Review Essay: Legal Occupations

by Elif M. Babül, Mount Holyoke College

Reviewed in this essay:

Living Emergency: Israel’s Permit Regime in the Occupied West Bank, by Yael Berda (Stanford: Stanford University Press, 2018).

Justice for Some: Law and the Question of Palestine, by Noura Erakat (Stanford: Stanford University Press, 2019).

Few subjects are as entangled with the law as the Palestinian question. While the illegality of Israel’s more than half a century old occupation is condemned across academic and international platforms, the situation in Palestine also displays an effective use of legal framework to justify and uphold the occupier’s expansionist policies. Two award-winning books published by Stanford University Press one year apart offer complementary analyses of the ambivalent relationship between law and the question of Palestine. Living Emergency focuses on one of the central domestic bureaucratic apparatuses of the occupation, whereas Justice for Some offers a critical account of the occupation’s entanglement with international law. The authors of both books are also lawyers with practical experience, which is reflected in their sophisticated, grounded accounts. Together, Living Emergency and Justice for Some build upon and expand the works of scholars such as George Bisharat (1990), Lisa Hajjar (2005), Tobias Kelly (2007), Eyal Weizman (2002, 2011), and Aeyal Gross (2017), which lay out the political-legal infrastructure that sustains the occupation of Palestine.

In Living Emergency, sociologist and lawyer Yael Berda gives a detailed account of Israel’s permit regime, which she describes as “a sophisticated apparatus to manage population movement in a settler colonial context” (p. 9), allowing the entrance of Palestinians into Israel to provide cheap labor by day and ensuring that they return to their territory by night (p. 18). Although it is “not a statutory regime based on formal rules,” it is not lawless either (p. 35). A mix of administrative decrees, internal regulations, and ad hoc decisions, it presents “an extremely effective legal regime for the purposes of creating economic dependency by administrative means” (p. 36). It establishes “a separate legal sphere that regularize(s) Palestinian labor by military decrees, while simultaneously excluding Palestinians from the rights provided by the Israeli labor law” (p. 37).

One of the most important characteristics of the permit regime is the heavy involvement of the Israeli secret service, Shin Bet. Berda explains that permit quotas are jointly determined by the Coordinator of Government Activities in the Occupied Territories, the Ministries of Defense and Economy, the Civil Administration, and Shin Bet (p. 83). Classification as a “security threat” bars Palestinians from obtaining movement permits. Despite the drastic effects of this classification, the reasons for being so classified are opaque and unclear, with “indices and measures … [only available to] the agents of the Shin Bet” (p. 48). Berda argues that the secrecy, flexibility, and “the systematic uncertainty” that is maintained by this process serves two important purposes: It compels Palestinians who need permits for economic survival to avoid any kind of political activity, thereby effectively curtailing political participation and active citizenship in the West Bank (p. 53). It also fosters “multiple layers of suspicion in the Palestinian society” (p. 65), creating “favorable conditions for the Shin Bet to recruit informants” (p. 46), which is “a violation of the Geneva Convention” (p. 63.)

The most revealing accounts of the permit regime emerge from Berda’s own experiences wrestling with the Israeli judiciary on behalf of “two hundred Palestinian clients in their attempt to obtain various types of movement permits” (p. 9). Berda’s legal advocacy grounds her refutation of the “enlightened occupation” argument, which “conveys the belief of certain elites in Israel that despite the military occupation of Palestinian territories, the rule law is upheld to some extent, mostly due to the scrutiny of the Israeli Supreme Court” (p. 134, fn.5). By contrast to this widely-held view, Berda argues that the Supreme Court’s judicial review only lends legitimacy to the occupation without substantially altering its methods. In the case of the permit regime, Berda reports that in 95% of the hearings in which the Shin Bet presented classified information, the Supreme Court upheld the position of the Shin Bet. Supreme Court hearings that adjudicate security threat classifications frequently involve secret evidence, which is “an extreme deviation from basic adversarial principles” (p. 77) requiring the evidence to be available for review by all parties. Berda asserts that under these circumstances, Shin Bet gains legitimacy just by “participating in the process itself, one that is lawful and goes through judicial review” (p. 74).

Berda declares her legal battles against the regime “futile” (p. 128), because engaging with the permit regime in legal venues solidified “its ad hoc activities into a legitimate constitution; created a jurisprudence around it; normalized the completely impossible, absurd, and unacceptable situations; and rendered it part of the repertoire of the security justifications that made it grow” (128). She instead recommends a different pathway: to “reject the permit regime in its entirety” and “end the military court system” (p. 128) that “grew stronger from critique” (p. 129).  

Unlike Berda, human rights attorney and legal scholar Noura Erakat starts from a “skeptical” yet “not pessimistic” position about “the law’s utility” for “progressive causes” (p. xiii). In her comprehensive review of “the relationship between international law and politics in the question of Palestine over the course of a century” (p. xi), Erakat identifies five critical junctures that created “legal opportunities” (p. 7), when both Palestinian and Israeli political actors wielding “principled opportunism” (p. 17) managed to shape the meaning of law as a site of resistance or oppression with their “legal work” (p. 7). Those five critical junctures each follow “some confrontation that recalibrated the regional and international balance of power” (p. 4): The First World War, the 1967 War, the 1973 War, the First Intifada, and the 2001 Al Qaeda attacks in the United States.

Erakat shows that throughout the 1970s, despite a geopolitical structure stacked against Palestine, the Palestinian Liberation Organization (PLO) successfully leveraged “the very same legal framework and principles that also enshrined and protected Israel’s sovereignty” (p. 119). The PLO’s legal work in the UN resulted in several General Assembly (GA) and Security Council (SC) resolutions, which “transformed the Palestinian question from a humanitarian crisis into a political crisis marked by the failure of current and former colonial powers to deliver sovereignty and independence to a colonized people” (p. 99). Among these resolutions are the UNSC Resolution 338 that laid the groundwork for the first Arab-Israeli peace conference in 1973; the UNGA Resolution 3236 that affirmed Palestinian self-determination and refugees’ right to return in 1974; the UNGA Resolution 3237 that invited the PLO to be a nonmember observer in 1974; the UNGA Resolution 3275 calling for the PLO’s inclusion in all peace efforts in 1975; and the UNGA resolution 3379 that declared Zionism a form of racism and racial discrimination in 1975 (p. 100-129). Bolstered by the nonaligned movement and the concurrent waves of decolonization, the PLO combined “guerilla warfare on the ground and legal work on the international stage … to establish the juridical status of the Palestinian nation as well as to exercise its embryonic sovereignty” (p. 107).

Despite this period of success, from 1982 onward the PLO’s primary activity became diplomatic in nature (p. 134). It willingly abandoned both the law and a politics of resistance as its primary tools of struggle (p. 163). Particularly during the Oslo peace negotiations, its leadership’s focus on gaining Israel’s de jure recognition led the PLO to settle for “ghettoized sovereignty … without any guarantee of independence” (p. 160). Erakat ties the PLO’s shortsightedness to “its leadership’s lack of appreciation for the law, and particularly for the law’s strategic malleability” (p. 159). Like Berda, Erakat recognizes that “Israel’s judiciary was integral in advancing [its expansionist] ambitions” (p. 86) and that international law “did not just fail to regulate the occupation of Palestinian lands, it provided the legal framework for their incremental colonization” (p. 64). Nevertheless, she also insists that the law “has the capacity to dominate as well as to resist” (p. xi) and that international law is “a living instrument that is continually made, implemented, broken, and remade” (p. 183). According to Erakat, for the law to reach its emancipatory potential, it “must be wielded in the sophisticated service of a political movement” (p. 4) and “Palestinians must shape the meaning of law in the context of a discerning political project” (p. 233) that would “challenge the geopolitical structure sustaining Palestinian oppression” (p. 234). This requires a decisive shift from the PLO’s acquiescence in the Oslo framework towards engaging in a “war of legitimacy” that would “take aim at the denial of native Palestinian attachment to the land and at the ways in which a sovereignty framework has obscured and conditioned Palestinian claims on Israeli consent” (p. 228). Erakat finds this potential in the BDS movement that seeks to establish a rights-based alternative, to overcome “the sovereignty trap laid out by Oslo’s Realpolitik framework,” and to “challenge the self-proclaimed liberalism of North American and European powers” as well as “Israel’s rule of law claims” (p. 229). 

Although Berda and Erakat may seem to diverge on their belief in the promise of the law, both authors situate their analysis in the settler-colonial framework that is increasingly becoming a point of reference in Palestinian studies. They also center the securitization paradigm, which informs much of Israeli colonial policies. While Erakat points to the continuities between the colonial legal framework and international law in erasing Palestinian natives to purport primarily European Jewish-Zionist settlers’ claim to nativity (pp. 231, 236), Berda underlines the permit regime’s work “to separate the occupied land and its inhabitants” (p. 18), and the fact that it replicates “the colonial model that kept populations separate while exploiting labor” (p. 78). Erakat explains that many of Israel’s legal arguments for bypassing international law are predicated on the claim of a “sui generis status” (p. 16-17), such as the argument that its unique security challenges are tantamount to “an armed conflict short of war” (pp. 179, 181). Using this framework, the Israeli army “expands the definition of a legitimate target on the basis of … speculation” (p. 202) while rendering “any Palestinian use of force … terroristic and criminal” (p. 180). Similarly, Berda explains that much of the Israeli state structure and its regulation of the occupation are “built on the legal situation of the emergency” (p. 112) and that “routinization of emergency is central to a system that consistently produces different regulations for different people” (p. 113). By invoking the security situation, the Israeli state justifies its incessant management of Palestinian mobility, its own human rights violations, its control of daily life, and its recruitment of thousands of informants to the Shin Bet (p. 12).

Berda’s and Erakat’s books are essential reads, not just for those who wish to understand the central place of law in both Palestinian liberation and Israel’s expansionist policies. They also offer instructive perspectives for anyone who wants to think more profoundly about the law’s entanglement with sovereignty, violence, liberation, and politics.

References Cited:

Berda, Yael. 2018. Living Emergency: Israel’s Permit Regime in the Occupied West Bank. Stanford, CA: Stanford University Press.

Bisharat, George Emile. 1990. Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. Austin, TX: University of Texas Press.

Erakat, Noura. 2019. Justice for Some: Law and the Question of Palestine. Stanford, CA: Stanford University Press.

Gross, Aeyal. 2017. The Writing on the Wall: Rethinking the International Law of Occupation. Cambridge, UK: Cambridge University Press.

Hajjar, Lisa. 2005. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. Oakland, CA: University of California Press.

Kelly, Tobias. 2009. Law, Violence and Sovereignty Among West Bank Palestinians. Cambridge, UK: Cambridge University Press.

Weizman, Eyal. 2007. Hollow Land: Israel’s Architecture of Occupation. London: Verso Books.

Weizman, Eyal. 2011. The Least of All Possible Evils: A Short History of Humanitarian Violence. London: Verso Books.