Law of the Land

In a new book, legal scholar Noura Erakat argues that the Palestinian liberation struggle must think beyond statehood.

Amanda McCaffrey
July 16, 2019
Mahmoud Abbas (center), President of the Palestinian Authority, with his delegation at the General Assembly of the United Nations. Photo: Rick Bajornas, courtesy of the UN.

Discussed in this essay: Justice for Some: Law and the Question of Palestine, by Noura Erakat. Stanford University Press, 2019. 352 pages.

IN JUSTICE FOR SOME: LAW AND THE QUESTION OF PALESTINE, Noura Erakat examines how international law has alternately furthered and failed the struggle for Palestinian liberation since Palestine was, with the Balfour Declaration in 1917, made into a question. For Erakat, a Palestinian American legal scholar, human rights attorney, and co-founder of the Arab Studies Institute e-zine Jadaliyya, “law is politics: its meaning and application are contingent on the strategy that legal actors deploy as well as on the historical context in which that strategy is deployed.” That is, law has no intrinsic force or value; rather, it is a tool reshaped, reoriented, and repurposed by its most adept users to better serve their objectives. Drawing on critical legal scholar Duncan Kennedy’s concept of “legal work,” the process by which legal actors change law and legal systems to serve their extralegal interests, Erakat lays out a chronology of inflection points in which international law has been made, unmade, mobilized, and ignored by Israeli and Palestinian advocates over the past century, through Britain’s administration of Mandatory Palestine, the UN’s adoption of a two-state partition plan, and Israeli independence. These decisive moments of “legal opportunity,” as Erakat calls them, include those created by the 1967 War, in which Israel captured the Sinai Peninsula, Gaza, the West Bank, and the Golan Heights; and the 1973 War waged by Egypt and Syria against Israel. Erakat traces how the legal and political recalibrations following these surges of conflict, as well as nonviolent shifts in power, have opened spaces in which Israel- and Palestinian-aligned agents have done successful—and less successful—legal work.

Erakat’s dissection of these legal and political histories is careful and captivating. Readers amused by legal absurdities will find several points at once delightful and painful. For example, Erakat explains how an omission of the article “the” from the English text of Security Council Resolution 242, in which the UN called for Israel’s withdrawal from the territories it had occupied during the 1967 War, became the legal footing of Israel’s occupation policy and its refusal to return to its 1949 borders. The drafting states had a unanimous, well-documented understanding that the permanent borders negotiated based on this resolution would be nearly or entirely identical to those established in 1949. But Israel’s legal work in the space of this missing “the” has rationalized a settlement enterprise that has made those states’ intention unrealizable, allowing Israel to advance an argument that its relationships to the West Bank and Gaza are unique in the history of territorial occupation, and therefore outside international law. A dubious legal theory grew from this tiny article’s absence, under which Israel selectively applies and ignores elements of international law in its military administration of the occupied Palestinian territories. A legal edifice built on this “semantic loophole” has left Palestinian civilians in the occupied territories, as Erakat writes, “suspended in a legal vacuum with only attenuated legal claims to humanitarian relief,” holding “neither the rights of an occupied people nor the rights of citizenship.”  

Justice for Some also follows a series of successful interventions by the leadership of the Palestine Liberation Organization (PLO) in the 1970s that retooled UN law and other international norms to better serve Palestinian interests. Under UN procedural rules, only states were allowed to address plenary meetings of the General Assembly, but through a lobbying campaign that culminated in the 1974 passage of General Assembly Resolution 3210, Yasser Arafat’s strategic consultant Nabil Shaath created a rupture in those rules. Whereas states represented at the UN had previously approached the question of Palestine obliquely, using euphemistic language about “Arab refugees” and “Middle East border conflicts,” Resolution 3210 invited the PLO, “as the representative of the Palestinian people, to participate in the deliberations of the General Assembly on the question of Palestine in plenary meetings.” This invitation placed the fate of Palestine and the existence of Palestinian people on the UN agenda for the first time. Following Arafat’s speech before the November 14th, 1974, plenary session, the General Assembly affirmed Palestinians’ rights to self-determination, sovereignty, and the return of refugees, and admitted the PLO as a nonmember observer. This was not without controversy: for many UN member states in the hegemonic Global North, granting the PLO observer status undermined the Westphalian, state-centric logic of the UN and threatened the very foundations of the institution. 

The PLO’s legal work at the UN, in treaty conferences, and with international organizations in the 1970s “transform[ed] the Palestinian question from a humanitarian crisis . . . into a political crisis marked by the failure of current and former colonial powers to deliver sovereignty and independence to a colonized people,” Erakat writes. But by centering the UN in its liberation struggle and articulating its demands in the language of international law, the PLO confined its challenges to Israeli dominance within structures facilitating that dominance. Erakat elucidates a critical tension evident in the PLO’s UN advocacy between the Palestinian liberation struggle’s goals and its chosen tools: “how can a state-centric legal order that sanctifies the sovereignty of settler states rectify and stem ongoing dispossession and native erasure?” Moreover, Erakat writes, Palestinian leaders’ mistaken impression that their achievements of limited autonomy and access to multilateral fora represented progress toward freedom has borne an unwise “commitment to U.S. tutelage and [Palestinian leadership’s] reticence to embark on a bolder course based on a politics of resistance.”  

Erakat condemns the Palestinian leadership’s failure to acknowledge—and therefore its inability to effectively oppose—what she determines to be a unified legal system applied by the Israeli government to all Palestinians within Israel and in the territories it occupies. She describes how second-class citizenship “under civil law in Israel, a mix of administrative and martial law in East Jerusalem, martial law in the West Bank, and all out warfare in Gaza” together constitute not a disaggregated set of policies with discrete goals in discrete regions, but a coherent apartheid regime. To acknowledge that Israel’s policies regarding Palestinians in its territory constitute a singular legal regime would concede that the West Bank and Gaza are not logically separable from other territory under Israel’s control, thus negating Palestinian leadership’s ambitions to create an independent state. Instead, by maintaining its commitment to the concept of independence alongside Israel, Palestinian leadership obscures and denies the reality that Israel has, as Erakat argues, “torpedoed the possibility of a Palestinian state.”

Posing the question of Palestine in terms of the number of states that should exist between the Jordan River and the Mediterranean Sea has, Erakat contends, lost whatever utility to the Palestinian cause it might once have had. The one-or-two-state paradigm misses the one-state reality, in which Israel’s settlement enterprise has left Palestinians with no contiguous, viably governable territory where a state could be established. Beyond this, state-centric analysis misses the uncomfortable possibility that Palestinians’ interests have never been served by premising this question on statehood, and, as Erakat writes, that “statehood, as a remedy, does not correspond to the reality and scope of Palestinian grievances today.” Palestinians have access to less than a quarter of Mandatory Palestine, despite the imprecise promises of Britain, the League of Nations Mandate system, and the UN Charter to deliver self-determination to that territory’s native population. The majority of the Palestinian population has been driven or fled from Palestine; their homes and property have been seized, their resources depleted, and their economy held captive. Their peoplehood—their existence—has been denied.

Palestinian liberation must, then, think beyond statehood. And it must, Justice for Some contends, wield international law “in the sophisticated service of a political movement that can both give meaning to the law and also directly challenge the structure of power that has placed Palestinians outside the law.” In a sense, Erakat asks that Palestinian emancipation perform a kind of legal work on international law that would free that law from its defining logic, the logic of the state—the concept of which has been the organizing principle of international law since the 17th-century Peace of Westphalia treaties. But if international legal processes can create and center the state, they can also unmake, or at least reduce the salience of, statehood.

The PLO’s interventions at the UN and other venues of international relations in the 1970s began this work of unsettling the primacy of statehood. A political movement capable of further displacing state-centric logic, Erakat argues, must begin by asserting individual rights. Erakat cites the 1936 Arab general strike in Mandatory Palestine, the First Intifada of 1987-91, and today’s Boycott, Divestment, and Sanctions movement as successfully centering rights-based claims. 

It must also be a decolonizing movement. For Erakat, Palestinians can only exist at the center of their own story when US tutelage and European hegemony cease to dictate the terms of that story. Palestinian emancipation, therefore, implicates Israeli emancipation from those forces, and the  redefinition of Jewish Israelis as a Middle Eastern people, as opposed to transplanted Europeans whose value is derived from the stark juxtaposition with their Arab neighbors. “[I]nsisting upon centering Palestinian claims,” Erakat writes, “is an exercise in visioning a future with the capacity to disrupt the incommensurability of Jewish and Palestinian belonging.” 

A post-Westphalian peace in the Middle East is no modest order, and Erakat does not claim to know the alchemy with which to conjure it. Erakat admits that her focus on a rights-based approach to legal work—one that works toward laying bare the illegality of Israel’s sui generis legal framework, and challenging the legitimacy it derives from adhering to legal norms of its own making—will be incomplete without a coherent political movement around concrete, if novel, goals. Her postmortem analysis of the Palestinian liberation movement’s failures is masterful and compelling, but her assessment of what these failures mean for future work is unclear.  

What is clear is Erakat’s belief that the work should build on early ideals of the decolonization movement. Justice for Some opens and concludes with Frantz Fanon’s 1963 appeal to the decolonizing Global South in The Wretched of the Earth to think beyond the unit of the state in designing its future. Fanon insisted that the conceit and the promise of statehood conveyed and would preserve the colonial machinery of extraction and exploitation. “Humanity,” he writes, “is waiting for something other from us than . . . an imitation” of European nation-statehood. More than 50 years later, power brokers, activists, and stakeholders continue to foreground the concept of statehood, reanimating a century’s erasures and betrayals of Palestinian peoplehood and ignoring the legal reality, as described by Erakat, that “when the British Mandate for Palestine expired in May 1948, sovereignty vested” not in a territory or government “but in the people of Palestine” themselves. If Palestinian liberation is to discard the premise of statehood, then “[p]erhaps,” Erakat writes, “offering humanity a better model than it has [yet] been able to produce is the current chapter of the Palestinian struggle.”

The apparent contradiction of the title Justice for Some captures the seeming hopelessness of the Palestinian question: these peoples in this land have only ever seen imperfect, partial justice. But beyond a bleak assessment of the situation as it has been, the phrase also offers another, more generative meaning, by highlighting the falsity of the zero-sum assumption that has tainted the international community’s engagement with Palestine for the past 100 years. International law and its actors have imagined Palestine as a problem defined by the impossibility of two peoples in one land, by incommensurable entitlements, by irreconcilable claims to sovereign self-determination. In all of this there can be no win-win result: there can be justice only for some. This book asks that the Palestinian liberation struggle and Jewish-Israeli society each reckon with the impossibility of a two-state future, reimagining what their interests are—and what they could become. In rejecting the zero-sum formula’s inevitability, Erakat sees, and demands, an alternative. 

Amanda McCaffrey is a JD candidate at Stanford Law School. Her writing has appeared in Just Security, Tin House, Stanford’s Leland Quarterly and The Stanford Daily. She holds a BA from UC Berkeley and an MFA from NYU.