Friday, July 12, 2013

Who are Israel's 'indigenous peoples'?

Who are Israel's 'indigenous peoples'?

President Obama made news a few moments ago by announcing that the United States would support the UN Declaration on the Rights of 'Indigenous Peoples.' But who are the 'indigenous peoples' of Israel? Well, according to the UN it's probably the 'Palestinians.'

When the declaration was adopted in 2007, four countries voted against: Australia, Canada, New Zealand and the United States. Here's why:

Remember that you will not find any definition of “indigenous peoples” in the Declaration. It relies entirely on communities’ own self-identification as indigenous peoples, based on claims asserting historical continuity with pre-colonial and/or pre-settler societies, a strong link to territories and surrounding natural resources, and different cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state. That could mean just about any self-declared minority group with alleged ties to an area of land can claim indigenous status, insist on self-determination over control of huge swaths of territory and resources within national borders and demand reparations for perceived wrongs against them and their ancestors.

Not surprisingly, for example, the Palestinians are asserting with a straight face that “Palestinian rights are enshrined in the universally accepted principle that land belongs to its indigenous inhabitants”.[2] They got help in this regard from a document published as far back as 1990 by the UN’s Division for Palestinian Rights, which contrasted the ‘outsider’ Zionists who came from Europe to establish the state of Israel with the “indigenous people of Palestine, whose forefathers had inhabited the land for virtually the two preceding millennia”.[3] Of course, under the UN principle of self-identification - which the Palestinians are all too happy to exploit to their political advantage - no proof is required of any Palestinian ties by birth, continuity of land possession, language, religion or tradition to the ancient idol-worshipping Canaanites whom Muslim Palestinians now conveniently claim to be their indigenous forebears. By contrast, Jews living in Israel today are indisputably connected by common religion, heritage and language to the ancient Hebrews who inhabited the land several millennia ago.

Masters of propaganda and of playing victim, the Palestinians have shamelessly linked their situation with that of indigenous groups such as the Six Nations Indian tribes in Canada. One of their motives is to whip up as much indigenous grassroots and sympathetic Leftist support as they can for their global campaign of boycott, divestment and sanctions against Israel by using the vocabulary of oppression, colonialism and apartheid that the Left loves to hear.


Beyond being subject to abuse by the Palestinians and other self-serving groups, the Declaration as written is fundamentally at odds with modern-day institutions premised on individual rights and obligations and on long-settled legal structures operating within internationally recognized sovereign national boundaries. The Declaration’s proponents deny this. They say that they took care of any national sovereignty concerns by agreeing to compromise language offered by the African member states who were concerned about indigenous claims within their own borders. The language they point to states that the Declaration was not intended to authorize or encourage the dismemberment or impairment of the territorial and political sovereignty of any nations. But this language means little in the face of an ideology embodied in the Declaration that rejects modern-day legal institutions as the primary mechanism for determining rights, settling disputes and prescribing remedies for violations of law when indigenous claims are alleged.

Among the areas of concern in this regard is an article in the Declaration saying that "states shall give legal recognition and protection" to lands, territories and resources traditionally "owned, occupied or otherwise used or acquired" by indigenous peoples. (emphasis added)[6] Indigenous peoples’ claims are communal in nature and not based on any concept of individual rights and minority protections familiar to modern day courts and legislatures.

Another provision of the Declaration requires member states to obtain the indigenous peoples’ “free and informed consent prior to the approval of any project affecting their lands or territories and other resources…" (emphasis added)[7] This effectively gives veto power to self-declared indigenous communities over national or regional legislation and management of resources located within a member state’s legal jurisdiction.

The Declaration goes on to provide that the UN’s member states are expected to “provide redress for past transgressions through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property that has been taken without their free, prior and informed consent or in violation of their laws, traditions and customs”.[8]

In other words, the member states must defer to indigenous peoples’ customary laws in any areas where their interests may arguably be affected. These customary laws are not codified anywhere. They are based on traditions that are transmitted orally from generation to generation and that vary widely from community to community.

The inevitable result will be to fragment the current legal institutions and economies of nation-states within which all of these communities of people reside. Indeed, if we accept the estimates of a UN Special Rapporteur on indigenous matters, there are indigenous peoples living in approximately 70 countries throughout the world and constituting approximately 350 million individuals, including 5,000 distinct peoples and over 4,000 languages and cultures. If so, there may be thousands of different sets of customary laws that international law is now supposed to recognize and enforce without any means of determining the authenticity of such orally transmitted customs.

The Bush administration likely opposed the declaration because of potential claims by Indian tribes Native Americans, which is also why Canada was opposed. Australia and New Zealand likely opposed it because of fear of claims by Aboriginal tribes. And Israel's government under Ehud K. Olmert likely voted in favor because the Jews are Israel's indigenous people anyway and 'peace' was at hand. But what happens if the world decides that the 'Palestinians' are Israel's 'indigenous people'? And what if they do it with the Obama administration's support? And what if there is no peace? In that light, today's declaration looks like a potential disaster for Israel.

What could go wrong?