What Role for Law in the Palestinian Struggle for Liberation?

Getting the Question Right

In recent months the role of international law and human rights has come under increasing scrutiny. This introspection has involved, among other things, questioning whether Palestinians should continue to bring their claims to Israeli civil and military courts; whether occupation law is a part of the problem or part of the solution; and, if legal claims are to be brought before international tribunals, what should they allege?

What these conversations have in common is an assumption that law can serve a positive function. But law and justice do not go hand-in-hand, and law usually serves the status quo or those in power. In fact, without the national organizing structures and representational bodies able to create a political vision and strategy for Palestinian self-determination, international law and human rights can be confused for the political framework itself.

This necessitates a complementary approach that includes using the law when justice can be served and political avenues when the law itself entrenches unjust outcomes.

I Got 99 Problems and the Law is One

The issues that critics of international law raise include:

1. Western powers created international law in a colonial context. Consequently, any invocation of international law entrenches the asymmetric relationship that structurally disadvantages post-colonial nations and impedes their self-determination. The veto-wielding power of the UN Security Council is a case in point.
2. Legal remedies are inherently limited because they seek to reform rather than to revolutionize. As such, a rights-based solution guarantees a non-revolutionary outcome that tolerates the structural inequalities that gave rise to conflict in the first place.
3. The law, and particularly human rights law, preaches universalism, depoliticizes conflict, and supplants it with a framework of “competing rights.” Political claims and historical grievances are erased for the sake of achieving equality vis-à-vis the state’s administrative bodies.

Palestine and Empty Promises

At present, the language of international law and human rights occupies a disproportionately large space in the discourse on Palestine precisely because no representative Palestinian national body is articulating and representing the will of the Palestinian people. This absence of a clear vision for Palestinian self-determination has undermined the complementarity between the law and political movements.

Without a political framework, international law and human rights can be used as tools to achieve tactical gains, such as highlighting Israeli violations and resisting the dictates of military, diplomatic, and economic power; but within a political framework, these gains can be used to advance a vision for decolonization.

Locating the Law’s Potential

The categorical rejection of a legal strategy and/or a rights-based approach runs the risk of losing key opportunities to recalibrate the balance of power. Especially in the politics entrenched by the Oslo Accords and its attendant “peace process,” law has emerged as a potential counterweight to the devastating dictates of naked power.

Law can be (and is being) used to:

• Offset the detrimental impact of an unrepresentative Palestinian leadership
• Expose the veneer of Israel’s rule-of-law-legitimacy
• Challenge the legitimacy of Israel’s settler-colonial project and apartheid regime

In a world dominated by the US, the Palestinian struggle has been subsumed by a discourse of terrorism and counter-terrorism and has obscured the morality of the Palestinian question. Human rights discourse, together with growing mass popular movements, has steadily exposed the bankruptcy of this security framework and helped to reframe the Palestinian question as an indigenous struggle against colonial domination in the global north.

Using a universal framework demonstrates the illegitimacy as well as the exceptional and abnormal nature of Israel’s settler-colonial and apartheid regime. And yet, the lack of a political framework aimed at decolonization risks empowering the law to stand in for Palestinian demands rather than simply serving as a tool to advance them.

What is needed is a compelling framework for complementarity: developing a political program and a leadership that is representative of Palestinians as a people can imbue the law with particular meaning and allow it to serve its proper role in advancing the movement.