Particularly since the 1967 war, much scholarship on the future of Palestine has been couched in the logic of international law—how it has been disregarded, how it should be employed, and strategies for how to harness it.Footnote 1 More contemporarily, that focus has played out as a dismal dismissal of the promise of the universality of international law.Footnote 2 With Justice for Some, legal scholar Noura Erakat pushes back on the pessimism of this scholarship by arguing that the lot of Palestine represents not a failure of international law, but a failure of what legal scholar Duncan Kennedy calls “legal work,” which can be defined roughly as lobbying (p. 7). Arguing that it is thanks to Israel’s legal strategizing and campaigning that they were able to bend the law in their favour, she employs legal work to describe the patterns of lobbying and organization that create the conditions of possibility for any particular group to achieve what they term “justice” in the theatre of international law. An important consequence of this knowledge is the hope that, with better organization, those advocating for Palestine and Palestinians alike may also come to harness the power of international law. Mapping a 100-year history of Palestine in regard to international law, Erakat interrogates five specific structural transformations or fissures in public perception and possibility towards the question of Palestine. At each point, she illustrates how Israel was able to mobilize the court of public opinion in their favour, despite the blatant illegality of their claims. Instead of seeing these junctures as a failure of the capacity of international law to enforce justice, Erakat argues that it is a success of Israel’s legal work.
Erakat diverges from her predecessors by emphasizing the capacity of law as a tool, not a replacement, for political organizing and strategy. She pushes back on what is often considered as a common-sense view of international law—that is, that it can only work toward the benefit of the most powerful states, arguing that
On its own, the law can neither undo the conditions that engendered the violation nor recalibrate the balance of power that sustains it; it can be used only as a tool in support of a political strategy that aims for this transformation. (p. 19)
She employs the metaphor of a boat at sea: international law is the sail but, without the wind (political organizing), the law has little power to move the boat. A point of strength in Erakat’s analysis is her reticence to prescribe any particular remedies beyond the necessity of co-ordination between political organizers and legal scholars and practitioners. By example, she is insisting that it is the wind that must direct the sail—that is, grassroots political groups. Fundamentally, she argues, “The language of law should not displace, direct, or supplant politics because it does possess a determinate meaning nor guarantee a particular outcome. Politics aimed at shifting the structure of an oppressive status quo should provide a strategic compass” (p. 19).
The transformations that Erakat examines throughout the book’s five chapters each represent junctures where the conditions of possibility for Palestine change. These confrontations
recalibrated the regional and international balance of power, creating key moments of “principles opportunism,” or instances when actors were able to use international law as a tool; I refer to these moments as legal opportunities. Each juncture demonstrates how legal work shaped the meaning of law as a site of resistance or oppression, and how law thereafter structured the political framework regulating the question of Palestine. (p. 4)
Beginning with the Balfour Declaration of 1917, she continues through the 6 Day War, the October War of 1973, the 1987 Intifada, and, finally, the 2000 Al-Aqsa Intifada. The first juncture spans the largest timeframe (five decades) and provides a theoretical foundation for all those that follow. For that reason, herein our focus will remain primarily on the first transformation.
In 1917, Palestine, a British colonial acquisition being shepherded toward independence, transitioned from a state for its citizens to a state for Jewish people exclusively. This, of course, is exemplified by the 1917 Balfour Declaration, which claimed Palestine for Jews as “[a] land with no people for a people with no land.” Erakat insists on beginning with Balfour because she believes it represents the beginning of Israel’s state of sovereign exception—a state of existence wherein law as well as legal practices and precedent are disregarded. The notion of sovereign exception in the context of core versus periphery states is certainly not new, but what makes the case of Israel particularly interesting is that it was born into existence in the colonial space of Palestine and its people, who were
neither groomed for self-governance or forcibly removed. Instead, to balance its dual commitment—to Zionist policy and to the Mandatory system—Britain would protect the civil and religious rights of the Palestinians while fostering the growth of the settler Jewish population both through immigration and by conferring economic and political advantages to the settlers. (p. 32)
In other words, the state of Israel, from its inception, has been situated as a state sui generis wherein international legal policy, meant to protect both Palestinians and the Zionists Britain installed into Palestine, does not, and cannot, apply to both. She elucidates:
While some would argue that an exception is a zone of lawlessness and therefore not law at all, legal doctrine views an exceptional fact pattern as sui generis (Latin for “of its own kind”) …. The ability to declare an exception in the international system is predicated upon the strength of the sovereign to withstand censure and punishment. (pp. 15–6)
Britain, which was heavily lobbied by Zionists, viewed Palestine as a site where they could rid themselves of the Jewish population threatening to descend on their shores, and therefore possessed a bias in the favour of Zionist enterprise naturally in addition to the legal work being performed by Zionists. To quell the Palestinian revolution beginning in 1936, Britain instituted an emergency regime that lasted until Britain physically abandoned the colonial project of Palestine:
In effect, Israel successfully declared an eighteen-year national emergency and oversaw a military legal regime that ensured the forced exile of refugees and removed, dispossessed, and contained the Palestinians that remained in situ. Upon ending its state of emergency, Israel internalized this racialized structure within a civil-law framework that entrenched Palestinian exclusion within the state. (p. 60)
For Erakat, this book represents the culmination of her advocacy and scholarship over the past two decades. Following in the Black radical tradition of activist scholarship,Footnote 3 Erakat’s existence and work push back on the notion of the forced separation of the academy and social movements. As a student activist at Berkeley, what drew Erakat to the law was a hope, however naive, in the possibility of harnessing international law to free Palestine. After law school, she worked as an organizer for Boycott, Divestment and Sanction (BDS), creating her own job as a Palestinian human rights activist—a designation that did not yet exist in the nascent post-9/11 moment in the US. No amount of creativity in her legal approach could mitigate the limits of legal advocacy that others before her had also confronted—this is, of course, regardless of the truth that the law, at least in writing, was on the side of Palestine.
It must not go without mention that Erakat’s contributions to the archive are immeasurable. To enrich the existing historical archive, she conducted interviews with Palestinian political and scholarly interlocutors, which is important in two ways: first, it combats the erasure of Palestinian archival history and, second, it is conducted by and for Palestinians. It is this particular aspect of her project that truly makes it stand out amongst other scholarship on the question of international law and Palestine.
Finally, the conditions of possibility that allowed the timely publishing of a book that interrogates the settler–colonial nature of the Israeli state should not pass without greater examination. Within a year of this book’s publishing, Rashid Khalidi released his own analysis of Israel as a settler–colonial project entitled The Hundred Years’ War On Palestine: A History of Settler Colonialism and Resistance, 1917–2017 (Reference Khalidi2020a), which he notes could not have been published even ten years ago.Footnote 4 Certainly, as Erakat herself relays hopefully, this particular juncture provides political opportunities unforeseen in previous eras. The potential for change certainly exists but, as she says so eloquently,
Fulfilling this potential requires centering our gaze upon ourselves, to recognize ourselves as free already, in order to forge a path to a future where our liberation is not contingent or mutually exclusive but reinforcing. That is Palestine’s promise, still. (p. 241)
