Lex Takkenberg is currently a Senior Advisor with Arab Renaissance for Democracy and Development (ARDD) and a non-resident Professor at the Institute of International Humanitarian Affairs, Fordham University. He worked with UNRWA, the UN agency for Palestinian refugees, from 1989 until late 2019, most recently as the first Chief of its Ethics Office. Prior to that, Lex held a range of other positions with UNRWA, including as General Counsel, (agency-wide) Director of Operations, and (Deputy) Field Director in Gaza and Syria. A law graduate from the University of Amsterdam, Lex obtained a Doctorate in International Law from the University of Nijmegen, the Netherlands, after having successfully defended my doctoral dissertation entitled The Status of Palestinian Refugees in International Law.
When the Russo-Ukrainian war broke out in February 2022, the world was horrified as we watched, in real-time, Russia violate international legal instruments[i] and invade Ukrainian sovereign territory. As Russian armored vehicles rolled into Ukraine, and cities were shelled, Russia initiated a war that has left thousands dead and hundreds of thousands more displaced.[ii] In the midst of such horror, humanity showed the best of itself as allied countries, international relief organizations, NGOs, and individuals quickly responded to the crisis by providing asylum for the ballooning number of refugees the war had created. Under the 1951 Refugee Convention,[iii] refugees everywhere are guaranteed rights and protections, which include the right of non-refoulment, the right not to be punished for entering into another territory legally, and the basic rights to education, housing, and public relief, amongst others, which to a large extent has been upheld for Ukrainian refugees, including the provision of temporary protection status[iv] across the European Union.
Whilst the herculean efforts at ameliorating the Ukrainian refugee crisis and providing aid to the displaced are laudable, it raises the question about the status of other refugee situations globally. The ongoing Palestinian refugee question is the most protracted refugee situation in modern history and, as such, deserving of attention. In this interview, I speak to Lex Takkenberg – the first Chief of Ethics for UNRWA and the leading expert on international law, and the question of Palestine about the current status of Palestinian refugees.
Whilst popular discourse discusses the Nakba[v] of 1948 as a one-time event, many Palestinians frame it as an ongoing, ever-present situation. How do we contextualize the current refugee situation in light of the ongoing Nakba?
Indeed the Nakba was not a one-off situation. It was the first step in the settler colonial occupation of historic Palestine through which established a new Jewish state and, in the process, ethnically cleansed and displaced about 750,000 Palestinians. In 1967, there was renewed upheaval when Palestinian refugees from the Nakba were displaced for a second time in what was known as the Naksa[vi], which translates as setback in Arabic. This represented a second wave of Israeli military occupation – an increasingly clear indication that this was not a temporary endeavor but a more permanent situation as the expansionist policies of settlement building in the West Bank and Gaza kept increasing. Palestinians who were engaged in armed resistance against the Israeli have been subjected to deportation, and forcibly expelled from the West Bank to Jordan or to the Gaza Strip. The continued settlement building and expansion policy embedded within the framework of the Israeli state has continued up until today.
Are there any contemporary case studies you can point to that highlight the phenomenon of the ongoing Nakba?
Following the settler colonial framework of the Israeli state, one site of ongoing home displacement is East Jerusalem, where there is an attempt to uproot Palestinians. The story of Sheikh Jarrah[vii] is a quintessential example of this dynamic of displacing Palestinians from historic Palestine, and replacing them with Jewish settlers. Not surprisingly, this strategy has been used for decades but has been more recently described explicitly in the basic principles[viii] of the new Israeli government when they claim that “the Jewish people have an exclusive and inalienable right to all parts of the land of Israel.” It is also noteworthy that members of the new government are calling for another Nakba[ix], citing an unfinished job in 1948 and 1967. This is the ongoing Nakba.
Recent years have seen a renewed interest in the legal dimension of the question of Palestine. The ICC (International Criminal Court) has called for a probe into the situation, and a special advisory opinion has been requested from the International Court of Justice (ICJ). How effective are these international legal structures in serving justice in Palestine?
The question of international law and Palestine is an interesting one. Ardi Imseis, in his text, On the Origins of Palestine’s International Legal Subalternality[x] explores the contours of law specifically focused on UN Resolution 181 (II)[xi] and questions the objectivity of law in relation to the question of Palestine. There have been many moments, especially after the partition resolution – UN Resolution 181 (II) where the UN has tried to do justice with respect to the question of Palestine. Key amongst these efforts was the appointment of Count Folke Bernadotte –Swedish nobleman, vice president of the Swedish Red Cross, and expert on international law, as the United Nations Mediator in Palestine. Bernadotte’s, inter alia supported the right of return for Palestinian refugees calling for the right of return of Arab refugees “at the earliest possible date” and “their reparation, resettlement, and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return should be supervised and assisted by the United Nations Conciliation Commission.” Shortly after his recommendation, he was murdered by Lehi – a zionist paramilitary group – an explicit indication of the public willingness to engage in any dialogues around Palestinian justice. Another attempt of the United Nations in employing legal instruments in speaking to the question of Palestine was Resolution 194[xii] which guaranteed the right of return to Palestinian refugees – a right which, unfortunately, was never realized. This resolution called for the creation of a conciliation commission which was made up of the US, France, and Turkey, however, the US soon discovered that Israel will not honor the right of return. Therefore, UNRWA was created in response to this situation to effectively support refugees by facilitating local integration and resettlement. Hence, in effect, the UN’s strategy for seeking justice in Palestine was shaped by the major geopolitical interests of the Western nations.
The question of refugees, when discussed generally, is through the framework of a rightsbased approach. However, the question of Palestinian refugees seems to be a politically charged one even with seemingly straightforward resolutions like Resolution 2334[xiii] on the prohibition of settlements. Have we gotten to the point where the international legal instruments that provide protections for Palestinian refugees have become defunct, or are we still able to realize justice for Palestinian refugees through these instruments?
In our open letter[xiv] addressed to UN Secretary-General Antonio Guterres, we make the case about going back to the drawing board with regard to the question of Palestine and international law. With this in mind, it is important to consider the history of the two-state solution born from the Oslo Accords, which stipulated a two-state paradigm with Palestinians under pressure to establish a Palestinian state in the West Bank and Gaza representing only 22% of historic Palestine whilst Israel getting the remaining 78%. The current Israeli government has openly talked about seizing more Palestinian land defending this by asserting that there are about 25 Arab states Palestinians could relocate to. Another reason that the Palestinian refugee question is seen through a political lens as opposed to a rights-based framework is because of the collective guilt of Western nations over the Holocaust. Therefore, although the world was in a period of decolonization and welcoming liberation movements, many Western countries did not raise any objections to the establishment of the state of Israel and supported the formation of a new settler colony in Palestine in 1948. Whilst Palestinian intellectuals have called this settler colonialism since the beginning, daring to criticize Israeli policies and naming the crime of apartheid according to the international legal definition is one that is violently opposed by Israel and its allies. Without a genuine consideration of international law and how it speaks to the question of Palestine, the fate of Palestinians would be left to the mercy of political wranglings.
With Israel’s expulsion from the African Union, amongst other shows of global popular support for the Palestinian cause, it seems like the tide is turning. Can you speak to some of the demands of your letter in addition to the changing tide of Palestinian solidarity?
We are at a pivotal moment, in fact, a turning point! It is hard to predict how quickly things will go. In 1992 in South Africa, it was difficult to predict that two years later, the Apartheid regime would fall. Similarly, we are in a time of profound change. We are not stuck!
Regarding the asks in our letter, they are big asks but definitely possible! One of the main things that we ask for is for the Secretary-General to take the lead in re-establishing the importance of international law and the role of the UN on the global scene. The question of Palestine cannot be left to a flawed negotiating process that is based on a false equivalency between the occupier and the occupied, the oppressor and the oppressed, and the colonizer and the colonized. There are two areas we see potential change emanating from:
International solidarity movements against apartheid are getting stronger, especially after Human Rights Watch and Amnesty International have acknowledged that the situation in Israel-Palestine amounts to apartheid. Similar to what happened in South Africa, this is going to have a profound impact on the business community. I can see predict that what the Boycott, Divestment, and Sanctions (BDS) movement has advocated for over a decade will become more mainstream and will prompt business leaders – who typically move faster than Western politicians who are too worried to be branded as Anti-Semitic, to act. Another area you notice this solidarity is in popular culture. For example, Netflix engages with Palestinian content[xv] because they have realized that people want to see and hear Palestinian stories. Even FIFA, during the last world cup, has allowed huge shows of Palestinian solidarity in the stadia. Another aspect of international solidarity is the appeal to international legal mechanisms such as ICJ, ICC, and International Commission of Inquiry, amongst others, to hold Israel to account and also put pressure on states to be more critical.
The other process which is much faster, in my opinion, is the internal collapse of the nation-state, which we are currently witnessing in real time. This has been precipitated by this new extreme right-wing government’s attempts at paralyzing the courts and attempting to turn Israel into a state managed by the ruling elite with no checks and balances, with the hopes of creating an exclusively Jewish Israel. This is a situation that is becoming so extreme that the world has to take notice of it, evidenced by the uneasiness in local and international Jewish organizations, the US Congress from both sides of the aisle, and even the US President.[xvi] This instability is encouraging internal divestments of Israel by Israelis, who are worried that the situation might spiral out of control. We are at a time of profound transition, which would reinforce a new political direction of ending apartheid. Ending apartheid in South Africa looked like doing away with all forms of institutionalized discrimination, supremacy, and discrimination, and ending apartheid in Israel means Israel cannot be a Jewish Zionist state.
[i] Bellinger, John B. “How Russia’s Invasion of Ukraine Violates International Law.” Council on Foreign Relations, Council on Foreign Relations, 28 Feb. 2022, https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law
[ii] https://www.statista.com/statistics/1293492/ukraine-war-casualties/
[iii] United Nations High Commissioner for Refugees. “Convention and Protocol Relating to the Status of Refugees.” UNHCR, 2019, www.unhcr.org/en-us/3b66c2aa10.
[iv] https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20221110-2
[v] IMEU. “Nakba Is an Arabic Word Meaning “Catastrophe” and Refers to Israel’s Ethnic Cleansing of Palestine | IMEU.” Imeu.org, 5 May 2022, https://imeu.org/article/the-nakba-and-palestine-refugees-imeuquestions-and-answers
[vi] “The Naksa, 48 Years Later | the Institute for Palestine Studies.” Oldwebsite.palestine-Studies.org, https://oldwebsite.palestine-studies.org/resources/special-focus/naksa-48-years-later. Accessed 20 Mar. 2023.
[vii] “Forensic Architecture.” Forensic-Architecture.org, https://forensic-architecture.org/investigation/sheikh-jarrah.
[viii] Keller-Lynn, Carrie, and Michael Bachner. “Judicial Reform, Boosting Jewish Identity: The New Coalition’s Policy Guidelines.” Times of Israel, 28 Dec. 2022, https://www.timesofisrael.com/judicial-reform-boosting-jewish-identity-the-new-coalitions-policy-guidelines/
[ix] “Israel Lawmaker Warns Palestinians They Will Be Ethnically Cleaned Again If They Fly the National Flag.” Middle East Monitor, 25 May 2022, https://www.middleeastmonitor.com/20220525-israel-lawmaker-warns-palestinians-they-will-be-ethnically-cleaned-again-if-they-fly-the-national-flag/. Accessed 16 Mar. 2023.
[x] Imseis, Ardi. Stanford Journal of International Law. 2021.
[xi] Admin, D. S. U. “General Assembly.” Question of Palestine, www.un.org/unispal/data-collection/general-assembly/.
[xii] “A/RES/194 : UN Documents : Security Council Report.” www.securitycouncilreport.org, 11 Dec. 1948, www.securitycouncilreport.org/un-documents/document/ip-ares-194.php
[xiii] Resolution 2334 (2016). 2016.
[xiv] Takkenberg, Lex. “Statement: The Global Network on the “Question of Palestine” Sends an Urgent Open Letter to UN Secretary-General Antonio Guterres on Calling for a Fundamental Change in UN Strategy in to Face the New Israeli Government.” Ardd-Jo, 24 Dec. 2023, https://ardd-jo.org/publication/statement-the-global-network-on-the-question-of-palestine-sends-an-urgent-open-letter-to-un-secretary-general-antonio-guterres-on-calling-for-a-fundamental-change-in-un-strategy-in/. Accessed 22 Mar. 2023.
[xv] Punia, Arushi. “Why Palestine Matters to Netflix (and Why Netflix Matters to Palestinians).” Middle East Eye, 22 Nov. 2022, www.middleeasteye.net/discover/netflix-palestine-why-stories-matter. Accessed 23 Mar. 2023.
[xvi] Keller-Lynn, Carrie, and Michael Bachner. “Judicial Reform, Boosting Jewish Identity: The New Coalition’s Policy Guidelines.” Times of Israel, 28 Dec. 2022, www.timesofisrael.com/judicial-reform-boosting-jewish-identity-the-new-coalitions-policy-guidelines/.