[News] What Role for Law in the Palestinian Struggle for Liberation?
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Thu Mar 3 11:06:47 EST 2016
*https://al-shabaka.org/briefs/what-role-law-palestinian-struggle-liberation/*
What Role for Law in the Palestinian Struggle for Liberation? - Al-Shabaka
by Noura Erakat on March 4, 2014
Overview
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
<http://badil.org/en/al-majdal/itemlist/category/243-al-majdal55>;
whether occupation law
<http://www.jadaliyya.com/pages/index/7325/roundtable-on-occupation-law_part-of-the-conflict->
is a part of the problem or part of the solution; and, if legal claims
are to be brought before international tribunals
<http://lawcenter.birzeit.edu/iol/en/index.php?action_id=266&id_legal=621&id_type=4>,
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
Legalese
<http://www.jadaliyya.com/pages/index/8800/the-limits-of-international-law-legalese>,”
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?/
<http://www.jadaliyya.com/pages/index/2699/roundtable-on-occupation-law_part-of-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
<http://www.truth-out.org/opinion/item/20418-interview-with-un-special-rapporteur-richard-falk-legitimacy-is-the-agency-of-history>.”
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.
--
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