Guest Post: The Indigenous Rights of the Jewish People

Ancient Canaanite sarcophagi, displayed at the Israel Museum in Jerusalem. (Image source: Davidbena/Wikimedia Commons)

This is article by Amb. Alan Baker and Michel Calv is part of an anthology, Zionism, An Indigenous Struggle: Aboriginal Americans and the Jewish State, edited by Nathan Elberg and Machla Abramovitz.

From time immemorial, up to the present day, there has been continuous Jewish presence in this area, with elements residing today within the Jewish people's own sovereign national State of Israel, and others residing in the areas of the Holy Land in Judea and Samaria that are subject to an ongoing negotiation within the Middle East peace process as to their final political status.

• Palestinian claims that they are the indigenous descendants of the Canaanites is a canard that has no basis in fact or history, especially in light of the fact that the entry of Islam into the area of the Holy Land occurred only in the seventh century of the common era.

• The premise of the peace negotiation process is the mutual acknowledgment of each party's basic rights. Thus, the peace negotiation process cannot avoid taking into account the indigenous character and rights of the Jewish People as set out in the 2007 UN Declaration. This premise must serve as the basis for any agreement covering the issues of permanent status, including borders, settlements, Jerusalem and other issues.

• It is to be hoped and expected that the Government of Israel will come around to acknowledging the importance and centrality of the UN Declaration on the Rights of Indigenous Peoples, and will finally, and without any further delay or excuse, announce its endorsement of this important and central international document.

On September 13, 2007, the UN General Assembly adopted the "UN Declaration on the Rights of Indigenous Peoples". 144 states voted in favor, 4 voted against and 11 abstained (A/RES/61/295).

While those countries that have considerable indigenous populations, such as Australia, Canada, New Zealand and the United States, initially opposed the declaration, they subsequently endorsed it in 2010, with various interpretative declarations.

Representatives of Israel did not participate in the vote, as the day was the Jewish New Year (Rosh Hashanah).

Curiously, even though the vast majority of states have endorsed the declaration, and even though Israel represents one of the oldest indigenous peoples still existing in the world, Israel has never endorsed the declaration.

The rights acknowledged in the declaration include the basic right to life, integrity and the preservation of the indigenous people's land, language, religion and cultural heritage that are a part of their existence as a people.

The 2007 UN Declaration on the Rights of Indigenous People has the same international status as the 1948 Universal Declaration of Human Rights. They are both documents of the UN General Assembly, both reflect international consensus, both are indicative of accepted international norms and principles, and as such are considered to represent customary international law.

While it is argued that the rights reflected in the declaration are general and result from a non-binding resolution of the UN General Assembly, the Inter-American Commission on Human Rights has nevertheless declared that "there is an international customary law norm which affirms the rights of indigenous peoples to their traditional lands".[1] The African Court on Human and Peoples' Rights, affirmed that land rights of indigenous people are protected and that these rights are "general principles of law".[2] Some national courts have followed this approach.[3]

The Jewish People is undoubtedly one of the most ancient of indigenous peoples, still inhabiting its ancient homeland, the birthplace of its forefathers Isaac and Jacob, the land to which Moses and Joshua led the Jewish People, where King Solomon built the Jewish Temple, where King David laid the cornerstone for his palace in Jerusalem and King Herod resided and was buried, and the land where Jesus of Nazareth lived and conducted his life.

From time immemorial, up to the present day there has been continuous Jewish presence in this area, with elements residing today within the Jewish people's own sovereign national State of Israel, and others residing in the areas of the Holy Land in Judea and Samaria that are subject to an ongoing negotiation within the Middle East peace process as to their final political status.

Examples of the documented continuous Jewish presence in the area, complementing the ample historic and archeological records, are the Biblical towns of Jerusalem, Tiberius, Acre and Hebron.

Accordingly, the UN Declaration on the Rights of Indigenous Peoples represents a clear acknowledgement of the indigenous character of the Jewish People and due recognition of its historic rights in all those spheres set out in the Declaration.

The Declaration refers to peoples who have suffered from "historic injustices as a result, inter alia, of, their colonization and dispossession of their lands, territories and resources". This is directly relevant to such historic injustices as those suffered by the Jewish People throughout its long history, including exiles, banishment, dispersion and forced conversion and diaspora.

Similarly, the Declaration, in recognizing the need to respect and promote the inherent rights of indigenous peoples deriving from their cultures, spiritual traditions, histories and philosophies, especially to their lands, territories and resources, is fully applicable to the Jewish people.

A key provision of the Declaration, set out in its Article 37, anchors the basic inherent rights of indigenous peoples emanating from "treaties, agreements and other constructive arrangements concluded with States or their successors". This clearly applies to those historic international legal documents recognizing and setting out the rights of the Jewish People to their national home, including the 1917 Balfour Declaration, the 1920 San Remo Declaration and the 1922 League of Nations Mandate Instrument for Palestine, the continued validity of which is reaffirmed in Article 80 of the United Nations Charter.

Similarly, Article 2 of the Declaration stresses the right of indigenous peoples to "freedom from any kind of discrimination in the exercise of their rights, in particular that based on their indigenous origin or identity". This is fully applicable to the rights of the Jewish People throughout their indigenous area in the State of Israel and in the areas of Judea and Samaria.

Actions aimed at harming indigenous people, such as those listed in Articles 8 ("Any action which has the aim or effect of dispossessing them of their lands, territories or resources," and "Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them") and in Article 10 (forcible removal from their lands or territories) are particularly relevant to the sufferings of the Jewish People throughout history. Such acts are relevant today in light of the renaissance of incitement to racial hatred, discrimination and anti-Semitism, especially in the international field, including within the UN system.

The reference in Article 25 to the "distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas" is clearly a vital component of the historic, religious Jewish connection with the Holy Land, and is particularly relevant to Israel, as the nation state of the Jewish People, and its duty to uphold its responsibilities to future generations in this regard.

Article 42 of the Declaration states:

"The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration."

This is also relevant to Israel, especially in light of the numerous annual political resolutions adopted by the UN General Assembly and other UN bodies denying the rights of the Jewish People with respect to its indigenous areas.

For all the above reasons, logic would assume that the State of Israel should endorse such a declaration that acknowledges the indigenous rights of the Jewish People in the Holy Land, in light of the fact that they are indeed the native, first people, indigenous to this land. In fact, the Qur'an, the Jewish Bible and the New Testament all recognize the very basic linkage of the Jewish People to this Land.

Palestinian claims that they are the indigenous descendants of the Canaanites is a canard that has no basis in fact or history, especially in light of the fact that the entry of Islam into the area of the Holy Land occurred only in the seventh century of the common era.

The premise of the peace process is the mutual acknowledgment of each party's basic rights. Thus, negotiations in the peace process cannot avoid taking into account the indigenous character and rights of the Jewish People as set out in the 2007 UN Declaration. This premise must serve as the basis for any agreement covering the issues of permanent status, including borders, settlements, Jerusalem and other issues.

It is to be hoped and expected that the Government of Israel will come around to acknowledging the importance and centrality of the UN Declaration on the Rights of Indigenous Peoples, and will finally and without any further delay or excuse, announce its endorsement of this important and central international document.

Amb. Alan Baker is the former legal adviser to the Israeli Foreign Ministry and Israeli Ambassador to Canada. He presently serves as the head of the international law program at the Jerusalem Center for Public Affairs.

Michel Calvo was born in Tunis, Tunisia. An expert in international law, he was a member of the International Court of Arbitration representing Israel. He is the author of The Middle East and World War III: Why No Peace?with a preface by Col. Richard Kemp, CBE.

[1] Inter-American Court of Human Rights Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001 (Merits, Reparations and Costs).

[2] In May 2017 in the Ogiek case, the African Court on Human and Peoples' Rights (African Court) affirmed that land rights of IPS are protected under the African Charter on Human and Peoples' Rights. African Commission on Human and Peoples' Rights v The Republic of Kenya, Application No. 006/2012, Judgment of 26 May 2017.

[3] Belize -- Aurelio Cal, et al. v. Attorney General of Belize, Supreme Court of Belize (Claims No. 171 and 172 of 2007) (18 Oct 2007) (Mayan land rights); many African States – Botswana, South Africa and Uganda – increasingly recognise the rights of IPs in their domestic legal systems. Bolivian State has adopted UNDRIP verbatim as part of its State legislation, Bolivian Rights of Indigenous Peoples Law No. 3760, 2007.

In 2014, a land court in Kenya relied on the provisions of UNDRIP to recognise and uphold the land rights of IPs. Joseph Letuya & 21 others v Attorney General & 5 others [2014], Civil Suit No. 821 of 2012, [2014] eklr 1, (The Environmental and Land Court at Nairobi, 17 March 2014).