[News] What Role for Law in the Palestinian Struggle for Liberation?

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Thu Mar 3 11:06:47 EST 2016


  What Role for Law in the Palestinian Struggle for Liberation? - Al-Shabaka

by Noura Erakat on March 4, 2014


Is international law part of the solution in the Palestinian quest for 
self-determination and human rights – or part of the problem as a number 
of voices now argue? Al-Shabaka Policy Advisor Noura Erakat provides 
insights into the positions of those who argue the law is the problem 
and then discusses the ways in which law can be made to work for the 
Palestinian people. She shows why the “triumph of human rights does not 
necessarily lead to justice” and argues for a political program that 
uses the law rather than letting a legal strategy define politics.

    Getting the Question Right

In recent months the role of international law and human rights has come 
under increasing scrutiny. This introspection has involved, among other 
things, questioning whether Palestinians should continue to bring their 
claims to Israeli civil and military courts 
whether occupation law 
is a part of the problem or part of the solution; and, if legal claims 
are to be brought before international tribunals 
what should they allege?

What these conversations have in common is an assumption that law can 
serve a positive function. However, in other conversations, discussants 
ask whether or not the law itself is the problem. It is important to 
consider the merits and implications of each approach to elucidate the 
proper role of international law and human rights in the Palestinian 
struggle for liberation. This policy brief attempts to do just that. It 
asserts that while the law is generally a tool of the powerful, it can 
be used to counter hegemony if it is deployed strategically in 
furtherance of a broader political project.

The question is not whether the law is good or bad. International law 
and human rights do not exist in an apolitical vacuum, as if they are 
tablets sitting on a shelf, with known and absolute values, waiting to 
be invoked and applied. To the contrary, the law can cut in multiple 
directions depending on the movements with which it is associated, the 
manner in which it is deployed, and by whom. The fact that aggressor 
states often use the law to justify their behavior is a case in point. 
The value, and potential benefit of international law, is wholly 
contingent on the broader political framework that gives it meaning. A 
political framework that challenges the balance of power is necessary to 
avoid descending into the illusion of progress based on the 
approximation of rights without substance.

International law, human rights, and their associated discourse are not 
a panacea for Palestinian self-determination; they are merely tools to 
be used in tandem with a robust set of other tools.

Without the national organizing structures and representational bodies 
able to create a political vision and strategy for Palestinian 
self-determination, international law and human rights can be confused 
for the political framework itself.

Of course, Palestine is a human rights issue, but it is foremost a 
national liberation struggle. Self-determination is itself a human 
right, and theoretically Palestinian demands and grievances can be 
refracted through a discourse of law. That, however, assumes a virtue 
that the law does not embody. Law and justice do not go hand-in-hand, 
and law usually serves the status quo or those in power. This 
necessitates a complementary approach that includes using the law when 
justice can be served and political avenues when the law itself 
entrenches unjust outcomes.

Dependence on international law and human rights without a clear 
political framework also risks setting up a discourse of “competing 
rights” in which the rights of the Palestinians “compete” with those of 
Jewish-Israelis, or even those of Jewish persons writ large. A political 
framework diminishes this risk by ascribing value to the law and using 
it to help advance a political movement that addresses the future of 
Jewish-Israelis as well. The answer, therefore, is a political program 
that leverages the law, not a legal strategy that defines politics.

This essay does not attempt to provide such a political framework; 
rather, it explores the question of law and politics with an eye on the 
Palestinian question. It attempts to problematize the debate and invites 
further research on the various issues raised. This essay begins by 
laying out a few of the basic theoretical controversies associated with 
international law and legal strategies. It then examines the robust 
critique that Palestinian scholars have leveraged against the law. The 
final section considers the benefits of using legal discourse and 
strategies and how those benefits can be fully realized.

    I Got 99 Problems and the Law is One

The issue of the utility of law in relation to social justice movements 
is not unique to the question of Palestine. Below is a summary a few of 
the more theoretical controversies about international law, legal 
strategies, and human rights.

1) Western powers created international law in a colonial context to 
regulate their intrastate relations as well as to reinforce their 
domination and exploitation of natural resources within their colonial 
holdings. As such, any invocation of international law entrenches this 
asymmetric relationship that structurally disadvantages post-colonial 
nations and impedes their economic and political self-determination at 
the global level.

Even the surge of newly independent states within the United Nations did 
not remedy this structural condition as the sole enforcement authority 
of international law remains within the UN Security Council. This has 
also severely limited the efficacy of law, especially humanitarian and 
human rights law, as veto-wielding powers and their allies have been 
able to stymie attempts aimed at holding powerful nations to account 
within the Security Council as well as the International Criminal Court.

2) Legal remedies are inherently limited because they seek to reform 
rather than to revolutionize. As such, a rights-based solution 
guarantees a non-revolutionary outcome that tolerates the structural 
inequalities that gave rise to conflict in the first place. Moreover, 
striving for piecemeal legislative reforms threatens to transform a 
collective struggle into an individualized one. When persons or groups 
can demand remedial measures within the bounds of the law, the 
enforcement of these legal outcomes depends on existing security 
arrangements. Thus, the state’s monopoly over violence is never 
adequately challenged, and individual grievances supplant those of 
society in ways that absolve the state.

3) The law, and particularly human rights law, preaches universalism, 
depoliticizes conflict, and supplants it with a framework of “competing 
rights.” Political claims and historical grievances are erased for the 
sake of achieving equality vis-à-vis the state’s administrative bodies. 
Such an achievement, however, does not prescribe whether privileged 
groups should relinquish their privileges and/or whether and how 
historically disadvantaged groups should be redressed for the wrongs 
that they have suffered.

In the case of post-apartheid South Africa and post-Civil Rights Act 
United States, the achievement of human rights amounted to the removal 
of obstacles for blacks without implementing re-distributive policies 
and rehabilitative measures such as reparations aimed at creating a more 
just society. Moreover, the wealth and privilege of whites, built upon, 
and facilitated by, slave and indentured labor, remained intact, as 
doing otherwise would have violated the human rights of the white 
populations under existing applications of the law. Thus, the triumph of 
human rights does not necessarily lead to justice.

    Palestine and Empty Promises

In light of these controversies what then do Palestinians have to gain 
from international law and human rights? Several esteemed scholars and 
writers have insisted that there is in fact nothing to gain and much to 
lose by insisting upon a legal framework that depends on the structure 
of international law. In her lecture, “In the Land of the International: 
Palestine, Revolution and War <http://vimeo.com/80100629>,” Samera 
Esmeir scrutinizes how the Palestine Liberation Organization’s (PLO) 
turn to diplomacy and international law in the early seventies 
transformed an anti-colonialist movement into a bid for statehood. She 
argues that this has created a tremendous disconnect between the 
magnitude of Palestine in the international arena relative to the actual 
condition of Palestine and Palestinians on the ground. This disparity 
skews the scope of the conflict and diminishes the urgency required to 
achieve Palestinian liberation.

In their article, “Against the Law 
<https://www.jacobinmag.com/2013/04/against-the-law/>,” Mezna Qato and 
Kareem Rabie critique the reliance on international law and on a 
rights-based approach in particular. They insist that such an approach 
fails to build a robust anti-colonial solidarity movement that does not 
merely demand the rerouting of the separation wall, for example, but 
calls for its removal all together.

 From a different perspective, in “The Limits of International Law 
Lama Abu-Odeh cautions that the law encourages advocates to make 
maximalist arguments, which an arbiter then reconciles by “splitting the 
difference.” The result is a slightly better outcome for Palestinians 
but one that remains vastly distant from actual justice. Similarly, in 
his contribution to the /Jadaliyya/ roundtable, /Occupation Law: Part of 
the Solution or the Conflict?/ 
Nimer Sultany enumerates the law’s inability to approximate justice in 
any context. In particular regard to Palestinians, the law treats 
Israeli violations as behavioral aberrations rather than as 
fundamentally constitutive of Israel’s character. This framework is 
exacerbated by the fact that Palestinian claims under international law 
are inescapably compartmentalized and therefore incapable of 
representing a unified claim against Israeli settler-colonialism.

In these examples, the authors make two related claims: one is that 
legal strategies are insufficient to lead Palestinians to emancipation, 
and the other is that a rights-based approach downplays or completely 
erases a legacy of ongoing settler-colonialism. Together, the strategic 
approach and the legal discourse normalize Israel and, in their most 
radical form, merely seek the state’s reformation. And what is the value 
of legal reform within Israel if the premise upon which it is based is 
not challenged? This is especially dangerous if the Palestinian question 
is disaggregated into several non-contiguous parts. For instance, what 
if Israel affords its Palestinian citizens greater access in employment, 
better education, health care, integration into the military – an 
already creeping trend – at the expense of recognizing its indigenous 
minority’s national claims? What if the right of return is recognized 
but Israel insists on facilitating return, compensation, rehabilitation, 
and integration into society in ways that preserve the privileges it 
affords to its Jewish citizens by concentrating Palestinians into ghettos?

The law itself does not sufficiently address these issues, which are 
political matters more closely associated with the process of 
decolonization. Decolonization does not necessitate the removal of the 
settler, as demonstrated by various historical models. It does, at the 
very least, require acknowledging a history of colonial dispossession 
and committing to building a society that affirms the centrality of an 
indigenous population to that society. What that means and what that 
should look like is beyond the scope of this brief, but the point here 
is two-fold: one, to demonstrate that the law itself is not the problem, 
and two, to suggest that national organizing structures, formal or 
informal, can offer the political framework needed to employ the law in 
service of Palestinian self-determination.

With or without a political framework, international law and human 
rights are tools, much like media, solidarity delegations, sister city 
projects, or grassroots demonstrations. Without a political framework, 
they can be used as tools to highlight Israeli violations, to enable the 
Palestinian leadership to resist political capitulation, or to resist 
the dictates of military, diplomatic, and economic power. However, 
within a political framework, these tactical gains can be used to 
advance a vision for decolonization.

Critics caution that, as it is being used today, the law articulates the 
meaning of justice on behalf of Palestinians thereby usurping 
Palestinians’ political and collective voice. However, while a valid 
point, this does not capture the enormity of the present-day crisis. At 
present the language of international law and human rights occupies a 
disproportionately large space in the discourse on Palestine precisely 
because no representative Palestinian national body is articulating and 
representing the will of the Palestinian people. While Palestinians can 
generally agree on the basic points of unity that define their struggle, 
the absence of a clear vision for self-determination that offers a 
blueprint for decolonization has undermined the complementarity between 
the law and political movements.

Although there have been several attempts to reconstitute a national 
body with the representational mandate to lead the process of 
decolonization – incrementally, as in the Palestine Youth Movement 
<http://www.pal-youth.org/> and the US Palestinian Community Network 
<http://uspcn.org/>, and more comprehensively, in the effort to elect a 
new Palestinian National Council <http://www.pncregcampaign.org/> – none 
of these attempts have adequately developed. To date, and since the 
collapse of a legitimate PLO, the Palestinian Boycott, Divestment, and 
Sanctions National Committee <http://www.bdsmovement.net/> (BNC) 
represents the largest swath of Palestinian civil society that includes 
organizations, individuals, and political parties; it remains the most 
well placed to call for solidarity on behalf of Palestinians. To 
adequately represent the interests of a holistic Palestinian national 
body without supplanting the PLO, the BNC has chosen to explicitly 
sidestep questions about the appropriate political solution to the 
Palestinian question and to focus on rights instead. In doing so, it has 
been sustainable, and it has engendered a decentralized movement that 
has been less vulnerable to penetration and sabotage. In addition to 
rehabilitating the singularity of a Palestinian national body, it has 
emphasized that Palestinian human rights should be upheld regardless of 
the political solution.

The BNC and its rights-based call for solidarity does not preclude the 
potential role of other national formations emerging from refugee camps, 
the West Bank, the Gaza Strip, from within Israel, or beyond. To the 
contrary, an alternative political structure, with the mandate to lead, 
is absolutely necessary to transcend the impasse facing Palestinians who 
will not enjoy freedom riding on the coattails of amorphous legal 
entitlements. International law and human rights cannot supplant the 
political demands of a national liberation movement, but they can help 
advance its goals.

    Locating the Law’s Potential

Despite the concerns discussed above, the categorical rejection of a 
legal strategy and/or a rights-based approach runs the risk of losing 
key opportunities to recalibrate the balance of power. Especially in the 
politics entrenched by the Oslo Accords and its attendant “peace 
process,” law has emerged as a potential counterweight to the 
devastating dictates of naked power.

This happens in three main ways: First, by challenging the political 
position of an unrepresentative Palestinian leadership, which has 
dispensed with a resistance strategy in order to benefit from the 
elusive promises of US-defined pragmatism. Second, by using the 
substance of the law to expose Israel’s manipulation of it in order to 
provide a veneer of rule-of-law legitimacy. And third, by challenging 
the legitimacy of Israel’s unjust order as a whole and not just within 
the Occupied Palestinian Territory (OPT). This section will consider the 
ways that law can be used, and, in some instances, has already been 
used, to challenge the balance of power between Israel and the 
Palestinian people.

      1. Offsetting the detrimental impact of an unrepresentative
      Palestinian leadership

The PLO/Palestinian Authority (PA) has relinquished international law 
claims for the sake of illusory enhanced negotiation positions. 
Accordingly, it has asked other states to express support for 
Palestinian freedom by providing diplomatic and financial backing to the 
peace process regardless of its impact. In this context, for instance, 
the PLO/PA seems willing to accept settlements as a new reality and to 
“swap” lands with Israel rather than demand their removal all together. 
More importantly, accepting settlements misses the opportunity to 
confront Israel’s settler-colonial logic, which has entailed the ongoing 
forced population transfer of Palestinians. Settlements are not merely 
physical obstructions, and such pragmatism cannot circumvent Israel’s 
expansionist and supremacist project. This is not simply a legal matter; 
it is a moral issue that goes right to the heart of the inherent dignity 
and fundamental rights of the Palestinian people.

Nonetheless, the language of law and its associated mechanisms have 
empowered civil society actors to intervene in a process that is 
otherwise dominated by state and quasi-state actors. Repeated references 
to the Fourth Geneva Conventions, and specifically the war crime of 
settling a state’s civilian population in the territory it occupies, has 
enabled challenges to Israel’s settlement expansion by asking states to 
defer to Palestinian demands based on international law as opposed to a 
co-opted Palestinian leadership. Moreover, insisting that the swaps 
themselves amount to war crimes reinforces these claims and highlights 
the history and settler-colonial logic that the Palestinian leadership 
seems so ready to forego.

      2. Exposing the veneer of rule of law legitimacy

Israel bases all of its actions in law, because the globalized system in 
which states exist reveres the rule of law. For example, the wholesale 
destruction of Gaza is done in the name of self-defense. In another 
example, Israel denies families housing permits, thereafter declares the 
homes illegal, and /then/ bulldozes them. The Jewish National Fund, for 
instance, is considered a non-state entity and can therefore legally 
discriminate against non-Jews. Its representatives deliberately 
constitute nearly half of the Israel Land Authority, which administers 
state land to facilitate racially discriminatory urban and state 
planning that privileges Jewish Israelis. In another case, the Israeli 
military declares particular roads in the Jordan Valley closed military 
zones and then fines Palestinians for crossing them – even though these 
roads separate Palestinians from their lands, schools, and families thus 
leading to the disintegration of their communities and/or their forced 
displacement. Israel employs the law at every juncture in its quest for 
legitimacy as a democracy based on the rule of law.

Yet, although what is legal is not necessarily legitimate, Israel 
explicitly uses legality to provide a veneer for legitimacy. Part of the 
Palestinian struggle for liberation involves removing that veneer and 
exposing Israel’s blatantly violent and discriminatory nature. Using the 
substance of law (e.g. the Convention on the Suppression and Punishment 
of the Crime Against Apartheid, Forced Population Transfer as a war 
crime, International Covenant on the Elimination of All Forms of Racial 
Discrimination) is a useful tool to challenge Israel’s manipulation of law.

      3. Challenging the legitimacy of Israel’s settler-colonial project
      and apartheid regime

In an earlier era, where several state and non-state actors struggled to 
define legitimate and illegitimate violence in the context of several 
decolonization movements, the Palestinian struggle had greater moral 
salience. In a world dominated by the U.S., the Palestinian struggle has 
been subsumed by a discourse of terrorism and counter-terrorism and has 
obscured the morality of the Palestinian question. Human rights 
discourse, together with growing mass popular movements, has steadily 
exposed the bankruptcy of this security framework and helped to reframe 
the Palestinian question as an indigenous struggle against colonial 
domination in the global north.

What, for example, does Israel stand to gain in terms of its security by 
the Judaization of East Jerusalem? How does planting a forest atop the 
homes of 70,000 Palestinian Bedouin citizens enhance its qualitative 
military edge? How does the application of two sets of laws for two sets 
of people distinguished only by religion and nationality increase the 
safety of anyone between the Mediterranean Sea and the Jordan River?

In asking these questions and steering Palestine away from a discourse 
of security to one about humanity and rights, human rights and 
international law are serving their most significant function: putting 
the legitimacy of Israel’s settler-colonial and apartheid regime into 
question. There is a reason that Howard Kohr, chief executive officer of 
the American Israel Public Affairs Committee (AIPAC), describes BDS as 
the second most significant threat to Israel after a nuclear-capable 
Iran. It is not because the movement threatens to bankrupt Israel, but 
because it can isolate it and make it, in the words of Justice Minister 
Tzipi Livni, “a lone settlement in the world 
<http://www.ynetnews.com/articles/0,7340,L-4471199,00.html>.” This is 
what Richard Falk, outgoing UN special rapporteur to the OPT, describes 
as a “war of legitimacy 
This war moves the confrontation over the legitimacy of Israel’s 
dispossession, displacement, and exclusion of Palestinians, for whatever 
political purpose, to a global battlefield.

The utilization of a human rights discourse has helped to highlight 
Israel’s most blatant contradictions. For example, Israel touts itself 
as the only democracy in the Middle East and yet considers equality for 
its non-Jewish citizens as tantamount to its destruction. Similarly, its 
identity is constructed as a state for refugees, yet Israel forces the 
ongoing exclusion of a refugee population that it created and a 
dispossession project it continues.

These arguments can be made rhetorically without the weight of law and 
rights. However, their invocation as universal principles demonstrates 
that Israel is indeed being singled out: it enjoys the status of 
equality with all other states when in fact it acts above the law. Using 
a universal framework demonstrates the illegitimacy as well as the 
exceptional and abnormal nature of Israel’s settler-colonial and 
apartheid regime. And yet, the lack of a political framework aimed at 
decolonization risks empowering the law to stand in for Palestinian 
demands rather than simply serving as a tool to advance them. 
Complementarity, in this instance, demands the establishment of a 
political program that is able to use the law to its best effect.

The main challenge facing Palestinians today is not the abundance of law 
and legalese but the absence of organizing structures and representative 
bodies able to create the political vision, strategies, and leadership 
necessary to advance the aspirations of all Palestinians. What is needed 
is a compelling framework for complementarity: developing a political 
program <http://al-shabaka.org/node/372> and a leadership that is 
representative of Palestinians as a people can imbue the law with 
particular meaning and allow it to serve its proper role in advancing 
the movement. Until then, political activists and legal advocates alike 
should strategically use international law and human rights in order to 
expose Israel’s racist and oppressive nature. While it may be tempting 
to target the law as the cause of dysfunction, Palestinians should 
refrain from doing so. The law and its associated strategies are rife 
with problems, but they are not the source of them.

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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