/ Published July 28, 2020
Justice for Some: Law and the Question of Palestine by Noura Erakat. Stanford University Press, 2019, 331 pp.
Noura Erakat is a Palestinian American human rights lawyer, activist, and legal scholar. She has worked as an attorney for the United States House of Representatives and United Nations and teaches security law at George Mason University. In Justice for Some, she explores the relationship between law and politics in Palestine. Her primary argument is that international law has advanced Israeli more than Palestinian interests because Israel has been more adept at “legal work”—the strategic shaping and deployment of law for political purposes. Chapters are organized in rough chronological order, focusing on the five “consequential historical moments”: the British Mandate period, the decades after Israel’s creation, the development of the Palestinian Liberation Organization, the Oslo Peace process, and the post–9/11 era.
In her first chapter, Erakat details how Britain used the Balfour Declaration and the League of Nations Mandate system to deny the right of self-determination to the majority indigenous Arab population in Palestine while awarding it to the minority population of Jewish migrants. Israel has similarly denied Palestinian peoplehood for decades, insisting that Palestine is not a nation deserving of self-determination. Indeed, chapter two of Erakat’s book details how this rejection of Palestinian peoplehood has played a central role in the policies and laws Israel has used to achieve a permanent occupation of Palestine, first in Israel’s pre-1967 borders and then in the occupied territories. Israel claims that as a matter of law, the West Bank and Gaza are disputed territory and not occupied lands, so occupation law does not apply. Israel also claims that UN Security Council Resolution 242 affords Israel the right to keep sections of the West Bank for security reasons. Thus, Israel has the legal right to build settlements and even annex territory. Erakat insists this is a minority opinion in international law, but American acquiescence has shielded Israel from any serious repercussions. Indeed, the Trump administration’s “peace plan” envisions Israel annexing much of the West Bank, thus bolstering the Israeli proposition that if you do something long enough, the international community will accept it.
Chapter three focuses on how the Palestinian Liberation Organization secured the international community’s recognition of Palestinian peoplehood. It did so in part by successfully promoting the passage of General Assembly resolutions 3236 and 3237, recognizing the Palestinian right to self-determination in Palestine and the PLO as the sole representative of the Palestinian people. The PLO also achieved non-member observer group status at the UN and helped pass GA resolution 3379 condemning Zionism as a form of racism. This chapter also explores the struggle within the PLO between revolutionaries seeking the complete liberation of Palestine and pragmatists willing to accept some form of a two-state solution. By the 1980s, PLO pragmatists won out, which helped open the door to the Oslo Accords.
In chapter four, Erakat critiques the Oslo Accords, especially the PLO’s negotiation efforts. The PLO was too quick to buy into a negotiation framework based on Israel’s terms. It largely abandoned its hard-fought legal achievements of previous decades and allowed itself to be outmaneuvered by Israeli negotiators. This happened in part because the PLO faced numerous existential threats (banishment from Lebanon to North Africa, the development of alternative leadership in the West Bank and Gaza, and international isolation after the Gulf War) and its leaders were desperate to remain relevant. The PLO thus accepted a limited autonomy agreement, something Israel had been peddling for decades. While the Accords recognized Palestinian peoplehood, they did not commit Israel to respecting the Palestinian right to self-determination and independence. Worse, they effectively anointed the newly created Palestinian proto-government as subcontractors of Israel’s occupation. Concurrently, the Accords gave Israel legal and political cover for its continued settlement expansion.
The final chapter details how Israel reshaped international law regarding the use of force against non-state actors. In an effort to justify a policy of targeted killings that Israel began during the Second Intifada, Israeli lawyers claimed the current conflict to be unique. It was not quite a war, so the enemy did not deserve the rights and protections provided by the laws of armed combat. However, it was intense enough to be considered analogous to war and thus justify warlike activities. Israel asserted that it had the right to kill suspected enemies as a form of national self-defense. When it started assassinating Palestinian leaders, both the Clinton and Bush administrations condemned its actions. After the terror attacks on September 11, 2001, successive US administrations embraced Israeli counterterrorism policies and their legal justifications, demonstrating Erakat’s point that transgressions of current law can become the new norm if enough of the international community accepts them.
While much of the book explores Israel’s legal work, Erakat focuses some of her fire on Palestinian leaders. She rightfully criticizes the PLO for its ham-fisted negotiation efforts leading to the Oslo Accords but gives the reader little reason to believe that a more sophisticated, legally coherent negotiation strategy would have produced anything better—especially considering the gross imbalance of power inherent in direct peace talks. Erakat also insists Jewish sovereignty requires domination of Palestinians, but that the inverse is not true. The former assertion is clearly true, at least in practice. However, few Israelis believe the latter is true, and even fewer are willing to find out. Continued violence, the author writes, is inevitable because no just resolution can be achieved without confronting Jewish colonization and Palestinians have the right to fight for their freedom. The right question, therefore, is not how to avoid conflict but how to make it worthwhile. Palestinians have to decide on a political framework worth pursuing and then do the legal work necessary to marshal international law for that purpose. Erakat does not suggest what this political framework should be, only that it needs to respect the human rights and dignity of both peoples. She insists that Israel has killed off the two-state solution but that a one-state solution is no guarantee to Palestinian freedom since it could be an apartheid state. She ends her book with some hopeful words about how Palestine’s promise is to provide new models of governance that can “make humanity whole”—models Europe has failed to deliver. What these models might be is left up to imagination. Some readers will find this ambiguity an anticlimactic conclusion to an otherwise detailed discussion of law and politics in Palestine.
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