M Muhannad Ayyash
These days much of the efforts to dismantle Israel’s apartheid and settler colonial systems of domination over the Palestinian people appear to be following a legal approach. Scholars, activists and even policymakers invested in the issue increasingly suggest the path towards Palestinian liberation is through securing a legal opinion officially defining Israel’s violent expulsion of Palestinians as apartheid and colonialism.
The recent United Nations General Assembly (UNGA) resolution calling on the International Court of Justice (ICJ) to give an opinion on the legal consequences of Israel’s illegal occupation of Palestinian territories is the most recent example of this trend. I wholeheartedly support and encourage all such efforts, and I am pleased that the UNGA passed this important resolution. Though sceptical, I truly hope that the ICJ opinion will reflect the real conditions that Palestinians suffer, and help dispel Israeli propaganda. Yet I do not believe it is productive or wise to confine all efforts towards Palestinian liberation within the frames of human rights and international law. The Palestinian struggle for liberation must be multifaceted and multidimensional. We need to ensure that the legal approach does not become the predominant face of the Palestinian struggle. It is – and should remain – merely one of its facets. After all, the core of the Palestinian struggle has never been and will never be a legal one. It is a struggle of and for justice, not law. There is a critical difference between the two.
The legal approach has several shortcomings which means that, if it is pursued on its own, or posited as the leading facet of the struggle, it will harm the Palestinian cause. First, the international legal system often fails to properly contextualise state violence as a political matter and treats it as a solely criminal one. As a result, it associates justice only with the punishment of individual perpetrators, leaving complex political structures, logic, and dynamics that are at the root of the problem unanalysed and unaltered. Second, international courts face significant pushback, including questions about the limits of their jurisdiction, whenever they attempt to legally define and issue a verdict on the violence perpetrated by states that belong to the United States’ imperial power bloc (of which Israel is a part). Thus, if a court, such as the ICJ or the International Criminal Court (ICC), dares to designate Israel an apartheid state, it will be attacked by Israel’s powerful and influential allies. And, perhaps more importantly, the opinion will likely lead not to any meaningful punitive action against Israel by the leaders of the international community, but to a watering down of the meaning of the terms used to define Israel’s violent actions.
Beyond these limitations, there is also the fact that the international legal system has been created by imperial powers to protect their hegemony and serve their interests. Indeed, the legal structures that the oppressed and marginalised are told to rely on to deal with imperial and settler colonial violence are themselves a crucial part of the political system that birthed that violence. They actively legitimise, maintain and justify imperial and settler colonial violence, including Israel’s against the Palestinians. International law, which is supposed to be a neutral vehicle for justice, is, in fact, a form of violence in and of itself. When I say law is a form of violence, I am not referring to how the settler colonial state uses it to legitimise what its military has achieved through brute force. Rather, I am referring to how the law itself is an outcome and continuation of settler colonial and imperial violence. Violence perpetrated by the powerful validates the law – gives it purpose, legitimacy and potency. Thus the law is designed to stifle, not strengthen, Palestinian resistance. All this does not mean the legal system cannot be utilised by the oppressed to inch towards liberation – it can, and it should. But the violent, colonial origins and nature of the legal structures currently in use mean that we Palestinians should not focus our efforts for liberation and justice solely on the law.
We should remember that the validity of our cause does not depend on legal institutions defining Israel’s violence against us as apartheid, settler colonialism, or anything else. The legal institutions tasked with making such determinations are part and parcel of the political order that paved the way for the establishment of the Israeli settler colony. They are integral parts of the system that works to protect Israel and conceal its true nature and the brutality of its aggression and violence. It is unlikely that any court will accurately describe Israel’s violence and recommend meaningful corrective and punitive action from the international community anytime soon. But even if we managed to manoeuvre through the difficult political terrain and secure a legal opinion recognising Israel as a settler colonial state practising apartheid, we would not necessarily achieve justice. Sure, such an outcome would lead to healing at a sociocultural level and add new fire to the Palestinian struggle. It would not, however, deliver the desired results on the political front and lead to systemic change. Instead, the designations of “apartheid” and “settler colony” would likely be co-opted and diluted to save Israel from scrutiny in the same way concepts like “decolonisation”, “anti-racism” or “diversity” have been diluted and emptied out in recent years. We should never forget that what we are dealing with is not an inherently neutral legal system that is facing some pressures from powerful actors. What we are dealing with is a legal system that has been designed to legitimise and maintain the very violence that we are trying to define and end.
For the international legal system to become a truly useful tool to further the Palestinian cause, it needs to go through a process of radical decolonisation. We can and should have a separate debate about what that process should look like, and what strategies we should pursue to get there. But as Palestinians, we should never lose sight of what international law really is and the limits of what it can do for us at the moment. As we seek liberation, we should focus not on the legality but on the justness of our cause, as defined and determined by our lived experiences of oppression and aspirations for a free decolonised life. What Israel and its powerful imperial allies fail to understand is that the very violence they inflict on Palestinians is a wellspring of resistance, from which the justness of our struggle is continuously revealed.