[The following series of articles is part of a Jadaliyya roundtable on Occupation Law. It features contributions by Noura Erakat, Lisa Hajjar, Dena Qaddumi and Ahmed Barclay, Asli Bali, Nimer Sultany, and Darryl Li. The roundtable was first published in September 2011.]
Dena Qaddumi and Ahmed Barclay, Part III
"Introduction," by Noura Erakat [Open in a separate window]
September 2011 marks a historic juncture in the struggle for Palestinian self-determination, as the Palestinian leadership approaches the United Nations with an application for membership into the community of nations as a state. This move is rife with potential implications, including a shift from bilateralism to multilateralism and an insistence on the applicability of international law. At its best, this would signal a welcome move away from the past two decades of bilateral negotiations, which have subjected non-negotiable rights as well as provisions of occupation law to political contestation. However, even this best-case scenario is neither guaranteed, as indicated by the lack of a more robust strategy on the part of the Palestinian leadership, nor necessarily optimal.
In his provocative and lucid piece, “Occupation Law and the One-State Reality,” Darryl Li illustrates how occupation law fails to grasp the legal and geographical realities of the Israel-Palestinian conflict and may actually threaten to legitimize the racially segregated and oppressive regime that it currently masks. Li argues that whereas the laws of occupation underscore the possibility of partition and the illusion of separateness, in fact, "for over forty years, ten million people between the Jordan River and the Mediterranean Sea have a single segregated political regime -- the State of Israel." Rather than challenge its political dominance and racially-driven policies, occupation law reinforces elusive possibilities of partition at the expense of challenging a legal regime of systemic inequality and domination.
In this roundtable, five scholars respond to Li`s article and Li responds in turn. In her contribution, Lisa Hajjar arrives at the same conclusions regarding Israel`s singular authority over the lands between the River and the Sea as well as Occupation Law`s inefficacy. By using a sociological approach, she argues that the current reality is not a function of law explaining politics but rather that politics explains law. Hajjar scrutinizes the impact of Israeli politics upon the interpretation and applicability of Occupation Law to the OPT and, more broadly, the conflict. She focuses on the influence of Meir Shamgar, Israel`s former Military Advocate General and Chief Justice of its Supreme Court, who shaped Israel`s positions on the laws of occupation. Shamgar`s work challenged conventional interpretations of the laws of occupation and, as Hajjar puts it, "pioneered the interpretive disconnect between human beings and humanitarian law."
Dena Qaddumi and Ahmad Barclay approach Darryl’s proposition by focusing on geography and spatial realities. They affirm Li`s thesis that like occupation discourse, maps of the land also reify and enhance partition’s potential. By depicting the Gaza Strip and the West Bank as discrete entitles, maps fail to illustrate the inseparability of settlements from Tel Aviv and Jerusalem. The maps also create a false distinction between Israel`s Judaization policies inside the Green Line and outside it. Qaddumi and Barclay offer innovative ways readings of the conflict by subjecting it to what they describe as the "arena of speculation."
Asli Bali takes Li`s thesis about the impact of prolonged occupation and proffers a legal equation about the relationship between human rights and humanitarian law. There are two sets of legal regimes that govern the conduct of states and non-state actors: human rights law and humanitarian law. Human rights are applicable during peacetime and humanitarian law is applicable during wartime ― there exists ample scholarly argument that they also coexist. Whereas human rights create a social contract between a state and its inhabitants, humanitarian law is meant to balance an occupier`s military needs and an occupied population`s humanitarian ones. Humanitarian law regulating occupation is meant to be temporary in nature. So what happens when the occupation is prolonged, as has been in the case of the Palestinian Territory? Bali argues that in this case, the occupier`s military needs are no longer tenuous because the occupation has become durable. Thus, the "occupied Palestinian population`s welfare is insufficiently protected because [the Fourth Geneva Convention] does not provide for a social contract between them and their de facto government.” Accordingly, as an occupation becomes more durable, human rights should be incrementally applied. Ultimately, when the occupation is in fact durable, an occupier’s duty under a human rights framework will require the full enfranchisement of the occupied population.
Unlike Li, Hajjar, and Bali, who grapple with legal challenges within a legal framework, Nimer Sultany insists that occupation law`s deficiencies are not unintended consequences of the law but rather its predictable outcome. Sultany builds on the work of critical legal scholars who have "long pointed out the dark side of law" as he, in his own words, pleads for disenchantment. By unpacking several categories related to law more broadly, including law and justice, legalism, and legitimation, Sultany demonstrates the incapacity of the law-only approach to adequately treat injustice. He insists that law cannot be separated from politics, nor uncritically associated with justice. Indeed, because "law is not a closed, autonomous system with its own inner morality," Sultany warns that "one should be careful not to conflate the application of law with the approximation of justice." He does not disavow the law altogether but insists that for law to be an effective tool for the oppressed, it must be part of a well-thought out political strategy.
Dena Qaddumi and Ahmed Barclay, Part III
Part II, by Lisa Hajjar [open in separate window]
The West Bank and the Gaza Strip are the quintessential “hard case” in international humanitarian law (IHL). With the benefit of hindsight, we know that the authors of the 1949 Geneva Conventions were not very good at predicting the future when they promulgated the Fourth Geneva Convention (GCIV) to regulate the governance of territory and populations occupied in war. Rather, they were responding to the treatment ― often horrific ― of occupied populations and territories during World War II. When that war ended, so did the military occupations of foreign countries (as distinguished from continuing colonial occupations which were not addressed by IHL until the 1970s). Recent past experience guided the authors of GCIV, who deemed that military occupations are temporary, that territories conquered during a war cannot be lawfully annexed by the captors, and that wars end.
Yet the West Bank and Gaza have been occupied by Israel since 1967, and the state of (regional) war that contributes to the sustenance of that situation, although only intermittently “hot,” is not ending any time soon. Darryl Li’s “Occupation Law and the One-State Reality ” addresses this situation:
For over forty years, ten million people between the Jordan River and the Mediterranean Sea have lived under a single segregated political regime – the State of Israel. Occupation law is not merely an inadequate tool for analyzing this regime; it can also help legitimize the very spatial arrangements upon which it depends.
Li’s argument, as I understand it, is threefold. First, the longevity of this occupation and the extreme transformations that have occurred since 1967 diminish the utility of GCIV as a framework to resolve the status of the West Bank and Gaza. Second, the Israeli government’s disregard for its rules and norms ― and the international community’s failure or inability to enforce its provisions ― has created a de facto “one-state reality.” Therefore, third, the attachment to GCIV by scholars and critics of the occupation, which hinges on the dichotomy between “occupied” (West Bank/Gaza) and “unoccupied” (Israel inside the 1949 Green Line) territory, has come to “partition the imagination.” His point is that the one-state reality begs for an approach that is not contingent on the presumptive temporariness of occupation or the kind of dichotomous “otherness” that undergirds “the law of occupation.”
I concur with Li’s assessment about the one-state reality and the inadequacy of dichotomous thinking to address the empirical (politico-legal-demographic) complexities among the various categories of people who reside between the Jordan River and the Mediterranean Sea in a structurally unequal relationship (i.e., Jews, Arabs, Druze; citizens, occupied populations; West Bankers, Gazans, East Jerusalemites; settlers, refugees, and so on). There is only one state in Israel/Palestine, and that state is Israel.
However, I think that Li, in his effort to think outside of the partitioned-imagination box, attributes to “occupation law” a greater explanatory power for contemporary politics than it merits. He writes:
Thanks to occupation law’s assumption of otherness, classifying the Gaza Strip and West Bank as occupied territories means that by definition they were not part of Israel to begin with. Moreover, they have the unique status of already being “sovereign voids” in the sense that they did not transition from their status as colonial territories to belonging to any recognized nation-state.
I would urge a shift from a law-explains-politics emphasis to the reverse: politics explains law. This would provide a different (more sociological) route to get to the same conclusion about the one-state reality and the inefficacy of GCIV in protecting the rights of an occupied Palestinian population, let alone actually bringing about an end to the occupation. (Legally, as Li correctly points out, IHL is entirely silent about the status and rights of Palestinian citizens of Israel). Take, for example, the quote above. I would argue that laws do not assume anything; people do. And what people ― that is, empowered people like government officials, lawmakers and judges ― do with those assumptions constitutes “law in action.”
Israeli officials have not ignored IHL. On the contrary, the history of Israel’s control over the West Bank and Gaza involves a great deal of law in action. These actions are marked by prodigious, decades-long efforts to interpret the meaning and applicability ― or, rather, the ostensible inapplicability ― of GCIV to Israel’s rule in the territories seized in 1967 in order to “legalize” practices like Jewish settlements and collective punishments that defy international consensus. “The law” did not make this happen (nor did law predetermine the outcome of particular and odious Israeli interpretations), people did.
I will illustrate my politics-explains-law point by drawing on the example of Israel’s historic engagement with IHL generally and GCIV specifically. This engagement began before the 1967 War and, indeed, anticipated the occupation. The power of the Israeli state, the determination of influential officials, the novelty of the politico-legal status of the West Bank and Gaza, and the incapacity of the international community to head off, let alone reverse, consensus-defying interpretations all contributed to the vast gap between “law in the books” and law in action. The manifestation of this gap is, as Li notes, the one-state reality. But how did we get there?
The fact that the Israeli military court system was established on the third day of the Six Day War illustrates the state’s preparedness for occupation. This was one of the first official acts of the new military administration in the conquered West Bank and Gaza. These preparations began in earnest in the early 1960s, spurred by political instability in Jordan in 1963. The planning was informed by Israel’s brief occupation of Gaza during the 1956 Suez War, which ended when the United States and the Soviet Union uncharacteristically allied themselves to force a withdrawal back to the 1949 armistice border (i.e., the Green Line).
Meir Shamgar, who served from 1961 to 1968 as Israel’s Military Advocate General (MAG, the army’s top lawyer), played a leading role in these preparations. He developed courses for officers to train them for the challenges of governing a foreign population, and he created a Manual for the Military Advocate in Military Government “a long time before hostilities began.” According to Shamgar, this manual included:
…a large set of precedents of military government proclamations and orders, vital at the initial stages of military government, as well as detailed legal and organizational instructions and guide-lines. These facilitated, from the outset, the legal and administrative activity of the sections, according to a previously planned scheme.
What kind of reasoning informed this “previously planned scheme”? Long before 1967, Shamgar had conceived that the extension of Israeli control over any additional part of Eretz Israel (i.e., the West Bank and Gaza) would not constitute a “foreign occupation” (territorially, that is) because Jews had historic rights in these areas. This was the core of the Revisionist Zionist ideology to which he subscribed. In the yishuv era, Shamgar was a member of the Irgun, a radical right-wing Jewish paramilitary organization headed by Menachem Begin. Irgun (like the even more extremist breakaway LEHI/Stern gang) was distinguished from mainstream Zionist organizations by the unwillingness of its members to brook any territorial concession on future Jewish sovereignty over all of Eretz Israel and rejection of the policy of (armed) restraint. They used armed violence and terrorism (e.g., the bombing of the King David Hotel in Jerusalem and the massacre of Deir Yassin) to advance their Iron Wall agenda. Shamgar was arrested in 1944 for anti-British activity. The British detained him and other members of the Irgun and LEHI without trial. They then rendered the men to detention in East Africa where they remained until after the establishment of the state of Israel in 1948. The Irgun of the yishuv became the core of the Herut Party after independence, which later evolved into the Likud.
Shamgar’s record of involvement in a Jewish terrorist organization and his right-wing politics ― in a country dominated for decades by the more liberal-Zionist Labor Party ― did not inhibit his rise to power. On the contrary, after 1967, Shamgar used his position as a high-ranking policymaker to institute his Revisionist Zionist views. These became the cornerstone of Israeli doctrine on the legal status of the territories and the Israeli state’s rights within them. In 1968, Shamgar became Attorney General, then a justice on the Israeli Supreme Court, and finally its chief justice. He played an enormously important and political role in establishing “Israel’s” positions on the “law of occupation.”
What were the premises of Shamgar’s-cum-Israel’s positions on the law of occupation? First, Shamgar reasoned, Israeli control of the West Bank and Gaza would not constitute “an occupation” because the displaced rulers, Jordan and Egypt, were themselves occupiers since the 1948 War. This was premised on the claim that a territory is occupied only if it had been part of the sovereign domain of the defeated and expelled state. According to Shamgar’s formulation, Israel would not be occupying but “administering” these “disputed” territories whose status was sui generis.
Second, Shamgar contended, GCIV was not applicable to Israel’s control of these territories on a de jure basis. The politics of this position was explicit: If Israel were to regard itself as bound by the GCIV, the government would be acknowledging its own status as an “occupant” which would give Jordan and Egypt ex post facto status as displaced sovereigns which they did not have, and would compromise Israel’s prospects to claim permanent control to all or part of these areas in the future. The obligations and restrictions of GCVI could be sidestepped by interpreting the Geneva Conventions as applicable only and exclusively to High Contracting Parties (i.e., state signatories to this body of IHL). While Jordan, Egypt and Israel were all parties to the Geneva Conventions, the former two were not sovereign in the areas from which they had been expelled in 1967 and, therefore, GCIV was not binding on the latter, Israel, in this context.
Third, Shamgar maintained that while IHL did not apply de jure, the state would abide on a de facto basis with its “humanitarian provisions.” Neither Shamgar nor any other Israeli officials ever specified which provisions they regard as humanitarian. Again, the politics of legal interpretation is explicit: the International Committee of the Red Cross (ICRC), official guardian of the Geneva Conventions, regards them ― correctly ― as humanitarian in their entirety. Shamgar noted but dismissed the ICRC’s position:
This difference of views [between him/Israel and the ICRC] was mainly and primarily of a theoretical nature, because the Israeli Governmental [sic] authorities [i.e., himself] had decided to distinguish a priori between the formal legal conclusions arising from its approach and the actual observance of the humanitarian provisions of the Convention.
The fourth premise is a particularly vivid example of the kind of hyper-sovereigntist politics that Shamgar-cum-Israel embodies. It is the claim that GCIV could not be binding on Israel even if there was no dispute over the status of the West Bank and Gaza because at least part of the convention constituted “conventional” rather than “customary” international law (the former binding only on signatories, the latter universally applicable). In the Israeli legal system (as in many others), conventional law does not supersede “local” law unless the Israeli Knesset were to enact the convention as domestic legislation or until the state recognized that it had ripened into custom. However, this particular position actively (proactively, I would suggest) disregards the fact that there is an international consensus that the Geneva Conventions are customary international law, demonstrated by the fact that every state in the world has signed or acceded to them.
A particular brand of right-wing politics instigated these interpretations of IHL. Similarly, in the aftermath of 9/11, the right-wing politics of officials and lawyers in the Bush administration instigated a pattern of legal interpretation to assert the inapplicability of the Geneva Conventions to the “war on terror.” Israeli officials, and more recently American officials, asserted that the statelessness of enemies was a legitimate and valid reason for the state to disregard ― that is, to feel unbound by ― the rules and norms of IHL.
Israeli officials like Shamgar pioneered the interpretative disconnect between human beings and humanitarian law. Asserting that IHL pertains exclusively to the rights and duties of sovereign states (the High Contracting Party-only position) made it possible to argue that stateless people in militarily conquered areas were not their intended beneficiaries. The politics of interpretation on the legal significance of Palestinian statelessness went like this: Because there never had been an independent, sovereign state of “Palestine,” the Palestinian people could not be the lawful sovereigns of the West Bank and Gaza because nothing in international law prescribes the recognition of sovereignty to a “non-state,” and nothing in law demands the creation of a heretofore nonexistent state in territories seized in war.
It is true, as noted above, that the authors of GCIV did not anticipate a situation like Israel’s occupation of the West Bank and Gaza. However, I would stress that it was not “the law of occupation” but the Israeli interpreters (and military, political and judicial enforcers of their interpretations) that created the rights-violating, highly discriminatory, and unequal one-state reality that prevails today.
Li is absolutely correct that homage to GCIV will not alter the facts on the ground. I agree with his concluding point “that as partition recedes as a viable option, the evolving situation on the ground raises difficult legal questions that require sustained consideration.” However, I believe that the rules and norms enshrined in this international law continue to provide an important tool (and not just an abstract point of reference) to press an international agenda to try to force the Israeli state to alter the way it rules on both sides of the Green Line.
For it is IHL, above all, that allows us to reject spurious claims that the occupation of Gaza has “ended.” It is IHL that allows us to reject the massive use of armed force as a legitimate and legal option in either Gaza or the West Bank because they remain occupied territories and therefore Palestinians residing there are, legally, “protected persons.” Serious violations of IHL are war crimes which are legally, albeit very imperfectly, prosecutable in foreign court systems. The use of courts and legal processes to punish or restrain state agents and other powerful actors who engage in serious violations of IHL should continue to be the negative/non-violent side of the struggle for Palestinians’ rights.
Part III, by Ahmed Barclay and Dena Qaddumi [open in separate window]
As Darryl Li argues, occupation law has effectively masked the settler colonial origins of the Israeli state as well as encouraging a “partitioning of the imagination” whereby the Green Line divides “Israel” and “Palestine.” Allied with notions of a “temporary” occupation, this not only legitimizes an ongoing colonization but also stifles creative, provocative action. As architects and urbanists, our approach is not only to critique the dominant spatial perceptions of Israel-Palestine but also to engage with modes of activism centred on a notion of “spatial resistance.”
While the production of spatial perceptions is significant in any context, it is in Israel-Palestine where the transformation of physical space, the consolidation of territory through maps and the translation of space into imagery have been particularly consequential. Further, perceptions are also shaped by a selective absence of information. In 2000, Edward Said described a “censorship of geography” – particularly in the US media – arguing that a lack of territorial context in “the most geographical of conflicts” had allowed the nature of the power relations to be distorted.
However, a sphere of advocacy has emerged in the last decade aiming to challenge this "censorship." Specifically, it seeks to document Israel’s spatial control over the West Bank and Gaza Strip. Architect Eyal Weizman’s work with B’Tselem was been instrumental in this regard, as they began a process of mapping settlements, checkpoints, restricted roads and the Separation Wall. This work has been subsequently developed and reified in the publications of UN-OCHA , which expanded the scope and detail of this mapping work.
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[Mapping access restrictions in the West Bank. Image from UN OCHA.]
While these maps offer a powerful image of Israel’s unilateral control over the West Bank and Gaza they also embed and perpetuate the trappings of occupation discourse. They present the West Bank and Gaza as discrete entities, whereby Israel is greyed out or omitted. Such a conceptualization disembodies the spatial logic of the settlements – which function as suburbs of Tel-Aviv and Jerusalem – and separates them from “Judaization” policies within Israel. Crucially, it also reinforces the notion of a Palestinian “national space” confined to the “occupied territories.”
Another problem these images create is the perceived solidity of Israel’s “matrix of control .” A line on a map can emote a permanence that is not indicative of reality. The contours of Areas A, B and C in the West Bank are an example. These temporary lines – purportedly outlining a defunct Israeli withdrawal plan from the era of the Oslo Accords – have been etched into the Palestinian collective consciousness. Yet these lines have no legal validity or sanctity. The Israeli government operates within a much more fluid reality, continually shaped and re-shaped by "facts on the ground," in which these lines are only one among many pseudo-legal mechanisms for legitimating continued colonization.
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[Ad-hoc vertical barrier in Hebron, 2010. Image by Dena Qaddumi.]
Combined, these preconceptions help to reinforce the idea of a truncated Palestinian geography and the perceived "absoluteness" of Israeli power. In reality, the physical manifestations of this power are more crude and ad-hoc than the map would have us believe. In actuality, they are sustained through the continued threat of further dispossession and violence. Yet, as cleverly encapsulated in Suad Amiry’s Nothing to Lose But Your Life, it is possible to circumvent such physical and psychological obstacles, even if just as a means of survival.
The potentials for transformative agency are perhaps better revealed through an analysis which elevates human geography, rather than one which fetishizes territory, borders and mechanisms of control. Consider, for instance that more than a million Palestinians remain to the “west” of the Green Line and that the majority of Palestinian refugees – even those in Jordan, Lebanon and Syria – live within tens of kilometers of their historic sites of dispossession. From this perspective the obsession with drawing neat lines between a future Israel and Palestine is not only irreconcilable but irrelevant. Increasingly, initiatives throughout Israel-Palestine and beyond have attempted to break with this trajectory, expanding the scale of the struggle and shattering dominant spatial perceptions.
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[A mapping of TEDxRamallah event cities and Palestinian camps. Image by Ahmad Barclay.]
The organizers of TEDxRamallah, a recent cultural initiative that attempted to bridge this fragmented geography, describe how the notion of "Palestine" acted as a key “common denominator." They described the event as “a platform that brings forward the realization that Palestine is a topic that goes beyond a country occupied, and beyond a refugee stranded. It is one that starts apprehending the very essence of Palestinians and Palestine… since being Palestinian has no border or nationality.” Such a narrative underlines the possibility for Palestinian national aspirations to be defined in “universalist” terms of equality, rights and shared humanity, rather than simply mirroring the Zionist model of ethnic nationalism. It is also a means to re-energize a geographically fragmented Palestinian diaspora as a stakeholder and a strategic asset in the struggle for justice and self-determination.
On the ground, projects such as Riwaq’s 50 Villages transform the built environment to reconstitute a Palestinian civic space. Their strategy is one of collective participation, which harnesses the rehabilitation of historic village centres as a means for socio-economic development, and at the same time challenges the spatial restrictions of Oslo. This strengthens the notion of collective agency and reframes sites of occupation as potential sites of liberation.
In a different vein, DAAR (Decolonizing Architecture Art Residency) adopts the tools of architectural inquiry as a means to challenge and subvert the current spatial reality. In their early projects, DAAR posed the question, “How can Israeli settlements and military bases (the architecture of Israel`s colonization in Palestine) be reused, recycled or re-inhabited by Palestinians, at the moment that it is unplugged from the military/political powers that charge it?” Such a line of questioning explicitly undermines the notion of “facts on the ground,” as our conception of permanence is not just physical, but rather is informed by social and political meaning. Moreover, visually articulating the spatial possibilities for re-appropriating such material structures opens space for critical debate (what DAAR describe as an “arena of speculation”), neither constrained by nor entirely removed from present realities.
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[A `Manual of Decolonization` for the Israeli settlement of P`sagot. Image from DAAR.]
Following a collaboration with DAAR, Zochrot, an Israeli NGO, organized a workshop bringing together Palestinian and Jewish citizens of Israel with the aim of confronting the practical and pragmatic implications of planning the return of refugees. The processes, methodologies and assumptions in this exploratory initiative are explained in a segment of their periodical Sedek (A Journal on the Ongoing Nakba) entitled "Counter-Mapping Return." Through the production of counter-maps, as a means to articulate shared space and alternative realities from those presented in the “official” maps, the workshop represents the beginnings of transforming imagined geographies into reality.
At the time, such a workshop may have seemed fanciful, yet the events of 15 May 2011 seem to have dramatically shifted the horizon of possibility. As Palestinian refugees in Lebanon, Syria, Jordan, Gaza and the West Bank marched towards their villages of origin, we witnessed a collective agency, which directly challenged the notion of borders, the perceived solidity of maps, and the purported geographical scale of the struggle. It broke through longstanding psychological barriers and asserted the possibility for mass grassroots actions to transcend existing political processes.
We argue that it is in these forms of strategic activism – where weaknesses in the present power structures are exposed, and the lines between spatial intervention and critical imagining are blurred – that alternative spatial futures for Israel-Palestine will emerge.
Part IV, by Aslı Ü. Bâli [open in separate window]
Darryl Li has made a valuable contribution to debates concerning the application of international humanitarian law in the Israeli-Palestinian context. One of the most vexing aspects of the occupation from the perspective of international law is the tension between two widely held views: One view maintains that the appropriate international framework for understanding the obligations of the Israeli government as the belligerent occupant of the territories it gained control of in 1967 is the Fourth Geneva Convention (GCIV). The other maintains that GCIV was not written to address long-term belligerent occupation on the scale and duration undertaken by Israel and therefore does not provide an adequate legal framework for this context.
The first view, commitment to the applicability of GCIV, has long been an article of faith among international lawyers, particularly those who would resist official Israeli efforts to treat the status of the West Bank and Gaza as “disputed” and who reject Israeli claims that the Geneva Conventions do not apply. (In its advisory opinion on the legality of Israel’s West Bank wall, the International Court of Justice rejected the “missing reversioner” theory that undergirds Israel’s claim that the status of the territories is sui generis and affirmed the applicability of the Geneva Conventions.) This approach was deemed a necessary international legal protection against any attempt by Israel to claim the legal right to either annex or colonize (that is, settle its own population in) the occupied territories. In short, GCIV was deemed not only the appropriate legal framework but also the most attractive option for protecting the rights of the Palestinian occupied population.
The second view incorporates a critique of the idea that humanitarian welfare can be adequately protected through the laws of war when long-term occupation would leave millions of civilians subject to foreign military, political and administrative control. On this account, the occupied Palestinian population’s welfare is insufficiently protected because GCIV does not provide for a social contract between them and their de facto government. The tension, then, arises from the fact that the protections afforded to civilians under international humanitarian law may become an obstacle to the meaningful realization of their human rights under conditions of prolonged occupation.
Because occupation was understood by the authors of the 1949 Geneva Conventions to be of a provisional nature (with de jure sovereignty over the territory remaining with its civilian population), the law of occupation was understood as an arrangement to meet temporary needs through a balance of the security interests of the occupier and the basic rights of the occupied. Should occupation become durable, however, that balance may no longer be sufficient to meet even minimum human rights standards. In this sense, the law preserving the de jure sovereignty rights of Palestinians has enabled the de facto quotidian denial of the human rights of that same community. The suffering of Palestinians living under the yoke of Israeli occupation for over forty years bears eloquent (and deeply troubling) witness to the urgent need to resolve this tension.
One set of proposed solutions advocated by some international lawyers relies on the introduction of standards drawn from human rights law into a more demanding and comprehensive law of long-term occupation. Under such proposals, the belligerent occupant would assume a greater role in the governance of local affairs than contemplated by GCIV. That role would entail obligations drawn from the (peacetime) human rights regime, such as those related to the protection of human dignity and the rights to education, welfare, health, family, privacy, work, property ownership, freedom of religion and so on. In other words, a separate and higher standard of obligations would be imposed on belligerents that deliberately prolong their occupation of territories seized in war. The balance between the security interests of the occupier and the human rights of the occupied would shift further and further in the direction of the latter with every additional year of occupation. Taken to its logical conclusion, this solution would eventually result in Li’s proposition that the full human rights of the population under occupation in the long-run will require their full enfranchisement.
But this logical conclusion has rarely been articulated, for reasons that are readily apparent. If belligerent occupation becomes permanent and if arguments in defense of human rights eventually require the enfranchisement of occupied population in the state of the occupier, occupation devolves into annexation. For decades, Palestinians have resisted precisely this outcome ― the annexation of the Palestinian territories (or perhaps, more accurately, the West Bank including Jerusalem) to Israel ― because they identify such annexation as coterminous with the extinction of their national rights of self-determination and sovereignty and the abandonment of the cause of a Palestinian state. For instance, those on the Palestinian side who argue for a “one state solution” (reuniting all of the territories of mandate Palestine under a single sovereign) typically frame their arguments in terms of a united Palestine (albeit democratic and secular) rather than an enlarged Israel. Li’s article is refreshing precisely because, through careful analysis of the status quo, he offers an explicit argument for pursuing Palestinian enfranchisement in Israel as an alternative to the two-state solution or the conventional framing of the one-state solution.
Li’s argument centers on one core insight: the full enfranchisement of Palestinians through the annexation of the Palestinian territories to Israel may represent the only viable means for the realization of Palestinian rights of self-determination, sovereignty and self-governance. In other words, under present circumstances only through the creation of a democratic social contract between the state of Israel and all Palestinians subject to its administrative, political and military control (on both sides of the Green Line) are Palestinians likely to achieve meaningful participation in any self-governing polity.
Understanding self-determination (and sovereignty) in terms of a right to direct representation in the political institutions of governance (rather than secession or partition) is broadly familiar in the realm of international human rights. By shifting the focus away from the law of occupation to the question of how Palestinians might achieve the right to participate in the government that controls their territory, Li highlights the fundamental injustice that durable occupation has wrought: maximizing Israeli discretion in its treatment of Palestinians under occupation while legitimizing de jure discrimination against them. As he puts it, the law of occupation has diverted attention from the core question: “Why the people of Beit Hanoun in the northern Gaza Strip and Sderot in southern Israel should live as neighbors under the same supreme authority for over four decades, but with entirely different sets of rights.”
An honest and realistic accounting of any one-state scenario will have two logical corollaries at the current historical juncture: the annexation of the occupied Palestinian territories to Israel; and the transfer of the long struggle for Palestinian rights from the inter-state arena ― expressed through the language of the laws of war and sovereignty ― to the intra-state arena, in the idiom of human rights and anti-discrimination. However, it would be a mistake to interpret this shift as extinguishing Palestinian rights of self-determination and sovereignty. To the contrary, Li suggests that this reconceptualization of the question will enable Palestinians in the here-and-now to make cognizable legal demands for equal status, rights and political self-representation on the territory they inhabit. In other words, Palestinians will enjoy a legal right of political belonging, backstopped by the full spectrum of international human rights law, through a social contract that entitles them to political representation in, and equal rights under, the polity that governs their territory. Enfranchisement would, in this sense, be a realization of the right of self-governance which is at the core of demands for self-determination and the meaning of sovereignty.
Considered in light of the historical record of the relentless expropriation and colonization of the Palestinian territories and the disenfranchisement of the residents of those lands, the law of occupation has facilitated massive repression without affording Palestinians any opportunity to realize their rights. The reversal of the decades-long settlement policies that have enabled half a million Israelis to inhabit Palestinian lands is, as a practical matter, unattainable. The goal of the present Israeli government appears to be maximizing control over the lands and resources of the occupied Palestinian territories (particularly of the West Bank, including Jerusalem) while minimizing Israeli obligations to protect the humanitarian welfare of the Palestinian population. As Li suggests, one logical means of accomplishing this goal would be to adapt the South African Bantustan model.
Arguably, this is what the forms of “autonomy” afforded to the Palestinians under the Oslo Accords have accomplished. The Israelis relieved themselves of their duties towards the Palestinian population while herding them into smaller and smaller enclaves (“Areas A” in Oslo parlance) of putative self-rule in a sea of Israeli-controlled lands which their Palestinian inhabitants and owners may no longer access (in “Areas B and C”). By contrast, requiring Israel to confer citizenship rights on the occupied populations would reverse this trend. Palestinian citizenship would either generate far greater obligations on the state of Israel to secure the welfare of all of the inhabitants of the territories (and limit government discretion in the discriminatory disposition of land) or it would result in democratic reversal, with Israel openly embracing a system of de jure discrimination in its constitutional order.
The latter scenario might not result in an immediate improvement in the conditions and rights of Palestinians in the occupied territories, but it would certainly deprive Israel of any claim to international legality or legitimacy in the continuation of its current policies. Such a scenario would at least have the benefit of laying bare the reality of the discrimination underlying Israeli administration of the territories. Further, it would likely provoke a crisis of identity in Israel’s self-understanding as a democracy and galvanize a broader international movement in defense of Palestinian rights.
The Palestinian Authority (PA) is, at present, pursuing a statehood bid at the United Nations. The meaning of this initiative, its scope and implications, have yet to be clarified by the leadership of the PA (as of the time of this writing). Without knowing more about the details of the proposal, some have argued that it may run the risk of ratifying the view that self-government in the Area A enclaves is sufficient to meet the requirements of Palestinian self-determination and sovereignty. Others worry that the statehood bid runs the risk of undermining the right of return of Palestinian refugees, by reducing the rights of the Palestinian community to those living in the West Bank and Gaza. Whether or not these risks are realized, they reflect the severe constraints that four decades of belligerent occupation have placed on a conception of Palestinian self-determination through a “two state solution.”
The most important implication of Li’s analysis, to my mind, is shifting the framing of the self-determination question away from the law of occupation in a way that recognizes (and averts) these risks. Li has put in relief the most important implication of the spatial configuration ― resulting from ever-accelerating colonization ― that today characterizes the occupied Palestinian territories. Nearly half a century of settlement policy in violation of the law of occupation has resulted in the (territorial and political) diminution of any two-state arrangement at the expense of the Palestinians. Under present conditions, then, enfranchisement as citizens of Israel may be closer to a realization of the rights of self-determination and sovereignty for the Palestinian community than preserving a conception of Palestinian rights grounded in the law of occupation.
Part V, by Nimer Sultany [open in separate window]
Darryl Li is correct in pointing out some of the shortcomings of occupation law. I would like to use this limited space to commend such critical reflection on the role of law in the plight and/or empowerment of the oppressed in order to call for disenchantment with the law. Let us face it: it is not only that the reality of power often trumps humanist and universal moral codes like those expressed in the law of nations (e.g., international humanitarian law); it is also that these universal codes are often too abstract, contradictory and ineffective to be instrumental in advancing concrete outcomes. The question of Palestine is no exception.
While no one denies that the law plays a role in the reality of political conflict the question remains, however, the nature of that role? Indeed, critical scholars (whether legal realism, the Critical Legal Studies movement, the Law and Society movement, or third world approaches to international law) have long pointed out the dark side of the law. These scholars do not deny the occasional utility of adjudication and the deployment of legal means for the purpose of advancing the interests of the weak in specific issues. They are, however, concerned with those aspects that go unnoticed when the weak deploy the law as a means to advance their ends. They are concerned with the mystification of the role of law. These aspects, and this required demystification, can be briefly summed up as follows:
Law and Justice: There is a gap between law and justice and therefore one should be careful not to conflate the application of the law with the approximation of justice. The latter does not necessarily follow from the former. There are many reasons for this. To begin with, law is not a closed, autonomous system with its own inner morality; rather it is deeply influenced by politics and ideology and these cannot be cleansed by merely using legal nomenclature and reasoning. Secondly, law often addresses the symptoms of the conflict and offers ad hoc solutions and it rarely addresses the root cause of the conflict. It follows that even if the law were fully applied that would not necessarily lead to meeting the demands of justice.
Legalism: “The law” includes gaps, contradictions and ambiguities. Therefore, it does not necessarily produce the results at which one aims in the deployment of legal action. Rights are abstract and indeterminate and can be deployed by competing parties to advance conflicting interests. This condition of the law makes it a medium for manipulation and political conflict, especially when studied diachronically rather than synchronically. There is nothing inherent in the law that makes it favorable to the Palestinians and immune from Israeli or pro-Israeli manipulation. (Of course, the opposite is also true: there is nothing inherent in the law that makes it an enemy of the oppressed.)
Law in the books and law in action: Even if the law produced the results that are congenial to the causes championed by the oppressed, it remains to be seen whether legal stipulations have any bite in real life. The ICJ’s Advisory Opinion on the separation wall is a sad testimony to the fact that highly publicized judicial proclamations by the highest possible authorities may produce little change in the reality of the oppressed. That does not mean that the opinion is valueless (it is rhetorically useful for the sake of argumentation), but it does mean that it has been, thus far, ineffective.
Legitimation: Using the legal means despite their uncertain results and quite limited effect is not without a price. First, when one uses the law, one is acknowledging the overall legitimacy of the legal system. Thus, bad legal opinions or decisions may make the situation of conflict look more natural or necessary than it is. One would have to explain the selectivity in accepting the good decisions and rejecting the bad ones when they originate from the same power structure. Moreover, even good rulings/ legal opinions have bad effects. Indeed, representing the conflict from the legal perspective (or the human rights perspective) may distort the reality of conflict by depoliticizing it. The alleged power of the human rights rhetoric (its professionalism, its apolitical posture) is – simultaneously – its greatest weakness. Furthermore, by focusing on the legal venue one may marginalize other venues that may be available to the oppressed.
Let me explain some of these points through a recent example. The Goldstone Report, which has been uncritically celebrated by human rights advocates, may demonstrate the limits of legal and human rights discourse (I have addressed this issue elsewhere): First, the report accepts the Israeli claim that Israel was entitled to and acted in self-defense. Second, the exclusive focus on jus in bello (conduct during war) rather than jus ad bellum (the justifications for launching a war) is disturbing. By focusing on questions of excessive use of force and indiscriminate attacks, i.e. proportionality and distinction between civilians and combatants, human rights discourse seeks to shy away from political controversy surrounding justifications for wars. Yet, the focus on proportionality means that the debate revolves around the number of Palestinians Israel may be justified in killing. Third, the UN formed the committee in reaction to what is seen as an exceptional episode in the life of the conflict or the Palestinians. The report by its very nature and mandate singles out a limited set of facts and a limited period of time both as the primary locus for investigation and for the purpose of recommendations for action.
The consequences of the self-imposed limits of the legal and human rights discourse as exemplified by the Goldstone Report, in order to present a professional image and avoid larger political and moral contexts, are not insignificant: First, it distorts reality by presenting Israelis and Palestinians as equally culpable, identically situated agents of violence, despite the fact that Israel is the occupying power and the Palestinians are the occupied party and despite the gross asymmetry of power. Second, it distorts reality by focusing on and recommending actions against the “exceptional” outburst of violence while Israel is consistently pursuing the colonization of the West Bank and Jerusalem by creating facts on the ground and thus providing the breeding ground for violence. The focus on what is seen as “exceptional” implicitly renders other periods normal. But the occupation is no less oppressive during normal times. Third, it distorts reality by focusing on symptoms (the resistance) rather than the root cause of the conflict (the occupation and ongoing colonization), by focusing on Palestinian violence instead of the siege, and by focusing on one Israeli soldier rather than the thousands of Palestinian prisoners.
In addition to the aforementioned, the Palestinian case gives rise to two other questions of particular importance:
Compartmentalization: International law allows us to understand and analyze reality through categories. However, these categories may actually blind us from seeing the reality of the conflict clearly. Categories and distinctions that have bad normative effects should be collapsed. Law fragments reality into different legal compartments. It is akin to focusing on the trees while concealing the forest. In other words, the general questions are marginalized and obscured. Concretely, the Palestinians are divided into three main categories: citizens inside Israel, refugees, and residents of the occupied territories (“protected persons” in the jargon of international law). These categories are a codification of the results of naked power and violence (i.e. the outcome of war). But these categories do not overlap with the complex reality and thus work to create distortion and representational issues. The “refugee” exists inside the category “citizen” (we call them “internally displaced persons”) and inside the category resident of the occupied territories. It is not only the refugee in Lebanon who cannot return, it is the same with the refugees in Nazareth, Haifa and Tira who happen to be citizens. Additionally, the difference between the resident and the citizen is a question of degree rather than kind (this, I think, will become more apparent as the oppression of the Palestinians inside Israel increases and their life conditions keep deteriorating). Indeed, the hollow citizenship granted to the Palestinians is separated from the benefits of nationality. Furthermore, segregation, colonization and killings with impunity exist on both sides of the Green Line. As the repression of political activists increases, poverty levels go up, and organized crime “flourishes” inside the Palestinian communities in Israel – the more the Palestinian minority will look like an occupied community.
One state/ two state solutions: This compartmentalization is consequential for political visions of resolving the question of Palestine. There is an obvious tension between adopting the language of international law and the call for a one state solution (e.g., many supporters of BDS, on the one hand, conceive of BDS as a means to force Israel “to abide by international law” and, on the other hand, call for a one-state resolution of the question of Palestine). Indeed, as Nathaniel Berman has illustrated in an article published in 1993 by the Harvard Law Review, international law is first based on the Westphalian model of the nation-state as the cornerstone for the international order. Additionally, it is based on the partition view of resolving “national” conflicts; a view that dominated the international legal discussions between the two world wars. The partition of Palestine is a primary example of this approach.
This is, then, a plea for disenchantment. It is not a call for abandoning the legal venue altogether. But it is a call for a greater degree of critical reflection on the usage of the law. And, to the extent one decides to use it, to approach the legal venue with a greater degree of skepticism. Investing in the legal venue cannot be a substitute for direct political action and tools. Law is not free of politics and thus it cannot be an escape route from politics. While it may be part of a larger and well-thought political strategy, it is obvious that such strategy is lacking in the Palestinian case. In the absence of credible Palestinian political leadership and well-functioning, representative institutions equipped with an overarching political strategy, legal tools will remain sporadic, disorganized, and ineffective; indeed, futile. As such they cannot challenge the status quo and the existing structure of power relations in fundamental ways. It is a mistake to think that in the absence of political advancement the legal venue can or should become a major venue and that it can get the Palestinians any closer to their goals. Like Kafka’s man before the law, Palestinians may risk waiting for a legal promise that may never materialize.
Part VI, by Darryl Li [open in separate window]
A reckoning is upon us – not simply a tallying of votes over the campaign for Palestinian membership in the United Nations, but of the dilemmas facing both the Palestinian leadership and the Zionist project. In both cases, there are lessons to be learned for the relationship between politics and law in the question of Israel/Palestine.
Unequal Dilemmas
Mahmud ‘Abbas’s campaign to upgrade the legal status of “Palestine” at the UN has sparked widespread and indeed helpful debate among Palestinians and their allies, directing public attention to some fundamental but rarely-discussed issues. For decades, the Palestine Liberation Organization (PLO) has purported to be the sole, legitimate representative of Palestinians worldwide, but has faced a basic contradiction: it led a nation whose members were mostly located outside of the homeland it sought to liberate. Although a minority of the Palestinian people remained domiciled in the country – some holding Israeli citizenship, a larger number residing in the occupied West Bank and Gaza Strip – they were seen by many as a defeated remnant, not the engine of the national liberation movement. It has only been since the eruption of the First Intifada in 1987 that the shorthand phrase “the Palestinians” has referred to that minority of the Palestinian people living under belligerent occupation in the West Bank and Gaza Strip.
The First Intifada led to a renegotiation of the relationship between Palestinians inside and outside the country, but not necessarily a positive one. The Oslo accords allowed the PLO’s leadership in exile to move to the occupied territories in order to run the native self-administration body that grandly calls itself the Palestinian National Authority (PNA). In doing so, Israel disconnected the leadership from the diaspora and gained a new, valuable, and ultimately dependent partner in managing the unruly denizens of the 1967 territories.
The potentialities of this process have now played themselves out to their farcical extremes in the possibility of the PNA gaining widespread international recognition as a state. For the Palestinian majority in the diaspora, it is the danger of ratifying and reifying their decades-long marginalization. For Palestinians inside the West Bank and Gaza Strip, it may legitimize the state of indirect and dysfunctional rule under which they live. Indeed, if somehow the statehood bid were to “succeed” in terms of convincing the international community to treat the PNA legally as a sovereign entity, this would only exacerbate the disconnect between the responsibilities it shoulders and the powers it actually possesses. In particular, this would dovetail with a scenario in which Israel “Gazafies” the West Bank – completing the shift from a direct model of repression befitting an occupying power (house raids, mass arrests) to one of a belligerent attacking a foreign state (air strikes, blockades). And how long will it be until Israel and the United States demand that, as a sovereign state, Palestine’s aid from the World Bank and IMF should come as loans rather than grants? In a broad sense, we can say that Palestinian “statehood” carries the danger of sovereign debt without the sovereignty.
In contrast, Israel’s dilemmas are more tactical than strategic. If a state of Palestine is allowed to join the International Criminal Court, this would raise the costs to Israel of preventing the prosecution of any of its officials for war crimes. At the current moment, the possibility does not exist due to lack of jurisdiction, so future attempts to forestall accountability in this forum will require more direct interference from Israel’s allies. Down the road, however, statehood does represent one significant – but not fatal – threat to Israel’s demographic policies. Critics have compared the PNA to the Bantustans in South Africa, and there is merit to this. But there is an important difference at play here: The apartheid regime wanted to create multiple Bantustans as a means to keep the native population divided. Insofar as the PNA purports to be sole international representive of Palestinians across the West Bank and Gaza (or even simply the West Bank), it remains an obstacle to long-term Israeli goals. Israel’s policies on the ground, especially the fragmentation of Palestinian lands, are heading in the direction of rendering the PNA incapable of representing even the West Bankers. If it is successful, Israel may still get something like the localized autonomy plan of the “Village Leagues” that it failed to achieve in the 1970s. Elevating the PNA’s international status to full statehood would thus be an obstacle to its eventual disposal after it has outlasted the point of usefulness to Israel.
What Israel is discovering is that even puppet rulers can sometimes act out in ways that cause headaches. South Africa learned this painful lesson when some of its own Bantustan leaders either turned against it or were themselves threatened by coup attempts and uprisings. Recognition of statehood is therefore suboptimal from the current Israeli standpoint, but not a serious obstacle that would fundamentally alter the strategic calculus on the ground to its detriment. The same can be said of recognition of the PLO – once considered taboo, but after facts on the ground weakened the PLO’s position to the point where it had to accommodate the Zionist project, the costs of recognition to Israel were outweighed by the benefits.
Tools or Cages?
The dilemma facing the Palestinian leadership over the UN is only one example of a broad problem that I outlined in my remarks on occupation law – the challenge of how to take on the law as a tool while not allowing it to become a cage that overly constrains one’s actions. That is the challenge I raised in questioning the utility of occupation law in dealing with a settler-colonial power, insofar as it brackets questions of equality and political belonging. The same is true, even more vividly so, with cartography, as Ahmad Barclay and Dena Qaddumi demonstrate in their essay. One useful role for scholars and critics to play in struggles for justice is to help provide warning labels for some of the hazards that come with the tools used by movements.
Aslı Bâli ’s contribution thoroughly explores this dilemma and then poses the question of what other legal tools might be useful in realizing the right of self-determination under such unusual circumstances. Her analysis shows how a second body of law – international human rights law – intersects with the law of occupation and carries its own potentialities. Simply put, international human rights law, for all of its problems, at least does not presume the denial of shared citizenship that is at work in the law of occupation.
This contrast can be illustrated in the context of West Bank settlements. When Israel builds a Jews-only city in the West Bank, such as Ma’ale Adumim, this is roundly condemned because the Fourth Geneva Convention prohibits an occupying power from transferring its own civilians into an occupied territory. The problem, essentially, is state action directed at bringing the settlers, prompting the absurd charge from some extreme right-wing Zionists that the Palestinian demand for evacuating settlements is tantamount to ethnic cleansing (or, in their colorful language, a “Judenrein Palestine”). From the perspective of human rights law, the problem isn’t the importation of settlers per se, but the discriminatory regime they bring with them: not only the water and land expropriation, but the problem of segregated roads and movement restrictions for natives and, most importantly, discrimination in deciding who gets to live there.
From one perspective, adopting a human rights perspective may seem less “radical” in two respects: First, it would not necessarily require evacuating the colony. Second, under the laws of occupation, such colonization is generally considered a war crime, whereas the human rights framework would not carry an international criminal sanction (although, notwithstanding the concerns expressed by Lisa Hajjar, most other provisions on war crimes, as well as international humanitarian law generally, could continue to apply even in the absence of occupation law). On the other hand, human rights law would be useful here in drawing attention to why these colonies are problematic: discrimination, both in the micro and macro senses. And, crucially, this framework for critique could be applied across the entire country and not simply the 1967 territories. Moreover, because international human rights law does not assume, as occupation law does, that Israel and the territories are two separate entities, it can be more easily attached to different kinds of political claims and struggles than the limited ones we have seen in recent decades.
While Bâli expands our conversation about the legal tools one can resort to, it is also important to keep in mind that one’s ability to use tools is shaped very much on context. As I mentioned in the earlier piece, Israel has maintained a balance between holding occupation law’s ability to impede colonization at bay, while relying on it at times to justify its actions and to win legitimacy in the eyes of the international community. It is powerful enough to treat the law more as a tool than a cage. Hajjar provides a useful starting point by reminding us of Meir Shamgar’s arguments in the early years of the occupation denying the applicability of the Fourth Geneva Convention to the occupied territories. In the decades since, Israel’s approach towards occupation law has evolved to one of selective incorporation, with careful efforts to avoid the ban on colonization. In the 1979 Elon Moreh case, the Israeli Supreme Court recognized the 1907 Hague Regulations as customary international law and therefore binding on Israel. It has even relied upon some occupation-related provisions of the Fourth Geneva Convention in some of its few timid attempts to regulate the occupation when not otherwise rubber-stamping it (see paragraphs 12, 18, and 20 of Physicians for Human Rights v. IDF Commander in Gaza). Israel has skillfully managed to adopt a sort of à la carte approach to occupation law: There are some provisions it argues do not apply, and then there are others whose applicability it concedes but then violates anyway.
Endurance and Expertise
While Israel can afford to play all sorts of games with international law, Palestinians are in a situation of relative demobilization, despite all of the momentous events in the region this past year. Space for maneuver also comes from a society’s ability to absorb the costs of repression. Palestinians in the West Bank and Gaza are, unfortunately, even more dependent on international aid than ever, severely sapping mobilizing energies.
The provocative kinds of urban planning and architectural projects that Barclay and Qaddumi point to have been very useful in shaping my analysis of how law in its various forms reshapes and is reshaped by the situation on the ground in Israel/Palestine. But both law and architecture, as “expert” forms of knowledge, share a similar dilemma of how to propose bold ideas that actually resonate with popular movements, a problem that is only compounded by the overall state of demobilization.
One kind of spatial practice that I would like to add to our conversation is the persistent, indeed heroic, rebuilding of the Bedouin village of al-ʿAraqib, demolished by Israeli authorities over a dozen times despite multiple protests and lawsuits. This campaign signals an assertion of rights, engenders solidarity between dissident settlers and indigenes, and forces the state to openly reenact its violence on a regular basis, almost farcically so. Al-‘Araqib is a site where spatial acts and claims to citizenship are one and the same. While lawyers and architects may be poorly situated to start or lead social movements themselves, it would seem that cases such as al-‘Araqib may provide lessons they can help put into practice when future conditions shift.
Troubling the Waters
Finally, Nimer Sultany ’s contribution reminds us that no matter how cleverly or doggedly law is used as a tool, one should maintain a healthy attitude of skepticism, or as he wonderfully puts it, disenchantment. The crucial duty of a lawyer to tell the client what the law cannot do sometimes seems to have been forgotten in discussions of Israel/Palestine. The Palestinian struggle has become so suffused with legal discourse in recent decades that we have sometimes lost the ability to distinguish what is legal from what is right.
An excellent example of this has been the fallout over the Gaza flotillas. There is a general international law problem with the policies of economic and social suffocation imposed by Israel on the Gaza Strip. On the one hand, there are various rules encouraging occupying powers to allow in aid and prohibiting collective punishment. On the other hand, occupying powers have the right to regulate and control movement (whether they have the power to impose a maritime blockade, i.e. stopping and searching ships in international waters, is a slightly different issue that hinges in large part on how the legal situation is classified). Unlike a specific violent act such as the bombing of a home that can be readily criminalized, however, the closure is an entire system and international law – whether occupation law or human rights law – seems to have little to say about that system other than to vaguely encourage its humane application.
In this sense, the power and the promise of the flotilla for me has never been about the illegality of the siege of Gaza in itself. Rather, the flotilla’s significance was as an act of civil disobedience, in a context – the high seas – where Israel was forced to assume responsibility for its actions and defend them in a more dramatic fashion than, say, repelling protesters at a land crossing. Civil disobedience is precisely about exposing the gap between legality and legitimacy. Individuals signal their willingness to face the coercive power of the state in order to demonstrate that it is precisely that: coercion, and nothing more. Even if one accepts that Israel’s actions on that fateful day in May 2010 were criminal and that Israel’s siege policies violate international law, it is still very difficult to deny that as an occupying power Israel would not have had the technical right to stop and search those ships if they had crossed into Israel’s or Gaza’s territorial waters. But that is exactly the point. Israel’s “right” to stop the flotilla was about as worthwhile as South Africa’s “right” to imprison Nelson Mandela for sabotage or treason – valid in the technical sense, but utterly worthless in light of the greater monstrosity those measures were meant to protect. In this sense, disenchantment with the law does not necessarily mean despair in the world; it can also be a basis for changing it.