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Roundtable on Occupation Law: Part of the Conflict or the Solution? (Part I: Noura Erakat)

[Israeli settlements in the West Bank. Image from unknown archive] [Israeli settlements in the West Bank. Image from unknown archive]

[This is the first 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.] 

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 is it 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, which 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. Ultimatley, 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 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 all together but insists that for law to be an effective tool for the oppressed it must be part of a well-thought political strategy.


Click here to read Part II by Lisa Hajjar

Click here to read Part III by Dena Qaddumi and Ahmad Barclay

Click here to read Part IV by Asli Bali

Click here to ready Part V by Nimer Sultany

Click here to read Part VI by Darryl Li



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