As I was reading Lynn Welchman’s rich and unsparing new book, Al-Haq: A Global History of the First Palestinian Human Rights Organization (University of California Press, 2021), I was struck by a line on page 149 about one of the organization’s founders: “Back in the early eighties when [Raja] Shehadeh still believed in the power of law…”
This line, embedded in the middle of the book, encapsulates one of the core paradoxes of this organization specifically, legal work on behalf of Palestinians’ rights generally, and human rights activism globally. If the criteria for judging the value of al-Haq’s work was whether it stopped or even reduced Israeli human rights violations and deterred Israeli war crimes, then empirical reality would demand a finding that “the law” did not “work”; it did not set Palestinians free, did not protect them, did not punish those who harmed, killed, and oppressed them. Lori Allen has written a whole book about disappointments and dashed hopes, aptly titled The Rise and Fall of Human Rights: Cynicism and Politics in Occupied Palestine.
Such skepticism about the efficacy of law and human rights activism is not unique to Palestine. It can be found almost everywhere lawyers try to enforce the law to protect the rights of discriminated and disenfranchised groups against recalcitrant and illiberal states. Stuart Scheingold, in his seminal book The Politics of Rights, characterizes the investment of time and hope in litigation and other law-based strategies as “the myth of rights.” He writes: “The myth of rights is . . . premised on a direct linking of litigation, rights and remedies with social change” which he characterizes as “naïve in extremis.” Scheingold’s point is that law can vindicate rights only when and if there is political support for the goals of legal work.
I will explain why I regard Scheingold’s contention that politics should come first as naïve in extremis and why the global history of al-Haq that Welchman’s book documents supports this critique. But first, consider the paradoxical significance of the phrase “still believed.” Shehadeh and the other members of the Triumvirate that created the organization, Jonathan Kuttab and Charles Shammas, certainly believed in the power of law when they started as evidenced by the fact they named it Law in the Service of Man and they envisioned their work as doing law, not politics.
Consider a passage on page 55 in which Welchman references a 1980 entry in Shehadeh’s journal; the topic is the decision by several Palestinian lawyers to mount a legal challenge to the deportation of two West Bank mayors before the Israeli High Court of Justice:
Shehadeh’s father Aziz was preparing one affidavit to the High Court on the Fourth Geneva Convention’s prohibition of deportation and another on the illegality of deportation under the Jordanian constitution and the status of the British-issued Defence (Emergency) Regulations (1945) under which the orders had been made. Shehadeh reported “wild hope amongst many” and wrote that “even the political die-hards who say we should never appeal to, or recognize, any Israeli institution are excited.”...At the end of his journal, Shehadeh records hopes crushed when the High Court declined to recommend the repeal of the deportation orders.
“Hopes crushed” by the loss of a court case is a quintessential manifestation of thinking like a lawyer. But there is an analytical alternative that involves not thinking like a lawyer. Indeed, one of the great merits of Welchman’s book is that she contextualizes the work of lawyers and the legalistic contributions of al-Haq without judging them, as a lawyer would, in terms of “wins” and “losses.” In terms of al-Haq’s main goals—defending the rule of law, championing justice and rights for Palestinians, advocating legal accountability for law violators, and pursuing international protection against gross crimes, the record of losses and defeats was almost unbroken.
One alternative to thinking like a lawyer is to examine al-Haq’s history and legacy through a global lens, as Welchman does. Al-Haq changed the world or, to put it another way, we live in a world that al-Haq made. Al-Haq along with the Gaza Center for Rights and Law (later renamed the Palestine Center for Human Rights) pioneered the use of international humanitarian law as a cudgel to expose, criticize, condemn, and—most importantly—to explain to the world the illegalities and illegitimate the nature of Israeli rule in the occupied territories. That work chipped away at Israel’s false narrative that the state was ruling Palestinians legally and exercising legitimate prerogatives to confiscate Palestinian land, to settle Jewish citizens in the occupied territories, to rely on coercive interrogation techniques as a security imperative, and so on. Al-Haq set a course that many other human rights lawyers and activists have followed and adapted to their own contexts: judging a powerful state against the standards of international law and stripping the state of a monopoly over the interpretation of law. Today, many human rights and justice activists the world over can speak authoritatively about violations of international humanitarian law and the consequences that should result because of the example set by al-Haq.
At the turn of the twenty-first century, al-Haq and PCHR invested their monitoring and analyzing skillsets in the business of accountability through international criminal law enforcement. If we were to think about the results of these efforts like a lawyer, we could bemoan the fact that, to date, no Israeli war criminals have been indicted in any court system. But contrary to the Scheingoldian admonition that law can’t work without strong political support, this accountability work itself—despite the lack of wins—is altering global narratives about Israel and Palestine, and in that regard, legal activism is affecting the political terrain, albeit in ways whose outcomes are hard to predict. The US-based Center for Constitutional Rights, which has undertaken a number of projects and cases to defend Palestinian rights, has a slogan for this: “success without victory.”
Welchman’s Epilogue is a catalogue of success without victory. For example, she describes how the unhappy fallout of the UN Goldstone Commission report became the impetus for al-Haq and other Palestinian human rights organizations to activate more direct Palestinian access to the International Criminal Court. By the end of 2017, al-Haq, PCHR, Al Mezan, and Al-Dameer had submitted five substantive communications to the ICC prosecutor in The Hague supporting allegations of particular war crimes and crimes against humanity attributable to high-level Israeli military and civilian officials. One of these which focused on the West Bank including East Jerusalem presented evidence of the crime of apartheid against Palestinians. As Welchman writes: “It is in giving the lie to official Israeli self-images of justice and the rule of law as the basis of its governance (as well as in holding the Palestinian authorities to account) that current Palestinian human rights work, albeit in much more complex circumstances, most closely evokes the impetus that established al-Haq in the late 1970s.”
Al-Haq’s work deserves some of the credit for the fact that “Israeli apartheid” now slips easily off the tongue and has become a focus for new generations of activists in support of Palestinian rights. Official Israeli hysteria over this framing is an example of success without victory. To conclude my argument about the world al-Haq made, I draw your attention to a quote from 2016 by al-Haq’s current director, Shawan Jabarin: “Palestine, in its legal and jurisprudential aspects, is a test for the whole system of international law.”
