Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (Cambridge University Press, 2023).
Jadaliyya (J): What made you write this book?
Ardi Imseis (AI): For all the scholarship written on the United Nations, and all of the separate scholarship written on Palestine and international law, it is surprising to find that some three quarters of a century on, there has yet to be written a sustained and critical book written on the UN’s management of the question of Palestine. I have tried to present that with this book. The starting point of the book is the widely held representation and belief that the UN is the standard bearer of the rules-based international legal order. This is something that has regularly been proclaimed by a succession of Secretaries-General of the Organization, to say nothing of being propagated throughout the UN Charter system. Based upon a close examination of the UN record, however, as well as my own first-hand twelve-year career as a UN official in occupied Palestine, my book interrogates this received wisdom by demonstrating that there exists a vacillating gulf between what international law requires and what the UN has actually done on the question of Palestine when it has mattered most. The forms this gulf has taken have been varied. They include both actions and omissions, they cover a variety of sub-sets of international law and practice, and they span an unusually long period of time, from 1947 to the present. Despite the breadth and expanse of this sordid story, it is marked by a singular experience of Palestine and its people: to have been consigned to a seemingly permanent state of deprivation and disenfranchisement in the international legal order.
J: What particular topics, issues, and literatures does the book address?
AI: The book offers a legal history of the UN’s engagement with Palestine, as well as a critical international legal account of that engagement through the lens of the Third World approaches to international law (TWAIL) school of thought. It argues that Palestine and its people embody a condition that I call “international legal subalternity,” the essence of which implicates the UN as having systematically held itself and the rules-based international legal order out to the global underclass as the only means through which justice can be established, but paradoxically withholds the realization of such justice through its own actions. For Palestine, this has manifested itself in a series of anomalous and iniquitous legal “moments” that continue to mark its plight on the international order. This includes the 1947 UN plan of partition (chapter 3), the distinctive institutional and normative regime established by the UN in 1949 to protect and assist Palestinian refugees (chapter 4), the failure by the UN to definitively affirm the illegality of Israel’s continued presence in the occupied Palestinian territory since 1967 (chapter 5), and the failure of the Organization to grant the State of Palestine full membership in 2011 (chapter 6). What these moments show is that despite the paradigmatic shifts in international affairs and the UN since 1947—from the age of late empire, through decolonization, and so on—Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights. This work is an attempt to account for why and how this has happened, and what implications Palestine’s example has for the rest of the global underclass.
J: How does this book connect to and/or depart from your previous work?
AI: This book is intimately connected to my previous work on Palestine and international law. The major difference, however, is that my former scholarship tends largely to be positivist and black letter in nature, where law is explained, applied to facts, and conclusions are drawn. The present book builds on this work, but attempts to critically draw out broader common themes that are produced by law’s engagement with Palestine at the UN. Put another way, positivist legal scholarship takes for granted the concept that law operates on a strictly normative basis, that it is fundamentally about establishing and maintaining a rule of law the end of which is uniform application of legal norms which give rise to just outcomes. The more critical approach I take in this book demonstrates that in fact the UN has operated more in accordance with what I call rule by law, through which law has been used, abused, and/or selectively applied with the result of showing itself not to be a tool of justice, but rather one of the maintenance of hegemonic global order.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
AI: Given the breadth of what the book covers—Palestine, history, law, politics, UN affairs, and international relations—I should think it would be of interest to almost any scholar, student, or practitioner who engages with those subjects. And because Palestine is used as a case study to illustrate a general condition that afflicts the global underclasses, including indigenous peoples, minorities, refugees, women, and others, I hope the book finds resonance with those engaged in post-colonial and critical studies of all stripes.
J: What other projects are you working on now?
AI: I have got a few things on the go, including a paper that critically examines the principle of self-determination in the settler colonies and a broader research project on the United Nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations Declaration of 1970.
Excerpt from the book (from the Preface)
Writing in 1987, Brian Urquhart, former UN Undersecretary-General for Special Political Affairs, lamented that ‘[t]he Palestine problem has haunted the development of the United Nations ever since 1948’, and that the UN’s involvement in the question of Palestine ‘has twisted the organization’s image and fragmented its reputation and prestige as no other issue has’.
This assessment was given by Urquhart in his account of the 1948 assassination of Count Folke Bernadotte, then UN Mediator for Palestine. Bernadotte was murdered while on mission in Jerusalem providing good offices in the midst of the first Arab–Israeli war. He was killed by Zionist irregulars only one day after issuing his Progress Report in which he affirmed the right of hundreds of thousands of Palestinian Arab refugees to return to their homes and property from which they had been expelled in what became the State of Israel. Bernadotte’s assassination, and how it was subsequently treated at the UN, aroused no small measure of consternation in Urquhart. Although there ‘was never much doubt as to who had killed him’, he bemoaned, the ‘conspiracy of silence’ at the UN following the assassination left him cold, especially because ‘in all the subsequent indignation about terrorism he [i.e. Bernadotte] was rarely mentioned’.
Although Bernadotte’s mission was not the beginning of the UN’s engagement with the question of Palestine – that task would belong to the 1947 General Assembly – both his report and resultant killing set in motion a series of events that would indelibly mark both Palestine and the UN in legal terms, as if newborn siblings conjoined at the hip.
For Palestine, Bernadotte’s recommendations resulted in General Assembly resolution 194(III) of 11 December 1948 which, inter alia, affirmed the right of the refugees to return and to compensation, and created the United Nations Conciliation Commission for Palestine (UNCCP) ostensibly to help realize that goal. As covered in Chapter 4, the UNCCP would ultimately fail in this task, leaving generations of Palestinian refugees in a lurch, dependent on other UN bodies for humanitarian aid and assistance while remaining intent, to this very day, on the promise of the UN’s affirmation of their international legal rights.
For the UN, Bernadotte’s assassination resulted in an advisory opinion of the ICJ that would immediately become required reading for international lawyers for generations to come. The 1949 Reparation for Injuries Suffered in the Service of the United Nations advisory opinion established the UN’s capacity to bring international claims against states for reparation for damages caused to both the Organization and to persons in its service. As an opinion of the principle judicial organ of the UN, this gave the Reparations case a unique constitutional character, affirming the Organization’s international legal personality which remains a fixed feature in international life.
One curious element of the Reparations case, however, is that nowhere in the opinion is any account given by the Court of the facts that actually gave rise to it. Bernadotte, his assailants, Palestine – nothing appears to suggest that these people or that place ever figured into the case. The ICJ thus rendered its opinion as though emerging from a complete vacuum. Technically, it is of course possible (oftentimes even preferable) to give advisory opinions in the abstract, as they are sometimes sought to answer broad legal questions. Nevertheless, there is an allegorical point in Palestine’s absence from the opinion.
On the one hand, but for the question of Palestine which, as we shall see, the UN had a central role in creating, the Court’s affirmation of the UN’s international legal personality would never have arisen at that pivotal time. In a sense, then, the UN owes its international legal standing to Palestine. On the other hand, by keeping Palestine out of the story, Reparations can be read as reflecting the Organization’s desire to hide its own demons when it comes to the role it has played in failing to uphold and apply international law in Palestine’s case. With Palestine hidden from view, the Organization has thus been able to carry on as the self-proclaimed guarantor of the international rule of law without regard to the plight of Palestine or its people, who have yet to benefit fully from law’s promise.
Some seventy-five years on, Palestine looms large in the life of the UN. This book is a modest attempt to chart that story, with a view to better understand the Organization and the unique and important role it can play in ensuring that justice is done in accordance with a truly universal international law, responsive to the needs of those many in our world would rather wish away.