored by the Israeli government. There are now over 620,000 settlers in the occupied West Bank living on appropriated Palestinian land. To assume that this population can be put off as a final status issue in the future negates the present and ongoing impact that these settlers have on the daily lives of Palestinians. Meanwhile, human rights advocates are increasingly seeking alternative means of challenging the Israeli military occupation. Namely, through international law and BDS.

[From the Journal of Palestine Studies | Enshrining Discrimination: Israel’s Nation-State Law]

While it has long been established that a number of Israeli practices surrounding settlements constitute violations of international law, the traditional negotiations framework had little success in mitigating the impact of such violations.

However, a shift has been evident in recent years, particularly as the Palestinian call for BDS gains momentum amidst a broad worsening of conditions for Palestinians.

In 2015, the International Criminal Court (ICC) opened a “preliminary investigation” into alleged Israeli war crimes, which includes violations related to settlement expansion. In December of last year, Chief Prosecutor Fatou Bensouda suggested that she was close to reaching a decision on whether to bring formal charges against any Israeli officials. Pressure to move forward has since increased following the release of the United Nations Independent Commission of Inquiry report in February, 2019, which examined 8,000 documents and found compelling evidence of Israeli war crimes committed during the Great March of Return in Gaza.

Nonetheless, regardless of the ICC decision, human rights violations in Israeli settlements are unlikely to halt immediately. The court can only prosecute individual government officials, whereas the colonization of the West Bank is supported and advanced by a broad matrix of people and policies. Still, any prosecutions of Israeli officials will go a long way towards challenging the impunity with which the state has historically defied international law.

[From the Journal of Palestine Studies | Palestinians Sidelined in Saudi-Emirati Rapprochement with Israel]

Alongside developments at the ICC, the Boycott, Divestment, Sanctions (BDS) movement has taken aim at one of the economic foundations of Israeli colonialism: tourism. Both Human Rights Watch and Amnesty International have found evidence that digital tourism sites like AirBnB,, Expedia, and TripAdvisor are integral to the financial and ideological matrix that serves to cement illegal settlements. Incorporating this analysis into its advocacy, an alliance of groups that endorse BDS called for tourism companies to divest from settlements in the West Bank and East Jerusalem. In November 2018, the world’s largest digital tourism platform, AirBnB, announced that it would comply with this call in the Occupied West Bank. The company began implementing its decision this month. BDS victories like this one seek to make settlements economically inviable, since most tourists in Israel visit sites in occupied Palestine.

Despite the hope that Chief Prosecutor Bensouda’s investigation and AirBnB’s divestment represent, it is nearly impossible to determine with certainty whether either arena poses an intimate threat to Israeli colonial expansion. What is clear, however, is that both the ICC and the BDS movement are perceived to be deeply influential by the Zionist establishment and its allies. Earlier this month, Secretary of State Mike Pompeo threatened to block any ICC official involved in investigating Israel from entry into the US. Although attorneys affiliated with the court have responded that they will continue to carry out all inquiries regardless of US policy, Pompeo’s announcement is indicative of the lengths to which Israeli allies will go to prevent any measure of accountability. This trend is even more apparent within Israel itself, where HRW Regional Director Omar Shakir has been faced with deportation since May of 2018. The threat is based on an Israeli law that targets any group or individual that advocates for BDS. HRW research has been fundamental in advancing both the ICC investigation and the international call for settlement boycott. Mr. Shakir challenged both the constitutionality of the Israeli anti-boycott legislation and its application in his case. He made his final arguments before an Israeli court on March 11, and a ruling is expected to be delivered in the coming weeks.

Diplomacy between Israel and Palestine has been marked by inequities since its inception. Most notably, hundreds of thousands of Israelis are classified as a final status issue as they construct an apartheid regime in occupied Palestine while millions of Palestinian refugees are barred from returning to their homes. Conversely, challenges against the occupation through international law and BDS are tackling this colonial reality head-on and almost in real-time. Ultimately, these approaches do not negate the potential benefits of negotiations, but they create space to improve the odds of success for a negotiated agreement.

About Clifford Soloway 4 Articles
Clifford Soloway is an undergraduate at Tulane University and an organizer with Tulane Students for Justice in Palestine. He is also the Spring 2019 Editorial Intern at the Institute for Palestine Studies USA.