This conversation was an online panel discussion on 29 November 2023 with Katherine Franke, Shahd Hammouri, Ardi Imseis, Darryl Li, John Reynolds, and Nahed Samour. It is published in three parts: 1. Influences, 2. The Role of Law, 3. Academic Freedom, BDS & Tactics. The panel was organized by Usha Natarajan and sponsored by Sijal Institute for Arabic Language and Culture; TWAIL Review; Center for Comparative Muslim Studies at Simon Fraser University; UWIN RAACES at University of Windsor; Social Justice Center at Kwantlen Polytechnic University; and Middle East Studies at University of British Columbia.
TWAILR: Dialogues #14/2023
USHA NATARAJAN: What role can law play in the Palestinian struggle, whether in the domestic, regional, or international realms? Ardi, could you please start us off given that you’ve recently published a book on the United Nations and the Question of Palestine.
ARDI IMSEIS: Law a paradoxical thing. As an international lawyer, there is no question that, of all the tools at the disposal of the Palestinian people and their liberation struggle, international law is key. Even the non-lawyers know this as they refer to international law all the time: human rights, self-determination, and so on. At the same time, if you scratch at the surface of international law, particularly for the legal historians among us, you will find that international law has a violence of its own and is complicit in the subjugation of the Palestinian people. On this point, the text I recommend early on to my students is From Apology to Utopia: The Structure of International Legal Argument, which is the work of a former Finnish diplomat who became a celebrated academic, Martti Koskenniemi. He posits a disciplinary tension between, on the one hand, law as a product of power created by states and, on the other hand, law as strictly normative, a plea for a utopia that binds all actors including states. According to Koskenniemi, this tension is a fixed feature in the international system.
My work fleshes this tension out when it comes to Palestine in my new book. A product of this tension is what I call ‘international legal subalternity’: a category that encompasses the global underclass, for example refugees, Indigenous peoples, women, minorities, and so on. In its engagement with the United Nations from 1947 to the present, the Palestinian people are in my view the most representative embodiment of international legal subalternity, the fundamental essence of which is that international law is held out to the global underclass as offering a promise of justice if only they grasped it. And every moment they try to grasp it, the goalposts seem to shift, including through the operations of the United Nations that is ostensibly the flagbearer of the rules-based international legal order.
This in-built paradox is traceable through time and history in the case of Palestine: the illegality of the UN partition in 1947; the protection gap that has resulted from the unique institutional and normative regime created by the UN to manage the fallout of the 1948 Nakba in the person of the Palestinian refugees; the failure of the UN to definitively declare Israel’s continued presence in the Occupied Territories to be unlawful (a matter now before the International Court of Justice); right up to the failure to grant the state of Palestine membership in the organization. What each of these moments reveal, despite taking place within different geopolitical backdrops – from late empire to the post-colonial age – is that Palestine and its people have suffered from legal subalternity as a long-range condition that produces and reproduces disenfranchisement, not emancipation.
People may ask, in view of all of this, does law even matter. Law does matter, it can be used in the Third World Approaches to International Law (TWAIL) sense as a counter-hegemonic move. We just need to be creative with where those moves are, isolate and locate those entry points, and exploit them as best we can in the knowledge that, on the international plane, law is also politics.
JOHN REYNOLDS: Firstly just to say that on the TWAIL Review today, we have released an ebook collection featuring some of the writings on international law and Palestine that we published over the last four years – including an interview with Ardi on his great book, and a short essay by Ata Hindi called International Law is Dead as the two most recent contributions. These may provide a good entry point to this question, and there are many other helpful pieces within the collection.
I think there is an interesting dynamic that happens in international law at a moment of escalation like what is happening in Gaza now. The liberal and Zionist international lawyers and scholars who would have otherwise or previously tended to be quite doctrinal and positivist in their work all of a sudden become quite critical of law, indeterminacy becomes very popular, the doctrine of proportionality becomes ubiquitous in the construction of so many ‘grey areas’, the thousands of massacred children might be unfortunate but legitimate ‘collateral damage’, the legal waters are suddenly very muddy. On the flip side, for critical legal scholars and TWAILers who are in solidarity with Palestinians, there is a default turn back to ‘well, at least the law is one thing that we do have’ – one available vocabulary that doesn’t give us all the right answers but it is still something we can try to use in the desperation of unfolding catastrophe and in the absence of better alternatives. So a lot of us end up reverting to our formerly doctrinal selves. There is something interesting to tease out about what is going on there.
This question about the role of law is also about the process of constantly thinking through the dynamics of tactics and strategy and how international law can be best deployed in the service of social and political movements. One thing that it is important to remember is that, while we can talk at length about the International Criminal Court and the International Court of Justice, international law is not just about those big institutions from above. There is also the reality of international law from below, international law in the everyday, and so on. Some of that is to do with defence of civil and political rights, defending people’s right to boycott, and so on. Some of it is about trying to harness international law in domestic settings, for instance the recent case filed in the US against President Joe Biden for aiding and abetting genocide and breaching the duty to prevent genocide. Palestinian organizations have also instituted cases in Britain and elsewhere against governments, asking for review and suspension of arms export licenses to Israel. Domestic courts can compel governments and officials to appear and answer questions in a way that they may never have to do at the ICC. Much of the legal discourse in the context of the current onslaught against Gaza has focused on the question of genocide and the duty to prevent. This ties in, in very interesting and significant ways, with the mass popular mobilizations worldwide under the banner of ‘Stop the Genocide’. It also forces the legal debate in new directions, and puts questions of arms embargoes and sanctions on the table, including the suggestion of suspending Israel’s participation in the UN General Assembly (as was done against apartheid South Africa).
KATHERINE FRANKE: This is such a rich conversation. I had things I was going to talk about, but you are making me think about other things that are more interesting than what I had planned. One way to understand what law is doing in these spaces – not what the law is, but what the law is doing – is that law is performing a kind of politics of presence. I say that partly because of an anecdote of something that happened here. Fifteen years ago, I came back from the West Bank where I had been invited by various NGOs to do capacity building work with women Palestinian lawyers in the West Bank building the Women’s Bar Association, of all things not the most political or radical project. I came back here to Columbia, and I wanted to do a little lunch talk about it, so I made a poster entitled ‘Feminist Lawyering in Palestine’. The Dean of the Law School’s Chief of Staff said you can’t have that event because there is no such thing as Palestine. And I said, what about Tibet, and things like that, the obvious comebacks.
Law is about the politics of presence, about bearing witness to a thing, a place, a people, a past … the law frames and holds a portrayal of a set of wrongs, of a set of people who have been wronged …
In such contexts, much of the legal framing is about the politics of presence, about the law bearing witness to a thing, a place, a people, a past. In this sense, law is much less of an exercise in power in the way that we normally think of the law as the command of the sovereign backed by credible threat – the Austinian positivist way of thinking about what the law is. Law is rarely, if ever, that. Law is less of an exercise of power in these contexts that matter to us most than it is a practice of naming. A practice that frames and holds a portrayal of a set of wrongs, of a set of people who have been wronged, perhaps of practices of power in that space that produce certain kinds of subjects and injured subjects.
In this respect, it is really important to ask who the audience for the nominal practice is. In law school, we teach that the audience is the judge, you write briefs for judges. The complaint that John referenced was filed recently by the Center for Constitutional Rights (CCR) calling out the Biden administration for complicity in genocide. I probably read four drafts of that complaint as I work closely with CCR, and we went back and forth on the question of the audience. Are we going to win this case? That was not the reason we filed the complaint. Hopefully we will win but it is unlikely. So, to what extent is the complaint, the document that inaugurates a lawsuit, a political document that is describing the history of genocidal practices in this space that is Israel Palestine? Or is it really a legal document? One that states the elements of genocide, shows that all of them have been met, and goes through them mechanically and without flourish: ‘Let’s be lawyers, we’re not at a political rally.’ But aren’t we? What are we doing when we are writing these complaints? I vacillated when editing it: ‘Oh, come on, that is too much jargon for the introduction to a legal complaint, what does that have to do with genocide?’ Well, of course it had everything to do with genocide.
And that is the struggle we have as lawyers right now: What is the nominal practice? What are we calling out? Why are we doing it through law? What violence does it do to people to bring them to a kind of legibility through law when the moves that we can make through law are limited? Squishing people and their histories into the legal concepts of crimes against humanity, genocide, torture, dispossession, occupation, and so on. The law of occupation, for example, is abundantly interesting and does its own violence in the way that it names those histories. These are the questions I struggle with. To circle back to our reason for being here, Edward’s work gives us ways to be those engaged intellectuals, always with a perspective of who the audience is for the work, and what the power is of those nominal practices of naming.
Lastly, those of us who are movement lawyers understand that law is always and only a tactic. It doesn’t have its own dignity, it doesn’t have its own virtue, it is a tactic in these movements. When it works, then great. Mostly it doesn’t. But to call something genocide, to use the vernacular that law gives us for the worst things that humans can do to one another, that is incredibly powerful as a tactic. And if that is all this new complaint against the Biden administration does then fantastic.
DARRYL LI: I echo what John said about moments when formalists become realists, and realists become formalists. And everything Katherine said about the way the categories of law force us to straitjacket and frankly amputate human experience in order to fit into those categories. A different kind of challenge is what happens when lawyers are not writing briefs but are speaking to the public and trying to put themselves in service of movements.
It is important that when we talk about legal violations we should do so in a way that furthers the education and mobilization of people for our political analysis. In this case, that means specifically the analysis of Israel as a settler colonial project.
To pick up on Katherine’s point about law as a tactic, if we think of law as a tactic and international law as the most conveniently available universalist language that resonates widely with potential audiences and all types of problems, it is important that when we talk about legal violations we should do so in a way that furthers the education and mobilization of people for our political analysis. In this case, that means specifically the analysis of Israel as a settler colonial project. We should not insist on legalism for its own sake. No one in this particular discussion has done this, but there are times where people say things such as ‘settlements are bad because they are violations of the Geneva Conventions’ or ‘Israel doesn’t have a right to self-defense against a non-state actor under the United Nations Charter.’ While I completely agree with these legal arguments, when they are injected into a public discourse that is relentlessly trying to destroy context – to violently decontextualize Palestinian life and existence – then you should not say that something is bad because it is against a rule without also telling us what value that rule is supposed to uphold.
For this reason, we should talk about the prohibition against settlements in Article 49 of the Fourth Geneva Convention as a rule against colonization, not just a rule that people should follow because we are rule-following people. This may seem like a minor or obvious point, but it is an important one, to ensure that when we invoke rules, we do so in a manner that undoes the decontextualization that often pervades public discourse. Because the way that people who aren’t informed about law see these legal debates is that one lawyer spouts off a bunch of rules, then the other lawyer spouts off a bunch of rules, so it is easy to write the issue off as all very complicated. Instead, we want to think about the ways that law can be effectively utilized in acts of public persuasion and mobilization.
NAHED SAMOUR: What I’m seeing is that Palestine is irritating public international law, international criminal law, constitutional law, protest law, school law, academic and artistic freedom, naturalization and citizenship law, media law, and so on. I see this happening everywhere and possibly this is because Palestine is challenging the legal order as established after the second World War and the genocides in Europe. Palestine is challenging the liberal structure of the law that so many liberal democracies are invested in. This post-World War II, post-Shoah investment is imploding because of the question of Palestine. Palestine shows the unwillingness of the legal order to decolonize. It took 13 years for the ICC to even decide on the question of preliminary investigations regarding war crimes and crimes against humanity in Gaza 2014, 13 years lingering with that question. And today, even with an official decision by the ICC to investigate those crimes from 2014, we have reason to doubt that the ICC will tackle this case as it should.
Palestine is irritating public international law, international criminal law, constitutional law, protest law, school law, academic and artistic freedom, naturalization and citizenship law, media law, and so on … Palestine is challenging the legal order established after the second World War and the genocides in Europe.
This is why I am coming back to what Katherine and Darryl said that this is about law as an educational tool. Law opens opportunities to educate about the horrors of this world, for us to narrate how the law is being used to conceal and hide these horrors. It also provides a kind of normative and ideally emancipatory vision but at this point liberal structures are cracking in so many ways. It is as if the liberal order is imploding because many states are willing to give up on the very idea of international law before will they give up on Israel’s horrifying use of force. I’m also happy that John mentioned international law from below, international law as part of everyday life, and we see how social movements are picking up international law and marching with banners referring to international law saying ‘stop genocide’ or ‘no more war crimes’. We see how a vernacular has been established around international law, which is a good thing, because we cannot put all our hopes on states, especially when it comes to international or even domestic courts trying public international law and international criminal law cases. Even when courts produce helpful decisions, we have seen states not complying with state obligations.
SHAHD HAMMOURI: The question that I find intriguing is, what is Palestine doing to law? Palestine is stretching international law beyond its limits. International law bases its legitimacy on abstract claims to justice. I was at a UK foreign office meeting a few days ago and one of the lawyers was angry that states of the Global South kept talking about the question of legitimacy. We are at a point where refusing to apply international law in an exceptionalist way reveals disciplinary absurdity. International law is held out as this ideal liberal language of the Global North, but the Global South has always experienced its violence, and Palestine is challenging these liberal spaces. The standards of international law are blind to domination. Israel’s domination of Palestine is so deep that Israel can no longer upload the façade of claims to legitimacy. The International Court of Justice has no logical way to argue that the occupation is legal, and the same with the International Criminal Court unless they opt into exceptionalist readings of international law. So where does that leave us? I agree with treating international law as a tactic and language in the game of political legitimacy, a way of inserting a logic of justice into the logic of politics. We should push international law to its limits. We should keep doing everything that we do internationally, regionally, and nationally, stretching this language to its breaking point.
The case of Palestine provides an opportunity to revive that language of the Declaration of Friendly Relations, the language of the New International Economic Order, into new forms capable of uniting voices of the Global South.
However, as Audre Lorde reminds us, you can’t dismantle the master’s house using the master’s tools. So, alongside the invocation to push on the limits of international law, we need to also invoke different logics of international law that evade the mainstream. As John has done and some of us have done, it is important to call what Israel is doing alien domination, subjugation, and exploitation. For some reason, this is not the primary legal argument used to describe the question of Palestine. International law has resisted infusing the experience of dominated peoples into its language. Palestine is a reminder that this system cannot hold unless we integrate the experiences of dominated peoples to have a more nuanced understanding of justice. Palestine could be a way to reopen conversations from the 1960s and 1970s when Alvarez called for a new international law based on the experience of states of the Global South. Otherwise, international law will continue serving one type of human being at the expense of another. The case of Palestine provides an opportunity to revive that language of the Declaration of Friendly Relations, the language of the New International Economic Order, into new forms capable of uniting voices of the Global South.
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Click here for Part One ~ Influences
Click here for Part Three ~ Academic Freedom, BDS & Tactics