Authored By: Bokang Seisane
National University of Lesotho
Abstract
This article discusses the Israel-Palestine conflict from the interconnected perspectives of ethnic nationalism and the right to self-determination. It argues that the conflict that the right to self-determination is a multifaceted right requiring a contextualization that is both real and practical. The article emphasizes that the conflict entails a fundamental tension between two ethnic nationalities over the same territory and that the continued Israel occupation of the Palestinian territories violates the principles of belligerent occupation under international law and international humanitarian law. The article then analyses that the exercise of the right to self-determination during belligerent occupation and reimagines the meaning of self-determination and how it should be exercised.
Introduction
Ethnic nationalism, or ethnonationalism, is a form of nationalism in which a nation and nationality are defined within the tenets of ethnicity. This means that the cultural perception shared by a specific group of people and attributed to them distinguishes them from other groups and underlies their being assigned a particular nationality. This includes such other attributes as a common nation of origin, common sets of ancestry, history, religion, and social treatment. The central proposition which therefore essentially underscores ethnic nationalism is that a shared heritage defines nations and it is from this angle that the right to self-determination is contextualized and discussed. The argument thus proposed is that all peoples sharing the same cultural perception are entitled to self-determination. This shared attribute must necessarily inform the exercise of self-determination as a right. From this perspective, self-determination would serve as an important instrument in the emancipation process of different peoples and ethnic groups in the exercise and protection of their human rights.
It bares noting that this argument does not, however, refute the fact that the outcome of the right to self-determination may vary depending on whether the struggle of a certain group of people is a call for self-regulated administrative bodies within an already established society, to an autonomous entity separate from that society or to establish an interdependent sovereign state removed from that society.
Ethnic Nationalism and Self-determination
In discussing the right to self-determination within ethnonationalism, it is essential to unpack the foundational concepts, implications, and the interplay of various social, political, and historical factors that shape this contextualisation. As already highlighted above, the concept of ethnonationalism emphasises that the ethnic identity of a certain group of people primarily defines them as a nation. Deeply embedded in this idea is the belief that people sharing a common ancestry, culture, language and history should collectively govern themselves. This perception of nationality recognises and validates the experiences and aspirations of different peoples and groups. This is especially true where such peoples suffer under the yoke of oppression and injustice, and a resolve to strive for freedom requires a front united by the same spirit; that being a shared national identity informed by a perceived culture. A movement therefore informed by this perception of national identity could lead to the establishment of nation-states, as was seen in the post-colonial context across Africa during the 20th century.
This is therefore the aim of the principle of self-determination, the idea of self-governance. The right of people to choose their political status, to associate or not associate, to ally with whoever they wish and to form a government that they want installed. From this position, it is observable that this perspective of the right to self-determination relates to the notion of law as a product of social practice. In this regard, the principles of law are informed by culture and socio-political context, and those disputes considered socially meaningful are not just determined by strict adherence to rigid principles, but rather by social factors playing a core role in the dispute itself. This position endorses the social function of law from a jurisprudential outlook; the understanding of law as a synthesis of rules and legal institutions meant to serve the contemporary social ideals and goals of the individual. The idea of law as being informed by social behaviours, and society, as the driving factor in the creation and development of the law, is the web of social relations. The sum total of formal relations within which individuals associating with each other are bound. In this regard, it must be stated that emphasis is not placed on ethnicity alone, but also on the shared experiences, values and standards of the people.
This outlook on the relationship between ethnic nationalism and self-determination therefore then brings into perspective, several other factors on sovereignty and democratic governance as some of the core principles which underlie the order of society. Nimni discusses this interrelationship of nationality, sovereignty, self-determination and democratic governance by emphasizing that the governmental process contemporarily entails a multilayered understanding, and is no longer seen as centralised and homogenous. In this regard, Nimni discusses that a transformation of the politics of ethnicity and culture has revealed that the contemporary understanding of nationalism is no longer connected with the state. Rather, a demand for cultural recognition informs the politics of recognition of different ethnic minorities. However, Nimni endorses that a strive by such minorities does not demand the separation of the said minority from the rest of the nation-state, but rather a call for national accommodation. Understood in this context, the exercise of the right to self-determination does not entail the separation of the relevant ethnonational community but rather aims at achieving national inclusion within an already existing nation-state.
Relationship between Democracy and Nationalism
The interaction between democracy and nationalism presents a composite territory characterised by shared aspirations and significant tensions. On the one hand, nationality encloses a sense of belonging and collective identity which can nurture democratic ideals including equality and freedom, whereas on the other hand, it can also encourage practices which are inherently exclusive and xenophobic, which are essentially polar opposites to the principles that underscore democracy. Miller discusses this position in his discussion of the One State or Two State solution in the Gaza conflict. He endorses that, there are times when nationalism is seen as producing mechanisms of exclusion and sentiments of intolerance as compared to democracy which confines its definition to instrumental mechanisms of a majoritarian representation.
When looking at nationalism in a more democratic society, it can serve to unite diverse groups cohabitating within a shared framework of values and narratives thereby potentially strengthening democratic governance. In this regard, the two concepts reinforce each other from an inter-relative outlook despite the conflicting tensions and multiplicity of foci and interests encapsulated in these social concepts. Conversely, nationalism can devolve into a deformed esprit de corps or form of tribalism which perpetuates an agenda to dominate the political landscape at the expense of broader democratic ideals. This change typically happens during crises or uncertainty, where collective identity becomes crucial, fostering an us versus them mentality that dismisses reason and democratic collaboration.
The complex relationship between nationalism and democracy is particularly evident during and after the French Revolution, which reveals significant contradictions that merit critical examination especially when discussing the Gaza conflict. In this regard, whereas the Jacobins of the French Revolution championed ideals such as universal human rights, their actions often contradicted these very principles. Their belief in individual rights clashed with the rights of social groups, leading to a paradox where the pursuit of universal justice sometimes descended into authoritarianism. Moreover, the legacy of the French Revolution is marred by the rise of figures like Napoleon Bonaparte, who appropriated revolutionary ideals to justify a brand of cultural imperialism that sought to impose French values across Europe. This raises about the true nature of nationalism: Is it a force for liberation or a tool for oppression?
The exploitation of nationalism to legitimize dictatorial regimes, as seen in the aftermath of revolutionary fervour, underscores the danger inherent in intertwining national identity with political power. Instances of nationalist movements resulting in the establishment of undemocratic regimes highlight the potential for nationalism to be manipulated for bellicose ends, overshadowing the very democratic values it otherwise claims to uphold.
Israelites vs Palestinians: A Them vs Us Conflict
The history of the French Revolution presents a cautionary tale about the coexistence of nationalism and democracy. It is a reminder that while the initial aspirations of a revolution may be noble, the outcomes can significantly deviate from the intended goals, often leading to conflict and authoritarianism, instead of freedom and equality. Thus, a critical and contextual evaluation of nationalism and self-determination is essential to understand their role in achieving a solution to the Gaza conflict. To do this, a look at the history that built toward the current escalation of the Gaza conflict is essential.
Miller explores the Israeli-Palestinian conflict through the lens of conflicting nationalist ideologies; Zionism and anti-Zionist Arab nationalism. He outlines how these movements have contended over territory and the right to self-determination since the late 19th century. Miller divides the conflict into three historical periods, focusing on the evolution of both Israeli and Palestinian nationalism. Before 1948, Zionist efforts centered on establishing a Jewish state through immigration and settlement, often met with resistance from Arab populations. After the 1967 war, Israeli and Arab political factions evolved towards revisionist policies regarding the territories occupied during the conflict, with Israel establishing settlements and considering withdrawal in exchange for peace, while Arab factions were split between those seeking to revert to pre-1967 borders and those advocating for the displacement of Israel altogether. Miller highlights the Gaza conflict as a vital example of broader regional tensions, emphasizing the struggle for legitimacy from both the Zionist and Arab perspectives over the same territory. He points out that the establishment of Israel faced intense opposition not only from Palestinians but also from neighboring Arab states, as many saw Zionist claims to the land as a denial of Palestinian rights and history. Furthermore, he delves into the discord stemming from historical Jewish persecution, particularly the Holocaust, and the resulting argument that Palestinians should not be made to suffer for the historical grievances faced by Jews in Europe. Miller subsequently touches on post-1967 Arab revisionism, emphasizing the ongoing intent to reverse the outcomes of that war, particularly in the West Bank and Gaza. Overall, Miller presents a multifaceted view of the conflict, assessing the role of competing nationalisms and the implications of territorial claims in perpetuating violence and instability in the region. His analysis serves to underscore the complexities faced in achieving a lasting peace, entangled in historical narratives, territorial disputes, and national identities.
This brief history of the Zionist movement in the Middle East and the subsequent retaliation of disapproval of the Arab nations highlights some key concepts that require discussion. First, the concept of multiculturism and ethnicity within the nation-state is deeply embedded in the Gaza conflict, as the region is characterized by a composite of different ethnic identities, with Israelis and Palestinians representing major groups. While the concept of a nation-state reflects a uniform identity within defined borders, the situation in places like Gaza showcases a notable variety of ethnic and cultural backgrounds. A state is fundamentally a political and geopolitical construct, whereas a nation pertains to a cultural and ethnic group. The phrase “nation-state” suggests that these two elements align, indicating that a state has opted to adopt and promote a particular cultural group as its own. In the Gaza conflict, the concept of multiculturalism is challenged by a prolonged conflict driven by nationalist agendas. The struggle for self-determination among Palestinians may be seen as entailing both an assertion of their national identity and a struggle aimed against perceived colonization and oppression. This struggle complicates the multicultural narrative, as the Israeli state-building project has often entailed the marginalization of Palestinian cultural and national expressions.
In this regard, self-determination plays a fundamental role as it directly relates to the issues of ethnicity and national identity. The pursuit of self-determination by the Palestinians must be understood as a quest for statehood and a means of achieving recognition for their ethnic identity. This is central to the nation-state notion where the aspiration for political autonomy is undeniably connected to cultural representation and rights. Conclusively, the inter-relationship between democracy, nationalism, multiculturalism and ethnicity is a nuanced landscape in which different factors affecting democratic governance come into play. Although nationalism may serve as a vehicle for political empowerment, it may similarly engender conflict and exclusion.
The Right to Self-determination in Palestine during Israel Occupation
Based on the above historical analysis, it is clear that the Israel occupation and de facto annexation the territories of the Palestine people, particularly Gaza and the West Bank, violates several international humanitarian and human rights treaties. In particular, Israel’s state-building project has entrenched a discriminative apartheid system that violates the laws of occupied territories and the prohibition of the use and implementation of an intentional marginalization of the Palestinian people. Israel’s occupation in the Palestinian territories is not merely a political issue, but an international humanitarian and human rights issue.
In terms of Article 2(4) of the UN Charter, all member states are prohibited from using or threat of use of force against the territorial integrity or the political independence of any state. This provision essentially crystalizes the principle of self-determination. By prohibiting states from using force or threat of its use against other states, the provision protects the right of states to self-determine and choose their own governments. It enhances the chances for continued self-determination and the political legitimacy of states. The question arises however, as to the continued application of the principle of self-determination during occupation of a given territory. The International Humanitarian Law is unequivocally clear on the nature of belligerent occupation. Article 42 – 43 of the Hague Regulations notes that a territory is occupied when it is placed under the authority of a hostile army and the occupying power exercises effective control over the territory it occupies. It is a situation in which the connection between the sovereignty of a population is temporarily severed from the exercise of effective control in the occupied territory.
International Humanitarian Law regulates a situation in which the right to self-determination is encroached upon and the premise of such encroachment is only temporary. The right to self determination continues to work even under occupation. In the context of occupation, self-determination entails right of the people in the territory is under occupation, free from oppression. Whereas occupation is a direct hindrance on the exercise of self-determination, this does not however, terminate the existence of the right itself.
The right to self-determination constitutes a peremptory norm of international law, which means it is a fundamental principle that requires absolute observance and protection from violation. Article 1(1) of the International Covenant on Civil and Political Rights determines that the right to self-determination means that people may freely determine their political status and freely pursue their economic, social and cultural development. In this regard, Article 42 – 46 of the Hague Regulations imposes several obligations, including the obligation not to make permanent changes to the social, economic and judicial spheres of the occupied territory. The overarching principle is however that the occupation must only be temporary. These are all obligations aiming to protect all the spheres within which self-determination is exercisable. In the Wall Advisory Opinion, the court noted that the construction of the separation barrier in Palestine and the alteration of the demographic composition of Palestine by the forced departure of Palestinians from certain areas of the occupied territory violated the right to self-determination. The court noted that this was a severe impediment on the exercise of the right to self-determination by the Palestinian people. The right to self-determination arguably, consist of the territorial and demographic integrity of the people who are legitimately entitled to the exercise of this right.
Concluding Remarks
The Gaza conflict, as understood from a perspective of ethnicity, nationalism and self-determination, fundamentally presents a profound ineffective implementation of international legal framework to protect a people from gradual displacement, systematic colonization and the violation of their fundamental human rights. The historical narrative not only traces a conflict of competing identities, but the systematic project of nationalizing (annexing) the Palestinian territory through the tools of occupation, settlement and demographic engineering. This reality necessitates the consideration of two important factors. First, the definition of self-determination in a more practical context that is cognizant of those factors that truly define a people nationality and or ethnicity. Secondly, the reevaluation of the language, temporary occupation, as outlined in the Hague Regulations. Currently, the meaning of the term is only a legal fiction that allows for the permanent and illegal situation of a de facto annexation of territories.
The pursuit of justice in the Gaza conflict cannot be achieved through a legal fiction of ideas that reflect hollow principle that cannot resolve real and practical issues. Self-determination must be defined within a context that identifies that with which a nation or people closely identify with and applied in an understanding that primarily priorities the equal exercise of all nations to identify themselves.
BIBLIOGRAPHY
Cases
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 (“Wall Advisory Opinion”).
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem, Advisory Opinion (19 July 2024) (“OPT Advisory Opinion”).
Treaties
Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910)
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
Articles
Benjamin Miller, ‘Israel–Palestine: One State or Two: Why a Two-State Solution is Desirable, Necessary, and Feasible, Ethnopolitics’ (2016) Ethnopolitics Vol. 15, No. 4, 438–452, < http://dx.doi.org/10.1080/17449057.2016.1210351 > last accessed May 23rd 2024
Morris, B, ‘One state, two states: Resolving the Israel/Palestine conflict. New Haven’ (2009) Yale University Press.
Medina E R, The Right to Self-Determination as a Strategy to Dispute the Legal Field (2020) Utopia and Latin American Praxis, vol. 25 pp.72-86
Nimni E, Nationalism, Ethnicity and Self-determination: A Paradigm Shift? (2009) Studies in Ethnicity and Nationalism 319-332, pp.319 <https://doi.org/10.1111/j.1754-9469.2009.01039.x>last accessed 25th October 2024.
Reisman, W. Michael, “Coercion and Self-Determination: Construing Charter Article 2(4)” [1984] The American Journal of International Law 78(3) pp. 642–45, JSTOR<https://doi.org/10.2307/2202601> accessed 14 Sept. 2025.
Ronen, Yael, The Right to Self-determination, Occupation and the Law (2024) Japanese Yearbook of International Law<https://ssrn.com/abstract=4881250>accessed at 14 September 2025.
Smooha, Sammy, The Model of Ethnic Democracy: Israel as a Jewish and Democratic State Nations and Nationalism (2002) 475 – 503.
Reference(S):
[1] Benjamin Miller, ‘Israel–Palestine: One State or Two: Why a Two-State Solution is Desirable, Necessary, and Feasible, Ethnopolitics’ (2016) Ethnopolitics Vol. 15, No. 4, 438–452, < http://dx.doi.org/10.1080/17449057.2016.1210351 > last accessed May 23rd 2024.
[2] Ibid.
[3] Andre Locours, et all, Nationalism and Democracy (1st edn, Routeledge, 2010)
[4] Morris, B, ‘One state, two states: Resolving the Israel/Palestine conflict. New Haven’ (2009) Yale University
Press.
[5] Andre Locours, et all, Nationalism and Democracy (1st edn, Routeledge, 2010)
[6] Ibid.
[7] Medina E R, The Right to Self-Determination as a Strategy to Dispute the Legal Field (2020) Utopia and Latin American Praxis, vol. 25 pp.72-86
[8] Ibid.
[9] Ibid.
[10] Parajuli, G., & Lamicchane, B. P, Social Function of Law from Jurisprudential Outlook (2019) Nepal Law Review, 28 (1-2), 140–158 < https://doi.org/10.3126/nlr.v28i1-2.57526 >last accessed 23rd October2024.
[11] Ibid.
[12] Nimni E, Nationalism, Ethnicity and Self-determination: A Paradigm Shift? (2009) Studies in Ethnicity and Nationalism 319-332, pp.319 <https://doi.org/10.1111/j.1754-9469.2009.01039.x>last accessed 25th October 2024.
[13] Ibid.
[14] Ibid, pp.320.
[15] Benjamin Miller, ‘Israel–Palestine: One State or Two: Why a Two-State Solution is Desirable, Necessary, and Feasible, Ethnopolitics’ (2016) Ethnopolitics Vol. 15, No. 4, 438–452, < http://dx.doi.org/10.1080/17449057.2016.1210351 > last accessed May 23rd 2024
[16] Ibid.
[17] Andre Locours et all, Nationalism and Democracy (1st edn, Routeledge, 2010), pg 15.
[18] Ibid.
[19] Ibid.
[20] Ibid, pp.16.
[21] Ibid.
[22] Benjamin Miller, ‘Israel–Palestine: One State or Two: Why a Two-State Solution is Desirable, Necessary, and Feasible, Ethnopolitics’ (2016) Ethnopolitics Vol. 15, No. 4, 438–452, < http://dx.doi.org/10.1080/17449057.2016.1210351 > last accessed May 23rd 2024
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Smooha, Sammy, The Model of Ethnic Democracy: Israel as a Jewish and Democratic State Nations and Nationalism (2002) 475 – 503.
[27] Brubaker, Rogers, Citizenship and Nationhood in France and Germany (1st edn, Harvard University Press 1992) p. 28.
[28] Benjamin Miller, ‘Israel–Palestine: One State or Two: Why a Two-State Solution is Desirable, Necessary, and Feasible, Ethnopolitics’ (2016) Ethnopolitics Vol. 15, No. 4, 438–452, <http://dx.doi.org/10.1080/17449057.2016.1210351 > last accessed May 23rd 202
[29] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 2(4).
[30] Reisman, W. Michael, “Coercion and Self-Determination: Construing Charter Article 2(4)” [1984] The American Journal of International Law 78(3) pp. 642–45, JSTOR<https://doi.org/10.2307/2202601> accessed 14 Sept. 2025.
[31] Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) art 42-43.
[32] Ronen, Yael, The Right to Self-determination, Occupation and the Law (2024) Japanese Yearbook of International Law<https://ssrn.com/abstract=4881250>accessed at 14 September 2025.
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory,
including East Jerusalem, Advisory Opinion (19 July 2024) (“OPT Advisory Opinion”), para. 234.
[37] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art.1(1).
[38] Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) art 42-43.
[39]Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 (“Wall Advisory Opinion”), para. 106.
[40] Ibid.
[41] Ronen, Yael, The Right to Self-determination, Occupation and the Law (2024) Japanese Yearbook of International Law<https://ssrn.com/abstract=4881250>accessed at 14 September 2025.
