Destroying to Replace: Settler Colonialism from Kashmir to Palestine

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Graffiti near the border wall, Israel, 2011.

On August 5, 2019, India made the decision to repeal Kashmir’s special status and divide the occupied state into two federally controlled territories. More recently, Israeli Prime Minister Netanyahu promised to begin the annexation of illegal Jewish settlements in the occupied West Bank, following a century of land transfer and partition, the occupation of historic Palestine, and the annexation of East Jerusalem and the Golan Heights. The two states have different origin stories, Israel having formally emerged as a settler colonial entity in 1948 after decades of increasing European settlement, and India created in the aftermath of the Partition of the British colonial subcontinent. But despite India’s successful overthrow of British rule, it has created a colonial occupation of its own in Jammu and Kashmir. And recently, it has been taking its cues straight from Israel’s playbook.

With these latest worrying developments, where is Kashmir headed? The Palestinian experience is instructive. Those paying attention to what has been happening on the ground in Palestine will recognize that de facto annexation is already supported by the legal and physical infrastructures of Israel. What was once described as creeping annexation is now the leaping annexation of the West Bank. A similar colonial infrastructure is being developed by India in Kashmir, weaving together the threads of settler transfer with re-classification of legal residents and land designations to create the facts on the ground that belie any commitment to adhere to the tenets of international law.

In the words of scholar Patrick Wolfe, settler colonialism “destroys to replace.” In Canada, the United States, and Australia, the settler state has worked to eliminate the indigenous population through genocide and the erasure of language and cultural practices. Early Zionists promoted the myth of a “land without a people” in Palestine and continue to destroy Palestinian homes, land, and history.

Before 2020, Israel formally annexed occupied Palestinian territory in East Jerusalem and then in the Golan Heights. As part of its continuing attempts to make its de jure annexation of East Jerusalem irreversible, Israel has extended its national laws and civil authority to the occupied sections of the city, issued declarations of permanent sovereignty, transformed Jerusalem's character, moved its national institutions, and embarked upon an intensive program of creating and expanding Jewish settlements.

Israel has also tried to secure an overwhelming Jewish majority in Jerusalem through settler implantation and demographic gerrymandering to counter the growing Palestinian demographic presence. Palestinian Jerusalemites, including elected Palestinian parliamentarians and Palestinians who leave Jerusalem temporarily to study or work abroad, face ongoing threats of revocation of their residency.

Settler-colonial states seek to replace the indigenous people of the land they occupy with some form of ethno-nationalist supremacy. And far from providing a liberatory framework through which indigenous people might defend and reclaim their land, rights, and basic dignity, law has played a critical role in expanding the settler colonial project.

The devastating consequences of the Indian legal infrastructure that has been marshaled in support of the settler colonial state are now unfolding in Kashmir. Prior to the abrogation of Articles 370 and 35A of the Indian Constitution in August 2019, land ownership in Kashmir had been restricted to Kashmir state subjects. The unilateral decision of the Indian government to strip the occupied territory of the limited autonomy that had protected the area from demographic change and colonial settlement heightened the existential crisis that Kashmiris have long faced at the hands of the Indian government.

After abrogation, the Indian government divided the Muslim-majority region into two federally administered territories. The purpose of revoking Article 370 was to transform the demography of Muslim-majority Kashmir by settling members of the Indian army, bureaucrats, and migrant labourers in the region. India’s ruling party, the Bharatiya Janata Party (BJP), has always been open about its strategy for resolving the Kashmir dispute through altering the state’s demographic composition. By rendering Kashmiris a minority in their own land, the outcome of any referenda on Kashmir’s future will be significantly impacted by non-Kashmiri settlers.

Now, the Indian government has announced a new set of domicile laws. These laws allow Indian citizens to permanently reside and buy land in Indian-occupied Kashmir if they have worked in the region for fifteen years or studied there for seven years. The children of Indian government officials are also eligible to obtain domicile certificates if their parents have lived in Kashmir for ten years, as are refugees from Pakistan.

Although the Indian army already occupies over 54,000 acres of land, the Indian administration has also lifted a requirement set in place in 1971 under which Indian security forces had to obtain a special certificate in order to acquire land in Kashmir. Since May 18, up to 400,000 people have been granted domicile certificates in Jammu and Kashmir. India has also amended several development acts to allow for permanent structures to be built on existing Indian armed forces encampments for troops and their families, as well as on areas desired by the Indian military. Last year, India moved almost 50,000 military and paramilitary personnel to the region, an addition to the 700,000 already stationed there. Kashmir continues to be the most densely militarized zone on earth. Many military camps are on private property or state government property. The designation of “strategic areas” for the army is another way of opening the door to the construction of settlements.

Indian Prime Minister Narendra Modi has justified the recent moves by saying that these measures will encourage economic development of the region, stabilize Kashmir, and provide jobs. The Indian government has allocated over 1,200 acres of state land toward industrial development for outside investors, over the demands of Kashmiris to focus instead on establishing agricultural land and creating green jobs. Arguably, the real barrier to development and stability in Kashmir is the brutality of India’s military occupation.

Given the recent moves by the Indian government to alter the demographic composition in Kashmir, we might anticipate the enactment of similar policies as those designed to disenfranchise Palestinians and de-populate Jerusalem of its indigenous population. With the expansion of eligibility for domicile extended to non-Kashmiris, Indian settlements are also likely to start appearing in Kashmir around military encampments. This is likely to have far-reaching consequences for Kashmiri security and movement.

Many Israeli settlements developed from outposts, which first appeared in the Occupied Palestinian Territories in the 1990s. Outposts are established by Jewish Israeli citizens and built on Palestinian territory without explicit authorization from the government. Most, however, are tacitly approved and supported by state institutions. While some outposts are not inhabited and consist of a guard tower or trailer as a means to confiscate Palestinian land and prevent Palestinians from accessing that land in a sort of holding pattern, others resemble residential neighborhoods and are placed next to existing settlements. Like settlements, outposts are often protected by a patrol road and security fence that mark its outer limits, and residents are entitled to protection from the Israeli Defense Forces. The physical infrastructure that connects an outpost to a settlement divides Palestinian land and restricts Palestinian movement and access to agricultural land. Another twenty percent of land that is officially recognized by Israel as Palestinian land is designated as a “closed military area,” and is often located between settlements.

With no regard for what international law has to say about the illegality of establishing settlements in occupied territory, Israel has developed its own legal framework that supports de facto annexation through the permissible acquisition of “state land.” This framework is set out in three cases that involve Palestinians trying to reclaim stolen homes: Abu Hilu, Beit El-Toubas, and Elon Moreh. In the Abu Hilu case, the court accepted the government’s argument that stealing Bedouin land was necessary for security, but the court also stated that they would consider claims where private landowners argued that their lands were taken under false security pretenses. The Beit El-Toubas decision expanded this idea, saying that Article 52 of the Hague Convention allowed the seizure of privately owned land only on a temporary basis and in exchange for rental payments. These cases set the groundwork for the Moreh case, in which the Court ruled that the settlement built on thirty-one acres of land must be dismantled and returned to the petitioners. The outcome of this case posed an obstacle in erasing the green line as the court affirmed the existence of the line and stated that a “creation of facts” could not change the situation.

Demonstrating that law ultimately acts in service of power and does little to constrain settler-colonial aspirations, Ariel Sharon, who aimed to maximize the number of settlements in the West Bank, found two loopholes that would allow Israel to continue to claim “state land.” The first loophole identified a distinction in the Hague Convention between privately and publicly owned land. Because no representative body in the West Bank could claim standing when Israel seized “public land” from the “state” domain, that meant that only claims regarding privately owned land could reach the court. The second loophole was that the court refused to intervene in claims over the ownership status of a parcel of land. Instead, these were assigned to administrative tribunals of the Israeli Army. As a result of this discovery, in 1979, Israelis surveyed the ownership and registration status of all land in the West Bank and began acquiring land that could be declared as “state land.” Since then, the government has used the complexity and formal legality of proceedings, as well as secrecy and administrative discretion, to divert critics of de facto annexation policies. India has taken similar steps in Kashmir—surveying and declaring certain land as “public” land that it will then most likely auction off to outside investors, or allow for the Indian army to declare those areas as “strategic.”

Since 1967, Israel has annexed Palestinian land in the West Bank by changing its physical infrastructure to enhance control over Palestinian territory; this includes the establishment of 220 settlements and the spatial and political enclosure of 2.6 million Palestinians in the West Bank, the extension of Israeli laws to the West Bank (which led to the creation of a discriminatory regime), unequal access to natural resources, and the acquisition of property and agriculture lands. In this context, it must be noted that Palestinians in the occupied West Bank live under Israeli military orders, while Israeli settlers in the West Bank live, by and large, under Israeli civilian law, giving them explicit protections, guarantees, and privileges denied to the indigenous Palestinian population.

Kashmiris are intimately familiar with applications of law designed to legitimize disregard for human rights. Prior to the abrogation of Kashmir’s semi-sovereign status under Indian military occupation, the territory was subject to the draconian provisions of the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA). AFSPA grants special powers to Indian Armed Forces in so-called “disturbed areas,” offering sweeping legal cover to arrest without warrant, shoot-to-kill, and destroy property. Under the PSA, a person can be taken into custody as a “preventative” measure, to keep them from acting harmfully against “the security of the state or the maintenance of the public order.”

If the Palestinian experience offers a window into the future, we may see an increasing formalization of discriminatory legal regimes that operate to marginalize Kashmiris in everyday life.

Israel has also taken formal actions to dismantle legal distinctions between the occupied West Bank and Israel so that the territory is indistinguishable in the Israeli legal system. For example, Israel has gradually extended parliamentary control over the West Bank without obtaining required military orders which recognize that the occupied territories are under military occupation and therefore legally distinct. In addition, Israel has transferred jurisdiction for cases regarding the occupied territories from the High Court to the Administrative Affairs Court in Jerusalem, which was done without military orders and erases the exceptional nature of cases from the West Bank. Moreover, the Nation State Basic Law based in 2018 lays the legal groundwork for formal annexation; it provides constitutional grounds for annexing occupied territory, fails to define Israel's borders, and applies to any expanded “State of Israel” if the provision preserves Israel-Jewish superiority.

Law is ultimately an expression of power. The threat of tangible consequences to annexation in Palestine has done nothing to deter it. Enjoying wide-ranging impunity, both India and Israel are treated as if they were law-abiding sovereign states, not colonizing powers. The laws by which these two states abide are developed and applied in the service of the state’s settler colonial aspirations. As a result, they offer little to indigenous resistance movements and their allies who are challenging colonial occupation in all of its forms. And while international law provides a framework for opposing the latest measures by India and Israel, practically, there is almost no enforcement mechanism and little international will to hold these rogue states accountable.

The Palestinian experience may offer a window into the future for Kashmiris, with massive Israeli settlement expansion in the West Bank and dual legal systems, creating conditions that have been described as “worse than apartheid.” The time to take action is now, to demand that India not only reverse its unilateral abrogation of Kashmir’s semi-sovereign status, but also end its military occupation of the region entirely and respect the right to self-determination.

Zainab Ramahi is a de-colonial activist with Palestinian and Kashmiri heritage. Azadeh Shahshahani is Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild; she tweets @ashahshahani. The authors would like to thank Tina Al-khersan for her research help with the article and Charlotte Kates and Dr. Hafsa Kanjwal for their review and feedback.