RADICAL INCOHERENCE

/radical-intentions-a-critique-of-noura-erakats-justice-for-some-the-law-and-the-question-of-85ff54046e8f" target="_blank" rel="noopener">“Radical Intentions”A Critique of Noura Erakat’s Justice for Some: The Law and the Question of Palestine

?source=post_page-----85ff54046e8f--------------------------------" rel="noopener">Joshua Raposa

Joshua Raposa

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[Author’s Note: It should be noted that the present author went into this book with an open mind but, nevertheless, found deep flaws in its legal logic. The following review was submitted to a number of journals and newspaper outlets. Unfortunately, “Radical Intentions” couldn’t find a home anywhere: hence, the decision was made to publish it here. It is my hope that you — my fellow reader — may find this review to be of interest and, perhaps, insightful insofar as the “Question of Palestine” is concerned.]  has been making the rounds in leftist circles, receiving lavish praise from some of the most respected intellectuals in the US. Angela Davis, for example, the renowned scholar-activist wrote that, “Erakat’s incisive exploration of the role of law in shaping the development of Israel/Palestine reveals the consistent genuflection of international legal institutions to Israel’s reliance on well-established colonial practices.” Harvard Law School’s Duncan Kennedy called it, “a radical rethinking of the role of law and legal advocacy in the struggle for Palestinian rights … Brilliant, inspiring, coldly realistic — and hopeful.” “Without any doubt,” former UN Special Rapporteur for Palestine Richard Falk, stated, “Justice for Some is the best book on the law and politics of the Palestine/Israel struggle.” Rashid Khalidi, one of the foremost historians on the Israeli-Palestinian conflict said, “Erakat brings a sophisticated understanding of the role of international law over the last century in the Question of Palestine. This brilliant book will be of great interest to anyone seeking to understand why the outcome, thus far, to the disposition of the Palestine problem has not been a just one.” The following will respectfully disagree with these judgments: it suggests that when one evaluates the major thesis of the book, placing it in light of the evidence provided, one must conclude that it does not hold up to scrutiny. Quite the contrary: the evidence substantially — if not, completely — contradicts the thesis itself. I. The focus of Erakat’s book is international law and politics. Her thesis is that “the 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.” (p. 4, emphasis added) In particular, Erakat seeks to examine how international law — not domestic Israeli law, or Israel’s interpretation of international law — has facilitated the dispossession of the Palestinians: “…Israel’s economic, political, and military prowess, has made international law, on balance, more beneficial to Israeli interests than it has been to Palestinian ones.” (p. 19; see also p. xi, xii, 2) Duncan Kennedy’s concept of “legal work” is central to this thesis. Erakat argues that Israel’s “exemplary” practice of legal work has turned international law into a weapon in Israel’s arsenal (p. 62). Thus, “legal work” provides the theoretical framework for the argument: “The operative variable determining a law’s particular meaning is not necessarily its content, though that is relevant. Rather[,] it is what legal scholar Duncan Kennedy describes as ‘legal work’ or the work that the legal actor performs to achieve a desired outcome. Legal work is undertaken strategically ‘to transform an initial apprehension of what the system of norms requires, given the facts, so that a new apprehension of the system, as it applies to the case, will correspond’ to the extralegal preferences of the worker.” (p. 7) The notion of “legal work” becomes clear if we examine the source. Duncan Kennedy — in his “” — defines what type of “activity” legal work entails: “This is the activity of legal ‘work’ understood as the transformation … of what the legal materials making up the system require, by an actor who is pursuing a goal or a vision of what they should require.” (p. 158, Kennedy’s emphasis) In other words, the lawyer argues what they think the law ought to be, in accordance with their “preferences”; notas it were, what the law is. What’s important here, however, is what the concept of legal work implies. In effect, it allows any party to derive virtually any meaning from a given body of law. As a consequence, Israeli and Palestinian claims to legal legitimacy are equally valid: thus, if its “extralegal preferences” so dictate, nothing in the law can constrain Israel from oppressing the Palestinians. What Erakat deems “the law’s malleability” precludes the ability to distinguish between plausible interpretations of the law (p. 5). Put another way: all legal truth is relative. Such a conclusion, in effect, empties the law of its content and renders its adjudication during times of conflict (e.g. Israel/Palestine) null and void. In the Israel/Palestine case, pro-Israeli lawyers contend that the standards of international law (like the Fourth Geneva Convention) need not apply to Israel: the reason being that Israel’s situation — in particular, its relationship to the “Question of Palestine” — is sui generis (the term is Latin for “unique” or “of its own kind”). In effect, Erakat’s core thesis (“the law is politics”) supports Israel’s claims of legality. As we will see in the next section, Erakat’s argument conflates what the broad consensus of international law says with what Israel claims international law says. Let’s examine one of the chapters in detail. II. In Chapter 2 (“Permanent Occupation”) of Justice for Some, Erakat argues that “[i]nternational law did not just fail to regulate the occupation of Palestinian lands, it provided the legal framework for their incremental colonization” (p. 64, emphasis added). To clarify, Erakat uses the phrase “incremental colonization” to refer implicitly to the “acquisition of territory by war” and explicitly to the Israeli settlement project. Although one logically entails the other (that is, you can’t “settle” land you haven’t yet “acquired”), they are of two different legal species and, as a result, we must evaluate them separately. Therefore, Erakat’s two central claims are that international law provided Israel the legal framework for: (1) the acquisition of territory by military conquest; and (2) the Israeli settlement project. 1. International law provided Israel the legal framework for the acquisition of territory by military conquest There are two interconnected ways of formulating this claim: (a) that there exists some type of ambiguity in the “inadmissibility clause” of UN Resolution 242 (one of the cornerstones of international law with respect to Palestine); and, as a result, (b) that the Occupied Palestinian Territories (OPT) are legally “disputed.” With respect to the former, the “inadmissibility clause” refers to the preambular paragraph of UN Security Council (UNSC) , which emphasized the “inadmissibility of the acquisition of territory by war.” (Recall that Israel acquired the West Bank, Gaza Strip, and East Jerusalem during the course of the June 1967 War.) Despite Erakat’s claim, the uniformity of opinion one finds among Security Council Resolutions, General Assembly Resolutions, and testimonies from leading authorities in international law, suggests an unambiguous interpretation of this clause. UNSC  stated that the “acquisition of territory by military conquest is inadmissible.” The UN General Assembly (UNGA), in Resolution 37/86 [1982] “[d]emande[d], in conformity with the fundamental principles of the inadmissibility of the acquisition of territory by force, that Israel should withdraw completely and unconditionally from all the Palestinian and other Arab territories occupied since June 1967” (UNGA Resolution 37/86 [1982]; emphasis in original). UN General Assembly’s “”(voted upon annually),“[r]eaffirm[s] the principle of the inadmissibility of the acquisition of territory by war.” Similarly, leading scholars of international law have suggested: “[L]awful belligerents should not be permitted to act ultra vires by acquiring territory as a result of a lawful war.” (Brownlie) The UN Charter “prohibit[s] all acquisitions of territory by force irrespective of the lawfulness of the cause of war.” (Korman) “[T]he United Nations expressly refuses to accept the argument that territory may be permanently acquired as a result of action taken in lawful self-defense.” (Dugard) (See Norman Finkelstein,  [p. 209–210], footnotes 17–21.) With regard to the latter claim (“that the territories of Palestine are disputed”), the  — recalling the “conclusion[s] of the International Court of Justice; the United Nations Security Council; the United Nations General Assembly, United Nations organs, special procedures and treaty bodies, … intergovernmental bodies, as well as the 139 States which voted in favor of UNGA Resolution 67/19,” (p. 24/27, para. 53, see footnotes 57–61) — affirmed that, indeed: “The territory of the State of Palestine is recognized by the international community to comprise the Gaza Strip and West Bank, including East Jerusalem, i.e., the territory occupied by Israel since June 1967 or ‘the occupied Palestinian territory.’” In other words, there is an international consensus: a state (namely, Israel) may not acquire territory through “military conquest” and the territories are not in dispute: Israel remains the occupying power (see the above ICC link, para. 55). By contrast, Erakat argues that UN Resolution 242’s lack of the definite article “the” — in the clause, “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” ( [1967], emphasis added) — provided “Israel with enough wiggle room to pursue its territorial ambitions” (p. 71). Thus, Erakat writes: “Resolution 242 provided Israel with a way forward, enabling it to formalize its legal argument regarding the sui generis status of the West Bank and Gaza and turn it into a viable specialized legal regime” (p. 79, Erakat’s emphasis). But in order to substantiate the claim that international law provided the legal framework for the acquisition of territory by military conquest, Erakat misrepresents the findings of international law, conflating them with Israel’s claims of legality. As such, her evidence flatly contradicts her central claim: “…Israel claimed that the lack of a sovereign in the West Bank and the Gaza Strip made the territories sui generis, or exceptional as a matter of law … Israel insisted that there was no sovereign to restore in the West Bank and Gaza…” (p. 63, emphasis added) “…Israel took the position that it was under no obligation to return all of the West Bank and the Gaza Strip…” (p. 64, emphasis added) “Israel … justif[ied] its settler-colonial expansion into the West Bank and Gaza on the basis of the definite article’s absence from the English text” (p. 78, emphasis added). Indeed, by Erakat’s own admission, the only party who argued that Resolution 242 allowed for the “[r]etroactive [c]over” for its colonial project was Israel itself (p. 87): “All the competing parties, with the exception of Israel, agreed that Israel should withdraw from all the territories it occupied in 1967.” (p. 73, Erakat’s emphasis) In other words — as the preambular paragraphs of numerous UNSC/UNGA Resolutions stated, as the analyses of the leading authorities in international law suggested, as the evidence culled by Erakat’s own book illustrated — those substantive organs, opinions, and commentators of international law do not so much as hint that Israel’s acquisition of territory during the 1967 war was and is legally admissible: only Israel has claimed as much. Thus, Erakat’s conclusion — that, “[i]nternational law did not just fail to regulate the occupation of Palestinian lands, it provided the legal framework for their incremental colonization” — is wholly incorrect (p. 64; see also p. 87). 2. International law provided the legal framework for the Israeli settlement project The Fourth Geneva Convention (1949) is unequivocal on the impermissibility of transferring a population from the territory of the occupier to that of the occupied. Article 49 : “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive … The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Recalling this fact, UN Security Council (UNSC) Resolutions 446, 452, and 465 have all observed: “…the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity” ( [1979]). “…the policy of Israel’s in establishing settlements in the occupied Arab territories has no legal validity and constitutes a violation of the Fourth Geneva Convention” ( [1979]; see also  [1980]). Additionally, the UN General Assembly (UNGA) has, on two separate occasions, condemned the Israeli settlement project. For example, it “especially condemn[ed] and call[ed] for the immediate cessation of all illegal Israeli settlement activities” ( [2016]); and, “[r]eiterate[d] its demand for the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan” ( [2012]). The International Court of Justice — in its 2004  — reaffirmed these sentiments, concluding that the “Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law” (p. 184, paras. 119–120). Most recently, the International Criminal Court (ICC) — in Chief Prosecutor Fatou Bensouda’s “” (22 January 2020) — summarized the conclusions of the UN system: “In sum, the findings of the UN General Assembly, the Security Council, the ICJ and UN human rights bodies among others, have uniformly deemed the establishment and maintenance of Israeli settlements in the West Bank, including East Jerusalem, to be in violation of international law” (p. 85/112, para. 157; see also footnote 521). Accordingly, one finds the same argument in the reports of credible human rights organizations like , and . On the question of Israeli settlements, international law is unequivocal: the settlements are patently illegal. Again, and in order to support her claim that international law provided the legal framework for settlement expansion, Erakat confuses the conclusions of international law with the opinion of the Israeli state:Israeli courts” — not international courts — “provide[d] legal reasoning for colonization.” (p. 83, emphasis added; quote is a section headline) “Israel’s … Supreme Court” — not an international court — “developed in piecemeal fashion, the legal framework for regulating Israel’s presence in the West Bank and Gaza … Notably, however, it [Israel’s Supreme Court] has refused to rule on the legality of civilian settlements in Occupied Territories.” (p. 84, emphasis added; also, see p. 85–86 [“The Order Regarding Abandoned Property of 1967”]) “Under a rule-of-law framework, Israel’s Supreme Court” — not an international court — “has enabled the state to achieve colonial expansion. While the [Israeli] judicial branch has justified Israel’s action in the territory based on occupation law, it has simultaneous invoked the sui generis argument to block Palestinian legal redress under the same framework.” (p. 86, emphasis added) Nothing in international law in all of its constituent parts — and as it is construed by the international community — validates Israel’s claim to the West Bank, East Jerusalem, and the Gaza Strip or legitimizes Israel’s settlement enterprise. III. Certainly, Justice for Some has the correct end in mind: indeed, Erakat recognizes that “the Palestinian demand remains the same as it was in 1917: to achieve national self-determination” (p. 20). Surely, Erakat’s intentions are radical; we need to be critical, however, about what means are available to us and to the Palestinians. “Legal work”, unfortunately, cannot be one of them. As a conceptual framework, it fails on two accounts: First, legal work is wholly implausible: its essential premise — that any legal actor can contort the law in accordance with their “extralegal preferences” — leads to the absurd conclusion that there are no degrees of plausible interpretation in the law. In other words, any interpretation is valid. While there are sometimes ambiguities in the law, it would be incorrect to suggest that the law (in all observable cases) is infinitely “malleable”, and that a given “legal actor” can simply interpret any meaning they so desire. Secondly, legal work is not only politically counterproductive but it is, despite Erakat’s best intentions, morally debased: in effect, it gives credence to Israel’s incorrect, injurious, and insane interpretation of international law, legitimates Israel’s self-proclaimed right to , and  innocent Palestinians, and provides no basis to declare invalid Israel’s heinous practices. As such, these radical intentions do not hold up to analytical, political, or moral scrutiny.
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