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Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part VI: Darryl Li)

[Palestine through time. Image from unknown archive] [Palestine through time. Image from unknown archive]

[This is the final 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.]


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 re-enact 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 Sultanys 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.  

If you prefer, email your comments to info@jadaliyya.com.

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