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Law is Politics

John Reynolds

Justice for Some: Law and the Question of Palestine, by Noura Erakat, Stanford University Press, 352 pp, $30, ISBN: 978-0804798259

There is a sense among many people involved in advocacy and activism for Palestinian freedom that international law is unequivocally on the side of the Palestinians. The obstruction of that freedom is a problem of politics impeding law; of might trumping right. If only the law were applied to its letter, justice and equality would supplant occupation and apartheid.

Would that it were so straightforward.

In Justice for Some: Law and the Question of Palestine, Palestinian-American scholar and advocate Noura Erakat eloquently shows that, yes, the Israeli state project has been consolidated and expanded on a platform of might making right since 1948 – but not only that. Israeli governments have also actively sought to craft legal justifications for the conquest and colonisation of territory, and to harness international law in their favour. They have been able to do this – successfully, in some instances – because the law cannot provide predetermined and definitive outcomes; it can only promise a contest over an outcome. Legal outcomes are ultimately determined in the historical and political contexts in which the law is being mobilised and applied. This is a contingent and fluid process; the law is continuously sculpted over time and reshaped from new vantage points as historical processes unfold or new protagonists emerge. Law, in other words, is politics.

Erakat shows that this has been the case for international law in Palestine over the past century, back to before the creation of the Israeli state itself. She traces this story – against the shifting backdrops of colonial manoeuvring, Third World revolt and US empire-building – through key historical junctures over a hundred-year arc beginning in 1917. That year, the Balfour Declaration marked the onset of a series of “colonial erasures” of the Palestinian people. In that single but weighty sentence, the British government gave the promise of a Jewish national home in Palestine to the Zionist Federation. The Palestinians were reduced to “existing non-Jewish communities” who would be assured of civil rights protections but not necessarily any sovereignty or self-determination. International law and its institutions soon became complicit in the dispossession of the Palestinians – first by incorporating the Balfour Declaration into the League of Nations Mandate, and later with the United Nations proposing a partition of Palestine and recognising an Israeli state created in 1948 on the back of mass displacement of Palestinians. From the outset, that state subjected the Palestinians who had managed to stay in their homes to a racialised military law system. International law was silent in its consent.

Israel further expanded its military regime in 1967 through the occupation of the remaining Palestinian territories in the West Bank and Gaza Strip. In the meantime, from 1960, the UN had sought to prohibit colonialism “in all its forms and manifestations”. In November 1967, the UN Security Council issued Resolution 242 calling on Israel to withdraw its occupation forces. Erakat’s detailed analysis shows us, however, that even iterations of international law like this one which may appear favourable to Palestinians on the surface are often the product of, and platform for, extensive “legal work” by Israel. The resolution normalised Israel’s regime within the 1948 borders, and its language regarding the 1967 occupation was toned down and rendered deliberately ambiguous. Erakat shows convincingly that it was no accident that “Israel strategically deployed Resolution 242 to justify its territorial encroachments” and has been able to continue the occupation to this day without legal sanction. While the “content” (rules and provisions) of international law might appear to prescribe a certain position, its “form” (structural and institutional) is just as much a part of the legal order, and illustrates the book’s core argument about law and politics being inseparable.

As such, like any site of political struggle, the law is not an even terrain and its default position will favour the ruling class. But, Erakat argues, law can be a source of emancipatory politics where it is “wielded in the sophisticated service of a political movement that can both give meaning to the law and also directly challenge the structure of power” that has hitherto steered the law to obstruct justice. She narrates the period where the Palestinians did so most effectively in a powerful chapter on the Palestine Liberation Organisation (PLO) operating as “pragmatic revolutionaries” through the 1970s. This was a time when Third World nations and the Non-Aligned Movement were attempting to radically transform the international political, legal and economic orders. In that environment, the PLO made significant inroads through their own legal work at the UN. They gained international legal recognition of the Palestinians as a people with the right to self-determination (not just a refugee population). They overcame staunch Western opposition to assert their alliance with the anti-apartheid struggle in South Africa, culminating in the UN condemning Zionism as a form of racism. The Palestinians were also central to the recognition in 1977 of national liberation movements as legitimate combatants with rights and duties under international law. This was all done in pursuit of a clear political strategy at the time to democratise the governance structures of Israel and the occupied territories in a single democratic state.

Edward Said famously wrote in 1984 about how systemically the Palestinian narrative was silenced in the Western world and about the difficulties faced by Palestinians asserting “permission to narrate” their own story. Since then it has become only more difficult for Palestinians in the US particularly to speak about Palestine. The easier option for an ambitious emerging scholar in that context would be to write about something else. Instead, Erakat met the challenge head on and has written a book that is a story of Palestine but is also a story of international law itself. Some of its most important insights are more universal than specific. They are major conceptual contributions with value well beyond the immediate case study.

There is an important point here as well about knowledge production. Over the years, progressive Jewish-Israeli scholars have produced profoundly valuable work on the colonial history and present of Palestine. They also have access to particular archives and audiences that others do not. Thinking about emancipatory knowledge production from the Palestinian perspective, however, Erakat’s book is a crucial contribution. A colonised population will not always easily get to write its own histories while it remains under occupation, and its archives can go untapped. Justice for Some offers us some invaluable materials and insights via Erakat’s interviews with Palestinian legal and political protagonists. In that sense and more broadly, the work that she and other contemporary writers and scholars are doing is significant in growing the Palestinian canon.

As Erakat points out, there has been no shortage of Palestinian legal initiatives, and no shortage of good Palestinian lawyers. What there has been a shortage of since the late 1980s, when the single democratic state project was formally abandoned, is political vision from the Palestinian leadership. The Palestinian Authority was formed out of the Oslo “interim agreements” as a temporary governing entity in the West Bank and Gaza, and has fixated on securing recognition of a partitioned state in these fragmented territories. Meanwhile Israel continues to expand its settlement contruction and moves towards annexing more Palestinian land while excluding its people. Erakat provides a cutting critique of both the Oslo process and the Palestinian Authority’s more recent “haphazard” legal initiatives and obsession with the symbols of statehood rather than the substance of justice. 

This is the thorny reality for those advocating and supporting Palestinian self-determination. It is not just a case of saying we need more international law, better law, or more law enforcement. For Erakat, it is a case of saying yes, sometimes we can use international law (and sometimes not), but also and more importantly we need coherent and strategic political mobilisation. The Palestinians certainly need better political leadership from above, or the supplanting of their leadership structures with mass movement from below. They need their allies around the world to think with them beyond the “sovereignty trap” which Erakat describes. She argues persuasively that for a future of Palestinian freedom, the kind of limited autonomy or truncated statehood currently being pursued by the Palestinian Authority is not enough. By the same measure, a vision based only on international law principles is by itself not enough, where international law’s post-1960 articulation of self-determination does not challenge pre-existing colonial partition lines or settler-colonial sovereignty.

This brings us to Erakat’s final section on “Horizons of Freedom Beyond the State”, which is in many ways the most fascinating and provocative few pages of the book. She pushes us here to think beyond the one-state versus two-state binary and towards much more radical imaginations and visions for the future. To do so, she draws on a range of recent Indigenous scholarship which has been grappling with how to move beyond the politics of recognition, with concepts of human and social belonging rather than state sovereignty, and with the idea of decolonisation from below.

Erakat’s sights are trained on the horizons ahead; she is adamant that there is no optimal past to return to but that there are still optimal futures to shape. This puts me in mind of another recent book which makes a powerful companion to Justice for Some, written by Nick Estes of the Lower Brule Sioux Tribe about the Standing Rock reservation’s resistance to the Dakota Access oil pipeline. Estes’s title is evocative: Our History is the Future, suggesting that Indigenous history and ideas are essential to all of us – for the socialist and ecological future that we need if life on this planet is to be viable.

Erakat brings some of these ideas to bear on the possible alternative futures to be forged in Palestine and Israel in terms of belonging, co-existence and race relations. A Palestinian bantustan state in part of the West Bank will not be sufficient to resolve the situation of exiled Palestinian refugee communities and Palestinian second-class citizens of Israel, never mind to build a shared communal future between Jews and Palestinians in that region. For the Palestinian refugees, says Erakat, the journey of return “will, by definition, be a project of building something new. Returning to Palestine will literally be going back to an unknown future”. It will be the start, rather than the end, of decolonisation. Decolonisation does not need to mean the removal of the settler, but does at the least require the remaking of the settler as cohabitant rather than conqueror. In Palestine it will involve Jewish-Israelis becoming part of the Middle East, rather than of a colony in the Middle East. It will see Mizrahi Jews, for example, as Middle Eastern communities, restoring identities that were deliberately obscured by an Israeli state-building project “modeled on white European values and culture”. It will mean dismantling the structures of militarism and ethno-nationalism that Zionism has constucted. It will require social solidarities and class alliances between Palestinians, Jews, migrant workers and refugees in their collective struggles for justice.

It is in this light that we see the limitations of the vision of Palestinian self-determination as a partitioned national state in the West Bank and Gaza. But that is international law’s vision, which the PLO’s “pragmatist” camp was convinced to subscribe to. This reflects the dilemma that Erakat ultimately finds herself in. As a “movement lawyer”, she retains a conviction in the capacity of the law to serve as a vehicle for progressive political action that can transform power structures and reshape societal visions. As a researcher, she finds some evidence of this having been proved to work where the law is harnessed in a savvy and strategic way. As a thinker, however, she senses that if we are to ultimately escape the deep, labyrinthine social and political holes we have dug ourselves into, law is not the answer.

If freedom is ultimately contingent on thinking beyond the state, as Erakat suggests, this has implications for an international law system which is so intimately tied to the idea and status quo apparatus of the state. If the optimal futures are not defined by or restricted by law, and may ultimately be obstructed by law, is it wise to rely on the law to get there? If social and political movements are committed to the kind of radical visions of freedom and justice – economic justice, racial justice, gender justice, ecological justice – that Erakat urges us to imagine, they may need to divest for now from the unfreedom and injustice of law.

1/11/2019

John Reynolds teaches in the Department of Law, NUI Maynooth. His last book, Empire, Emergency and International Law (Cambridge University Press, 2017) was awarded the Kevin Boyle Book Prize for Outstanding Legal Scholarship.

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