Beyond Militarization: Legalization of the Israeli-Palestinian Conflict and The Globalization of Human Rights Law

The following is in response to Jonathan Simon’s post at PrawfsBlawg, “Israel’s Silent Weapon,” which I found in the main interesting and suggestive. However, I was not permitted to place a comment there (it was identified as requiring prior approval of the post’s author, which it twice failed to receive) so I decided to post it here, albeit with substantial modifications (including additional commentary and references).

Simon argues that in light of what he calls Israel’s “impressive legal culture,” a “law offensive against Hamas or Fatah would cast international light on [a] different set of champions for the Palestinian side then those with starring roles in this offensive.” I’m not at all against a “law offensive” in the international arena (which unavoidably entails a role for the U.N. and its affiliate institutions), especially in light of the fact that the Palestinians have attempted for quite a long time to conduct such an offensive themselves, although to little avail, and despite Simon’s insinuation that only now is a “legal culture” beginning to emerge among the Palestinians: “The Palestinians, more on the West Bank than Gaza, have also begun to generate a potent legal culture (much of its [sic] schooled in battles fought in the occupation courts) one fully capable of transmitting their national grievances into strong claims in human rights law" [emphasis added].

There are a few things troubling about this remark. The first is the comparative devaluation of the Palestinians from Gaza, no doubt owing to the fact that they had the audacity if not temerity to freely elect an Hamas-led government to represent their aspirations, a fact made possible by the Israelis’ success in destroying the bulk of governing powers possessed by the Palestinian National Authority as well as its shrewd employment of a “divide-and-conquer” strategy against the Palestinians, the latter (in addition to the internal problems [e.g., corruption] among PNA’s leaders) serving to help “radicalize” many Palestinians, prompting them to look to Hamas for a new direction and way out of the socio-economic and political morass they have long been mired in. Relatedly, the Israelis have afforded the Palestinians in both the West Bank and Gaza notoriously few and meager opportunities with which to develop an indigenous and vigorous “potent legal culture.” When many of the most basic needs of your people are being met by U.N. relief agencies,* it’s not hard to imagine the absence of sufficient energy and resources to devote to developing a robust legal culture! Nevertheless, and all things considered, the Palestinian leadership, with help from sympathizers in and outside Israel, can be credited with developing an "innovative media savvy legal and diplomatic campaign."

But we might also question a presupposition of Simon’s remark insofar as it insinuates Hamas and those in Gaza, indeed, all Palestinians, somehow and until most recently have been without a “potent legal culture.” Palestinians who are Muslims at least can lay claim to quite an historically and comparatively impressive legal culture, one grounded in Islamic legal traditions and schools expressed in a plurality of forms throughout the Islamic world. For a sampling of the literature in English on this impressive legal tradition, see the section on “Islamic Law” in my Comparative Law bibliography posted at the Legal Profession Blog (I will have an updated section on Islamic Law in my forthcoming Islamic Studies bibliography which will be posted here as part of the Directed Reading series). In any case, Palestinians are intimately familiar with, and have had a long-standing respect for, “legal culture,” as the book by Boyle below attests. Palestinians have not resorted to (self-defense and) violence because it's "in their nature," as if they have some national and ethnic predilection or predisposition to same, but because they've been driven to commit acts of desperation, having tried both legal (which, in self-defense, legitmates the use of violence) and non-violent strategies since the founding of the state of Israel over forty years ago.

I was delighted to see favorable mention of Lisa Hajjar’s book. What was not said, however, is also of particular interest: Hajjar is a very good friend of Professor Richard Falk, an international law scholar (emeritus) and U.N. Special Rapporteur on Palestine who was recently denied entrance into Israel and the West Bank. She posted on this at IntLawGrrls blog, and we discussed it at Opinio Juris [the site has been having some problems so be patient]. Given Simon’s desire to see things move to the international legal arena in light of human rights law, it’s a bit puzzling that there was no mention of this recent incident, as it helps illustrate the often intractable difficulties and characteristic obstacles faced by the Palestinians when they have placed trust and hope in the institutions and media of international legal fora and human rights law. Incidentally, together with Hilal Elver, Falk and Hajjar have edited a 5 volume work, Human Rights: Critical Concepts (in Political Science), (2007).

The “legalization” that Professor Simon ardently desires has been attempted for some time now by the Palestinians, while the Israelis have shown little more than contempt for international legal opinions and rulings, and especially resolutions passed by the Security Council and General Assembly of the United Nations. Most glaringly, Israel has ignored UNSC Resolutions 242 and 338, and actively blocked meaningful attempts by Palestinians to exercise their international legal right of (collective) self-determination. Israel has repeatedly violated provisions in the Fourth Geneva Convention. It's hard to discern respect for Palestinian legal rights in the repeated infliction of “collective punishment” on the Palestinians in the West Bank and Gaza. Few were therefore surprised when Israel derisively dismissed the Advisory Opinion of the International Court of Justice that declared the "security wall" being constructed on the Occupied Territory was illegal and should be dismantled (14-1: the lone negative vote was cast by an American judge, although the ostensible reason was lack of sufficient evidence to warrant the tribunal’s conclusion). Alas, as we learned from the war in Iraq (and should have learned from the Vietnam war...), a flourishing municipal legal culture, even one found in a democratic state, is no guarantee a government will show corresponding respect for the international and transnational legal culture that gave birth to human rights law.

So, any further movement in the direction of “legalization” as suggested by Simon should take cognizance of, from the Palestinian perspective at any rate (I'll leave it to others to address the specifically Israeli side of the equation), Francis A. Boyle's Palestine, Palestinians and International Law (2003), which is an example of one persistent attempt to use "international law to clarify and resolve the Israeli/Palestinian conflict." A brief introduction in this regard is Richard Falk's "International Law and Palestinian Resistance," found in Joel Beinin and Rebecca L. Stein, eds., The Struggle for Sovereignty: Palestine and Israel, 1993-2005 (2006): 315-323.

Perhaps needless to say, I'm in agreement with Simon's conclusion:

[O]ne might hope that the global dispersal human rights law as a governmental discourse is now at a stage where innovative, even if largely performative acts of legal and diplomatic campaigning, could be worth at try as an alternative between doing nothing (which Israeli leaders claim was their pre-war strategy) and launching a bloody military campaign that has low odds of achieving its objectives.

This, in fact, is where the Israelis might welcome the opportunity to learn from the long-standing if frustrating experience of their Palestinian brothers and sisters in those international legal fora that at least profess a commitment to the fundamental value of human rights law (responding here to Simon's statement that much of whatever 'legal culture' the Palestinians possess was 'schooled' in Israeli occupation courts).

Here is a sampling of papers related to "legalization" of the conflict and the significance of human rights to such a project:

Richard Falk and Burns H. Weston, "The Relevance of International law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada," Harvard International Law Journal 32, No. 1 (1991): 129-150.

Richard Falk and Burns H. Weston, "The Israeli-Occupied Territories, International Law, and the Boundaries of Scholarly Discourse: A Reply to Michael Curtis," Harvard International Law Journal 33 No. 1 (1992): 191-204.

Aeyal M. Gross, "Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?", The European Journal of International Law, Vol. 18, No. 1 (2007): 1-35.

Victor Kattan, "From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres," 11 Yearbook of Islamic and Middle Eastern Law (2004/5), pp. 33-82.

Victor Kattan, "The Use and Abuse of Self-Defense in International Law: The Israeli-Hezbollah Conflict as a Case Study," available: http://ssrn.com/abstract=994282

Edward Kaufman and Ibrahim Bishart, "Introducing Human Rights into Conflict Resolution: The Relevance for the Israeli-Palestinian Peace Process," Journal of Human Rights, Vol. 1, No. 1 (March 2002): 71-91.

Louay M. Safi, "Human Rights and Islamic Legal Reform." I can't recall where I found this important paper but it should be easy enough to find with a "google" search.

Niaz A Shah, "Jihad: Self-Defence in Islamic Law," 12 Yearbook of Islamic and Middle Eastern Law (2005/6)

Adrien K. Wing and Hisham A. Kassim, "Hamas, Constitutionalism, and Palestinian Women," University of Iowa Legal Studies Research Paper, No. 08-21, Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130219


And a few books indispensable to the aforementioned endeavor:

An-Na’im, Abdullahi Ahmed. Islam and the Secular State: Negotiating the Future of Shari‘ah. Cambridge, MA: Harvard University Press, 2008.

Baderin, Mashood A. International Human Rights and Islamic Law. New York: Oxford University Press, 2003.

Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Palestinian Territories. The Hague: Kluwer Law International, 1997.

Boyle, Francis A. Palestine, Palestinians and International Law. Atlanta, GA: Clarity Press, 2003.

Cotran, Eugene and Mai Yamani, eds. The Rule of Law in the Middle East and Islamic World: Human Rights and the Judicial Process. London: I.B. Tauris, 2000.

Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.

Khadduri, Majid. War and Peace in the Law of Islam. Baltimore, MD: Johns Hopkins University Press, 1955.

Khadduri, Majid, trans. The Islamic Law of Nations: Shaybānī’s Siyar. Baltimore, MD: Johns Hopkins University Press, 2002.

Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press, 4th ed., 2007.

Rehman, Javaid and Susan C. Breau, eds. Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices. The Hague: Martinus Nijhoff, 2007.

For a list of titles that enable one to place questions of legality and human rights within the larger historical and political context (after all, law and politics are, for better and worse, inextricably intertwined, nonetheless, I believe law is capable of bringing us somewhere betwixt and between 'apology and utopia,' to borrow from the title of Martti Koskenniemi's important book on the structure of international legal argument), please see my post below. You’ll also find there a list of human rights organizations with excellent websites useful for research. As a prelude to (or in lieu of) reading the books in that list, I would highly recommend Joel Beinin and Lisa Hajjar’s “Palestine, Israel, and the Arab-Israeli Conflict: A Primer,” available at the website for The Middle East Research and Information Project (MERIP).

Finally, as the topic is unavoidable, books and articles (from transdisciplinary perspectives) on "terrorism" are found in my bibliography for same, available in an early draft at the Legal Ethics Forum.

* An excellent précis of the socio-economic conditions in Gaza is found in Sara Roy's piece, "If Gaza Falls...," London Review of Books, Vol. 31, No. 1 (1 January 2009).

Update: My original comment has now (Jan. 11) been posted at Prawfs.