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Why International Law Can’t Save Palestine

By Gunar Olsen

When Secretary of State Mike Pompeo announced earlier this week that the Trump administration would no longer recognize Israeli settlements in the West Bank as illegal, he displayed a keen understanding of the law’s relationship to politics, one that makes the blood of his liberal counterparts boil. “Arguments about who is right and wrong as a matter of international law will not bring peace,” he proclaimed. “Dwelling on legal positions [doesn’t] advance peace.”

For many liberals, law is the sine qua non, the be-all and end-all, of justice. Liberal criticism of Israel’s treatment of Palestinians, for example, usually peaks at the mere concern over whether Israel sufficiently adheres to the major tenets of international law.

Pompeo’s comments signal a technical departure from his predecessor’s. In 2016, John Kerry declared Israel’s settlements to be “inconsistent with international law.” Similarly, during Israel’s sniper attacks on the Great March of Return in Gaza last year, five House Democrats implored Israeli soldiers to “exercise utmost restraint in the use of deadly force and to fully comply with international law.” Some liberal legal scholars have even argued that the Trump administration is trying to “kick the legs out from under the postwar international legal order” for recognizing Israeli sovereignty over the Golan Heights. To achieve peace, according to this “flawed democracy” narrative, all Israel must do is better respect international law.

A new book by Noura Erakat, Justice for Some: Law and the Question of Palestine, illustrates the folly of this position. A human rights attorney and professor of Africana studies at Rutgers University, Erakat argues that international law has, on balance, done more to entrench Israel’s settler colonialism than impede it. The book is a vital political intervention into contemporary debates on Israel and Palestine, as well as a compelling history of the last century, told through the lens of a critical-legal theory.

Erakat shows the immense amount of “legal work” Israel has performed to advance its twin goals of territorial expansion and demographic superiority. Though it could achieve these objectives through military prowess alone, Erakat argues, “as a liberal settler state, it has sought the legitimating force of law as well.”

Colonial State-Making

At the heart of Israel’s legal work lies its persistent claim that the unique circumstances of Israel and Palestine constitute a state of exception, or a sui generis situation (literally “of its own kind”). By claiming that no existing legal framework fully applies to its relations with Palestinians, Israel has gradually established its own legal models: as a sovereign state with legal powers to declare such an exception, Israel can claim that it’s acting within the bounds of law.

“A sui generis framework maintains the veneer of legality while producing a violence that ‘shed[s] every relation to law,’” Erakat writes. Indeed, it was this very exception that Mike Pompeo invoked in his announcement this week. Trump’s reversal of Obama’s position on the legality of settlements was “based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank,” he said. This legal window dressing has proven essential for cultivating Israel’s (misleading) image as “the only democracy in the Middle East.”

Israel’s governing state of exception emerges from the British government’s creation of a “special regime” in post-World War I Palestine, when it sought to govern an area where native Arabs constituted 90 percent of the population. The Balfour Declaration of 1917, which called for a “national home for the Jewish people” in Palestine, worked to deny Arab Palestinians the status of a recognized political community. Zionists justified this political erasure on the grounds that Palestine was, in the words of Lord Balfour, “absolutely exceptional.”

By incorporating the declaration verbatim into the Mandate for Palestine in 1922 — making Britain the mandatory power in Palestine — the League of Nations “institutionalized the framework of exception” by “transforming British colonial prerogative into international law and policy,” Erakat writes. Palestinians’ claims to legal redress were thus rendered nonjusticiable.

This predicament was only further entrenched with the establishment of Israel in 1948. “The state’s establishment retroactively legitimated Israel’s founding violence because, not only was the violence used in the service of a public interest defined by the nascent settler sovereign, it also embodied a claim of new lawmaking authority,” Erakat argues. “Therefore, once diplomatic recognition was extended to Israel, its actions in pursuance of its statehood become beyond legal and diplomatic challenge.”

New Legal Frontiers

Israel’s occupation of the West Bank and Gaza in the aftermath of the June 1967 war created an opportunity for the state to make novel claims about international law that served to consolidate its land theft and ethnic cleansing.

The occupation forced Israel’s lawyers to confront a major question of international law: did Israel’s presence in the West Bank and Gaza constitute an “occupation”? If so, international law would require that Israel work toward a political solution to restore a displaced sovereign’s authority — meaning Israel would have to give up control over these territories. On the other hand, if the territories were not occupied as a matter of law, international law would require that Israel grant citizenship to the territories’ Palestinian inhabitants, thus nullifying Israel’s goal of a Jewish demographic majority.

Yehuda Zvi Blum, Hebrew University law professor and Israeli ambassador to the United Nations, resolved Israel’s dilemma in a 1968 scholarly article. Consistent with the 1922 mandate’s political erasure of Palestinians, normalized later by Israel’s creation, Blum “exceptionalized” the West Bank and Gaza Strip by claiming that they had no sovereign power prior to the war, thus rendering void the law’s requirement that an occupying power maintain the sovereignty rights of a nation under occupation. Rather than completely eschewing occupation law, however, Blum insisted that Israel should abide by its humanitarian provisions for the sake of assuming quasi-legal control over the territories, and creating the appearance of abiding by occupation law.

Under this sui generis legal regime, Erakat writes, Israel “could exercise its authority . . . without either preserving the sovereign rights of its inhabitants or absorbing them under its civil jurisdiction,” thereby suspending Palestinians in a “legal vacuum with only attenuated legal claims to humanitarian relief.”

After decades of effective legal work by Israel, Palestinians’ already nearly nonexistent capacity for pursuing legal recourse was extinguished even further. Israel’s rule-of-law framework enabled it to enjoy “both the powers of an occupant and a sovereign in the [West Bank and Gaza], while Palestinians enjoy neither the rights of an occupied people nor the rights of citizenship,” as other scholars have written.

“An Armed Conflict Short of War”

The next major inflection point in Israel’s legal work occurred as Israel began to use exceptional military force — most notably public assassinations — during the Palestinian uprising of the early 2000s known as the Second Intifada. By claiming the right to use a greater amount of force than usually available to an occupying power under conventional interpretations of international law, Israel crushed the intifada with the legitimating force of a liberal rule-of-law framework.

Consistent with this sui generis tradition of applying its own legal framework, Israel strategically avoided classifying its military operations as either of the two types of war recognized under international law: neither an international armed conflict (IAC) nor a non-international armed conflict (NIAC). Instead, Israel claimed that it was engaged in an “armed conflict short of war.” To classify the conflict as a war against a liberation movement (IAC) would recognize Palestinians’ right to use force in pursuit of their self-determination, enshrined in international law in the 1970s. Similarly, calling it a civil war (NIAC) would “unravel the false partition separating Israel from the Occupied Territories,” Erakat writes, and “acknowledge Israel’s maintenance of a singular, discriminatory government.”

By claiming that these existing legal frameworks did not sufficiently apply to its self-proclaimed ­sui generis conflict with Palestinians, Israel asserted the sovereign right to create its own framework for regulating war. As Erakat puts it, “Israel deliberately exceptionalized its in fact non-exceptional confrontations with Palestinians in order to expand its right to use force and delegitimize any responsive force.” This set the tone for its massive military assaults on Gaza in the decade to come. In short, Erakat asserts, “Israel literally created new law for colonial dominance.”

Violations Become the Norm

Erakat’s goal isn’t to provide a book-length rebuttal to all of Israel’s novel and dubious legal arguments, but rather to show how Israel’s strategic deployment of international law at critical junctures over the past century — importantly, with the backing of the United States — has functioned to consolidate its political and military victories. Although Israel’s legal claims may lack merit, to denounce Israel’s actions as violations of the law is, by itself, a fruitless endeavor.

In a geopolitical context that strongly favors Israel, international law, for Erakat, is not a particularly helpful resource for winning Palestinian liberation. For one, it lacks a hierarchal enforcement model. Unlike US domestic law, international law has no supreme court to issue rulings that would be binding on all nation states. Rather, it is fragmented among various institutions and mechanisms that correspond with specialized areas of law.

Moreover, international law sources much of its substance from custom — how states, especially powerful ones, behave and what they believe is legal. In this context, the enforcement of international law “reflects the measure of political will and the prevailing balance of geopolitical power,” Erakat writes. “In cases where there is no political will to compel a state to comply with the law, violations become the norm rather than the exception.”

The United States’ drastic policy shift on Israel’s assassination program during the Second Intifada neatly illustrates the malleability of international law. Although several top US officials initially criticized Israel’s assassination program, Al-Qaeda’s attacks on September 11 changed the calculus. As Washington adopted its own assassination program on a global scale, “US opposition transformed into explicit collaboration with Israel,” tempering international criticism of Israel’s practices and bringing the “once unacceptable within the realm of possibility.” The ramifications of this shift, Erakat argues, were huge.

As though to prove the point, Daniel Reisner, former head of the Israeli military’s International Law Division, boasted, “If you do something for long enough, the world will accept it. . . . International law progresses through violations. We invented the targeted killing thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later, it is in the center of the bounds of legitimacy.”

Law’s Emancipatory Potential

That international law is not an effective starting point for achieving justice in Palestine is a vital insight for leftists developing a progressive foreign policy. Justice for Some makes clear that winning Palestinian freedom will require confronting the geopolitical power structure that gives international law its meaning. Insurgent Democrats like Bernie Sanders and Alexandria Ocasio-Cortez are on the right track when they propose using US aid as leverage against Israel’s discriminatory practices. Because Washington’s diplomatic, political, economic, and military support for its client state in Israel has been a “necessary and sufficient condition” for Israeli colonialism, the United States has the power to uniquely influence Israeli policy.

Although Erakat provides a deeply compelling account of how international law has adeptly serviced Israel’s needs, she does not believe that law has no role to play in the road to liberation. To explain law’s operative value, she offers a metaphor for law as the sail of a boat: “The sail, or the law, guarantees motion but not direction. Legal work together with political mobilization, by individuals, organizations, and states, is the wind that determines direction.” The wind, in her view, is what can make law work for Palestinians.

To capitalize on law’s emancipatory potential, Erakat argues that “the law must be wielded in the sophisticated service of a political movement.” While a purely legal strategy may attract proceduralist liberals who fetishize law as the savior of the oppressed, it lacks the chops to challenge the power structure that has “placed Palestinians outside the law.” Only a radical political project can do that. For Erakat, the revolt of the Third World in the 1960s and ’70s, before it was ultimately crushed by imperial restructuring toward global neoliberalism, set a good example: it began to create a geopolitical context that made claims for legal redress by dispossessed people more justiciable.

Despite ubiquitous pleas from liberal Zionists, making sure that Israel complies fully with international law does not guarantee justice for Palestinians. International law isn’t designed for such a task. “Raise the sail,” or the law, “when useful, drop it when harmful, and stitch together a new one when possible,” Erakat recommends. As is the case in liberation struggles elsewhere, winning freedom in Palestine requires a mass political movement in which law functions as a tool rather than a substitute for politics. Only within such a movement can international law be deployed in service of justice, rather than against it.

Disclaimer: The viewpoints expressed by the authors do not necessarily reflect the opinions, viewpoints and editorial policies of Iblagh News.

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