Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (New Texts Out Now)

Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (New Texts Out Now)

Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (New Texts Out Now)

By : Ardi Imseis

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.

... Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights.

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.

  • ALSO BY THIS AUTHOR

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      On 5 February 2021, the Pre-Trial Chamber of the International Criminal Court in The Hague, The Netherlands, ruled that “the Court's territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”, and further “determined that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.” Mouin Rabbani, editor of Quick Thoughts and Jadaliyya Co-Editor, interviewed Ardi Imseis, Professor of Law at Queen’s University and a former United Nations legal counsel, to get a better understanding of the context and implications of this decision.

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New Texts Out Now: Mandy Turner and Cherine Hussein, guest eds. "Israel-Palestine after Oslo: Mapping Transformations in a Time of Deepening Crisis." Special Issue of Conflict, Security & Development

Conflict, Security and Development, Volume 15, No. 5 (December 2015) Special issue: "Israel-Palestine after Oslo: Mapping Transformations in a Time of Deepening Crisis," Guest Editors: Mandy Turner and Cherine Hussein.

Jadaliyya (J): What made you compile this volume?

Mandy Turner (MT): Both the peace process and the two-state solution are dead. Despite more than twenty years of negotiations, Israel’s occupation, colonization and repression continue–and the political and geographical fragmentation of the Palestinian people is proceeding apace.

This is not news, nor is it surprising to any keen observer of the situation. But what is surprising–and thus requires explanation – is the resilience of the Oslo framework and paradigm: both objectively and subjectively. It operates objectively as a straitjacket by trapping Palestinians in economic and security arrangements that are designed to ensure stabilization and will not to lead to sovereignty or a just and sustainable solution. And it operates subjectively as a straitjacket by shutting out discussion of alternative ways of understanding the situation and ways out of the impasse. The persistence of this framework that is focused on conflict management and stabilization, is good for Israel but bad for Palestinians.

The Oslo peace paradigm–of a track-one, elite-level, negotiated two-state solution–is therefore in crisis. And yet it is entirely possible that the current situation could continue for a while longer–particularly given the endorsement and support it enjoys from the major Western donors and the “international community,” as well as the fact that there has been no attempt to develop an alternative. The immediate short-term future is therefore bleak.

Guided by these observations, this special issue sought to undertake two tasks. The first task was to analyze the perceptions underpinning the Oslo framework and paradigm as well as some of the transformations instituted by its implementation: why is it so resilient, what has it created? The second task, which follows on from the first, was then to ask: how can we reframe our understanding of what is happening, what are some potential alternatives, and who is arguing and mobilizing for them?

These questions and themes grew out of a number of conversations with early-career scholars – some based at the Kenyon Institute in East Jerusalem, and some based in the occupied Palestinian territory and elsewhere. These conversations led to two interlinked panels at the International Studies Association annual convention in Toronto, Canada, in March 2014. To have two panels accepted on “conflict transformation and resistance in Palestine” at such a conventional international relations conference with (at the time unknown) early-career scholars is no mean feat. The large and engaged audience we received at these panels – with some very established names coming along (one of whom contributed to this special issue) – convinced us that this new stream of scholars and scholarship should have an outlet.  

J: What particular topics, issues, and literatures do the articles address?

MT: The first half of the special issue analyzes how certain problematic assumptions shaped the Oslo framework, and how the Oslo framework in turn shaped the political, economic and territorial landscape.

Virginia Tilley’s article focuses on the paradigm of conflict resolution upon which the Oslo Accords were based, and calls for a re-evaluation of what she argues are the two interlinked central principles underpinning its worldview: internationally accepted notions of Israeli sovereignty; and the internationally accepted idea that the “conflict” is essentially one between two peoples–the “Palestinian people” and the “Jewish people”. Through her critical interrogation of these two “common sense” principles, Tilley proposes that the “conflict” be reinterpreted as an example of settler colonialism, and, as a result of this, recommends an alternative conflict resolution model based on a paradigm shift away from an ethno-nationalist division of the polity towards a civic model of the nation.

Tariq Dana unpacks another central plank of the Oslo paradigm–that of promoting economic relations between Israel and the OPT. He analyses this through the prism of “economic peace” (particularly the recent revival of theories of “capitalist peace”), whose underlying assumptions are predicated on the perceived superiority of economic approaches over political approaches to resolving conflict. Dana argues that there is a symbiosis between Israeli strategies of “economic peace” and recent Palestinian “statebuilding strategies” (referred to as Fayyadism), and that both operate as a form of pacification and control because economic cooperation leaves the colonial relationship unchallenged.

The political landscape in the OPT has been transformed by the Oslo paradigm, particularly by the creation of the Palestinian Authority (PA). Alaa Tartir therefore analyses the basis, agenda and trajectory of the PA, particularly its post-2007 state building strategy. By focusing on the issue of local legitimacy and accountability, and based on fieldwork in two sites in the occupied West Bank (Balata and Jenin refugee camps), Tartir concludes that the main impact of the creation of the PA on ordinary people’s lives has been the strengthening of authoritarian control and the hijacking of any meaningful visions of Palestinian liberation.

The origin of the administrative division between the West Bank and Gaza Strip is the focus of Tareq Baconi’s article. He charts how Hamas’s initial opposition to the Oslo Accords and the PA was transformed over time, leading to its participation (and success) in the 2006 legislative elections. Baconi argues that it was the perceived demise of the peace process following the collapse of the Camp David discussions that facilitated this change. But this set Hamas on a collision course with Israel and the international community, which ultimately led to the conflict between Hamas and Fateh, and the administrative division, which continues to exist.

The special issue thereafter focuses, in the second section, on alternatives and resistance to Oslo’s transformations.

Cherine Hussein’s article charts the re-emergence of the single-state idea in opposition to the processes of separation unleashed ideologically and practically that were codified in the Oslo Accords. Analysing it as both a movement of resistance and as a political alternative to Oslo, while recognizing that it is currently largely a movement of intellectuals (particularly of diaspora Palestinians and Israelis), Hussein takes seriously its claim to be a more just and liberating alternative to the two-state solution.

My article highlights the work of a small but dedicated group of anti-Zionist Jewish-Israeli activists involved in two groups: Zochrot and Boycott from Within. Both groups emerged in the post-Second Intifada period, which was marked by deep disillusionment with the Oslo paradigm. This article unpacks the alternative – albeit marginalized – analysis, solution and route to peace proposed by these groups through the application of three concepts: hegemony, counter-hegemony and praxis. The solution, argue the activists, lies in Israel-Palestine going through a process of de-Zionization and decolonization, and the process of achieving this lies in actions in solidarity with Palestinians.

This type of solidarity action is the focus of the final article by Suzanne Morrison, who analyses the “We Divest” campaign, which is the largest divestment campaign in the US and forms part of the wider Palestinian Boycott, Divestment and Sanctions movement. Through attention to their activities and language, Morrison shows how “We Divest”, with its networked, decentralized, grassroots and horizontal structure, represents a new way of challenging Israel’s occupation and the suppression of Palestinian rights.

The two parts of the special issue are symbiotic: the critique and alternative perspectives analyzed in part two are responses to the issues and problems identified in part one.

J: How does this volume connect to and/or depart from your previous work?

MT: My work focuses on the political economy of donor intervention (which falls under the rubric of “peacebuilding”) in the OPT, particularly a critique of the Oslo peace paradigm and framework. This is a product of my broader conceptual and historical interest in the sociology of intervention as a method of capitalist expansion and imperial control (as explored in “The Politics of International Intervention: the Tyranny of Peace”, co-edited with Florian Kuhn, Routledge, 2016), and how post-conflict peacebuilding and development agendas are part of this (as explored in “Whose Peace: Critical Perspectives on the Political Economy of Peacebuilding”, co-edited with Michael Pugh and Neil Cooper (PalgraveMacmillan, 2008).  

My first book on Palestine (co-edited with Omar Shweiki), Decolonizing Palestinian Political Economy: De-development and Beyond (PalgraveMacmillan, 2014), was a collection of essays by experts in their field, of the political-economic experience of different sections of the Palestinian community. The book, however, aimed to reunite these individual experiences into one historical political-economy narrative of a people experiencing a common theme of dispossession, disenfranchisement and disarticulation. It was guided by the desire to critically assess the utility of the concept of de-development to different sectors and issues–and had a foreword by Sara Roy, the scholar who coined the term, and who was involved in the workshop from which the book emerged.

This co-edited special issue (with Cherine Hussein, who, at the time of the issue construction, was the deputy director of the Kenyon Institute) was therefore the next logical step in my research on Palestine, although my article on Jewish-Israeli anti-Zionists did constitute a slight departure from my usual focus.

J: Who do you hope will read this volume, and what sort of impact would you like it to have?

MT: I would imagine the main audience will be those whose research and political interests lie in Palestine Studies. It is difficult, given the structure of academic publishing – which has become ever more corporate and money grabbing – for research outputs such as this to be accessed by the general public. Only those with access to academic libraries are sure to be able to read it – and this is a travesty, in my opinion. To counteract this commodification of knowledge, we should all provide free access to our outputs through online open source websites such as academia.edu, etc. If academic research is going to have an impact beyond merely providing more material for teaching and background reading for yet more research (which is inaccessible to the general public) then this is essential. Websites such as Jadaliyya are therefore incredibly important.

Having said all that, I am under no illusions about the potential for ANY research on Israel-Palestine to contribute to changing the dynamics of the situation. However, as a collection of excellent analyses conducted by mostly early-career scholars in the field of Palestine studies, I am hopeful that their interesting and new perspectives will be read and digested. 

J: What other projects are you working on now?

MT: I am currently working on an edited volume provisionally entitled From the River to the Sea: Disintegration, Reintegration and Domination in Israel and Palestine. This book is the culmination of a two-year research project funded by the British Academy, which analyzed the impacts of the past twenty years of the Oslo peace framework and paradigm as processes of disintegration, reintegration and domination – and how they have created a new socio-economic and political landscape, which requires new agendas and frameworks. I am also working on a new research project with Tariq Dana at Birzeit University on capital and class in the occupied West Bank.

Excerpt from the Editor’s Note 

[Note: This issue was published in Dec. 2015]

Initially perceived to have inaugurated a new era of hope in the search for peace and justice in Palestine-Israel, the Oslo peace paradigm of a track one, elite-level, negotiated two-state solution is in crisis today, if not completely at an end.

While the major Western donors and the ‘international community’ continue to publicly endorse the Oslo peace paradigm, Israeli and Palestinian political elites have both stepped away from it. The Israeli government has adopted what appears to be an outright rejection of the internationally-accepted end-goal of negotiations, i.e. the emergence of a Palestinian state based on the 1967 borders with East Jerusalem as its capital. In March 2015, in the final days of his re-election campaign, Israeli Prime Minister, Benjamin Netanyahu, visited the Jewish settlement of Har Homa in Palestinian East Jerusalem, which is regarded as illegal under international law. Reminding its inhabitants that it was him and his Likud government that had established the settlement in 1997 as part of the Israeli state’s vision of a unified indivisible Jerusalem, he promised to expand the construction of settlements in East Jerusalem if re-elected. And in an interview with Israeli news site, NRG, Netanyahu vowed that the prospects of a Palestinian state were non-existent as long as he remained in office. Holding on to the occupied Palestinian territory (oPt), he argued, was necessary to ensure Israel’s security in the context of regional instability and Islamic extremism. It is widely acknowledged that Netanyahu’s emphasis on Israel’s security—against both external and internal enemies—gave him a surprise win in an election he was widely expected to lose.

Despite attempts to backtrack under recognition that the US and European states are critical of this turn in official Israeli state policy, Netanyahu’s promise to bury the two-state solution in favour of a policy of further annexation has become the Israeli government’s official intent, and has been enthusiastically endorsed by leading ministers and key advisers.

[…]

The Palestinian Authority (PA) based in the West Bank also appears to have rejected a key principle of the Oslo peace paradigm—that of bilateral negotiations under the supervision of the US. Despite a herculean effort by US Secretary of State, John Kerry, to bring the two parties to the negotiating table, in response to the lack of movement towards final status issues and continued settlement expansion (amongst other issues), the Palestinian political elite have withdrawn from negotiations and resumed attempts to ‘internationalise the struggle’ by seeking membership of international organisations such as the United Nations (UN), and signing international treaties such as the Rome Statute, the founding treaty of the International Criminal Court. This change of direction is part of a rethink in the PA and PLO’s strategy rooted in wider discussions and debates. The publication of a document by the Palestine Strategy Study Group (PSSG) in August 2008, the production of which involved many members of the Palestinian political elite (and whose recommendations were studiously discussed at the highest levels of the PA and PLO), showed widespread discontent with the bilateral negotiations framework and suggested ways in which Palestinians could ‘regain the initiative’.

[…]

And yet despite these changes in official Palestinian and Israeli political strategies that signal a deepening of the crisis, donors and the ‘international community’ are reluctant to accept the failure of the Oslo peace paradigm. This political myopia has meant the persistence of a framework that is increasingly divorced from the possibility of a just and sustainable peace. It is also acting as an ideological straitjacket by shutting out alternative interpretations. This special issue seeks a way out of this political and intellectual dead end. In pursuit of this, our various contributions undertake what we regard to be two key tasks: first, to critically analyse the perceptions underpinning the Oslo paradigm and the transformations instituted by its implementation; and second, to assess some alternative ways of understanding the situation rooted in new strategies of resistance that have emerged in the context of these transformations in the post-Oslo landscape.

[…]

Taken as a whole, the articles in this special issue aim to ignite conversations on the conflict that are not based within abstracted debates that centre upon the peace process itself—but that begin from within the realities and geographies of both the continually transforming land of Palestine-Israel and the voices, struggles, worldviews and imaginings of the future of the people who presently inhabit it. For it is by highlighting these transformations, and from within these points of beginning, that we believe more hopeful pathways for alternative ways forward can be collectively imagined, articulated, debated and built.