North Africa, West Asia

The sovereign exception: law and justice in Palestine and beyond

Noura Erakat’s new book, Justice for Some, provides a compelling account of the relationship between international law and the question of Palestine.

Rayan Fakhoury
27 November 2019
Rasmi Abu Malhous and seven members of his family were killed in an overnight Israeli missile strike that targeted their house on 14 Nov 2019.
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Picture by Yousef Masoud/SOPA Images/Sipa USA/PA Images. All rights reserved.

Few, if any, issues in global politics are as infused with the language of legality as the question of Palestine. The purported demands of international law and ‘the international community’ are alternately invoked at every opportunity, with the unspoken implication that law provides an authoritative mechanism for ‘resolving’ the conflict in Palestine. And yet in no area does law appear so profoundly irrelevant to developments on the ground, where history unravels itself through brute force, political coercion, and ideological hegemony above all else.

This contradiction is central to Noura Erakat’s new book, Justice for Some, which provides a compelling account of the relationship between international law and the question of Palestine, charting how the law has historically operated as a site of both subjugation and opportunity for the Palestinian liberation movement.

At the heart of Erakat’s account is the proposition that law, and international law in particular, suffers from a kind of inherent indeterminacy: its rules, norms, and customs are rarely if ever determinative of a unique outcome. Instead, they acquire meaning only through interpretation, adjudication, and application to a particular case. This in turn means that the law can be “framed, deployed, interpreted, or suspended to produce a particular effect” by actors of all kinds. Far from being an independent, unassailable normative system which operates to provide clear legal ‘solutions’ to the question of Palestine, international law emerges instead as an indeterminate terrain of political struggle: a contradictory mosaic of competing attempts to define the terms of the conflict, to challenge interpretations of its nature, and to propose (or impose) different avenues for its resolution.

A related theme which recurs in Erakat’s analysis is that of the sovereign exception. Carl Schmitt famously declared that “sovereign is he who decides on the exception”. Erakat develops this idea and suggests that the quintessential exercise of sovereignty lies in deciding that the existence of an exceptional political situation requires the suspension of normal legal rules or categories and the imposition of a new sui generis legal framework to deal with the state of exception. Put another way, the declaration of an exceptional state of affairs acts as a source of law-making authority for the sovereign. This, in turn, is a critical source of indeterminacy in the legal system. As she demonstrates, the history of Palestine since the early 20th century can be told as a series of invoked sovereign exceptions centred around important historical junctures.

Thus, for example, in 1922 the British insisted on a specialised legal regime in Mandate Palestine which permitted them to derogate from the emerging norm of national self-determination. This was justified by appeal to the distinctive political situation in Palestine, the Balfour Declaration of 1917, and the perceived international imperative of establishing a Jewish national home in Palestine. The resulting ‘special regime’ allowed the British to suppress Palestinian claims to self-governance by erasing, as a matter of law, the status of Palestinians as a political community with national rights of their own. This erasure of peoplehood has long been a fundamental tenet of imperial attitudes towards the Palestinians: from the early Zionist mantra of “a land without a people for a people without a land” through to Golda Meir’s declaration that “there is no Palestinian people” and contemporary statements to the effect that ‘the Arabs’, being an essentially nondescript and monolithic mass of individuals, have enough states of their own.

Later, the British would introduce a series of Emergency Regulations imposing martial law on Mandate Palestine and allowing the use of extraordinary force to suppress the Palestinian Great Revolt of 1936. Shortly after the Nakba of 1948, Israel’s newly established Provisional National Council declared a state of emergency and adopted these same Emergency Regulations as a mechanism for institutionalising a racialised system of governance which allowed for the forced confiscation of Palestinian lands and properties for the purposes of exclusively Jewish settlement. This regime of martial law remained in place for eighteen years, by which point the racialised system of governance that it had instituted had been incorporated into Israel’s ordinary civil law, most notably in the Law of Return (1950) and the Nationality Law (1952), where it continues to this day.

The occupation of the West Bank and Gaza after the 1967 war in turn provided a new opportunity for the declaration of a sovereign exception. At this point, Israel sought to acquire for itself the land and resources which it had occupied, but wanted nothing to do with the territory’s Palestinian inhabitants, whose ethnicity rendered them a security threat by default. Relying again on the familiar erasure of Palestinian peoplehood, Israel argued that in the absence of a previous sovereign authority in the West Bank and Gaza, the political requirements of occupation law and the Fourth Geneva Convention could have no application. This in turn meant that Israel would be exceptionally entitled to transfer its citizens into the occupied territories and embark upon a process of piecemeal colonisation, while applying the humanitarian provisions of the Convention as a matter of discretion. As Erakat puts it, the Palestinians “finding themselves under this specialised legal regime … would be suspended in limbo as non-citizens of Israel and as non-sovereigns under occupation, completely subject to Israel’s discretionary whims”. Though the Israeli position has been resoundingly dismissed as a violation of international law, its arguments continue to confer political cover for a brutal occupation which shows no signs of relenting.

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The Oslo Peace Process, launched in 1993 and famously described by Edward Said as an “instrument of surrender”, provides another vivid illustration of the mobilisation of law in an attempt to reformulate the terms of political struggle. Here, a specialised legal framework “suspended all applicable international law and norms in order to achieve an unfettered political resolution”. The result was to legally re-articulate the question of Palestine as a political conflict between two national parties of broadly equal power requiring mutual compromise, rather than as a struggle against the domination of a colonial power akin to the national liberation movements that exploded onto the international stage in the 1960s.

Subsequently, following the outbreak of the Second Intifada in 2000, Israel deployed a strategy analogous to its justification of creeping colonisation in order to legitimise its programme of targeted killing and the mobilisation of extreme lethal force in the occupied territories. It argued that it faced an exceptional situation which was properly characterised as “armed conflict short of war”, falling within neither of the recognised categories of international armed conflict or non-international armed conflict.

The motivation for making this argument was clear: if Israel was engaged in a non-international armed conflict, that meant that Palestinian civilians in the occupied territories fell in substance within Israel’s jurisdiction, with the implication that Israel was overseeing an overtly racialised apartheid regime. It would moreover be obligated to deal with any internal conflict through its ordinary law enforcement authorities, and would not be entitled to engage in extrajudicial military strikes and assassinations. If, on the other hand, Israel was engaged in an international armed conflict against forces claiming to be waging a war of national liberation as recognised by international law, then it would be forced to accept that those forces had the right to use force against Israeli military targets and would be accorded an embryonic sovereignty of their own.

Seeing these implications, Israel insisted instead on a sui generis framework conferring upon itself all the legal privileges of engaging in an international armed conflict, including the deployment of overwhelming military force, while at the same time denying the corresponding privileges accorded by law to its opposing forces. That is, Israel would be entitled to mobilise militarily against Palestinians in the occupied territories, but Palestinians would be accorded only the rights of a population living under ordinary civilian authority.

It is this legal innovation that has had perhaps the most striking international reverberations. After 9/11, the Bush Administration advanced analogous reasoning in defence of its proclaimed War on Terror, arguing that this war did not qualify as either an international or a non-international armed conflict under international law, with the result that its conduct was entirely beyond the reach of the Geneva Conventions. In other words, the War on Terror would fall within a legal black hole which liberated the United States of any obligations relating to the conduct of that war: its enemies were neither combatants nor civilians with corresponding rights but ‘unlawful combatants’ who could be targeted at any time and detained indefinitely without charge or trial.

This particular thesis was ultimately rejected by the US Supreme Court in Hamdan v Rumsfeld in 2006, but similar arguments continue to be advanced in defence of American military operations abroad, notably in relation to the Obama Administration’s extensive programme of extrajudicial assassination through drone warfare. More recently, Turkey has defended its military onslaught in Northern Syria, seemingly undertaken with the calculated aim of effecting a massive population transfer, on the grounds of pre-emptive self-defence against an elusive and yet all-consuming ‘imminent terrorist threat’.

The post-9/11 world more generally has seen a dramatic explosion in the language of ‘counter-terrorism’, which has made unlikely allies of such states as the US, UK, Russia, Syria, Israel, Egypt, Saudi Arabia, and Turkey. These otherwise disparate actors have coalesced around a shared interest in invoking a rhetoric of counter-terrorism as a mechanism for suppressing both internal and external dissent and unrest. The effect of such invocations is almost inevitably to justify the ‘exceptional’ suspension of ordinary legal processes and protections in order to bring the full force of the state and its coercive apparatus down on those it deems suspect populations.

This is just one dimension of an emergent international phenomenon of increasingly assertive and securitised states, which has been accompanied by a corresponding erosion of civil liberties the world over. Though claims like Turkey’s have been roundly rejected by international lawyers and jurists, they nevertheless form part of a growing state practice which has gradually introduced a degree of ambiguity in the law governing the use of armed force. In the absence of decisive and unambiguous international opposition, there is a chilling risk of descent into a global order permissive of endless warfare waged against ill-defined and often imaginary enemies.

The impression of international law which emerges from Erakat’s sweeping historical account is far from rose-tinted. She recognises that the law fundamentally disadvantages Palestinians and the Global South in important ways. Structurally, the international legal order is characterised by unequal capabilities of enforcement which systematically privilege more powerful states. And substantively, the norms of international law continue to be essentially derivative of a colonial order. But Erakat insists, rightly, that law remains an inescapable site of political contestation. And the very indeterminacy which has allowed it to be deployed as an instrument of domination makes it also a terrain of opportunity.

The successes of the Global South and the Non-Aligned Movement in bringing about ruptures to the international legal system during the 1970s, such as the ratification of the First Additional Protocol to the Geneva Conventions recognising “armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes” as international armed conflicts, stand as testament to this fact. So too does the success of the international mobilisation against apartheid in South Africa, in the face of trenchant opposition from imperial states including the United States, the United Kingdom, and Israel.

The ‘juridification’ of the question of Palestine, however, comes with risks which ought not to be overlooked. If a preponderance of legal rhetoric takes the form of asserting individual rights at the expense of collective political rights, it may serve ultimately to empty the conflict of its political content and to reframe it simply as a one-dimensional problem which demands little more than humanitarian relief for its resolution. This ‘humanitarianisation’ of conflict in turn almost invariably privileges the status quo. Such an approach is not, of course, a necessary corollary of any ‘legal turn’, since there exist frameworks like occupation law and the law of self-determination which are capable of substantiating collective political rights. But a desire to operate within the human rights mainstream can give rise to substantial pressure to turn towards humanitarianisation at the expense of the political. Here, too, we can identify developments in Palestine as part of a wider phenomenon: in this case, a trend of juridification in global politics which serves to obscure the political contests underlying the ‘liberal international order’.

Samuel Moyn’s writings on international humanitarian law are particularly illustrative in this regard. He has suggested that an increasing emphasis on humanitarian constraints in the conduct of war has been accompanied by a corresponding retreat in the significance of jus ad bellum, the law governing whether a state is entitled to resort to armed force in the first place, and he asks whether these two trends might not after all be related. That is, might the claimed humanity and precision of modern warfare serve to naturalise and perpetuate the state of war itself? In humanising warfare, is there a risk that we extend it and find ourselves waging a war so humane that it need never end? And relatedly, might it not be said that this emphasis on precision systematically privileges powerful states with developed military capabilities at the expense of smaller states or non-state actors whose humanitarian credentials are more liable to be impugned?

Perhaps in part because of these developments, endless war risks appearing today in the Western liberal imagination as an inescapable fact, within whose parameters the greater good is to be pursued, in much the same way as the general magnanimity of American hegemony. But this is far from being an inevitable consequence of international law itself, whose constituent categories can be mobilised by different actors to mould a range of outcomes and to advance more or less benevolent characterisations of their conduct.

The narrative running through Justice for Some is a history of loss, disorientation, revolution, and protracted struggle, cogently explored through the lens of international law. In tracing the legal and political contours of the question of Palestine, Erakat points us in the direction of a better future. At the same time, her insights about sovereignty and the state of exception have wider resonance in this increasingly securitised age. The world since the financial crisis of 2008 has been characterised by a return of politics after long years of slumber. This carries with it both risks and opportunities, as is vividly demonstrated by the polarisation of global politics and the rising clangour of popular unrest and revolt, from Chile to Hong Kong to Lebanon and beyond. Law will invariably form a crucial terrain of the political struggle for the birth of a new world. But nothing is inevitable, and the character of that new world remains very much up for grabs.

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