Keenan Smith

German Idealism
March 7th, 2018

Kant and Animal Cognition

Much has been said about Kant’s view of animal cognition. Some have interpreted him as

saying that animals have no conscious awareness of objects, and that they only respond as

mechanisms to the world around them.1Yet, Kant spoke pejoratively of this kind of Cartesian

view of animal cognition, and instead interpret him as believing that animals have conscious

mental states, as well as a point of view.2 Part of the confusion lies in the fact that Kant’s views

on the subject of animal cognition changed over time from his pre-critical period to his late

period. Given the wide range of potential interpretations available, I will take a different

approach to this topic. Instead, I will highlight the different elements of Kant’s model, seeking to

do justice to Kant’s disagreement with the Cartesian view of animal life, reconciling his model of

human consciousness to our common sense understanding of animal consciousness. Specifically,

I will argue that animal cognition includes the faculty of sensibility but excludes the faculty of

the understanding given the fact that animals lack self-consciousness and the transcendental

unity of apperception. I will then show how the faculty of sensibility can be used to explain how

animals react responsively to the world around them without making judgments about it.

We must first detail the conscious subject as explained by Kant, so that we can gain an

understanding of animal cognition within this model. Kant separates the mind into two distinct

faculties. These are the passive faculty of the sensibility and the active faculty of the

understanding. The sensibility receives representations by being affected by objects supposedly

1
​(Mclear 2011)
2
​(Kant & Pluhar 2010 328n)
1
external to it. Representations in the sensibility are structured according to the pure forms of

intuition, space and time. Space is the outer sense of intuition. Kant says that if we imagine a

certain object, say a book, and abstract from it all of its particular predicates, say its color and

texture, we cannot further abstract from it the fact that it exists in space.3 Thus, Kant takes this

pure form as fundamental. Next, the inner sense, or time, might be best understood as successive

states of mind, wherein one state follows another. Inner sense allows for consciousness, although

this is consciousness of particular memories and representations, but not a manifold of these

representations taken in aggregate.4 The fact that the pure forms of intuition are ​a priori ​allows

for synthetic ​a priori​ mathematical knowledge.

The understanding has its own representations, called concepts, which are formed a result

of the synthesis of a manifold of intuitions according to the pure concepts of the understanding,

called the categories. The concepts are applied to what is given in the intuition. We can

understand what takes place in the understanding as a synthesis according to the categories. The

categories, in their numerous combinations, are essentially all of the possible ways we can make

judgments about the objects given in the intuition. The understanding, then, is an active faculty,

engaged in the process of making judgments and the intuition is passive. It merely represents

objects. Importantly, the fact that the ability to make judgements is necessary and universal for

all humans gives us synthetic ​a priori ​knowledge; it is the necessary condition for the

understanding, which can be known before any experience.

It is important to note first that in analyzing animal cognition in terms of Kant’s system,

we are at an immediate disadvantage. In first Critique Kant shows how we can have synthetic

3
​(Kant & Meiklejohn 2018)​ A24/B38
4

2
a-priori ​knowledge, and argues that this kind of knowledge is ultimately transcendental, or

rather, it is the necessary conditions for all experience. Yet in doing so he argues, not from

experience, but through reason. He builds up from what we know for certain ​a-priori ​and

eventually establishes the necessary conditions for experience. We do not however, have the

advantage of seeing into animals’ minds. Their subjective consciousness is by definition distinct

and hidden from our own understanding. As a result, we must rely on ​a-posteriori ​knowledge

when making any positive statement about animal cognition. Thus, in discussing animal

cognition we will take as an assumption that they do have consciousness, or that at least most

animals have some form of consciousness. We will not assume that bacterial, fungal, or

extremely simple insect have consciousness. We are concerned only with more advanced animal

life.

Given our common sense knowledge of the ways animals behave, as responding to and

aware of their environment, it seems that they would at first have the faculty of sensibility. As a

component in the faculty of sensibility, animals would have the pure form of space.5 Many

animals are generally responsive to the world around them and have at least some awareness of

an external world. Furthermore, animals move within three dimensional space, and have a

general awareness of objects in space. We might even say that animals have a kind of ​a-priori

intuition of geometry, or three dimensional space. Of course, this would not be an understanding

of something like Euclidean geometry, but rather, an intuition prior to any experience of the

world.

5
​(Brook 2004)
3
 The other pure form of the sensibility, time, is more problematic. This is because inner

sense seems to imply that an animal would have to first understand a self before it could

understand time progressing within itself and being represented to itself. Yet, anything

represented in the sensibility is represented before a unity of the self occurs in the understanding.

Thus, even humans would not experience the inner sense as being represented to a unified and

singular “I” if those representations were occuring only in the sensibility (this is merely

mentioned as a demonstration; humans as rational beings must necessarily have experience

presented to an “I”). The sensibility and the understanding are distinct faculties. As the objects

are represented in the sensibility before they are represented in the understanding, an object

being represented in the sensibility would not need the unity of apperception in order to be

represented to a non-self-conscious animal. Animals then would not need to experience time as

progressing ​to ​themselves in a particular order. Instead, for animals, representational states do in

fact occur in a certain order, but not to a distinct unified self-conscious being.

Furthermore, it doesn’t seem possible that the pure forms of the intuition could be

independent of one another given an assumption that animals have consciousness. One pure form

of intuition seems to entail the other. Time for Kant is the “​a priori ​condition for appearances in

general.”6 While it’s difficult to get a grasp of exactly what Kant means by the pure form of time,

we can assume that successive mental states somehow relate with, affect, or have some kind of

connection through similarity to other mental states in a chain of successive mental states. It

makes little sense to say that animals are appeared to in space, but not in time. We could only

imagine such a consciousness for the most basic kinds of animal or bacterial consciousness. Such

6
​(Kant & Meiklejohn 2018, 181)
4
an existence would be one wherein only that which is immediately presented in conscious has

any effect on behavior, as the animal could have nothing that could be considered a successive

mental state, whereby a past mental state could be compared to a current mental state. Thus, if

we are to say that animals are appeared to in any way in consciousness then we will have to

agree that animals retain the full faculty of the sensibility.

Interestingly, in a study conducted by Therese Rhen and Linda J. Keeling, it was found

that dogs greeted their owners more “intensely” when left alone for longer periods of time.

Whatever the particular physiological reasons for this behavior might be, it’s clear that some

animals experience at least some difference in representational states as a result of the passage of

time.7

It seems clear that animals could not synthesize intuitions according to the faculty of

understanding. This is because they almost assuredly lack the transcendental unity of

apperception, or a self-consciousness understanding of themselves as acting or behaving in a

certain way. The transcendental unity of apperception is the subject which, according to the

categories, synthesizes representations given to the understanding from the faculty of sensibility.

If Kant’s system included solely the categories, and intuitions to which the categories are

applied, it would still lack a thing to which those representations could be presented and which

would unify those intuitions. Representations cannot be represented in their manifold, but require

a unity of consciousness, an “I” that they can be presented to. The transcendental unity of

apperception, then, is a necessary element in Kant’s discussion of the faculty of the

understanding, and if an animal lacked it, they would also lack the faculty of understanding

7
​(Rehn & Keeling 2011)
5
generally. We can see why animals lack the transcendental unity of apperception and thus the

faculty of understanding in following two ways:

First, animals do not have natural language as humans do, and thus lack a

semantic-conceptual capacity common amongst practically all humans.8 The upshot of this is that

animals lack what Kant says is the necessary condition for the transcendental unity of

apperception, namely, the ability to annex an “I” to a conscious perception. For any act

conducted by the self in the understanding, a human can say that they themselves did it. For

example, “I think.” As far as we know, however, animals lack this capacity and are not presented

to as an “I” in cognition.

The second point is similar to the first. Even if we assumed that animals were able to

make some judgments according to the categories, there are certain judgments that animals

simply seem unable to make. The 12 categories together are the necessary conditions for thought

in the faculty of the understanding, and lacking the ability to cognize an object according to just

one of the categories would upset the necessary conditions.

It seems relatively clear, for example, that animals do not have the category of substance.

That is, they do not have a category of a mind-independent substance, capable of existing

through time. We know for example that young children are not born with object permanence,

but acquire this skill between one and two years of age. Yet, while some higher mammals may

recognize characteristics of an object through time, it is not clear that they have a true conceptual

or semantic understanding of a substance persisting in time.9 Instead, they may merely behave in

ways similar to how they would if they could in fact cognize according to the category of

8
​(Deacon 2007)
9
​(Gonsiorek 2015)
6
substance. Additionally, how might an animal have an understanding of something possibly

existing, or necessarily existing, or as a certain object being negated. This would seem to imply a

kind of symbolic understanding of objects, which would allow them to be treated

propositionally, and as potentially existing in different states. Yet, anthropologists such as

Terrence Deacon argue that it is just this symbolic understanding of objects that animals lack,

and that ultimately separates humans, even from the most advanced primates.10 Thus, given the

inability of animals to think symbolically, they must necessarily lack some of the categories,

even if we could imagine animals as somehow understanding certain objects causally.

Regardless, even if some animals can cognize according to these categories, they still (as far as

we are able to tell) lack the ability to treat or explain their conception of substance semantically

(“I perceive the concept of substance.”) We might even say that they lack this ability, because

they are unable to cognize objects ​symbolically​. So again, inability to annex an “I”​ ​statement to a

certain concept or perception is enough to deny that they have a transcendental unity of

apperception.

We are now presented with another thorny problem. As mentioned, some animals have

what seems to be object permanence, or the sense of an object persisting in time. This fact, at

least at first glance would seem to imply that animals have a conception of a substance.

Additionally, many animals seem to understand certain events as causing other events. For

example, a dog might salivate at the ring of a bell, if it has been conditioned to associate the

sound with food, or a monkey might howl in response to its perception of a predator. These

examples highlight two judgments that humans can make about objects, namely, that they are a

10
​(Deacon 2007)
7
substance persisting through time, and that the object shares a certain relation to another object.

How then, given that certain animals seem to understand objects as having certain relations to

other objects, and certain qualities, can we still say that animals lack the faculty of

understanding? The answer, I believe, lies in the inner sense, or time. Kant did not specify

merely one kind of consciousness of self, but two. The first is the transcendental unity of

apperception, which we’ve already mentioned. The other is empirical self consciousness. He

stated that the source of this self-consciousness is the inner sense, or the pure form of time.

What’s more, Kant stated that the all representations in the faculty of sensibility are in the inner

sense. A quote will help highlight this point:

Inner sense is not pure apperception, consciousness of what we are doing; for
this belongs to the power of thinking. It is, rather, consciousness of what we
undergo as we are affected by the play of our own thoughts. This
consciousness rests on inner intuition, and so on the relation of ideas (as they
are either simultaneous or successive).11

Thus, this inner sense does not seem to be the self-consciousness of the transcendental unity of

apperception, but is rather a consciousness of the things currently undergone by the subject

being affected. In addition, it is not only consciousness of what an animal is currently

undergoing, but also the comparison of this current state to previous states, or a relation of

current states to former states. This provides a clue as to how an animal might behave in a way

that evidences an understanding of substance and cause, without actually understanding these

things conceptually. To make a judgment in the understanding implies a kind of semantic

understanding, of an object as having a stated quality or relation. In contrast, the fact that an

animal behaves in a certain way, for example, jumping at the sound of a startling noise, does not

11
​(Kant & Louden 2009 VII:161)
8
entail that it understands its action as related causally to something else. Instead, an animal’s

behavior is predicated on having a certain propensity toward behaving in response to a certain

mental state represented in the inner sense, and but does not make judgments about a objects.

Through conditioning, or through the innate capacities and tendencies that an animal has, its

behavior is determined. An animal behaves the way it does as a result of it being presented with

this or that startling noise as an intuition, in accordance with its innate or conditioned

propensities. As a result, it is no longer problematic to say that a dog behaves in a way that

implies object permanence, say when a dog goes and digs up buried toy, and realizes it has been

replaced by a different object. The dog behaves in accordance with its innate or conditioned

nature in burying and digging up the toy, and is able to compare current mental states with past

mental states as a relation of ideas in the inner sense. It need not make a judgment of the toy as

having substance persisting in time.

Given our discussion, it is fair to say that Kant’s system of cognition is compatible with

our common sense notions of animal cognition. Animals share the faculty of sensibility with

humans, yet, given their incapacity to self-ascribe mental states, they lack the faculty of the

understanding. As a result, we are able to say that animals are not self-conscious, while retaining

an explanation as to why they are able to act in rather complex ways that one might otherwise

use to show they make judgments. Additionally, we are able to account for at least some kind of

consciousness in animals, one that is immediate, and does not involve judgements made about

objects presented by the intuition.

9
 Sources Cited
Brook, Andrew. “Kants View of the Mind and Consciousness of Self.” ​Stanford Encyclopedia of

Philosophy​, Stanford University, 26 July 2004, plato.stanford.edu/entries/kant-mind/.

Deacon, Terrence William. ​The symbolic species: the co-Evolution of language and the brain​.

International Society for Science and Religion, 2007.

Gonsiorek, John C. “Now You See It, Now You Don’t.” ​Oxford Clinical Psychology​, 2015,

doi:10.1093/med:psych/9780195385298.003.0013.

Kant, Immanuel, and J. M. D. Meiklejohn. ​Critique of pure reason​. Dover Publications, Inc.,

2018.

Kant, Immanuel, and Robert B. Louden. ​Anthropology from a pragmatic point of view​.

Cambridge Univ. Press, 2009.

Kant, Immanuel, and Werner S. Pluhar. ​Critique of judgment​. Hackett, 2010.

Mclear, Colin. “Kant on Animal Consciousness.” ​Philosophers' Imprint​, vol. 11, no. 15, Nov.

2011.

Rehn, Therese, and Linda J. Keeling. “The effect of time left alone at home on dog welfare.”

Applied Animal Behaviour Science​, vol. 129, no. 2-4, 2011, pp. 129–135.,

doi:10.1016/j.applanim.2010.11.015.

Keenan Smith
Semeiotics
Dr. Mario D’Amato
14 December, 2017

Orality and Literacy through a Semeiotic Lens

10
 In this paper I will show how Peirce’s theory of signs, specifically his index and symbol,

can reveal insights into Walter Ong’s distinction of orality and literacy. I will outline how orality

relies on the index in unique ways while literacy strips away some of the indexical richness of

orality. Another dimension of this analysis will include Paul Grice’s relevance theory as well as

an explication of Sperber and Wilson’s ostensive-inferential communication by Downes. I will

begin by explaining Peirce’s index and the symbol.

Peirce’s different modes of reference represent different levels of interpretation.

Reference is hierarchical, and in order to understand the highest level of reference we must have

a prior competency of the lower level of reference. A symbolic sign is not only comprised of the

symbolic, but of the iconic and indexical as well. So in order to interpret a symbolic sign, there

must be a foundation of the iconic and indexical underneath it, as an understanding of an object

iconically and indexically is necessary to understand the object symbolically. Each sign is an

interpretative process itself, or an interpretant. As we move up the hierarchy of signs, one form

of sign is replaced with another, and the new sign becomes an interpretant of the old sign. In fact,

every sign is an interpretant of another sign, regardless of whether or not the new sign is on a

different interpretive level.

It is important to highlight the particular ways that an icon, an index and a symbol are

distinct, in order to show how the index and the symbol might be stressed differently in orality

and literacy respectively. Many explain an iconic relationship in terms of similarity between two

things. Yet, it is better explained as the act of making no distinction at all. Fundamentally we can

interpret all things as being related to other things, insofar as they are things.12 When we interpret

12
​Terrence William. Deacon, ​The symbolic species: the co-evolution of language and the brain​ (Cambridge:
International Society for Science and Religion, 2007).
11
all things as stuff, we are using the same interpretive process for everything around us. It is when

there are recognizable differences in what would otherwise be interpreted as sameness that

something is ​indicated​.

In an indexical interpretive process, one icon points to another. An interpretive process

yields an icon when there is a failure to produce an index that will distinguish the two things. In

the production of an index, a past set of iconic relationship bears on an assessment of a new

stimulus. A new experience brings to mind past similar experiences. Yet many past experiences

share more than one similarity. Furthermore, the fact that these experiences are repeatedly

correlated together leads to the important connection; the fact that these two related icons occur

together. They do not just resemble one another, but they are co-occurrent and this co-occurrence

draws our attention from one icon to the next in a new, indexical relationship. In the three part

indexical relationship, one sign is iconically related to other signs, while another sign (soon to

become the object in a relationship) is iconically related to other sign-objects. These two tiers

lead to the emergence of a third tier, the perspective of two signs as being correlated in

experience to one another. Take for example the change in cloud coverage with the occurrence of

rain. The cloud’s darkness is an icon for other times when we’ve experienced similar weather

conditions. Later, while the cloud is still dark, it begins to rain. This experience of rain has an

iconic relationship to other similar circumstances. Finally, the third relationship arises, an

iconicity of the change in cloud cover and the rain as being icons of one another. This is the

structure of an indexical relationship, and how an indexical relationship may come to be

conditioned. We are familiar with manifold indexes in interpersonal communication. An action

as subtle as when a friend clears their threat in the context of an intense conversation can be an

12
index of pent up frustration. We have sets of throat clearing memories, (all icons related to

another) and of friend-frustration memories, and these become related through their correlation

as icons of one another.

Finally in a symbolic relationship, words are related to words and rooted in indexicality,

as words indicate or point to other words. On the symbolic plane, the relationship that a word has

to an object is a function of the relationship it has to other words. In an indexical relationship by

contrast, it is one of mere correlated appearances of a word and an object, or the smell of smoke

and the appearance of fire. Furthermore, there is a logic that is innate among words; one

comprised of exclusions and inclusions. In natural language this logic is incredibly nuanced,

every word has countless millions of exclusionary and inclusionary relationships. Through the

connection of word tokens to objects, we begin to view the relationships that objects share one to

another in terms of the relationships words have to another. To be a symbol is to be included in

this interconnected system, otherwise, it is purely an index. Generally, a symbol is understood to

represent an object through convention. They lack the immediate indicating relationship that an

index has to an object.

Here it will also be useful to briefly explain relevance theory and related

ostensive-inferential communication, in order to draw further distinctions between orality and

literacy. The cognitive principle of relevance is that all cognitive processing is determined by

relevance.13 Relevance is a property, and can be possessed by a stimulus, thought, or assumption.

It is determined in a kind of inverse relation; something is more relevant if it has more positive

cognitive effects for less cognitive effort compared to other mental representations or stimuli.

13
​William Downes, ​Language and Religion: A Journey into the Human Mind​ (New York: Cambridge University
Press, 2011).
13
The more processing required for a subject to gain positive cognitive effects, the less relevant.

The more positive cognitive effects, the more relevant a stimulus or representation will be.

Relevance theory is implicated in communication as ostensive-inferential communication.

Ostension is the act of showing or drawing attention to by pointing out something within a

context of stimuli. Here we can already see the relation ostention has to the index in Peirce’s

system of signs. Ostension depends on an understanding of that which is pointed out and must be

the unique stimuli in a context.

Furthermore, the stimuli must offer the most positive cognitive effects in relation to the

effort needed to process other stimuli in a context. What ostention actually communicates is the

promise of further positive cognitive effects with limited processing effort. An ostensive

stimulus presumes relevance, that it is relevant enough for the audience to pay attention to. As

the perceiver witnesses the ostensive act, she is clued in that the stimulus can be processed

further, and will inquire into the stimulus until new information he receives is deemed

satisfactory.

Now I will explain Walter Ong’s distinction between orality and literacy, and how it can

be revitalized through the use of the index and the symbol. Ong argues that our epistemology is a

reflection of the main modalities of public discourse.14 Additionally, the way we speak and think

about things is profoundly similar to our main medium of communication. Ong distinguishes oral

cultures from literary cultures. An oral culture is one that has little to no access to the written

word. As such an oral person’s heuristics and general way of communication is largely different

from our own. For example, oral cultures may adjudicate disputes through the use of proverbs

14
​Walter J. Ong, ​Orality and literacy: the technologizing of the word​ (London ; New York: Routledge, 1988).
14
and communicate in largely aphoristic ways. Vestiges of this style of communication are phrases

such as “Finders Keepers,” and “A Stitch in Time Saves Nine.” Furthermore, in orality,

communication is embodied and the word is viewed as a kind of action or happening. As there is

no writing, words are not viewed as abstract entities, or a collection discrete symbols, but as

being innately linked to a person. Because of this, words can have more emotional resonance as

they are augmented and complemented through the indexical signs displayed by an individual’s

gestures, vocal tonality, and interactions with the environment. In short, communication is far

more indexical in oral cultures. This will be shown below with the example of a bard, an

individual nearly unique to orality. They interact with living audiences through the stringing

together of various themes, and formulas in an art known as rhapsodizing. These themes and

formulas, as well as the gestures used to convey them, are subject to change based on the bard’s

interaction with the audience, and he himself uses physicality, and indeed every physical,

indexical tool at his disposal to connect with the audience.

To be sure, an ancient Bard uses symbols, as he is engaged in the use of language.

However, he shares a special, indexical relationship with the audience. He expresses anger

indexically in a furrowed brow, indicates a parry in a climactic battle scene with a shuffle of his

feet and the swinging of his arm, and he indicates the exertion of the hero (and no doubt his own

exertion) by the sweat of his brow. He also ​responds​ to his audience indexically. He might see a

child yawning in the front row and interpret it as an indication of her boredom. No doubt he will

adjust for a more impassioned delivery. He takes the applause of the crowd to be an index of

their approval, and continues to riff on the same theme. These are ostensive actions and the

cognitive effects are substantial. His gesticulations reinforce the assumptions the audience have

15
or they will serve to counteract certain faulty assumption through a clarification. Ostensive acts

are innately indexical and as the embodied performance is almost entirely ostensive, filled with

intentional movements made to maximize relevance, it is also indexical. It is important to note

that the bard is merely an archetype for verbal and nonverbal communication. Yet he shows the

way an oral culture is linked and reliant on the index. This full bodied indexical communication

is not just an accoutrement of orality, but is part and parcel of it. The symbolic lives and dies in

this union of the indexical to the symbolic as the audience will not make a distinction between an

embodied symbol and an embodied index.

Ong showed how Homer’s writing, and the writing of other authors who stood at the

threshold of literacy, are displays of late orality. Homer (whoever he might’ve been) was the

capstone of a long tradition of bards, and was perhaps one of the first literate bards who also held

a firm grasp on the oral tradition. Through writers like him we can gain an indirect look at

orality. One way this orality is displayed is through the use of kennings and epithets. In Beowulf,

for example, blood is often referred to as battle-sweat.15 While this term is undoubtedly

symbolic, and maintains its symbolic nature through its connections with other symbols in that

sign system, it contains a kind of internal indexicality between the two words as well. This

internal indexicality gives the kenning an increased immediacy through the conveyance of action

and are more evocative than the word blood is by itself. Battle-sweat implies a certain

contextualization as well; it indicates a specific context for blood and seems to convey a

normative or affective judgement of the speaker or author towards blood. It is connotatively rich

and it places the word in a location as the icons and indexes are multiplied through their union.

15
​Translated By Seamus Heaney, ​Beowulf: English and Old English​ (New York: W.W. Norton & Company, 2000),
1650-1887.
16
All of these additional meanings, or sources of information increase the ​relevance​ of the word as

well. Because it is indexically rich, the reader receives increased cognitive effects. Much like

how an extended middle finger will have a high relevance in determining the goals and desires of

a passing cyclist, so too is battle-sweat highly relevant. Its indexicality provides for a greater

disambiguation of the author’s intent.

A similar effect occurs in the epithetic speech of Homer. For example, Odysseus is

referred to as clever-Odysseus multiple times in the Odyssey.16 While this usage is not at first

any more indexical than any other subject-predicate relationship, it becomes more immediately

indexical through its continued usage in the text. Over time, the object Odysseus gains an

implicit predication; he’s a clever one. This conceptualization of Odysseus has a greater

immediacy as not only the object Odysseus is indicated, but his predicate is. Also, this indication

of him being clever is more determinate than if we understood Odysseus as a clever one merely

through his clever actions. The epithetic use is thus more salient and more likely to be evocative.

Perhaps this increased indexicality helps explain the mnemonic effectiveness of epithets that Ong

spoke of.

Ong also details literary culture, as distinct from oral culture. A literary culture is one that

has access to written text, or writing in general.17 Nearly all modern cultures are literary to some

degree or another. Literary cultures reason differently, and are far more connected to the

symbolic. Their access and familiarity with texts leads to more propositional thinking and

influences the way they communicate. For instance, the more literary a culture becomes, the

more precise it becomes in its sentence construction, and generally gestures and physical

16
​Homer, and Alexander Pope. ​The odyssey​. Seattle: Amazon Classics, 2017.
17
​Walter J. Ong, ​Orality and literacy: the technologizing of the word​ (London ; New York: Routledge, 1988).
17
displays of affect decrease. This comes about arguably because written texts condition

individuals for a greater sense of objective knowledge as information becomes suspended, or

distanced from a subject. I believe this feature of literacy highlights the way it is more dependent

upon Peirce’s symbol as opposed to the index. However, instead of viewing literacy as an

enriching through its dependency on the symbol, it should be viewed instead as a slimming or

reduction in richness. Orality is itself a very rich mode of communication. It involves not only

the indexical, but the symbolic as well. Literacy however strips away an entire world of

indexicality and leaves a bare symbolic skeleton underneath. In a written text, the symbols are no

longer embodied in a person but are placed on the tundra of a page. To be sure, there are a host

of indexical relationships occurring amongst the words in the symbol system, and in the

relationships between those symbols’ objects (through inclusion and exclusion relationships).

Verbal and nonverbal communication do not have a monopoly on indexicality. Yet, when we

read a text we become cut off from the physical context that verbal communication provides, and

we are forced to reproduce the kinds of physical conditions implied by the symbols in the text.

Perhaps this stripping away of the physical layer of indexicality serves to bring us further

into ourselves. When we read a text, relevance is no longer determined through actual events,

and our assumptions are not related to physical stimuli, but in the context of our memories. Our

determination of relevance must be purely symbolic, as we work to form a mental construction

of the state of events or ideas presented by the author. Furthermore, when exerting interpretive

effort to gain cognitive effects, we are not inquiring into an action occurring in the present,

directly related to us under the demands of interpersonal communication, but in the

amalgamations of events from the past. It seems like this stripping away of the index and the

18
increased internalization is what would bring about so many of the differences in mental

conceptualization and heuristics between orality and literacy. A person from an oral culture is

used to indexes or ostensive gestures that are highly relevant and affect the value of assumptions.

When the Bard speaks the sentence “​Till the monster stirred, that demon, that fiend/Grendel who

haunted the moors, the wild/Marshes, and made his home in a hell,​”18 with the gusto and

expression it deserves, it is ready made for the audiences, packaged with indexes to help convey

the ferocity and misanthropy of Grendel. The person reading a book doesn’t get the same

support. The reader strains herself to keep the symbols in her mind, and it takes more work to

pick out what symbols might indicate or what relationships they may have one to another than it

does for the audience member to read the indexes of the Bard. The cognitive effects in relation to

the effort for processing is less, decreasing relevance of the messages. Yet this might also help

explain why the literary person has a different epistemological framework than the oral person.

By becoming accustomed to perceiving relevance in a more limited symbolic way, they might

view indexicality (in the sense of embodied indexicality) as less important, or perhaps

superfluous compared to the capacity of symbols to convey meaning. Perhaps they become

accustomed to ignoring indexes of emotion as they can cloud the precision that one comes to

value in the control and stable symbolic plane.

Thus, there is a real connection between orality and the index and literacy and the

symbol. This relationship is not exclusive; to be a human is to communicate symbolically. Yet

the stress on the indexical in orality provides a certain richness that is lost as humans gain a

closer connection with the written word. Yet while this reduction in indexical communication

18
Translated By Seamus. ​Beowulf: English and Old English​. New York: W.W. Norton
​Heaney,
& Company, 2000. 27.
19
might be necessary as we move into increased literacy, it may also have its benefits. The

symbolic has very stable meanings and even becomes codified in dictionaries, while the

emotions conveyed in a physical index can have a wide range of interpretations. Whatever the

differences between orality and literacy may be, I believe this distinction between the index and

symbol could be an invaluable tool for researchers moving forward and could help uncover many

new insights into the way our modes of communication are related to our cognition.

The Legality of Israeli Settlements in Palestine

Keenan Smith
International Law
Dr. Eric Smaw
7 December, 2017

20
 One of the most widely held, but false narratives of the Israeli-Palestinian conflict is that

it a perennial conflict, with deep religious, seemingly eternal factors frustrating the hope of any

progress. This narrow perspective has the effect of making a solution seem intractable. While

this narrative regarding the Israeli-Palestinian conflict is misguided, a few key issues, including

those involving international law make a solution to this problem particularly challenging. A

relatively new wrinkle in the conflict is the establishment of Israeli settlements and the

construction of a barrier wall in the Palestinian area of the West Bank. These actions are viewed

by some to be incendiary, and intentional contraventions of international law. I will analyze the

establishment of Jewish settlements in terms of international law, arguing that these settlements

are illegal, while addressing some arguments that might be given for their legality. I also address

the issue of the barrier wall in the West Bank, arguing that the reconstruction of the wall within

the established 1949 demarcation line would represent a good faith action in normalizing

relations between Israel and Palestine. Following this discussion, I will address a question

21
implicit in this analysis in general: are the Israeli settlements in Palestine a reincarnation of

imperialist practices, such as those of the 18th and 19th century, or are they rather colonialist,

showing signs of imperialism but lacking a few of the necessary conditions to warrant the use of

the term. I will argue that while Israel’s practices in Palestine are indeed harmful to Palestinian’s,

this is not enough to warrant the title imperialism, and that they are instead colonialist, which is

often recognized as a precursor to imperialism.

In the late 19th century, the Ottoman empire controlled what we now know as Palestine

and Israel. It was not uncommon for Muslims, Jews, and Christians to celebrate religious

festivals together, and generally the diverse populations of Israel lived together peacefully. In

this time in Europe however, nationalism was on the rise. In the late 19th century, the Jewish

journalist Theodor Herzl began publishing works calling for Jewish people to leave Europe and

settle their own state. In August of 1897, Herzl convened and chaired the first Zionist conference

in Switzerland, for the purpose of founding Zionism.19 At the conference, the Zionist platform

was adopted, with aims of one day establishing a sovereign Jewish state in Israel. This

movement had a deep impact on the European Jewish community, and many families began to

move into Ottoman Palestine-Israel in hopes of bringing this vision to fruition.

In 1917, the British government passed the Balfour Declaration, likely in hopes of

endearing the growing Jewish population in Israel to the British Government. It promised “the

establishment in Palestine of a national home for the Jewish people,”20 however this could not be

easily delivered upon by the British Government. They promised Palestine to themselves in

19
​Howard Sachar, "A History of Israel: From the Rise of Zionism to Our Time. 2nd rev. and updated ed," ​The
SHAFR Guide Online​, 2013.
20
​"Balfour Declaration: Text of the Declaration," Text of the Balfour Declaration, , accessed November 25, 2017,
http://www.jewishvirtuallibrary.org/text-of-the-balfour-declaration.
22
dealings with the French in 1916, and to Sharif Hussein in 1915, on the contingency that he

would lead a revolt against the Ottomans. Additionally, these promises were made before the end

of World War I, when the British Government did not yet have control over Ottoman Palestine.

Yet, following World War I, British administration was made official by the Palestine Mandate

of 1923, formalized by the League of Nations, which also reaffirmed the British Government’s

commitment to the Balfour Declaration.21

The British Government attempted to abide by certain provisions of the Balfour

Agreement, including the promise to facilitate the immigration of Jews into Israel between 1920

and 1939. This led to a population increase as well as an increase in landholding by Jews in

Israel, purchased from non-Palestinian and Palestinian Arab landowners. During this time, a

growing sense of nationalism began to increase, not just among Zionist Jews, but also from Arab

Palestinians. In 1939 the Macdonald White Paper declared that it was not the British

Government’s plan to create two distinct independent states, one Jewish and one Arab, and it

curtailed Jewish immigration into Palestine. Additionally, there was a large decrease in Jewish

immigration into Palestine following a British mandate curtailing increased immigration.

Following World War II and the founding of the United Nations, the British Government

announced its intent to terminate the Palestine Mandate, and referred the issue of the partition of

Palestine to the U.N. In May 1947 the United Nations Special Committee on Palestine

(UNSCOP) was formed to prepare recommendations for treatment of the Palestine partitioning

issue. The plan proposed by the UNSCOP was unanimously accepted and included a partition of

Palestine into 3 separate areas. These included a Jewish controlled state, an Arab state, and the

​Howard Sachar, "A History of Israel: From the Rise of Zionism to Our Time. 2nd rev. and updated ed," ​The
21

SHAFR Guide Online​, 2013.

23
City of Jerusalem with roads allowing ingress from the two states in and out of Jerusalem. This

plan was considered by two ad-hoc committees, and following changes to the original plan

(including an increase in proportional Jewish control of then undivided Palestine) was passed by

the United Nations by a vote of 33 to 13.

In the years following the vote and partition, there were intervals of violence between

Jews and Arabs regarding disagreements in land control and other political factors. One event,

particularly relevant to the issue of Israeli settlements was the 1948 Arab-Israeli War, which was

fought between the newly formed Israeli state and a coalition of Arab nations. Prior tensions

between Arabs and Israelis erupted into civil war after the adoption of the United Nations

Partition Plan and this civil war turned into an interstate conflict when Israel declared

independence in 1948. This war ended with the 1949 Armistice Agreements between Israel,

Egypt, Lebanon, Jordan, and Syria, and led to the establishment of the Green Line separating

Israeli and Jordanian forces. The Green Line is a demarcating line separating Israel and its

neighbors, and is often recognized as marking the borders of the nation of Israel. It is accepted

by the Palestine Liberation Organization as the basis for the establishment of a future Palestinian

state.

Another event crucial to our concerns was the 1967 Six-Day War. As a result of this war,

Israel gained control of the Gaza Strip, the Sinai Peninsula, the West Bank, East Jerusalem, and

Golan Heights. Almost immediately after Israel gained control over these areas, settlements

began to develop.22 Since 1967, the “Settlement Division” of the World Zionist Organization

(WZO) has been responsible for many of the settlements in the West Bank. Although this is

22
​Howard Sachar, "A History of Israel: From the Rise of Zionism to Our Time. 2nd rev. and updated ed," ​The
SHAFR Guide Online​, 2013.
24
officially a non-government organization, it is funded in large part by the Israeli-government.

Furthermore, the WZO is authorized to create settlements in the West Bank by the Israeli Civil

Administration and all settlement activities must first be approved by the Prime Minister of Israel

and the Defense Minister. In 2005, 21 settlements in the Gaza Strip were dismantled as part of

the unilateral disengagement plan, however to this day Israel continues to expand its settlements

in the West Bank. Israeli settlements also include areas of East Jerusalem, which is adjacent to

the area of Israel proper called West Jerusalem.

Israel has cited the following as reasons for the establishment of settlements: the desire of

Israelis expelled from the West Bank in 1948 to return home, the fortification of security in

Israel through hilltop outposts, and settlements as bargaining chips for future negotiations.

Additionally, some Israelis view settlements in these areas as a fulfilment of a kind of historical

patrimony. 23 These reasons, and other arguments made by the Israeli Government which are

outlined below are insufficient legal grounds to justify the Israeli settlements in Palestine.24

In addressing the question of the legality of the settlements, we must look primarily to the

law of treaties. The authority and effectiveness of treaties between nations is affirmed by the

Vienna Convention on the Law of Treaties and the guidelines established by this treaty are

recognized internationally as customary law. As such they are binding on all nations.

Importantly, the Vienna Convention states “every treaty in force is binding upon the parties to it

and must be performed by them in good faith.”25 Thus, in analyzing the legality of settlements in

23
"Israel Studies An Anthology: Jewish Settlement in Israel". ​Jewish Virtual Library​. Retrieved 2017-10-20.
24
​ dam Roberts, "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967," ​The American
A
Journal of International Law​ 84, no. 1 (1990):.
25
​Barry E. Carter, ​International law: selected documents​ (New York: Wolters Kluwer Law & Business, 2013).825.
25
the West Bank, we must turn our attention to those treaties specifying the obligations of Israel in

the West Bank.

The settlements are a direct contravention of The Geneva Convention relative to the

Protection of Civilian Persons in Time of War, or as it is more commonly known, the Fourth

Geneva Convention. Article 2 of the Fourth Geneva Convention states that the treaty applies to

signatories that are in war, are in armed conflicts where war has not been declared, and in the

occupation of another country.26 Israel, along with 195 other countries is a party to the

Convention. As treaties represent one of the four major sources of international law27, and the

Convention is a multilateral treaty, a contravention of the provisions of this treaty would

represent a violation of international law.

For a state that qualifies under the Convention, there are important obligations that it

must uphold. One such obligation particularly relevant to the issue of Israeli settlements can be

found Article 49, Paragraph 6 of the convention which states as follows: “The Occupying Power

shall not deport or transfer parts of its own civilian population into the territory that it occupies.”
28
Thus, in addressing the question of the legality of Israeli settlements we can identify two

crucial questions:

1. Whether the convention applies to the occupied territories

2. Whether the convention prohibits the establishment of the Israeli settlements

Beginning with question 1, According to the Hague Regulations of 1907 a territory is considered

occupied when it is placed under the authority of a hostile army which can exercise such

authority. Occupation can only be deemed to have ceased when the occupying forces are driven

26
​Barry E. Carter, ​International law: selected documents​ (New York: Wolters Kluwer Law & Business, 2013).824.
27
​Statute of the Court, International Court of Justice (United Nations 1998).
28
​Barry E. Carter, ​International law: selected documents​ (New York: Wolters Kluwer Law & Business, 2013).825.
26
out or evacuate the occupied area.29 In order to determine whether or not this definition applies to

Israel it is important to highlight the circumstances of the acquisition of the West Bank and other

areas during the Six-Day War. Following attacks from Jordan and Syria, Israel initiated a series

of counterattacks that led to the seizure of East Jerusalem, the West Bank, and later the Golan

Heights. Later during the fighting Israel seized control of the Gaza Strip from Egypt. Yet while

Israel has declared these seizures strategic military captures, the permanent status of Israeli

presence evidences an occupation, or more precisely, a belligerent occupation, initiated during a

time of war. Furthermore, as of 2015, more than 800,000 Israelis resided over the Green Line

established in the 1949 Armistice Agreement, and this number continues to grow.30

Importantly, it has been ruled by the Israeli Supreme Court that the Fourth Geneva

Convention constitutes customary international law and its applicability should be accepted by

Israel. In the case ​Ajuri v IDF Commander​, the Supreme Court of Israel considered whether or

not an Israel Defense Force commander violated international law when he ordered 3 residents of

Judea and Samaria to live in the Gaza Strip.​ ​The petitioners in the case, the three deported

individuals, argued that the orders represented forced deportations from one territory to another

under the Fourth Convention, and were thus prohibited. The respondents in the case argued that

the territories referred to by the petitioners represented one territory, and that the orders were

thus a reassignment of residence within one territory, permitted by the Fourth Geneva

Convention, and not a forced deportation. In its ruling, which the Supreme Court stated as

follows: “Now, it is almost undisputed that the Fourth Geneva Convention reflects customary

law and binds all states – even those that have not signed it – because it enshrines basic

29
"Belligerent Occupation," ​International Committee of the Red Cross​, June 2002.
30
​ aakov Katz, "407,118," Israel National News, September 01, 2016, , accessed November 24, 2017,
Y
http://www.israelnationalnews.com/Articles/Article.aspx/18210#.VpK
27
principles accepted by all states.”31 While it recognized the applicability of the Fourth Geneva

Convention regularly, the court in this case ruled that the recent violent terror attacks presented

an exigency that justified the transportation of the petitioners in this extreme case. Additionally,

the Israeli High Court of Justice itself has held the Israeli presence in the West Bank and other

areas represents occupation. In​ Beit Sourik Village Council v. The Government of Israel,​ the

court explicitly stated “Since 1967, Israel has been holding the areas of Judea and Samaria in

belligerent occupation.”32

In addition, the applicability of the Geneva Convention to the Israeli-occupied territories

has been upheld by the UN General Assembly since the onset of the occupation.33In the 2004

advisory report to the General Assembly, ​United Nations v. Israel​, the International Court of

Justice submitted an opinion which stated that Article 2 of the Fourth Geneva Convention

Applied to the Israeli occupation of the territories captured in 1967.34 The issue before the Court

in the advisory opinion was whether or not international law, and the Fourth Geneva Convention

more specifically, were contravened by the occupying Israeli state when it constructed a wall in

occupied Palestine. Before addressing this question, however, the Court addressed international

law as it was applicable to the occupation more generally. Israel argued in this case that although

it had signed the Fourth Geneva Convention, and although it recognized the Convention’s

humanitarian provisions, the Convention did not apply ​de jure ​in regards to the issue of the

Occupation, as Article 2 of the Convention only applies in the case of occupation of territories

31
​Ajuri v IDF Commander, No. HCJ 7019/02; HCJ 7015/02 (September 3, 2002).
32
​Judgements of the Israel Supreme Court: fighting terrorism within the law​ (Jerusalem: Israel Supreme Court,
2005), 10.
33
Adam Roberts, "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967," ​The American
Journal of International Law​ 84, no. 1 (1990):.
34
​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion
(International Court of Justice July 9, 2004).
28
falling under the sovereignty of a High Contracting Party to the convention involved in an armed

conflict. Israel argued that as the territories occupied by Israel had not fallen under Jordanian

sovereignty subsequent to the 1967 occupation, they could not claim to be High Contracting

Parties under the convention. Israel also argued that the lack of implementation of the provisions

of the Fourth Geneva Convention limited the applicability the Convention to Israel. The Court

responded to the first argument by stating that the convention applies when two provisions are

fulfilled: there is an armed conflict, and that it occurred between two High Contracting Parties.

The Court also stated that the provisions apply in any territory occupied in the conflict by one of

the High Contracting Parties, regardless of the official sovereignty of that territory, and that the

Convention could not be construed to exclude Palestine solely because it did not fall under the

sovereignty of a High Contracting Party. Furthermore, the Court stated that Israel’s obligations

under treaties and customary law are applicable in any situation where it exercises control over

territory, including occupied, non-sovereign territory. The areas within the West Bank, where the

barrier wall was constructed, were the main concern in this case and it was determined that in

these areas Israel maintained effective military and territorial control. Furthermore, the Court

cited Article 4 of the Fourth Geneva Convention, which applies to ​persons​ “who, at any moment,

and in any manner whatsoever, find themselves in case of a conflict or occupation, in the hands

of a party to the conflict or occupying power of which they are not nationals”.35 The Court

reasoned that Palestinian civilians in the occupied territories were protected persons under this

Article and that Israel had obligations to them as an occupier under the Convention.

35
​Barry E. Carter, ​International law: selected documents​ (New York: Wolters Kluwer Law & Business, 2013).824.
29
 The Court also stated that the Fourth Geneva Convention applied to the case as a matter

of customary law, not solely on the merits of the treaty alone. It cited the ICJ decision in the

Corfu Channel ​case of 1949, which stated that the provisions of the Geneva Conventions were to

be observed by all states, whether or not they had specifically ratified them, because they

amounted to fundamental, intransgressible principles of international law.36 Thus, the Court in

United Nations v. Israel ​reasoned that this status of the Geneva Conventions as customary

international law resulted from their near universal accession by contracting parties.

Furthermore, the Court stated that a lack of implementation of the Fourth Geneva Convention in

Israeli domestic law could not be used as an argument against the applicability of the

Convention, as Israel is bound by international customary law in the occupied territories.

Given reasoning of the Court in this case, that lack of sovereignty could not bar the

applicability of the Convention to a territory, the authority of the Convention as a result of the

Vienna Convention on the Law of treaties binding states to the obligations of treaties, the fact

that the Convention is recognized as customary law, and not solely as a treaty, the definition of

occupation provided by the Hague Convention and its fulfilment in light of the current state of

affairs, that these areas were seized in a time of war, and that these areas have not been

evacuated, it is clear that Israel’s presence represents an occupation of Palestine.

Now I will address the second question: whether or not the Fourth Geneva Convention

prohibits Israeli Settlements. In arguing that Article 49 does not apply, some have stated that the

Article only applied to situations specific to forcible transfers and should only be read as a

protection of a local population from displacement. By this view, Article 49 Paragraph 6 should

36
​Corfu Channel, I.C.J. Reports 1949, p. 4. (International Court of Justice April 9, 1949).
30
only be seen to apply when an occupying power’s transfer of its civilians into the occupied

territory displaces individuals in that territory. As the Israeli settlement program was and is not

meant to displace Palestinians, however, nor have they resulted in the displacement of

Palestinians, the article does not apply.

I believe this interpretation is incorrect, based on a clear reading of the Convention. If

this interpretation was correct, the inclusion of Paragraph 6 would be a redundancy as Paragraph

1 of the same article provides as follows: “Individual or mass forcible transfers, as well as

deportations of protected persons from occupied territory to the territory of the Occupying Power

or to that of any other country, occupied or not, are prohibited, regardless of their motive.”37

Given that this paragraph already makes provision for issues regarding deportations and forcible

transfers, it would not make sense if Paragraph 6 only applied in instances where the settlement

of a population from the occupying country led to the displacement of individuals in the

occupied country. There seems to be no reason to limit the application of the article to instances

similar to the mass displacements that occurred in World War II. Furthermore, it is less than

clear that the Israeli settlements have not led to the displacement of Palestinians. For example, in

January 2016, Israeli forces were accused of confiscating the homes of, and displacing more than

400 Palestinians in the West Bank.38 Furthermore, many Palestinians have found moving to be

the most economically viable option as a result of settlements and the Barrier Wall constructed in

the West Bank. Indeed, more than 800,000 Israelis have been settled in the West Bank by the

Israeli government, or by organizations in close relation to the Israeli Government, such as the

37
​Barry E. Carter, ​International law: selected documents​ (New York: Wolters Kluwer Law & Business, 2013).825.
38
​Shehab Khan, "More than 400 Palestinians displaced from the West Bank by Israel in six weeks," The
Independent, February 21, 2016, , accessed November 25, 2017,
http://www.independent.co.uk/news/world/middle-east/more-than-400-palestinians-displaced-from-west-bank-israel
-six-weeks-a6887361.html.
31
WZO. Given the clear language of Article 49 Paragraph 6 of the Geneva Convention, this

settlement of Israelis is a clear contravention of international law, leaving aside the issue of

whether or not the Israeli settlement have led to the displacement of Palestinians, which it can be

argued it has.

In regards to the application of the Fourth Geneva convention to the issue of Israeli

settlements more generally (and not isolated to its applicability under Article 2) the conference of

High Contracting Parties to the Fourth Geneva Convention ruled that the Convention applied in

the case of the Israeli occupied areas. The settlements were declared illegal and Israel was called

upon to refrain from the perpetration of further violations under Article 2.39 Additionally, the UN

Security Council Resolution 446-States that:

“the policy and practices of Israel in establishing settlements in the Palestinian

and other Arab territories occupied since 1967 have no legal validity and

constitute a serious obstruction to achieving a comprehensive, just and lasting

peace in the Middle East.”40

This and other statements made by other international bodies should be taken as evidence of the

general opinion of the international community regarding the current state of settlements in

Palestine.

It will be valuable to address other arguments for the legality of settlements as well. I

alluded earlier to the argument presented by some that Israel took the West Bank and other areas

as a defensive action in the defensive Six Days War. By this argument, they mean to say that

Israeli did not make an intentional, strategic decision to occupy the Palestinian areas. Instead,

39
​Matthew Happold, "The Conference of High Contracting Parties to the Fourth Geneva Convention," ​Yearbook of
International Humanitarian Law​, 2004.
40
​United Nations Security Council Resolution 446, United Nations Security Council (March 22, 1979).
32
they argue that the war was imposed on Israel by a coalition of Arab states, and that the seizure

of the territories was a result of a mere happenstance of war. To bolster this claim, some might

argue that Israel has a better title to this territory as it was seized illegitimately by other

countries. This is in reference to the occupation of the West Bank by the Jordanians and the Gaza

Strip by the Egyptians, the result of a legal invasion in 1948. Jordan’s annexation of the West

Bank in 1950 was largely rejected by the international community. Israel however, only entered

the West Bank following artillery fire and movements across armistice lines, and other Arab

forces were poised to enter the West Bank as well.41 Insofar as Israel acted out of self defense in

this conflict, their actions were justified. Yet the same cannot be said for the continued retention,

occupation, and settlement in the Palestinian territories. Even if Israel acted in self defense in the

taking of the territories initially, this does not give it claim to the territories indefinitely, nor does

it give them the right to do with them as they see fit. Thus, the argument that Israel’s occupation

of the land as the result of a defensive war does not justify their claim to permanent occupation

or settlements in Palestine. Given the violation of Article 49 by the transfer of settlers into the

West Bank, and the lack of justification for claims to the continued occupation, the settlements

are illegal under international law.

I have not argued that occupation is illegal broadly. This argument would not make sense

in light of the Fourth Geneva Convention’s clear provisions for occupying nations. I believe it is

more than reasonable to say that if Israel were to abide by its obligations under international law,

the settlements would have an entirely different status, namely, they would be legal. However,

given this determination of the illegality of settlements the question must be broached: what is

​Howard Sachar, "A History of Israel: From the Rise of Zionism to Our Time. 2nd rev. and updated ed," ​The
41

SHAFR Guide Online​, 2013.

33
the implication for Israel? Israel’s actions represent a clear rejection of its obligations under

explicit and customary international law. Yet, I believe there are clear steps it can take to begin

changing its status under international law. One such step would be a reconstruction of the

barrier wall within the bounds of the Green Line.

This wall was built during the Second Intifada, a period of intense fighting between

Palestinians and Israel and it is cited by Israel as a way to curtail incoming traffic of suicide

bombers and terrorists the country.42 The wall runs a total of 440 miles and 85% of the wall runs

into West Bank, isolating some 9.4% of the West Bank and 25,000 Palestinians from the bulk of

the territory. There are some places where the barrier runs more than 12 miles into Palestine, past

the Green Line. Additionally, the wall encloses more than 80% Israeli settlers in the West Bank.

Even though Israel says the wall was constructed largely for defensive purposes, it has come to

represent a symbol of oppression over the Palestinian people, as it restricts trade, access to

medical facilities, and general freedom of movement for Palestinians.

In light of the Charter of the United Nations, as well as the Fourth Geneva Convention, it

is clear that the barrier wall is illegal and goes against the explicit purposes for which the UN

was established. One of the purposes of the UN cited in the Charter is the development of

friendly relations among nations, showing respect for the principles of equal rights and

self-determination of people.43 Yet, the barrier increases the fragmentation of the West Bank,

because of checkpoints and blockades at various points in the wall, making it difficult if not

impossible for Palestinian farmers to bring their produce to the market throughout the West Bank

42
​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion
(International Court of Justice July 9, 2004).
43
"Charter of the United Nations," Chapter I, , accessed November 25, 2017
http://www.un.org/en/sections/un-charter/chapter-i/index.html.
34
and Jerusalem. This is a limitation of the rights of the Palestinian people to self-determination

through the annexation of land historically and rightfully their own. It is often asserted that the

wall was also constructed as a way to expand the borders of Israel, under the pretenses of being a

purely defensive structure.44 Even though Israel has claimed that the wall is merely a temporary

measure, implemented for the time being as a result of violence, its presence represents a ​fait

accompli​ for the people of Palestine, forcing them to cope with the implications and limitations

the wall places on their daily lives. It has also led to the displacement of Palestinians through the

forced acquisition of property in the pathway of planned wall construction. Given the

applicability of the Fourth Geneva Convention mentioned before, and its obligations prohibiting

the displacement or forcible transfer of protected persons under Article 49 Paragraph 1, it is

illegal and counterproductive to any peacemaking effort between Israel and Palestinians as it

hinders the possibility of negotiating a more permanent and suitable boundary. This may also

lead to even more violence as frustration increases amongst the Palestinians and would be

evidence of the contravention of the UN Charter’s stated goal of increasing friendly relations.

Regarding the issue of imperialism in Israel, it is important to first determine if Israel’s

formation as a state came about as a result of imperialist policies. As stated, most scholars trace

Israel’s origins to the efforts of individuals, usually young Jewish men and women, and the work

they did in establishing communities known as Kibbutzim in in the late 19th and early 20th

century. The values of these early settlers were largely anti-imperialistic; much of the

immigration of Jews into the Holy Land was motivated by the desire to be free from oppressive,

anti-semitic regimes in Eastern and Western Europe, as could be found in the Russian Empire

44
​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion
(International Court of Justice July 9, 2004).
35
and the Austro-Hungarian Empire. In fact, Zionists such as Theodor Herzl traced their

ideological roots back to the works of anti-imperialist Communists such as Moses Hess.45 Hess

claimed that Jews should fight empires in the spirit of Mazzini and the Italian unifier Garibaldi to

form an independent Jewish state. For many early Jewish settlers then, there was a collective

motivation of rebellion against oppressive imperial powers, and as such it would seem

counterintuitive to typify early Jewish settlers as having imperialistic ideals themselves.

Furthermore, it is difficult to typify early Israeli state formation as imperialistic, as it does

not satisfy the necessary conditions of imperialism. As post-colonialist theorist Robert Young

states, imperialism operates from the center, as a state policy.46 This typically involves the

administration of distant lands from a centralized metropolitan area. Jewish settlers in Israel

arguably had no such centralized authority, and undoubtedly had no legitimate centralized state

administration, although they were granted entrance into Palestine by Britain. Jewish settlers

instead sustained themselves through their own produce and the donations of private donors, not

at the behest of a centralized government whose core aims entailed imperialistic goals. For this

reason I believe it would be difficult to argue that Israel was founded imperialistically

Yet, while Israel was founded from a sense of self preservation, solidarity, and

anti-imperialistic ideals, its policy towards the Palestinians in the West Bank and the Gaza Strip

today has become domineering. Through the limitation of the Palestinians’ right to self

determination, it shows more and more signs of imperialistic tendencies. Israel’s actions should

be categorized as colonial, which can be distinguished from Imperialism. According to Young,

Colonialism involves the implanting of settlements in distant territory, while Imperialism implies

45
​Shlomo Avineri, ​Moses Hess: prophet of communism and Zionism​ (New York: New York University Press,
1985).
46
​Young, Robert. ​Empire, colony, postcolony​. Hoboken: Wiley Blackwell, 2015.
36
a total domination of another territory through hegemonic political and military structures. Of

course, Israel has either directly or indirectly installed dozens of settlements through the WZO

and other organizations, which are typically administered or overseen by the state of Israel.

Furthermore, Israel’s construction of the Barrier Wall represents a limitation on the people of

Palestine’s innate right to self determination. However, Imperialism is typically characterized by

a total and forceful domination of the colonizer over the colonized, and seeks total control over

the area that is colonized. The Palestinians, however, have autonomy in state matters under the

Palestinian Authority (PA). This group was established in 1993 pursuant to the Oslo Accords,47

which also required the removal of Israeli troops from the areas controlled by the PA.

Furthermore, the PA has begun calling itself the State of Palestine, and it evens maintains its own

President, and an elected body. Thus, while it is clear that Israel is engaged in practices that

could definitely be deemed Imperialistic, the autonomy granted the Palestinian people through

the PA shows that Israel does not hold ​de facto​ control over Palestine, and should thus be viewed

as a colonial power, as a result of settlements and encroachment, rather than an Imperialistic one.

Given the applicability of the Fourth Geneva Convention to the the Israeli occupation of

Palestine based on the definition of occupation from the Hague Convention of 1907, the

prohibition of these settlements by the Geneva Convention, and the accession of both the

international community and Israel’s own courts to their illegality, it is clear the they are illegal

under international law. Furthermore, the Barrier Wall represents a further contravention of this

law and stands in direct opposition to the terms of the UN Charter. In light the serious negative

effects that have arisen and could arise as a result of the continued presence of the wall, it must

47
​"The Palestinian government." CNN. April 5, 2001. Accessed December 02, 2017.
http://www.cnn.com/2001/WORLD/meast/04/05/palestinian.explainer/index.html.
37
be reconstructed in a way that is suitable to the people of Palestine, allowing for their freedom of

movement and self-determination. This will help lead the way to further negotiations leading to

a permanent solution, and hopefully a lasting peace. Here I can return to my original claim, that

this Israel-Palestine conflict is in fact not an intractable problem. It is not an issue destined by

arcane powers to continue in perpetuity. The notion of perpetual war is not exclusive to the

Israel-Palestine issue. Indeed, in 1808, William Cobbett stated “We insist, that perpetual war is

preferable to subjugation by France”48 Yet, despite hundreds of years of wars between these two

nations, the unpredictability of history has finally brought them together as close allies. I

believe it is possible the same will one day be said of Israel and Palestine. The issue is not

impenetrable. There are clear factors the give rise to issues, such as the Border Wall,

encroachment on Palestinian land, strangulation of resources, and generations of

misunderstanding. Yet, there is nothing innately unsolvable about these issues. They require

insight and deft political understanding. To begin the process of a solution between Israel and

Palestine, we must first abandon the unuseful notion that the conflict between Palestine and

Israel is unsolvable. Only then will peace be possible, built on the foundation of respect and

compliance with explicit international law and customary norms.

48
​William Cobbett and John Morgan Cobbett, ​Selections from Cobbett's Political Works​, vol. 2 (Great Britain,
1835), 339.
38
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