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<div style="display: block;" id="reader-header" class="header"> <b><small><small><a
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id="reader-domain" class="domain"><a class="moz-txt-link-freetext" href="https://al-shabaka.org/briefs/what-role-law-palestinian-struggle-liberation/">https://al-shabaka.org/briefs/what-role-law-palestinian-struggle-liberation/</a></a></small></small></b>
<h1 id="reader-title">What Role for Law in the Palestinian
Struggle for Liberation? - Al-Shabaka</h1>
<div id="reader-credits" class="credits">by Noura
Erakat on March 4, 2014</div>
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<h2>Overview</h2>
<p>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.</p>
<h2>Getting the Question Right</h2>
<p>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 <a
href="http://badil.org/en/al-majdal/itemlist/category/243-al-majdal55">Israeli
civil and military courts</a>; whether <a
href="http://www.jadaliyya.com/pages/index/7325/roundtable-on-occupation-law_part-of-the-conflict-">occupation
law</a> is a part of the problem or part of the
solution; and, if legal claims are to be brought before
<a
href="http://lawcenter.birzeit.edu/iol/en/index.php?action_id=266&id_legal=621&id_type=4">international
tribunals</a>, what should they allege?</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>
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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<h2>I Got 99 Problems and the Law is One</h2>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<h2>Palestine and Empty Promises</h2>
<p>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, “<a
href="http://vimeo.com/80100629">In the Land of the
International: Palestine, Revolution and War</a>,”
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.</p>
<p>In their article, “<a
href="https://www.jacobinmag.com/2013/04/against-the-law/">Against
the Law</a>,” 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.</p>
<p>From a different perspective, in “<a
href="http://www.jadaliyya.com/pages/index/8800/the-limits-of-international-law-legalese">The
Limits of International Law Legalese</a>,” 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 <em>Jadaliyya</em>
roundtable, <a
href="http://www.jadaliyya.com/pages/index/2699/roundtable-on-occupation-law_part-of-the-conflict-"><em>Occupation
Law: Part of the Solution or the Conflict?</em></a>,
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.</p>
<p>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?</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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 <a
href="http://www.pal-youth.org/">Palestine Youth
Movement</a> and the <a href="http://uspcn.org/">US
Palestinian Community Network</a>, and more
comprehensively, in the effort to elect a new <a
href="http://www.pncregcampaign.org/">Palestinian
National Council</a> – none of these attempts have
adequately developed. To date, and since the collapse of
a legitimate PLO, the <a
href="http://www.bdsmovement.net/">Palestinian
Boycott, Divestment, and Sanctions National Committee</a>
(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.</p>
<p>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.</p>
<h2>Locating the Law’s Potential</h2>
<p>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.</p>
<p>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.</p>
<h3>1. Offsetting the detrimental impact of an
unrepresentative Palestinian leadership</h3>
<p>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.</p>
<p>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.</p>
<h3>2. Exposing the veneer of rule of law legitimacy</h3>
<p>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 <em>then</em> 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.</p>
<p>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.</p>
<h3>3. Challenging the legitimacy of Israel’s
settler-colonial project and apartheid regime</h3>
<p>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.</p>
<p>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?</p>
<p>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
href="http://www.ynetnews.com/articles/0,7340,L-4471199,00.html">a
lone settlement in the world</a>.” This is what
Richard Falk, outgoing UN special rapporteur to the OPT,
describes as a “<a
href="http://www.truth-out.org/opinion/item/20418-interview-with-un-special-rapporteur-richard-falk-legitimacy-is-the-agency-of-history">war
of legitimacy</a>.” 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.</p>
<p>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.</p>
<p>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.</p>
<p>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 <a
href="http://al-shabaka.org/node/372">political
program</a> 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.</p>
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