Noura Erakat

Justice in the Question of Palestine is often framed as a question of law. Yet none of the Israel-Palestinian conflict's most vexing challenges have been resolved by judicial intervention. Occupation law has failed to stem Israel's settlement enterprise. Laws of war have permitted killing and destruction during Israel's military offensives in the Gaza Strip. The Oslo Accord's two-state solution is now dead letter. Justice for Some offers a new approach to understanding the Palestinian struggle for freedom, told through the power and control of international law. Focusing on key junctures—from the Balfour Declaration in 1917 to present-day wars in Gaza—Noura Erakat shows how the strategic deployment of law has shaped current conditions. Over the past century, the law has done more to advance Israel's interests than the Palestinians'. But, Erakat argues, this outcome was never inevitable. Law is politics, and its meaning and application depend on the political intervention of states and people alike. Within the law, change is possible. International law can serve the cause of freedom when it is mobilized in support of a political movement. Presenting the promise and risk of international law, Justice for Some calls for renewed action and attention to the Question of Palestine.

Law and the Question of Palestine

Justice for Some

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Britain’s Zionist commitment represented the culmination of efforts led by Theodor Herzl, an Austrian Jew, to secure territory for the purpose of establishing a Jewish state. In addition to articulating a vision for Jewish nationalism, Herzl led the political movement towards its realization in late nineteenth- and early twentieth-century Europe. He was convinced that Jews would never successfully assimilate into Europe or be accepted as European.

But rather than challenge the disfiguring tropes that excluded and subjugated Jews in Europe, political Zionism—the movement whose genesis Herzl oversaw—internalized and reproduced them. Herzl came to believe that only the establishment of a Jewish state would transform the exilic Jew and render him eligible for acceptance within Europe.

However, the great majority of Jewish Zionists in Europe coveted Palestine because of its religious and historical significance; as they would not settle for an alternative, Herzl appealed to German, Turkish, and English officials in an impassioned effort to secure Palestine. He framed Jewish settlement in Palestine as beneficial to imperial powers, explaining that Zionists would “form a portion of a rampart of Europe against Asia, an outpost of civilization as opposed to barbarism.”

Far from facilitating a movement toward self-governance based on local and particular ideals, customs, demands, or traditions, the Mandate system continued the task of “ensuring that the Western model of law and behavior would be seen as natural, inevitable, and inescapable.”62 It thus created a hierarchy wherein former colonies were tasked with the elusive challenge of replicating the social, political, and economic development of their former colonial overseers under their tutelage. 

The Mandate explicitly mentioned Jewish national rights and a national home six times. It affirmed that Jews had a “historical connection” with Palestine, and it committed to establishing a Jewish national home as a matter of legal obligation. It made no mention whatsoever of Palestinian national rights or the right to self-determination of the native Arab Palestinians. Arab Palestinians appear by association only—as “non-Jewish” and “sections of the population”—even though they constituted the overwhelming majority, some 90 percent of the total.

Martial law was a tried and true British colonial tactic. It had been implemented as early as 1835 in South Africa, and it was predicated on the idea that the suspension of “normal” governance was acceptable in order to respond to a state of emergency. However, since the meaning of emergency is subject to the sole discretion of the sovereign, who alone can decide what is a threat to its existence, declaring an emergency does not constitute an objective evaluation and thus remains beyond external and/or strict regulation.

The Jewish refugee crisis was massive, and yet Western governments, including the United States and Britain, were averse to absorbing the refugees and were refusing them entry. To further advance its cause, the Jewish Agency entwined the refugee crisis with Zionism and did not lobby Western governments to accept the refugees. In some cases, it encouraged those governments to do just the opposite.108 Indeed, Britain and the PMC, as well as the countries of Eastern Europe came to see the issue of Mandate Palestine as an opportunity to resolve the refugee crisis and, more generally, Europe’s Jewish question.

Israel’s establishment in 1948 realized Jewish-Zionist settler sovereignty in Palestine, and its acceptance as a UN member-state normalized the sovereign exception justifying the erasure of Palestinian peoplehood. 

The ID system was not foolproof, and Israel needed a more systematic way to distinguish those Palestinian natives who had never left from those who had left and returned. Extending universal citizenship to all Israel’s inhabitants would immediately mark out Palestinian returnees but would fail to treat Jewish Israelis with distinct privilege. To achieve that distinction, Israel adopted the Law of Return (1950) and the Nationality Law (1952)

Under this legal framework, Palestinian Muslims and Christians were excluded from becoming nationals of Israel because they were not Jewish. Palestinians obtained the right to be juridical citizens of the state but never members of the nation, a bifurcation between citizen-only and national-citizen that enabled the state to provide basic rights to land residency, housing, movement, and employment on a discriminatory basis with the explicit purpose of privileging Israel’s Jewish population.

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