At the time of writing, at least 198 people have been killed in Gaza in the worst violence seen in the area since 2014.[1] There have been weeks of spiraling tensions after the threatened eviction of families in Sheikh Jarrah and clashes at the Al-Aqsa mosque which have led to 200 people being injured, with Israel firing rubber bullets, tear gas and stun grenades into crowds.[2] Israeli air strikes have since hit a refugee camp and a number of high-rise buildings hosting media organisations as well as offices and apartments.[3] Around 10,000 Palestinians have left their homes in Gaza due to the fighting.[4] Protests have since erupted in Kashmir against the Israeli government and in support of Palestinians.[5] The two occupations are strikingly similar – in the tactics used by the Indian and Israeli governments to subjugate their occupied peoples, the inhumanity shown towards inhabitants of this occupied land, as well as the aggravated use of ‘terrorism’ as a rationale for their crimes against humanity. This statement will document the parallels between the occupations and call for the international community to enforce the body of international law on both conflicts.
Since Narendra Modi’s election, India and Israel have drawn closer. Hindu nationalists have long seen Zionist Israel as a model nation-state which they would like to recreate in India as Israel is simultaneously democratic and supremacist.[6] In 1920, Vinayak Savarkar who coined the Hindutva concept, stated that “[i]f the Zionists’ dreams are ever realised—if Palestine becomes a Jewish state—it will gladden us almost as much as our Jewish friends.”[7] This ideology heavily relies on the distinction between members and non-members of the nation and is present in both Hindutva and Zionist thought through which policies are enacted that relegate Arabs and Kashmiri Muslims to second-class citizens. Modi and Binyamin Netanyahu have in recent years become close personal friends. Netanyahu welcomed Modi to Israel in 2017 with the words “Prime Minister Modi, we have been waiting for you for a long time, almost 70 years … We view you as a kindred spirit.”[8]
However, relations were not always this cordial. In November 1947, the Indian delegate to the General Assembly argued for a binational Arab-Jewish state in Palestine and voted against the UN Palestine Partition Plan which involved splitting the country into a larger Jewish state and a smaller Arab state.[9] In the first few decades after Indian independence, India sought friendlier relations with Arab states and aligned itself with the third world Non-Aligned Movement viewing Israel as a proxy of Western imperial powers.[10] Indeed Gandhi himself believed the Zionist state was a colonial enterprise.[11] India also became the first non-Arab state to recognise the Palestine Liberation Organization as a legitimate representative of the Palestinian people in 1974 and later became one of the first countries to recognise the state of Palestine in 1988.[12]
India’s approach changed after the end of the Cold War when its leaders rethought their global strategy. In 1992, India and Israel opened their first bilateral diplomatic missions and started a transactional relationship primarily cooperating over military and technology contracts.[13] Since then, the countries have found mutual areas of interest, namely in intelligence sharing and ‘countering terrorism’. In the years since Modi’s election, the two countries have become ever closer with reports that Modi is trying to ‘dehyphenate’ the Israel-Palestine issue in order to create ties with Israel.[14]
Both countries also have something else in common; prolonged and oppressive occupations marked by systematic and serious breaches of their duties as an occupying power.
Both India and Israel have occupied land for over seven decades and have violated the laws of war in annexing the territory, transferring their own civilian population into it, targeting the civilian population, committing human rights abuses, and, critically, violating a peoples right to self-determination.
Israel
Israel has occupied the West Bank and Gaza for over seven decades and Israeli governments have established, maintained, and expanded settlements and their infrastructure in this occupied territory. In order to allow for these settlements, Israel has extended its domestic legal jurisdiction into occupied Palestine. It has violated the narrow remit it has as an administrator by replacing the jurisdiction of Palestinian courts with Israeli military courts and transferred its own population into the territory.[15]
Israeli troops have killed over 2,000 Palestinian civilians in the last three offensives in Gaza (Operation Cast Lead in 2009, Operation Returning Echo in 2012, and Operation Protective Edge in 2014).[16] Many of these amount to IHL violations due to a failure to take precautions to spare civilians and some amount to war crimes due to the targeting of apparent civilian structures.[17]
The current crisis revolves around the forced eviction of Palestinian families from the Eastern Jerusalem neighbourhood of Sheikh Jarrah.[18] Palestinians view the move as a continuation of what some scholars have come to call Israel’s long standing policy of settler colonialism.[19] International law is clear that forced evictions are not permissible. Principle 6 of the Guiding Principles on Internal Displacement guarantees all humans the protection from arbitrary displacement from their homes or places of habitual residence.[20] They are also a violation of Article 11 of the International Covenant of Economic, Social and Cultural Rights that guarantees the right to an adequate standard of living, which includes housing[21] and a violation of the Fourth Geneva Convention.[22]
Homes vacated by native Palestinians are subsequently turned into Israeli settlements, changing the demographic makeup of the neighbourhoods in question. The building of illegal settlements also violates Article 49 of the Fourth Geneva Convention which prohibits the transferring of the Occupying Power of its own civilian population into the territory it occupies. There are a total of 22,000 Israeli settlers in East Jerusalem, compared to a Palestinian population of 340,000.[23] Amnesty International states that Israel’s building of settlements in the West Bank does not respect IHL rules.[24] The settlements are not temporary, do not benefit Palestinians and do not serve the legitimate security needs of the occupying power. Furthermore, the settlements depend on large-scale appropriation and destruction of Palestinian private and state property which are not militarily necessary. The organisation states ‘[t]hey are created with the sole purpose of permanently establishing Jewish Israelis on occupied land”. The unlawful appropriation of property by an occupying power amounts to ‘pillage’ which is prohibited in the Hague Regulations and Fourth Geneva Convention.[25]
This occupation has also involved human rights abuses. Human Rights Watch describes these as ‘systematic rights abuses, including collective punishment, routine use of excessive lethal force, and prolonged administrative detention without charge or trial for hundreds’.[26] Allegations of ill-treatment and torture of Palestinian detainees have been regularly reported over the years.[27] Moreover, Israel has tightened restrictions on the movement of people and goods to and from the Gaza Strip which ‘separate families, restrict access to medical care and educational and economic opportunities, perpetuating unemployment and poverty.’[28] This tight closure policy has left 1.9 million Palestinians locked into Gaza unable to access the West Bank and the outside world. These closures amount to collective punishment as they penalise the entire population and are contrary to international law. [29]
India
India’s occupation of Kashmir remains the oldest conflict inscribed in the body of United Nations Resolutions, referred to the UN Security Council on 1st January 1948. India has remained an occupying power over the territory since then, with no legal title to Jammu and Kashmir. Two provisions in the Indian constitution, Article 35-A and Article 370, retained Kashmir’s autonomy and recognised its special status. They formerly preserved the rights of the ‘permanent residents’ of Kashmir from displacement and any attempts to change the demographics of the state. India unlawfully annexed Jammu and Kashmir by rendering it a Union Territory on August 5, 2019, to be directly ruled by the Central Government, in violation of international law.
India has also passed domicile laws allowing non-locals to permanently reside and buy property and land in Jammu and Kashmir and adding Hindi as an official language proposes to change the demographics of the state entirely. In doing so, India is transferring its own civilian population into occupied territory in violation of Article 49 by creating a favourable legal and factual framework for settlement. The Modi government has also proposed Kashmiri Pandit (Hindu) settlements in Jammu and Kashmir as well as soldiers’ colonies for retired members of the armed forces.[30] These proposals have been described as rendering explicit the ‘colonising aim’ of the BJP.
India has violated the obligation to maintain public order in Jammu and Kashmir through flagrant human rights violations in the region. Significant among these are the use of excessive force against protestors in violation of the right to life, the use of indiscriminate weapons such as pellet guns, torture, enforced disappearances, impunity for perpetrators, restricting access to justice, and curbs on freedom of expression.[31] After the annexation of Jammu and Kashmir in August 2019, a near total communications blackout was imposed on the valley.[32] UN human rights experts called on India to end the crackdown on freedom of expression, access to information and peaceful protests, stating that they were “inconsistent with the fundamental norms of necessity and proportionality,” and “a form of collective punishment of the people of Jammu and Kashmir, without even a pretext of a precipitating offence.”[33] They also expressed concern about the use of excessive force against protestors which could violate the right to life as well as about night raids on private homes which led to the arrests of young people stating that “Such detentions could constitute serious human rights violations…We are gravely concerned about allegations that the whereabouts of some of those detained is not known as well as the general heightened risk of enforced disappearances, which may proliferate against the backdrop of mass arrests and restricted access to the internet and other communications networks”.[34]
A key question in both the Palestinian and Kashmiri contexts is whether international law allows a subjugated peoples the right to resist an occupation. Traditional international law has been seen as silent on the issue, in that it does not forbid the civilian population from committing acts of resistance, but leaves the occupying power free to punish those acts.[35] However, this classic interpretation has been challenged by the rise of the right to self-determination. Article 1 of the International Covenant on Civil and Political Rights states that “all peoples have the right to self-determination”, the right to “freely determine their political status and freely pursue their economic, social and cultural development”.
It has since been argued that international law not only recognises armed struggle against occupation, but specifically endorses it.[36] General Assembly resolution 37/43 entitles an occupied people to resist occupying forces by all lawful means. It reaffirms “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”.[37] The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations also recognises the resort to armed force by national liberation movements and also calls upon member states to contribute moral and material assistance to such movements.[38] Abi-Saab and other academics have argued that this Declaration means that armed resistance against forcible denial of self-determination is legitimate.[39]
The General Assembly has gone so far as to recognise that Palestinians have a right to armed struggle against Israeli occupation. A Resolution “reaffirms the inalienable rights of the Palestinian people in Palestine, including: (a) The right to self-determination without external interference; (b) The right to national independence and sovereignty. [It] also reaffirms the legitimacy of the people’s struggle for liberation from … alien subjugation by all means including armed struggle.”[40] Indeed, Richard Falk, the former UN Special Rapporteur on Palestinian human rights, has stated that “Israel’s failures to abide by international law, as a belligerent occupant, amounted to a fundamental denial of the right of self-determination, and more generally of respect for the framework of belligerent occupation — giving rise to a Palestinian right of resistance”.[41] A right to armed struggle against occupation in the Palestinian context, recognised in international law, would also give rise to a right to resistance against occupation in Kashmir. As shown above, the denial of self-determination and violations of the duties of the occupier are the same in both regions.
The conflict and loss of civilian life in Palestine this week has seen a tired and worn-out response from the international community which has, once again, anaemically condemned violence on ‘all sides’. As Palestinians and Kashmiris continue to resist an occupation which is emboldened enough by the world’s silence to transform into a settler movement, there is a need for states to step in and denounce these actions. These occupations have persisted with impunity due to a false equivalence made between the two sides, where a national security narrative has played too well in a world obsessed with terrorism, and where clear transgressions are met with yet more arms sales. As Israel commits more actions which are ironically reminiscent of those punished at Nuremberg and as India becomes more like the colonial power it once overthrew, there is only one option left which international law needs to facilitate; that of the right to resist.
References
[1] Al Jazeera, Israeli air raid flattens Gaza building housing Al Jazeera: Live, May 16, 2021, available at: https://www.aljazeera.com/news/2021/5/15/palestinian-death-toll-in-gaza-occupied-west-bank-mounts-live-news
[2] BBC News, Israel-Gaza conflict rages as US envoy visits, May 16, 2021, available at: https://www.bbc.com/news/world-middle-east-57125479
[3] Ibid
[4] Ibid
[5] AA, Palestine solidarity: Kashmir’s vocal past and muted present, May 14, 2021, available at: https://www.aa.com.tr/en/asia-pacific/palestine-solidarity-kashmir-s-vocal-past-and-muted-present/2241156
[6]Quartz India, Here’s why Hindu nationalists aspire to Israel’s “ethnic democracy”, Sumantra Bose, February 15, 2019, available at: https://qz.com/india/1551356/what-explains-modis-bonhomie-with-israels-netanyahu/
[7] Scroll.in, From Savarkar to Modi: What explains Hindu nationalists’ admiration for Israel, February 16, 2019, available at: https://scroll.in/article/913310/from-savarkar-to-modi-what-explains-hindu-nationalists-admiration-for-israel
[8] The National, Made for each other: sheer ambition underlines Modi’s bromance with Netanyahu, Rashmee Roshan Lall, February 14, 2019, available at: https://www.thenational.ae/opinion/comment/made-for-each-other-sheer-ambition-underlines-modi-s-bromance-with-netanyahu-1.825985
[9] Quartz India, Here’s why Hindu nationalists aspire to Israel’s “ethnic democracy”, Sumantra Bose, February 15, 2019, available at: https://qz.com/india/1551356/what-explains-modis-bonhomie-with-israels-netanyahu/
[10] Jewish Chronicle, Netanyahu trip comes as Israel-India defense, tech ties continue to grow, Yaakov Lappin, January 25, 2018, available at: https://jewishchronicle.timesofisrael.com/netanyahu-trip-comes-as-israel-india-defense-tech-ties-continue-to-grow/
[11] Middle East Monitor, India embraces Israel in unprecedented anti-Palestine vote at the UN, June 12, 2019, available at: https://www.middleeastmonitor.com/20190612-india-embraces-israel-in-unprecedented-anti-palestine-vote-at-the-un/
[12] Vox, The leaders of India and Israel are forming a lasting bromance, Rebecca Tan, July 6, 2017, available at: https://www.vox.com/world/2017/7/6/15929760/india-israel-palestine-modi-netanyahu-middle-east-bromance
[13] Jewish Chronicle, Netanyahu trip comes as Israel-India defense, tech ties continue to grow, Yaakov Lappin, January 25, 2018, available at: https://jewishchronicle.timesofisrael.com/netanyahu-trip-comes-as-israel-india-defense-tech-ties-continue-to-grow/
[14] Al Jazeera, India’s Modi gives warm welcome to Israel’s Netanyahu, Zeenat Saberin, 15 Jan 2018, available at: https://www.aljazeera.com/indepth/features/india-modi-warm-israel-netanyahu-180115062755538.html
[15] European Council on Foreign Relations, Israel’s unlawfully prolonged occupation: consequences under an integrated legal framework, Valentina Azarova, 2nd June, 2017, available at: https://www.ecfr.eu/publications/summary/israels_unlawfully_prolonged_occupation_7294#_ftnref119
[16] Human Rights Watch, Israel: 50 Years of Occupation Abuses, June 4, 2017, available at: https://www.hrw.org/news/2017/06/04/israel-50-years-occupation-abuses
[17] Ibid
[18] Rami Ayyub, Zainah El-Haroun, and Stephen Farrell, “East Jerusalem’s Sheikh Jarrah Becomes Emblem of Palestinian Struggle,” Reuters, May 11, 2021, https://www.reuters.com/world/middle-east/east-jerusalems-sheikh-jarrah-becomes-emblem-palestinian-struggle-2021-05-10/.
[19] Harvard Law Review, From Domicile to Dominion: India’s Settler Colonial Agenda in Kashmir, May 10, 2021, https://harvardlawreview.org/2021/05/from-domicile-to-dominion-indias-settler-colonial-agenda-in-kashmir/
[20] United Nations High Commissioner for Refugees, “Guiding Principles on Internal Displacement,” United Nations High Commission for Refugees, accessed May 14, 2021, https://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html.
[21] “UN Human Rights Experts Call on Israel to Halt Demolition of Palestinian Homes in East Jerusalem,” OHCHR, July 26, 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24854&LangID=E.
[22] “Stop Evictions in East Jerusalem Neighbourhood Immediately, UN Rights Office Urges Israel,” UN News (United Nations, May 7, 2021), https://news.un.org/en/story/2021/05/1091492
[23] Ceasefire, Analysis, Israel’s occupation and expulsion of Palestinians in Jerusalem violate International Law, May 11, 2021, available at: https://ceasefiremagazine.co.uk/israels-occupation-expulsion-palestinians-jerusalem-violate-international-law/
[24] Amnesty International, Israel and Occupied Palestinian Territories: War Crimes and Crimes against Humanity, Chapter 3: Israeli Settlements and International Law, available at: https://www.amnesty.org/en/latest/campaigns/2019/01/chapter-3-israeli-settlements-and-international-law/
[25] Article 33, Fourth Geneva Convention, Article 47, Hague Regulations 1907
[26] Human Rights Watch, Israel/Palestine | Country Page, available at: https://www.hrw.org/middle-east/n-africa/israel/palestine
[27] Report of the Secretary-General, Human rights situation in the Occupied Palestinian Territory, including East Jerusalem, March 2017
[28] Human Rights Watch, Israel: 50 Years of Occupation Abuses, June 4, 2017, available at: https://www.hrw.org/news/2017/06/04/israel-50-years-occupation-abuses
[29] Report of the Secretary-General, Human rights situation in the Occupied Palestinian Territory, including East Jerusalem, March 2017
[30] Mridu Rai, Kashmiris in the Hindu Rashtra, in Anyana P. Chatterji, Thomas Blom Hansen and Christophe Jaffrelot (eds) Majoritarian State (2019), Hurst & Co., page 269
[31] Office of the United Nations High Commissioner for Human Rights, Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan, 14 June 2018 (hereafter OHCHR Report 2018)
[32] UN OHCHR, UN rights experts urge India to end communications shutdown in Kashmir, 22 August 2019
[33] Ibid
[34] Ibid
[35] W.J. Ford, Resistance Movements and International Law, International Review, October, November, December 1967, page 15
[36] Al Jazeera, Palestinians have a legal right to armed struggle, July 20, 2017, available at: https://www.aljazeera.com/opinions/2017/7/20/palestinians-have-a-legal-right-to-armed-struggle
[37] UN General Assembly resolution 37/43, December 3, 1982
[38] UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV)
[39] Georges Abi-Saab, ‘Wars of National Liberation and the Laws of War’, Annales d’études internationales, 3 (1972), 100
[40] UN General Assembly resolution 3070, 28 U.N. GAOR Supp. (No. 30) Operative para. 2
[41] Richard Falk “International Law and the al-Aqsa Intifada,” Middle East Report 217 (Winter 2000), and Richard Falk and Burns H. Weston, “The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the intifada,” Harvard International Law Journal 32/1 (1991)
