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Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part V: Nimer Sultany)

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[This is the fifth part of a six-part series associated with a Jadaliyya roundtable discussing the relevance of occupation law to the Palestinian-Israel conflict at this historical juncture. Participants include Darryl LiLisa HajjarNimer SultanyAsli BaliAhmed Barclay, and Dena Qaddumi. A description of the Roundtable can be found here.] 

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.

[Click here for Part VI by Darryl Li.]

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