Palestine: the pursuit of justice

John Strawson
2 March 2008

Rosemary Bechler: Many appeals on behalf of the Palestinian cause often invoke international law and human rights - so far to no avail. On your visits to Palestine, do you encounter frustration with this approach?

John Strawson is reader in law at the University of East London (UEL). He specialises in the area of law and postcolonialism, with particular reference to the middle east, Islam and international law. He has worked for over a decade with the Birzeit Institute of Law, and is a member of the Center on Human Rights in Conflict

John Strawson: I do, frequently. One of the saddest comments I ever received was during the siege of Ramallah in 2000, from a colleague of mine who had taught human rights. She wrote to say that she now realised that this had been a wasted investment of her student years, and that there was no such thing.

Who has rights within international law? This issue tends to be steeped in mythology. International law, after all, does not spring fully formed out of world-court justice: it is created by the nation- states of the international community, led by governments who are not very nice.

Where, for example, did a key right for the Palestinians - the right of self-determination - come from? It came because people fought for it and broke the law in order to get it. Since 1917, the international community has said (following the League of Nations mandate, line 22) that the Palestinians are not "the Palestinians", but the existing "non-Jewish communities". In that mandate the international community recognised the right of the Jews to reconstitute their historic home in Palestine, and that was the framework for policy right up to 1947 when the United Nations partitioned Palestine. The UN's founding charter is very clear on the fact that its obligations take precedence over those of any other international obligation. One assumes therefore that this must be quite lawful, whether or not you see it as unjust.

All too often, I'm afraid, the assumptions of supporters of Palestine that the law is "on their side" must be tempered by the reality of international law. Take, for example, the decision of the International Court of Justice declaring the separation wall illegal. It is a wonderful judgment - but read it closely, and you will find that it refers to the pre-1967 borders of Israel, including west Jerusalem, as "the territory of Israel itself". Now, until 2004, Jerusalem had always been regarded as a territory whose status had yet to be determined. That is why only two small states ever had embassies there, and why the British embassy is in Tel Aviv. This court decision actually altered that international legal understanding for the first time. Now west Jerusalem is part of "the territory of Israel itself".

Rosemary Bechler is a writer and consultant, and former international editor of openDemocracy

Among her many articles on openDemocracy are:

"All our (Gothic) yesterdays - the really special relationship" (25 April 2002)

"Stafford Beer: the man who could have run the world" (7 November 2002)

"Being counted" (20 February 2003)

"Reinventing Islam in Europe: a profile of Tariq Ramadan" (6 July 2004)

"Nation as trauma, Zionism as question: Jacqueline Rose interviewed" (18 August 2005)

"Palestinians under siege in the West Bank" (6 June 2007)

"Should artists know better? The British copyright experience" (20 June 2006) - this article draws on Rosemary Bechler's research for the British Council and associated blog, Unbounded Freedom: a guide to Creative Commons for cultural institutions

International law is a far more complicated story than people think. Moreover, you can never assume that it is on the side of justice or human rights. It is often imagined there was a golden age of human rights in law at some time in the past; people routinely talk about "an unprecedented attack on human rights".

But look back a century or more, and it becomes clear that "human rights" is a very new idea. Governments have always seized power and used administrative detention in various situations. The awful truth is that every time the Israelis blow up a "terrorist's" house in Palestine, they do it under British emergency law. When the Israelis build settlements, they justify them via interpretations of the British use of Ottoman law during the period of the mandate. And so it goes on.

People ask: is international law, law? But I ask, is it international? Actually, international law is only determined by a small number of states and legal systems, basically the common law and the civil-law systems. Even under Iran's Islamic system, the court structure is based on the French.

Several key questions - what would be an international system, who is the international community, what are international values - have not yet been posed. In the meantime, we irrationally exclude certain things and include others.

In our time, however, we are seeing the emergence of a new call for a universal language of rights. We cannot expect these laws to somehow be "out there and established", but we can try and ensure that the defence of this language creates a new agenda for politics.

A Palestinian education

Rosemary Bechler: How did you first become involved in Palestinian destinies?

John Strawson: I'm a reader in law at the University of East London (UEL). For over ten years I have worked with the Birzeit Institute of Law, through a consortium of European universities which support the institute. This was the first attempt to teach postgraduate legal studies in Palestine - a sensitive project because there is no settled legal system in Palestine. You couldn't rush to teach contract law or criminal law, because the legal system in Palestine was a consequence of several layers of occupation - Ottoman, British, Israeli, Jordanian, Egyptian. Therefore it was necessary to start from scratch to get lawyers and legal academics to think about what kind of legal system they wanted. This was in effect setting about creating a Palestinian state, but from a quite different perspective from that normally chosen by nation-builders.

When the idea was first mooted there were only two law professors. The university rejected the project out of hand. After a brief visit to the law centre in 1993 just before the Oslo process was finalised, I went back with some colleagues of mine, to explore possible links between the University of East London and Birzeit University. I took my boss, the dean of the UEA law school and the dean of economics to meet the dynamic new director, Camille Manseau, just appointed at Birzeit from the Sorbonne. He was living in a friend's flat and only had a laptop computer, but he was somehow managing to fund the construction of an entire building through grants from the World Bank and Usaid and all sorts of other organisations.

Unfortunately, you can make a lot more money being a lawyer than you could ever earn as an academic. Academic salaries in Palestine as in the rest of the Arab world are extremely low, so persuading even Palestinians to go back and teach was difficult enough. How was Camille Manseau going to get started? He realised that we had to grow our own professors, by choosing and selecting the best students, and procuring European grant-funding for them to do their PhDs.

This is what we have done. The first two Palestinian professors at the Birzeit Institute of Law started their careers on the masters' programme a decade ago. In each case they went to Belgium to do doctorates, and returned to teach at the institute. There is a three-storey building with a very fine library and the first-ever legal database in Arabic. It has a masters programme with twenty to thirty students every year, and a new undergraduate programme with 110 students in their first year.

It was a wonderful development plan to be part of. The occupation was reinstated during this time, and there were many other obstacles. But Palestinians are impressively good at building institutions in conditions that would defeat most people.

This is what is so frustrating about the rather condescending views you can find in the "international community" about how Palestinians "need to learn how to build democracy". Actually they are very good at pluralism, and very good at building institutions. Because they have had to deal with occupation, Palestinians - a bit like South Africans with their marvellous constitution - appreciate the issues of democracy in a way that many do not. In 1996, the Palestinians held the most democratic elections ever seen in the Arab world. These were a threat no doubt to despots such as Saddam Hussein, Hosni Mubarak in Egypt and the Saudis. Despite the very difficult conditions, huge numbers turned out to vote. Arafat was challenged. An amazing assembly was elected, with the highest level of academic qualifications in the world. 78% had BAs, 50% masters degrees, over 10% had PhDs.

I went there to teach. I was given a part of a course called the history of law in Palestine, and asked to teach on the British period. I knew a lot about British colonialism from India and about Islamic law from the 18th century onwards. My students, simply by being who and where they were, urged me to think about what was going on in Palestine at that time. I began to write articles for them since there was no literature on this, and they made me think through some very challenging questions.

A screen of ignorance

Rosemary Bechler: Your own research must have taken on a new relevance in these circumstances, because it was already influenced, I believe, by the work of Edward Said?

John Strawson: Much of my academic work for the last fifteen years has been involved in trying to apply Edward Said's concept of orientalism to the field of law. Said wrote in Orientalism about the "symbolic orientalism" of Sir William Jones's legal work in India. I began to look at what actually took place in legal thought and legal texts as a consequence of colonialism and specifically, how the "other" was constituted and how other legal systems were viewed during the British engagement there.

In a contemporary context, it became very clear that this unfortunate stereotyping had kept much of its its grip, both at the level of law and of policy-making in general.

Take for example the building of the wall, and the way in which the Sharon government carried out his disengagement policy in Gaza. In both cases it was essential that the middle east, Arabs, and Islam in particular, were constructed as irredeemably backward, fixed, homogenous, wedded to violence, and incapable of democracy or human rights unless everyone becomes a westerner.

The wall is saying this very strongly: the people on the other side are barbarians. "We" can't come to an administrative agreement with "them" because deep inside themselves is this inability to stick to an agreement, because their culture is so different. It seems to me very tragic, but also very important to grasp that this division does still inform policy. I am talking here about ingrained Israeli attitudes, but these are linked to a wider international discourse. The "other" is always at the very least strange, and only addressed across a gap which it is difficult to bridge.

Once you are alert to these constructions, there are so many examples. Ehud Barak's attitude to Yasser Arafat is but one. In an interview with Benny Morris in June 2002, Barak claimed that the Palestinians "want a state in all of Palestine" - that is, all of British- mandate Palestine, including Israel. In the short term, he conceded, this would be difficult to achieve because "Israel is too strong". But he went on:

"They will exploit the tolerance and democracy of Israel first to turn it into ‘a state for all its citizens', as demanded by the extreme nationalist wing of the Israel's Arabs and extremist leftwing Jewish Israelis. Then they will push for a bi-national state and then, demography and attrition will lead to a state with a Muslim majority and a Jewish minority. This would not necessarily mean kicking out all the Jews. But it would mean the destruction of Israel as a Jewish state. This I believe is their vision."

Barak sees more than these ulterior motives on the part of Palestinian negotiators. He adds that Palestinians come from a culture which is characterised by lying;

"They are products of a culture in which to tell a lie...creates no dissonance. They don't suffer from the problem of telling lies that exists in Judeo-Christian culture. Truth is seen as an irrelevant category. There is only that which serves your purpose and that which doesn't. They see themselves as emissaries of a national movement for whom everything is permissible. There is no such thing as ‘truth'."

Among openDemocracy's recent articles on the Israel-Palestine conflict:

Richard Youngs, "The European Union and Palestine: a new engagement" (28 March 2007)

Mient Jan Faber & Mary Kaldor, "Palestine's human insecurity: a Gaza report" (20 May 2007)

Fred Halliday, "Palestinians and Israelis: a political impasse" (5 June 2007)

Tony Klug, "Israel-Palestine: how peace broke out" (5 June 2007)

Omar al-Qattan, "The secret visitations of memory" (14 June 2007)

Ghassan Khatib, "Palestinian political rights: a common-sense solution" (27 September 2007)

Daniel Seidemann, "Annapolis and the ‘Jerusalem paradigm'" (30 October 2007)

Mariano Aguirre & Mark Taylor, "Annapolis: how to avoid failure" (12 November 2007)

Khaled Hroub, "Annapolis, or the absurdity of postmodern politics" (22 November 2007)

El Hassan bin Talal, "Annapolis: a view from Amman" (26 November 2007)

Volker Perthes, "Beyond peace: Israel, the Arab world, and Europe" (22 January 2008)

For Ehud Barak, the Palestinians are not negotiating in good faith. They have a secret plan and in any event their culture leads them systematically to lie.

When asked why - given his determinist and frankly racist views - he is bothering to discuss with Palestinians at all, Barak suggests that perhaps Yasser Arafat (at the time the Palestinians' representative) "would rise to the occasion". If this is meant to be Barak setting a test for Arafat, one has to add that it is a test Barak knows will be failed. Indeed the more Barak's analysis of the failure of Camp David is one considered, the stranger it appears that he wanted to engage in any negotiations at all. The Camp David process seems to have been aimed at unmasking Arafat and showing the world that no solution was possible.

Indeed according to Barak, the intifada sparked by Ariel Sharon's visit to the al-Aqsa mosque area (or Temple Mount) in September 2000 had been "pre-planned, pre-prepared. I don't mean that Arafat knew that on a certain day in September", it would begin, "but it was definitely on the level of planning, of a grand plan." In short, Barak portrays Arafat as devious, untruthful and with a hidden terrorist plan - the typical orientalist other.

This campaign to ensure that the world understood who was responsible for the failure of the talks and how that was linked to the second intifada was fairly effective. The final breakdown of the process was confirmed as the Taba talks collapsed and President Clinton left the White House in January 2001. Within a month Ehud Barak had been replaced by Ariel Sharon as Israeli prime minister.

If anyone had engaged in pre-planning, it was Ariel Sharon. Yet while Sharon was opposed to the entire Oslo accords, he was nonetheless to stick to his predecessor's account of Arafat's failings. Sharon turned almost immediately to complete the process of sidelining Arafat. It is this process that was given a new international context with 11 September 2001. At once, "Islamic terrorism" became the main enemy of the United States and the Sharon government seized the opportunity to link Palestinian violence, and Arafat's alleged leadership of it, to the war against terrorism.

This is why it is so regrettable when people from the west who visit Palestine to offer what they imagine is solidarity on their return say that they can "almost understand" what (for example) drives suicide- bombers to commit their terrible acts. You have to be so careful: making out that there is an "understandable" tracking between the oppression of Muslims and the acts of these extremists - who then become representative of the entire Muslim community - just compounds the confusion around the oriental other.

The European left in general, having realised that there was some problem with a unilinear, progressivist line of thinking, now overcompensates and accepts any attack on western mores as legitimate. Any Muslim who uses violence and says that they are doing this because they are Muslim, is now a "jihadi", drawing upon the Islamic military doctrine of jihad. Nothing could be further from the truth. Yes, there is a military conception of jihad, but it is highly regulated, both in terms of who can initiate it and who it can be used against.

The Iraqis who, for example, bombed hotels in Amman in November 2005 were not committing "an Islamic act": they were killing civilians - which is quite clearly proscribed in Islamic international law dating back over a thousand years. This law is very clear about what target is impermissible in and of itself: you can't poison wells; you can't destroy fruit trees; you can't attack civilians; you can't attack children. So, when the left in the west says, you have to deal with these people with reference to what they believe in - Islam - it does so without having any knowledge of Islam. It is a terrible arrogance - that claim that you know what Islam is and you don't have to study it! In fact Islamic legal studies at Islamic universities take a long time. It takes a minimum of ten years; in some places, such as Najaf University, fifteen years. The idea that a group of gangsters can simply "declare jihad" is like saying that the mafia represents the whole of Italian culture!

A conflict of narratives

Rosemary Bechler: Are you still convinced that the solution must lie in the recognition of a Palestinian state with its own constitution and legal system?

John Strawson: One of the effects of Yitzhak Rabin's assassination was to popularise the idea of the creation of a Palestinian state in the United States for the first time. We may not be as near the creation of such a state as one would want; nevertheless there have been important developments, including the disengagement from Gaza. It is important: it creates a precedent.

Frustratingly, since 1967 the Israelis have had it in their power to do what the international community attempted in 1947, which was to create a two-state solution to the situation in Palestine. The terrible thing is that instead of withdrawing from the Palestinian territories, the West Bank and Gaza and east Jerusalem, they insisted on the occupied territories being a bargaining chip, and this is obviously deeply problematic. It's morally problematic for the people living there; it's legally problematic; and as it turns out, it has proved to be a great disaster for the security of Israel.

The Israelis, had they chosen the alternative route in 1967 or shortly afterwards, could have effectively neutered the kind of Arab nationalism that had a rather irredentist view regarding the existence of Israel. They simply missed a great opportunity. It was the Israeli statesman Abba Eban who said that the Palestinians "never missed an opportunity to miss an opportunity". In fact, and with catastrophic results, both sides have behaved in almost exactly the same way.

In their national narratives, both Palestinians and Israelis have from the very beginning and for far too long tried to argue that the other side is not legitimate. You cannot resolve a conflict if you do not regard the aspirations of the other side as in some way legitimate. One of the problems of the whole anti-Zionist stance which is so strong amongst the left in the west is that it has encouraged a view in Palestine and amongst Palestinians outside Palestine that there is a degree of support for the idea that Israel is illegitimate. It encourages the idea that maybe it is possible to reverse the process.

Spreading the idea that there will be some amazing transformation whereby Israel will cease to exist or to be a Zionist state - such ideas are barriers to any kind of solution. The only solution can be one that both parties want to come to: and it is ridiculous sitting in London or California saying: "It should be one state". Fine, but only if the two parties want to live together in one state.

If what people want is a Palestinian state, it will not be the one most Palestinians would have wanted in 1947, or the one most Palestinians want in 2008. It may well be much smaller. The problem for the Palestinian leadership is to decide what you are going to do with these crumbs. There are two ways the Palestinians can respond to the current situation, in particular the Israelis' disengagement from Gaza. The first is to say: "Basically this mean the occupation is not over, because the Israelis are still in charge of our security." From a legal point of view, this is absolutely the case; Gaza remains fenced in, even if the surge across the Egyptian border is a process that alters the current coordinates in as yet unforeseeable ways. The second response would be to echo what the PLO said in its Algiers declaration in 1988: "In any area of Palestine that is liberated we will begin to create our state." It seems to me that as long as we argue for open borders, then if the Palestinians return to this policy something can begin to be created. That is also true for the West Bank. As the PLO first imagined, I think the Palestinian state will come about through accretion - not through a one-fell-swoop agreement.

Neither side is going to sign what Bill Clinton wanted in 2000 - an end-of-conflict agreement. The Israelis can't do it because they are worried about terrorism and the Palestinians can't do it because of the refugees. Both have absolutely legitimate concerns. So it will be a step-by-step process, and that does mean addressing the problem of all the extremists on both sides who don't want this process to take place.

Rosemary Bechler: But you are asking the Palestinians to "hang in there" in a very low state of morale, near-starvation, poverty and indeed lawlessness...

John Strawson: It is true that there is a major breakdown of the authority of the Palestinian national body absolutely everywhere, including the West Bank. In this respect, the way in which the Palestinians have been treated since the Oslo process was even worse than before. What the Oslo process did by dividing the West Bank into segments was that it created a new way of running the occupation in which for the first time pass laws were introduced to control movement from one part to another. This begins to look like South Africa, and in my view there is a great deal in common with the apartheid regime and its pass laws. There is no question that there is a high degree of racial discrimination in Israel, and that the occupation of Gaza, the West Bank and east Jerusalem was based on very colonial notions of "the other".

After that came a new stage in this process thanks to a conscious policy by the Ariel Sharon government - "politicide", as Baruch Kimmerling has called it: that is, the attempt to undermine and destroy the Palestinian Authority as a legitimate representative of the people, and as an organiser.

Sharon was one of the first Israeli leaders to recognise that having signed the agreement in 1995, a de facto Palestinian state was being created. He knew very well that the way the Israeli state was created in the 1920s had little to do with what the early Zionist movement wanted, but nevertheless, the movement took the opportunity to set up institutions which might slowly grow into something else in time. From the early Jewish Agency you create a Knesset, an assembly, and an executive; you begin to create the Histadrut (trade-union organisation), and then a defence force. By 1947, you had in fact created the basic institutions of a new state. This process is quite well-known in Zionist history. I think this is what Sharon feared would emerge from the Palestinian Authority.

The good thing about the Palestinian Authority, as Sharon saw it, was that it was pretty miniscule. But the downside was that it was being created at all. Part of his policy was directed at weakening this state-building. He very successfully set about creating chaos in the occupied territories. In September 2000, when the second intifada began, the Israelis' first response was to destroy every police station in Palestine with F-16s. That meant not just destroying the ability of the police to organise themselves, but destroying fiscal records, prison records, and prisons themselves. The Israelis then prevented any rearming, at a time when there were a lot of arms in the possession of Hamas and Islamic Jihad. Here was an apparent contradiction in Sharon's policy. How was the Palestinian Authority to crack down on the terrorists if it didn't have the means to do so?

A new recognition

Rosemary Bechler: What is the way forward in legal terms? Is there a need for "truth and reconciliation process" to be set in place?

John Strawson: Idealised notions of justice are highly problematic. Most demands for justice turn out to mean justice for one side or the other, which traps the debate in a binary opposition. We have to be more modest, and look at the world as it is. It has not been set up for justice. It is one of the great myths to say otherwise.

If law was based on justice, we would be doing something quite different. Why else would we have to change the legislation on slavery, racism, or equal pay? Obviously law is built on injustice.

So, all you can do is begin developing a process relevant to everyone. This is where the truth-and-reconciliation procedure is relevant to Palestine. In one sense, the attempt to create it in this generation will inevitably fail: no one will sit next to the person who sent the fatal letter-bomb to her mother and listen through all the stages of the hearing until a decision is reached, as (in South Africa) Gillian Slovo had to do. During this long moment, what dominates is the state of "the injustice of it all".

Nevertheless, there is an urgent need to move away from the legal narratives on both sides that aspire to the property of "total correctness". The problem is not that the two sides of the Israeli-Palestinian conflict are so different, but that they are the same - or at least, works exactly the same way on both sides. about the same things. The retaliatory argument; not accepting responsibility for events or decisions; ascribing all blame to the other - the parallels are striking.

One of the challenges is to move beyond this kind of discourse by evolving what might be called "relational histories". This is only recently starting to become possible. What has existed hitherto on either side is both sectarian and essentialist. So Zionism is "essentially" militaristic, or expansionist or racist; or the Palestinians are "essentially" violent, irridentist and liars to boot. There is very little in between these two accounts. What I hope might begin to take place is some kind of contract between academics, to evolve a more relational history.

The assumption that it is very important to allocate legal responsibility is also a very big problem for the left. There are profound difficulties with a legalistic concept of justice. I share the huge sense of frustration about what the Israeli government is doing to the Palestinians. But so do many Israelis: including prominent journalists, academics and human-rights activists as well as everyday citizens. Both Palestine and Israel are far more pluralistic than outsiders often imagine. Moreover, as in all societies, it is very important to make a distinction between the people and the government.

This is why I like reading Edward Said. He is inconsistent. He jumps about and mixes things together and asset-strips from different theorists in ways which they would not recognise. In the 1960s and 1970s, he began writing about the middle east from a rather traditional Palestinian and pan-Arabist perspective; gradually, as he gets into the subject more he becomes more aware, that in his perspective from the United States, with Jews as colleagues for example, everything is far more complex. From the 1980s he writes constantly about how the Palestinians are going to have to come to a reckoning with the fact that Israel exists and is not going to go away. In a sense therefore the question is no longer, justice.

A new generation will always be able to look at familiar realities in a different way. This is as true of the middle east as anywhere. The Palestinians living in the refugee camps in Lebanon who were born and brought up many years after 1948 are never going to go to that house in the village that they have a picture of, or open the door in Haifa with that key. That will not take place.

What then are we achieving when we "resolve conflicts"? I remember being on a visit to Johannesburg during that historic period in South Africa, watching on television a scene where Nelson Mandela was voting. I suddenly realised how "banal" the whole thing was. All this struggle, all those deaths and horror so that people could go and vote! It wasn't ending in a great revolutionary drama but in people queuing up and voting. What came after was always going to be very messy; social apartheid and economic problems still exist; it will take a hugely long time for the fundamentals of life qualitatively to improve. But what an achievement!

When Hamas won the Palestinian legislative elections in January 2006, the international community imposed a financial boycott on the Palestinian Authority on the grounds that it was run by terrorists. This policy could not have been more calculated to undermine attempts to build the rule of law in Palestine. While Hamas has carried out lethal, immoral and illegal attacks against Israeli civilians it is too simplistic to depict the organisation as just a "terrorist" one.

The Hamas electoral alliance won the elections because it campaigned on a programme of clean and efficient government. It did not ask the electors to support terrorism or violence. It won because most of its activities since it was founded in the late 1980s have been political campaigning, social projects and religious education.

Hamas is a complex movement, and its victory did not turn the 135,000 employees of the authority into terrorists. Yet it is the salaries of civil servants, teachers and the police that went unpaid as a result of the international boycott. This squeeze on Palestine has just increased the trends - the Mecca agreement, the Annapolis conference, the Paris donors' deal, and the agreement of Ehud Olmert and Mahmoud Abbas to negotiate notwithstanding - towards corruption, organised crime and political extremism. It also gives the impression that support for democracy in its supposed western heartlands is just skin-deep - and that the Palestinians voted for the "wrong" side.

The way forward is for the international community to support the plan for a Palestinian state in the occupied territories and for a mutually agreed just solution to the refugee question. However, that means engaging with the main Palestinian political forces, not trying to isolate them. The current Gaza crisis makes this choice clearer than ever.

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