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Understanding indigenous struggles against settler colonialism and international law

Palestinian Prisoner’s Day

Human Rights

Photo by Marius Arnesen

On April 17, Palestinian Prisoner’s Day should be seen as a day of global solidarity for all indigenous peoples seeking freedom and self-determination while living under settler colonialism. It reminds us of the predominance of indigenous peoples living in the prison industrial complex and its overarching laws.

Almost one month prior to the 67th remembrance year of the Nakba, or ethnic cleansing of Palestine, Palestinians are remembering the overwhelming incarceration rates they face by the state of Israel today.

Setting aside the complex architecture of violence that Israel has created, indigenous peoples are overwhelmingly represented in the prison system of settler colonial states more generally.

Settler colonialism is a particular system of colonization that relies on immigration and settlement at the expense of indigenous peoples who originally inhabited the lands.

Settler colonialism has five logics embedded within its legal framework and psyche: the logic of elimination, the logic of racialization, the logic of expansionism, the logic of exceptionalism and the logic of denial. These five logics produce a sixth logic known as the logic of securitization, resulting in mass incarceration of indigenous populations.

The logics of settler colonialism

The logic of elimination is about a wiping out the indigenous peoples of the lands whether it be through memoricide or genocide, using laws and policies as the operationalization scheme.

The logic of racialization is about racist legislation and discriminatory procedures imposed by the settler colonial state against its respective indigenous peoples.

The logic of expansionism is about a settler population immigrating to the lands, justified by law and religious doctrines for the implementation of land and resource robbery, annexation, usurpation and overall politico-economic expansionism of the settler colonial state.

This suffocating procedure is enhanced by the logic of exceptionalism, whereby these suffocation tactics are justified morally and ethically as the settler colonial state believes it has a higher morality in comparison to the perceived inferiority of indigenous peoples of the land.

This higher morality gives way to the fifth logic – the logic of denial – whereby the settler colonial state denies any wrongdoing or even the existence of indigenous peoples and their rights within the overall apparatus that indigenous peoples are forced to live under.

Whether the settler colonial state realizes it or not, these actions haunt the subconscious of the state, which finds itself in permanent and obsessive insecurity as a result of actions and failed guilt-management tactics.

All of this produces an imprisonment and incarceration complex for indigenous peoples, also known as the logic of securitization, fuelled by immense fear of the “other.”

Visualizing settler colonialism through these logics, it becomes clear how this is a trend among indigenous peoples within settler colonial states—particularly in Israel, Canada, Australia and New Zealand.

Starting with Israel in relation to the Palestinians, and setting aside the everyday imprisonment of an occupied population, over 800,000 Palestinians have been incarcerated since 1967, including women and children. This also includes systemic torture, ill-treatment and denial of basic human rights.

The situation of incarceration is so disturbing that Palestinians have had to engage in what is known as sperm smuggling as a form of resistance from denial of family reunions. This information was further reinforced by a recent report by the former Special Rapporteur in the Occupied Territories.

There are some similar circumstances that indigenous peoples of Canada live under in relation to settler colonialism such as the reservation system, a series of enclaved territories, some of which have their own oppressive and imprisoning laws.

Indigenous peoples in Canada make up approximately 3-4% of the overall population in the country but have the highest rate of incarceration, also including women and children. Like the Palestinians, indigenous populations from reserves are disproportionately represented in many prisons.

Criticism of such settler colonial statistics have been outlined and discussed in the latest report of the Special Rapporteur on the rights of indigenous peoples.

Similar logics exist in Australia and in New Zealand, the Maoris’ have one of the highest incarceration rates in the developed world.

International law: Enhancing or eliminating imprisonment?

Under international law, indigenous peoples have rights under the United Nations Declaration on the Rights of Indigenous Peoples, a document which has not been ratified by any of the said settler colonial states.

Furthermore, the international law regime is colluding in the facilitation of the imprisonment of indigenous peoples. One small example is the United Nations High Commissioner on Refugees hiring security companies like G4S that provide surveillance technology to Israeli prisons. These same prisons hold Palestinian children against international law.

Palestinian Prisoner’s Day represents the struggle that indigenous peoples are facing against settler colonialism. It is a reminder of the need for action, the preservation of the rights of indigenous peoples globally, and the need to eliminative the five logics embedded in the legal and structural framework of settler colonial states.

The right of indigenous peoples is the right to self-determination, meaning freedom from an incarcerating existence. In the case of the Palestinians, international law’s solution is perpetuating incarceration through the statehood.

This solution resembles an open-air prison for Palestinians held by the settler colonial state of Israel, a prison recognized by international law. Prisoner’s Day is a day to recognize and fight for freedom, a concept the international law regime is inept at comprehending.

Ahmad Moussa is a freelance writer and contributor to various international news agencies. He is a human rights scholar and activist with a Master of Arts in International Law and Human Rights.

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