A law unto itself

Justice for Some: Law and the Question of Palestine by Noura Erakat, Stanford University Press (2019)

Noura Erakat explores the role of international law in the struggle for Palestinian national liberation in her latest book Justice for Some.

It is unlike other books on the question of law and Palestine – such as Victor Kattan’s The Palestine Question in International Law and John Quigley’s The Case for Palestine: An International Law Perspective – that presuppose it is possible to arrive at definitive conclusions about the rights and obligations imposed by the law.

By contrast, Erakat’s starting point is that “law is politics: its meaning and application are contingent on the strategy that legal actors deploy as well as on the historical context in which that strategy is deployed.”

As a result, the book does not draw conclusions about who is violating the law but explores the relationship of law to politics, examining how Israel and the Palestinians have used the law in different ways to further their political objectives.

Legal work

A major theme of the book is the “legal work” that Israel has carried out over the decades – meaning the efforts Israel has made to ensure legal norms are interpreted in a manner supportive of its political project – and how this has suppressed Palestinian rights.

For example, Erakat writes, when resolution 242 was passed by the UN Security Council in 1967, calling on Israel to withdraw from territories it had captured, Israel exploited an ambiguity in the English text of the resolution (the absence of the word “the” before “territories”) to argue that the resolution did not mandate a withdrawal of all territories captured in 1967 – a position Israel maintains today in order to legitimize its colonization of the West Bank.

Similarly, after the onset of the second intifada in 2000, Israel sought to justify its policy of assassinating Palestinians – a practice considered illegal under international law – by promoting new interpretations of the law. In particular, Israel cited the weaponized nature of the second intifada to argue that the conflict with the Palestinians was one of “armed conflict short of war” – a concept unknown in international law.

By invoking this category, Israel sought to avail itself of the right of states to use extrajudicial lethal force against hostile combatants in war. At the same time, by claiming the conflict was one “short of war” Israel hoped to deny Palestinian fighters the same right to use lethal force against Israeli soldiers.

Israel’s efforts to change the law

Israel’s attempts to reinterpret the law in order to suit its objectives have not only added legitimizing force to its actions, but have also contributed to creating changes in the law itself.

As Erakat explains, this is possible because customary law – one source of international law – is comprised of what states do (state practice) and what states believe is legal (opinio juris). Therefore, if enough states violate the law for long enough, and represent their actions to be lawful, a new rule of customary law may crystallize to reflect this fact.

Indeed the book describes how Israel, aware of this feature of customary law, has aggressively promoted new interpretations of the law in order to create a shift in the understanding of certain norms to its advantage.

As an example, Erakat writes, when Israel first initiated its policy of targeted assassinations in 2000, other countries robustly condemned the policy as unlawful. However, after several years of Israel promoting legal interpretations justifying the practice, as well as the initiation of the US “war on terror” following the 11 September 2001 attacks – in which assassinations of suspected “terrorists” featured heavily – states’ attitudes towards assassinations softened, and the policy moved from the zone of definitely illegal to the realm of potentially legitimate.

The problem of sovereign exception

International law’s susceptibility to be changed by the legal work of states is a facet of the state-centric nature of international law, which Erakat argues, places non-state actors such as the Palestinians at an automatic disadvantage.

A related feature of the law that has caused problems for Palestinians is the concept of “sovereign exception.” This is a mechanism by which states may suspend the law’s application, claiming the state is facing an exceptional situation where normal rules do not apply.

Erakat writes that this mechanism has been used repeatedly, first by Britain, and then by Israel, in order to deny Palestinian nationalism and promote Israel’s settler-colonialism. For instance, Britain declared a sovereign exception in order to insert the Balfour Declaration, establishing the right to a “Jewish national home” in Palestine, into the British Mandate for Palestine.

Subsequently, Israel has used the same justification to pass laws expelling and dispossessing Palestinians, and placing them under martial law.

Israel’s denial of the de jure application of the Fourth Geneva Convention to the occupied West Bank and Gaza, and its claim that unique challenges posed by the second intifada justify an expanded right to use force against Palestinians, are also examples of the application of the sovereign exception.

Palestinians’ use of the law

While highly critical of the role of international law in suppressing Palestinian rights, Erakat is not, however, pessimistic about the law’s “emancipatory potential,” which she claims Palestinians can leverage if they “wield [the law] in the sophisticated service of a political movement that targets the geopolitical structure that has rendered their claims exceptional and therefore, non-justiciable.”

An example of the Palestinian use of law in this manner is the impressive work carried out by the Palestine Liberation Organization during the 1970s, which won international recognition for the Palestinian cause. Although the PLO never resolved a tension that existed between its revolutionary policy of liberating all of Palestine through armed struggle, and its pragmatist tendency of aiming for statehood in some part of the territory, the PLO was successful, nonetheless, in capitalizing on political support within the UN to secure groundbreaking UN resolutions.

These recognized the legal status of the Palestinians as a people entitled to self-determination, and granted the PLO observer status in the UN, allowing it admission to many international bodies. Moreover, the PLO contributed to the creation of new law where none had previously existed (Additional Protocol I to the Geneva Conventions) which legitimized the use of force by national liberation movements such as its own.

Is law really politics by other means?

A central question regarding the role of law in the Palestinian struggle, however, that the book does not address is: why, if “law is politics,” as Erakat asserts, has Israel’s considerable political power, which it has wielded to promote interpretations of the law favorable to its objectives, not affected the weight of international judgments, UN resolutions, and the legal positions of states, which are overwhelmingly condemnatory of Israeli policy?

In other words, why in spite of Israel’s power is the law mostly on the side of the weaker party – the Palestinians?

One explanation is that it is not, in fact, true that law is politics. Rather, it is the case that international law, although susceptible to the political agendas of states that make the law and may therefore mould and interpret it to serve their own interests, nonetheless places limits on the extent to which the meaning of the law may be stretched in any given situation.

This acts as protection to weaker parties from violations of law perpetuated by powerful actors who attempt to legitimize their actions by promoting self-serving interpretations of the law.

An alternative explanation involves distinguishing between two different bodies of international law and their relationship to politics.

The first is the body of law dealing with the emergence, rights and obligations of states and national liberation movements. This law is intimately connected with politics due to the fact that the determination of what law applies in a given situation depends on realities on the ground.

For example, the law will only deem a political movement to be a national liberation struggle representing a people with a right to self-determination, once that movement has managed to win recognition from the international community for its cause.

Similarly a political entity will, generally, only be deemed to be a state with all the advantages statehood entails in the international system, once it has actually acquired effective control over a territory and population. Thus, the law will only work in favor of political movements that have secured, by other means, certain “facts on the ground.”

It explains why, for example, recent Palestinian legal initiatives aimed at seeking diplomatic recognition for statehood have been ineffective at creating an independent state in practice: the law follows the facts, and not the other way around.

By contrast, the body of human rights treaties drafted in the 20th century reflecting a postwar consensus aimed at preventing the perpetration of atrocities, and, subsequently, the values of newly emerging post-colonial states, are less vulnerable to forces of realpolitik.

These treaties enshrine rights that apply in the face of brute state power, and the meaning of the treaties is relatively tightly circumscribed. It is this second body of law that is, arguably, most supportive of the Palestinians, and that Israel, in spite of all of its attempts to promote manipulative interpretations of the law, has not managed to usurp.

Law cannot replace politics

No matter how the relationship of law and politics is judged, however, it is clear that no number of court decisions or UN resolutions supportive of Palestinians are of any use if they remain unimplemented.

As Erakat highlights, international law has no hierarchical enforcement mechanism and its implementation is therefore wholly reliant on the political will of states and other bodies.

The central message of Erakat’s book, therefore, that no use of the law will be successful unless it is wielded in support of a political program that seeks the implementation of rights contained within the law, stands true, even if the book’s main thesis, that “law is politics,” does not.

Indeed, the concluding chapter of Erakat’s books is more a critique of politics than law. Erekat suggests that the current lack of clear Palestinian political vision has rendered all recent Palestinian legal initiatives, such as securing an International Court of Justice opinion on Israel’s apartheid wall in 2004, and achieving UN recognition of Palestinian statehood in 2012, insufficient for affecting change.

She proposes that Palestinians must, therefore, formulate a new emancipatory political program that looks beyond statehood, at other possibilities for decolonization and freedom.

Perhaps the real question is: will Palestinians rise to the challenge?

Salma Karmi-Ayyoub is an attorney specializing in criminal law and a legal consultant on Palestinian human rights issues.