Climbing out of the rabbit hole
Israel’s implementation of protracted occupation, apartheid and colonization is hyper-legalized. This regime is sterilized through the language of law and its violence dispersed through many bureaucratic institutions and complex legislation. In tandem, law is used to criminalize acts of political expression – Palestinian Sheikh Sayah Aturi from the community of al-Araqib was released from detention on 11 December 2013 after he was held for almost a month for his attempts to impede Israel’s 62nd demolition of his village in the Naqab.1 Nearly 5,000 Palestinian political prisoners are currently held in Israeli detention.
You’re on your way down the rabbit hole.
Other colonial regimes such as Apartheid South Africa also heavily relied on their judiciary to facilitate oppression. In the Palestinian case, Israel succeeds in portraying the judiciary as a progressive, independent and fair institution to Jewish-Israelis and the international community. Palestinians, however, are intimately familiar with the crimes sanctioned by the legal order. The Israeli Supreme Court approves collective punishment through house demolitions, as military tribunals exonerate Israeli soldiers’ murder of children, and municipal courts affirm the exclusion of Palestinian citizens from resources and budgeting. As of this writing, the Knesset appears to be proceeding with the legislation process for the Prawer Plan, threatening upward of 30,000 Palestinians with forcible displacement and land expropriation despite Minister Benny Begin’s call for its halt on 12 December 2013.
Whether citizens of Israel, residents of the occupied Palestinian territory, or exiled refugees – lived reality instructs Palestinians that the Israeli legal order is anything but just. Welcome to wonderland.
Currently, the only legal forums available to Palestinians for challenging abuses are the Israeli courts. The Palestine Liberation Organization’s threats of turning to the International Criminal Court may materialize when the current round of Kerry-sponsored negotiations conclusively ends. Increased access to international legal mechanisms will impact domestic tactics.
However, when political factions are imbedded within the PA/PLO and the official representative body of the Palestinian people is unable to fulfil its role, there is broad recognition of the need for a collectively informed Palestinian political practice to guide tactics. Fragmentation of the body politic and foreign interventions modeled on the Oslo framework contextualize the current political crisis. These conditions also point the way to the strength of our moment in time. Political “weakness” may provide the opportunity to repurpose deeply faulty endeavors such as the Palestinian Authority and to sharpen tools of resistance in ways that – through their engineering – also envision the ideals we seek to achieve.
One of these tools – the law – is multilayered and daunting. On the one hand it embodies Israel’s powerful control over Palestinians and, as such, is futile as a source of justice. However, the legalized racism of Israeli law contains another pursuit. Acknowledging the unlikelihood of achieving equal rights through the courts, Palestinians have employed law-based and extra-legal tactics in useful ways – to block attempts at denying Jerusalem residency, for example.
However, participation in the legal system comes with compromises – one of the most worrying is the political and psychological legitimization of Israeli justice that using the courts imposes on Palestinians. Yet, with few alternatives, the slim chance of limited success compels many Palestinians to employ the Israeli legal system to prevent or delay attacks on their homes, livelihoods, freedom of movement, family unification, etc. This fact has very real implications by diverting resources (financial, organizational and emotional) that may be better allocated to sustaining Palestinian existence.
A classical discourse
A body of literature is written on the topic of law as resistance and legitimation in Palestine.2 As an initial foray into the topic,2 the 55th installment of al-Majdal aims to contribute to this tradition while pursuing two specific goals: maintaining a holistic framework across the fragmented geography of Palestine and focusing on the non-governmental organization sector of Palestinian civil society.
Sovereign domestic law in Palestine falls into two general categories: Israeli civil law in Israel-proper and annexed East Jerusalem, and Israeli military law in the rest of the occupied Palestinian territory. Both institutions ultimately feed into the Supreme Court. In order to counteract fragmentation, we asked Palestinian non-governmental organizations from both sides of the artificial, but painfully divisive Green Line for their positions on employing Israeli law. Can tactics in and around the law usefully challenge disenfranchisement institutionalized in Israeli laws and legal culture? Published here are contributions from Al Mezan Center for Human Rights - Gaza, Al-Haq, Addameer Prisoner Support and Human Rights Association, Civic Coalition for Palestinian Rights in Jerusalem, Defence for Children International – Palestine, Jerusalem Legal Aid and Human Rights Center, Mossawa Center: The Advocacy Center for Arabs in Israel, Women’s Centre for Legal Aid and Counselling and the Palestinian Authority. By including multiple perspectives responding to the paradox of utilizing Israeli law we seek to gauge the im/possibility of a holistic law-based and extra-legal strategy.
The first third of the magazine hones in on the uses of and limitations to engaging with an oppressive legal system. The second third discusses the Palestinian experience in the Israeli legal order more broadly. Additionally, we host three commentaries that focus on specific theoretical arenas of importance. The first was commissioned for a comparative insight into the use of law in the Zapatista struggle. The second commentary emphasizes the significance and prevalence of extra-legal tactics to confront Israeli law. The last commentary reviews tactics used by human rights lawyers in Israeli courts, suggesting a project to accompany future litigation.
A more challenging analysis was not dealt with here – the effects of Israeli law on Palestinians exiled outside of the homeland and the creative means to incorporate them. Can we align law-based and extra-legal tactics to a holistic strategy that crosses forcible divisions such as the Shatat (exile community)? Also, we leave the issue of international law to future consideration, but the same concepts of legitimization, resistance and tactic vs. strategy apply.
The resulting magazine is a variety of opinions and a collection of tactics for struggle. A conclusive survey of civil society responses to Israeli law is not presented here – popular movements, individual communities and many organizations are not included. Also, we do not synthesize or analyze the presented positions, but feel that the reader will observe the lack of a comprehensive approach to dis/engaging Israeli law. We find that this issue provides insight into the state of Palestinian political strategy in general.
Part of the explanation for this reality is that it is difficult to expect that law will play a leading role in the Palestinian struggle when it is a mechanism of coercion. Rather, we believe that the usefulness of Israeli law materializes when the law-based struggle is subservient to the needs of Palestinian communities, social movements and a coherent political framework. Israeli law is incapable of containing Palestinian requirements of justice, but nonetheless provides an opportunity to solidify principles and mobilize talents and public opinions. If, as some argue, engagement with the Israeli judiciary is unable to serve the pursuit of Palestinian rights, then we must consider whether a collective boycott of the court system is now applicable.
In the process of countering daily oppression, we are setting foundations for a new society – what we hope can be a permanent exit from the rabbit hole.
Al-Araqib was demolished for the 63rd time on 26 December 2013.
Particularly useful for developing al-Majdal no. 55 were Mada al-Carmel’s Jadal Issue 13, “The Master’s Tools: Palestinian Citizens’ Appeal within the Israeli Legal System,” May 2012; and George Bisharat’s “Courting Justice? Legitimation in Lawyering under Israeli Occupation,” Law and Social Inquiry, 1995. The literature on this question deals with the occupied Palestinian territory a great deal more than Israel-proper. None of the attempts encountered adopted an inclusive approach across the fragmented geography of Palestine. This contribution seeks to ameliorate that absence.
This installment is one of BADIL’s first investigations into the relationship between law and the struggle for liberation, preceded by al-Majdal no. 41, “Litigating Palestine”, that focused on litigating international crimes in third states through the principle of universal jurisdiction.