Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019).
Jadaliyya (J): What made you write this book?
Noura Erakat (NE): When I was a third-year law student, I was writing a paper that explored international accountability for Israel’s 2002 incursion into the West Bank and, specifically, the siege of Jenin refugee camp. I framed my legal claims around the Fourth Geneva Conventions regulating the treatment of civilians under occupation, which seemed obvious and non-controversial. However, my professor, Richard Buxbaum, whom I respected and adored, asked me with all seriousness, “What is the basis of applying the Fourth Geneva Conventions to the West Bank?” Buxbaum sympathized with my position but pressed me to make an argument about the applicability of occupation law and about the status of the West Bank as occupied territory under international law. The exchange blew my mind; it was almost as if someone asked me: “How do you know the sky is blue?” I had taken for granted the status of the territories as occupied and the legal regime as occupation law and assumed that Israel’s actions were all tantamount to violations. Professor Buxbaum’s challenge planted the first seeds of critical inquiry regarding the indeterminacy of the law and the relationship between law and politics more generally.
After law school, I took on a number of legal advocacy positions all aimed at pursuing Israeli legal accountability i.e., suing Israeli officials in US federal courts for war crimes, lobbying Congress to end military aid to Israel under the Arms Export Control Act for its attacks on Gaza, petitioning the human rights treaty-making bodies to hold Israel to account for racial discrimination, as well as discrimination against women, mistreatment of indigenous communities, and violations of civil and political rights. In each instance, and over and over again, politics impeded legal accountability and the madness of it drove my critical inquiry as a scholar. I wanted to understand the relationship between law and politics, and I wanted to understand how it shaped the Palestinian struggle for freedom. My answers to those questions culminated in the book and reflect nearly fifteen years of study, advocacy, and research.
J: What particular topics, issues, and literatures does the book address?
NE: Justice for Some uses a critical legal theory framework—that highlights the imbrication of law and politics—to provide a history of the present in the Palestinian struggle for freedom. Using five critical junctures between 1917 and 2017, the book demonstrates how the law has been a site of oppression as well as a site of resistance for Palestinians. By showing how the League of Nations Mandate for Palestine (1922) established a legal structure of exception, the book is telling a different history of the Palestinian struggle for freedom; one that has been responsive to this structure over a century-long arc.
Rather than emphasize the content of the law, the book pays particular attention to the historical context as well as the strategy of the legal workers to show how the law can have various meanings across time and space. On the whole, the book demonstrates that the law has been more beneficial in advancing Israel’s settler-colonial interests and insists that, for it to benefit the Palestinian struggle, and progressive causes more generally, it must be used in the sophisticated service of a political movement.
The book uses an interdisciplinary approach comprised of legal analysis, archival research, and primary interviews in the Middle East. Its emphasis on legal history places it within the tradition of Third World Approaches to International Law (TWAIL), and its scrutiny of the relationship between law and power engages with critical legal theory and international relations literature. The book benefits tremendously from settler-colonial studies and the black radical tradition as well, which provided a global context for understanding the Palestinian condition of unfreedom.
J: How does this book connect to and/or depart from your previous work?
NE: My previous work has been much narrower in scope, in that it has explored discrete legal questions regarding the laws of war or refugee law or sites of legal redress. In fact, when I began my research, I envisioned that the book would be a composite of those works to demonstrate the relationship between law and politics in a series of illustrative examples. But as I dived into the research, I learned so much that made me reconsider the project. To say that the writing/thinking process was iterative is an understatement!
What began as a series of narrow case studies became a bold argument I wanted to make about the history of the Palestinian struggle for freedom. The book ultimately proposes that we can understand the question of Palestine through the establishment of a legal structure of exception that marked the juridical erasure of Palestinian peoplehood. This structure both helps explain Israel’s legal tactics for reifying its colonial domination, as well as Palestinian strategic turns aimed at national liberation. It is for this reason that I organize the book chronologically, rather than thematically i.e., occupation law, laws of war, UNSC Resolution 242, and self-determination. It culminates in highlighting how Israel has succeeded in establishing its settler-sovereignty across the Mandate for Palestine today and how Palestinians are now caught in a sovereignty trap. The book proposes that overcoming that sovereignty trap will require a radical imagining of possibilities for freedom able to overcome the incommensurability of Palestinian and Jewish-Zionist settler sovereignty.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
NE: My primary hope is that this book will be read by peoples struggling for freedom—certainly, in Palestine, but also beyond. It is written in the tradition of movement lawyering and is thus concerned with progressive causes. My hope is that the book highlights both how unexceptional the question of Palestine is, because it reflects a common story of settler-colonial erasure and racist domination, as well as how the unique conditions in Palestine offer us lessons and pathways to better futures.
I wrote the book for non-legal specialists so that it can be read widely, but I know it will nonetheless fall in a particular way among legal scholars, students, and practitioners. It is certainly not the first book to engage the question of Palestine in the relationship to law—adept scholars including Victor Kattan, John Quigley, Thomas Mallison, Susan Akram, Lisa Hajjar, Nimer Sultany, Asli Bali, Darryl Li, Lori Allen, George Bisharat, Ardi Imseis, Michael Lynk, and Richard Falk (just to name a few!) have done that before me. However, what it insists upon is that the law does not guarantee a particular outcome, only a contest over one, and therefore we should approach it with a combination of political cynicism and strategic optimism. To this end, I hope that it helps readers re-evaluate the value of legal strategies alongside renewed political movements, with an emphasis on the latter.
I hope that “Colonial Erasures,” a background chapter that surveys a fifty-year period from 1917-1966, can take a life of its own and serve as a primer on the Palestinian Question. Also, I hope that the entire book, or parts of it, will be assigned in classrooms to understand the meaning of international law, to understand a history of the Middle East, as well the potential for legal advocacy.
J: What other projects are you working on now?
NE: My next book project seeks to pick up where this one left off. It begins at the point of the sovereignty trap, which I define as a political arrangement of derivative sovereignty featuring native collaboration with settler-colonial and imperial powers, whereby good native behavior is rewarded with limited autonomy and perpetual subjugation. It examines contemporary renewals of Black Palestinian transnational solidarity, particularly activist praxes, to explore the potential of freedom in excess of sovereignty. The project is currently based on interviews I am conducting with activists, and I have captured some of my initial findings in an article now under review. Related to this project, I am also conducting research on the intellectual and drafting history of UNGA Resolution 3379 (Zionism as a form of racism and racial discrimination) to scrutinize a racial theory of Zionism.
My other projects involve examining the relationship between surveillance and settler colonialism, as well as examining the role of Israeli military lawyers in the legitimation of violence.
J: Do you have a favorite chapter, if so, which one?
NE: When the book began to take shape, I thought that my chapter on the 1970s, when the Palestine Liberation Organization turns to the United Nations and embarks on one of the most aggressive and successful legal advocacy campaigns, would be my favorite chapter. In a history of blundering violence and defeat, I looked forward to this chapter as a pinnacle and example of Palestinian resistance. I was also excited about it because so there is so little in the literature on this particular juncture, namely 1973-1982, and was eager to help begin to fill this gap. While I indeed do like this chapter, it was not the history of triumph I anticipated. It chronicles the history of several monumental legal strides, like UNGA Resolutions 3236 and 3237—which establish the Palestinian Liberation Organization (PLO) as the sole and legitimate leadership of the Palestinian people, and thus works to inscribe the juridical status of Palestinians in international law and legal institutions. However, it also revealed a history of internecine conflict. The chapter highlights how a lack of strategic coherence led to a series of legal victories that could not overcome diplomatic intransigence on the Question of Palestine.
Excerpt from the Book
On 14 November 1974, Yasser Arafat, Chairman of the Palestinian Liberation Organization (PLO), stood at the podium in the United Nations General Assembly before the audience of nearly every member state. The U.S. and Israeli ambassadors were conspicuously absent. This was a tremendous victory for the Palestinian cause and the global anti-colonial movement more generally. The international rostrum had been historically reserved for member states as a matter of privilege and right. UN rules of procedures mandated that non-state organizations, including liberation movements, address specialized committees. The passage of General Assembly Resolution 3210 (1974) extending the invitation to the PLO signaled a remarkable precedent and demonstrated the potential of the global south as a united voting bloc and thus as a source of international lawmaking.
In 1974, formerly colonized nations and nations still seeking liberation constituted a critical mass in the United Nations and threatened to unravel the hegemony of former and existing colonial powers. Between its establishment in 1945 and Arafat’s visit in 1974, the number of UN member states increased from fifty-one to one hundred and thirty-eight. The new states were mostly former colonies, and many had achieved their independence through wars of liberation. Meanwhile, several liberation movements continued armed struggles for the sake of independence. Newly independent states and national liberation movements consolidated their interests in the Non-Aligned Movement (NAM) and closely collaborated in an effort to usher a new world order within and beyond the United Nations; they considered the PLO’s militancy necessary and justified.
In the course of Arafat’s five years at the helm of the PLO, and since the Battle of Karama (1968), the Organization unified the most active Palestinian movements and parties. It served as a political umbrella for various armed factions that each oversaw and launched their own military activities. These groups included Fateh, the dominant party in the PLO led by Arafat, and the Popular Front for the Liberation of Palestine (PFLP), the leading opposition party led by Dr. George Habash. Between 1967 and 1970, Fateh and the PFLP took Jordan as their main base of operations. They subsequently became centered in Lebanon, where the PLO had established a firm base since Jordan expelled it in 1970, launching cross-border reconnaissance and armed operations. Israel breached the Lebanese border frequently in both offensive and reprisal attacks on PLO positions as well as Lebanese civilian targets. These included kidnappings, assassinations, and disproportionate use of force that intensified tensions between the Palestinian fighters and some sectors of Lebanon’s ruling elite. Armed resistance defined the Organization and resonated with similar national liberation struggles across the African continent and East Asia. This did not reflect an international consensus.
Several powerful states and colonial powers condemned all use of non-state force as criminal and terroristic. These included the United States, which was mired in war in Vietnam, along with Portugal, which fought to maintain its colonial domination of Mozambique and Angola. It also included Israel, which clung to Arab territories and denied the Palestinian right to self-determination, as well as South Africa, which obstinately maintained its Apartheid regime in south and southwest Africa. In 1974, these powers constituted a minority and were losing the battle to define what constituted legitimate violence. The failure to delegitimize the PLO as a terrorist organization and thwart its Chairman’s address to the UN was a significant blow to the United States and Israel, in particular. The General Assembly’s invitation to the PLO represented a victory for the NAM.
That same year, and in another NAM victory, the General Assembly unanimously elected Algeria’s Foreign Minister, Abdelaziz Bouteflika to be its President. During the course of its liberation from 132 years of French colonization achieved in 1962, Algeria had established several diplomatic and military milestones making it an unequivocal reference for all other liberation movements. Bouteflika paid homage to this anti-colonial sentiment when he introduced Arafat to the United Nations as the General Commander of the Palestinian Revolution. Arafat began his address by recognizing the significance of the PLO’s presence at the UN and its commitment to the NAM’s political aspiration to “end racism and imperialism” and achieve “freedom and self-determination.” He spoke on behalf of all nations seeking liberation from enduring colonial domination and the League of Nation’s still unfulfilled promise of independence.
Arafat’s appearance marked one of the most meaningful junctures for the Palestinian liberation movement as well. Though hailed as a victory, the PLO’s presence at the United Nations was full of ambiguity. On the one hand, it embodied the culmination of a struggle to achieve recognition as a people entitled to self-determination thereby reversing the juridical erasures first enacted by the Balfour Declaration (1917) and later by the Palestine Mandate (1922), Israel’s establishment (1948), and most recently, in Security Council Resolution 242 (1967). Arafat captured this strategic interest when he explained the value of recounting the story of Palestine beginning before the onset of Israeli occupation in 1967,
If we return now to the historical roots of our cause we do so because present at this very moment in our midst are those, who, while they occupy our homes as their cattle graze in our pastures, and as their hands pluck the fruit of our trees, claim at the same time that we are disembodied spirits, fictions without presence, without traditions or future. We speak of our roots also because until recently some people have regarded-and continued to regard-our problem as merely a problem of refugees. They have portrayed the Middle East Question as little more than a border dispute between the Arab states and the Zionist entity. They have imagined that our people claims rights not rightfully its own and fights neither with logic nor valid motive, with a simple wish only to disturb the peace and to terrorize wantonly.
The PLO’s efforts at the United Nations represented a strategic effort to inscribe the juridical status of the Palestinian people in international legal instruments and institutions. The legal strategy complimented a political one aimed at challenging the hegemonic control that former colonial powers maintained over the majority of the globe. As such, the PLO contested the order shaped by the United States and Israel, which together sustained the sovereign exception regulating the Question of Palestine. Its strategic deployment of the law during the 1970s marked an apex in the PLO’s legal advocacy and yielded a series of fundamental legal achievements. The value of affirming the status of Palestinians as a nation possessing an international legal personality, rather than a motley bunch of Arab refugees, could not be overstated, indeed this was tantamount to a proclamation of existence.
On the other hand, the PLO’s inscription of Palestinian nationhood suggested the acceptance of a state-centric global order and a bid to establish a Palestinian state. In fact, for Arafat, as well as official leaderships belonging to the PLO such as Fateh, the Democratic Front for the Liberation of Palestine, and al-Saiqa, the move to the United Nations enhanced the possibility of establishing a state and “joining the [international] club.” This embodied a significant risk for the Palestinian struggle. In 1968, the Palestinian National Council (PNC), PLO’s parliament in exile defined the political purpose of the movement as the “liberation of the whole land of Palestine and the establishment of the society which the Palestinians aim for on that land.”
In line with this position, the PNC rejected UN Security Council 242 as a framework because it necessitated accepting Israeli control over 78 percent of historic Palestine, and trying to regain the remaining 22 percent through negotiations. It also failed to articulate clear principles for resolving the forced exile of Palestinian refugees. The PNC affirmed that armed struggle was the only means by which to achieve liberation. As to the possibility of establishing a Palestinian state in the West Bank and the Gaza Strip, the PNC explicitly rejected “Imperialist and Zionist plans for establishing a false Palestinian entity on the territories occupied in the June war of 1967.”
By articulating its demands for peoplehood in the framework of international law and pursuing this goal at the United Nations, the PLO drew upon the same legal and institutional norms that legitimated Israel’s establishment, naturalized its existence, and protected its territorial and political sovereignty. A turn to international law inhered the possibility of establishing a truncated Palestinian state in the West Bank and the Gaza Strip and normalizing Israel’s Jewish-settler sovereignty. The regional and international balance of power following the October 1973 War made this possibility even more acute.
This reality catalyzed a schism within the PLO between a “pragmatic” camp that sought a state as an interim, or even final, step to full liberation and the “Rejection Front”, led by the PFLP, that insisted upon revolution to upend Zionist settler sovereignty. Arafat’s appearance before the United Nations did not resolve these issues. His momentous speech was a revolutionary call for liberation imbued with pragmatic ambitions for a statist solution. He articulated a demand for a single democratic state for all peoples on the land while pursuing a direct channel with the United States in order to be brought into the fold of the Middle East peace talks.
The United States, however, took a rejectionist line, obstinately opposing the PLO’s participation and foreclosing the diplomatic possibility of negotiating a state. This left the PLO’s pragmatists with nothing to lose by pursuing a revolutionary course of action. Moreover, the rejection camp within the PLO blocked any attempts to dilute the demands for revolutionary liberation. To bypass rejectionist opposition and to create leverage to enter into peace negotiations, the so-called pragmatists strategically amended the PLO’s mandate. Thereafter, the PLO embarked on a program of liberation diplomacy within the United Nations to cement its legal status as a national liberation movement.
The PLO’s legal work at the UN throughout the 1970s would successfully transform the Palestinian question from a humanitarian crisis, punctuated by the overwhelming presence of an exiled refugee population across the Arab world, into a political crisis marked by the failure of current and former colonial powers to deliver sovereignty and independence to a colonized people. The Organization’s legal work left to question whether a Palestinian state would be established in the place of Israel or alongside it in the occupied territory. At the time of Arafat’s momentous UN address, the PLO embodied competing agendas: a revolutionary movement for national liberation of all Palestine and the establishment of a state in the West Bank and the Gaza Strip as an interim, or final, step towards liberation. This tension would not be resolved until nearly a decade and a half later. The October 1973 War provided the impetus for these series of shifts.