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PODCAST: Has international law failed Palestinians?

Palestinian legal scholar Noura Erakat proposes a different, inclusive vision that guarantees justice and dignity for all oppressed groups in Israel and Palestine.

U.S. President Donald Trump with Palestinian President Mahmoud Abbas during a welcome ceremony in the West Bank city of Bethlehem, on May 23, 2017. (Flash90)

U.S. President Donald Trump with Palestinian President Mahmoud Abbas during a welcome ceremony in the West Bank city of Bethlehem, on May 23, 2017. (Flash90)

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Israel has been able to leverage international law to its advantage much better than the Palestinians, says Noura Erakat, Palestinian legal scholar, human rights activist and author of Justice for Some: Law and the Question of Palestine, on the latest episode of The +972 Podcast.

In the book, Eraka proposes understanding it as another tool used to promote a political agenda. “The law is politics,” says Erakat. To explain what she means, she gives the analogy of the law as a sailboat: “You cannot move on a boat without a sail, but the sail is not enough. You need wind in order to propel it, and the direction of the wind is actually the political movement that we create.”

Below are excerpts of the interview.

Can the law be beneficial to the weaker parties without a revolution? Basically, without upending the existing political order? Can the law be an effective tool for oppressed people like the Palestinians?

“Absolutely,” says Erakat. “We, the weak, can be powerful even though that’s not the status quo. What that makes imperative upon marginalized groups, weaker groups, oppressed groups, colonized peoples, indigenous peoples, racial minorities, and so on, is the ability and the will to organize.”

Do you think the rights-based approach has mistakenly led people to believe the answer lies with the law?

The rise of the rights-based approach “came as a corrective to a politics-only approach that had begun in the aftermath of Oslo,” explains Erakat. “One of the conditions of entering into Oslo that was placed upon the PLO is that they actually surrender all of the [legal] claims that they had made,” she adds.

Now, “the language of law takes up a disproportionate amount of space,” says Erakat, “because there is no political framework with which to entwine the rights-based approach.”

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You talk about how the Zionist national project, creating Israel, was a way for the founders of the Zionist movement to seek acceptance and approval by Europe, as a way of proving that they can govern themselves in order to be more integrated, more accepted as European citizens. How would you say Israel’s Western-facing outlook or aspirations affect Palestinians. And do they affect Jewish Israelis as well?

“Zionism was was meant to correct and respond to the exclusion of Jews from whiteness in Europe,” says Erakat. “The Zionist movement doesn’t respond to this by tackling white supremacy, but instead internalizes it.”

Citing the work of Ella Shohat, an American cultural studies scholar, she describes how in order for Arabs Jews to become Israeli, they had to dissociate themselves from their Arabic language, history and culture; “all those markers of being part of the Middle East.”

“The easiest thing to do, and I think the most reductionist thing to do is to think about racism here in Palestine and Israel as distinguishing between Jews and non-jews, or Jews and Arabs, or Jews and Palestinians — Jewish Israelis and Palestinians.”

“If we are in fact struggling against racism, and if we are in fact struggling against white supremacy and militarized nationalism, then should we not also unsettle a native-settler binary that reduces the distinctions between us to Jewish-Israeli and Palestinian, as opposed to also thinking about the racial dimensions of our cause, and of this region, and of the future?”

You’re proposing we look at this as a racial justice struggle.

“My commitment is to freedom. My commitment is to freedom from patriarchy. My commitment is to freedom from racism. My commitment is to freedom from occupation and apartheid. As part of that I want to think about what does an anti-racist struggle do for the Palestinian cause? If we’re really committed to anti-racism, what does that do? Where does that align us?”

“So that we don’t just see, you know, an Ethiopian Jewish Israeli, murdered by Israeli police and react to that and say well, they’re settlers too. Okay, we got that, we know they’re settlers. But they’re not just settlers. They’re also stratified within a white supremacist project within Israel from which we, Palestinians, are excluded.”

“Part of what I think is one of our greatest challenges and afflictions right now is that we are so committed to holding the line, we are so committed to affirming the righteousness and justness of our struggle, and of ourselves as people, that it’s limited our capacity to think anew.”

You’re suggesting here that we completely upend the alliances and the narrative that we have told ourselves for some years.

“I don’t think it has to be a complete appending of it but I think that it could be more complicated. I think that we as Palestinians should be thinking about why Israel shouldn’t deport 12,000 African asylum seekers back to sure death. We should be the ones having that conversation and having a response to it. We, the ones who are struggling for the rights of refugees and for asylum and for safety and for future, should have something to say about this.”

“What is it that we can think about our condition that is not just about us as Palestinians, but that is emblematic of our struggle, of so many struggles in the world?

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Israel seems to have understood early on just how malleable international law can be. Has the Palestinian leadership missed that? And do they even stand a chance in this front? 

“Can the Palestinians use the law effectively? Absolutely. But it means that they have to understand the politics, and I think that the Palestinian leadership at present has basically placed itself in a sovereignty trap. That trap makes their eligibility for independence contingent on the approval of the settler-sovereign who only responds to them by awarding them incremental autonomy. And so they’re stuck in a constant cycle of proving to the Israelis, we can police ourselves.”

“And all we have gotten in response to this to this kind of, you know, proving eligibility is less space, less respect and less prospect of ever being independent. We’ve put ourselves in this trap.”

Can Palestinians achieve self-determination without that, though? Without this goal of having a state? 

“Absolutely. Self-determination is not narrowly defined as having a state.”

“But the other question here that I thought you were actually going to ask me is, can Palestinian still effectively achieve a state? And then how is it that they use the law?”

“Number one, I don’t think a state is you know, even if that it is the aspiration right, if we just want to stay in the West Bank and Gaza, we must, we must, we must annul Oslo. Because it’s not the failure to abide by the peace process, it’s in fact the terms of Oslo that have enabled Israel to achieve as much as it has to the present.”

“Number two, we have to challenge the U.S. head-on, as a pillar in the geopolitical obstacle that the Palestinians face. They are not a third party. They are a party and part of the subjugation of Palestinians and they must be challenged head-on in order to recalibrate the balance of power.”

“And then number three is the idea that, even if you want statehood, you must pursue a decolonial struggle.”

“It’s not about whether or not [Jewish Israelis] get to stay, it’s about in what capacity do they stay. If they stay as masters, if they stay as, you know, what they claim as natives to the land, it’s impossible. It’s an incommensurability between their existence and ours. Which is why they describe Palestinian demography as an existential threat. I mean, they’re very explicit about this, right? So part of our decolonial project is to change that native-settler relationship.”

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    COMMENTS

    1. Reality Check

      Actually part of our decolonial project was to change the native-settler relationship. We are no longer dhimi. We are and will remain sovereign in our ancestral homeland. Once you recognize and accept that basic fact we can reach a healthy peace. Until then we will continue building our home and sadly you will continue self-destructing.

      Reply to Comment
      • Talkback

        Jews haven’t been “Dhimis” since the 19th cetury in the Ottoman Empire. And I guess that neither you nor your anestors have ever been citizens of Palestine before 1948. Otherwise you wouldn’t pull the “ancestral homeland” idiocy as if you have more rights to live there then those who were the real natives.

        Reply to Comment
        • Keiner Nit

          What a profoundly stupid comment.

          Reply to Comment
        • Richard Baldwin Cook

          Those who defend Israel, advocate the sovereignty of an ethnic subset of humanity and deny self-determination and impose subjugation upon all others. This is racism and anti-semitism and cannot prevail. World opinion is changing.

          Reply to Comment
      • Ben

        Tactically speaking, ‘Reality Check’ might want to stop with the fascist sloganeering. I don’t know what he thinks he is achieving, but as I see it he is undermining Itshak Gordine here, by just putting bluntly what Itshak really means but which Itshak cloaks in Orwellian language. Reality Check, you’re ripping Itshak’s cloak off—very rude.

        But in a sense you are just ripping the cloak off the state since 1948. Because ==>

        “[O]ne can draw a straight line from the creation of the state in 1948, through Prime Minister Levi Eshkol and Defense Minister Moshe Dayan post-1967 and all the way to Netanyahu, Smotrich and Gantz today….After all, it is not every day in the 21st century that political ideologues try to base their theories on the three letters sent by the Biblical Joshua Bin Nun to the residents of the Land of Canaan upon his entry into it: those who want to accept (the inferior status they will be given) shall accept; those who want to go (voluntary migration, supposedly) shall go; and those who want to fight – shall fight…. Is this nutso? We are talking about the prime minister, who was reported to have in fact held a series of cabinet meetings on this subject…”
        https://www.ynetnews.com/articles/0,7340,L-5573633,00.html

        So, everybody sane here is going to look upon someone like ethnic cleansing enthusiast, ‘Lewis from Afula’ as a crude, extremist—but, dear reader, ‘Lewis from Afula’ is actually more representative than you might think of Eshkol, Dayan, Netanyahu, Smotrich, Shaked—and Gantz and Lapid. Lewis is mostly just a little cruder about it, that’s all. OK, a LOT cruder.

        Reply to Comment
    2. Lewis from Afula

      Black lives matter ?
      What’s that got to do with it ?
      Israelis and Jordanians have the same mix of skin colors.
      972 mag does write some irrelevant rubbish sometimes !

      Reply to Comment
        • Lewis from Afula

          “Black lives matter” has no connection to Judea & Samaria.
          Blacks and Blondes exist on both sides.
          WTF ??

          Reply to Comment
    3. itshak Gordine

      The UN anti-racist committee blasted the Palestinian authorities in a report released on Thursday calling for “the state of Palestine” to act against “racist hate speech and hate crimes,” including incitement to violence against Israelis and Jews.

      Reply to Comment
      • Talkback

        This was long overdue.

        In the meantime. How did the self declared “only democracy in the Middle East” improve after the CERD statement of 2018?
        “The Committee urges [Israel] to:
        1. Put an immediate end to the disproportionate use of force against Palestinian demonstrators in the Gaza strip, refrain from any act that could lead to further casualties and ensure prompt and unimpeded access to medical treatment to injured Palestinian;
        2. Initiate an impartial and independent investigation into the use of force against Palestinian demonstrators in compliance with international standards and hold those responsible accountable;
        3. Ensure that all Palestinians under its effective control enjoy full rights under the Convention without discrimination especially, their right to life and security of person, freedom of opinion and expression, as well as their right to medical care;
        4. Take all the necessary measures to fully implement the recommendations made by the Committee in 2012 and in particular:
        a) To fully respect the norms of humanitarian law in the Occupied Palestinian Territory and to lift the blockade of the Gaza strip;
        b) To counter the tide of racism and xenophobia in public discourse, in particular by strongly condemning all racist and xenophobic statements by public officials and political and religious leaders, and by implementing appropriate measures to combat the proliferation of racist acts and manifestations of racist hate speech that particularly target Palestinians in the territories under the State party’s effective control.”
        https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/ISR/INT_CERD_STA_ISR_8680_E.pdf

        Reply to Comment
        • Itshak Gordine

          We believe that the CERD report is not objective. It is tendentious. We expect all hate speech by Ramallah leaders and the nauseating antisemitic content of their school books to be canceled.

          Reply to Comment
          • Keiner Nit

            Perfect example of how the fraudulent and disgraceful “Jewish state” has no integrity or values whatsoever, let alone Jewish ones. You take the international law you want and ignore the rest, just as you do with international resolutions and UN human rights reports. You hold others to standards you would never dream of living up to yourself.

            Reply to Comment
          • itshak Gordine

            What a naivety .. All states do that, Israel like the others. All states have other considerations than leftist dreams. UN anti-Israeli resolutions were systematically taken through the Muslim vote. Now it is less so. President Trump’s USA is there for something

            Reply to Comment
          • Ben

            Halevy, His Royal Dullness, admits to being guilty as charged. LoL.

            Reply to Comment
          • itshak Gordine

            Guilt? No guilt. I proudly assume my writings without resorting insulting.

            Reply to Comment
          • Ben

            I wasn’t talking about personal guilt feelings of which you are incapable (I have no illusions about you), I was talking about objective, factually-based determinations of guilt.

            Reply to Comment
      • Ben

        Good for the UN. Glad they did it.

        Although I must say it is rich to hear an Otzma Yehudit/Lehava enthusiast cluck contentedly about others’ hate speech and incitement being criticized, Halevy, let us congratulate the UN. It was overdue, as ‘Talkback’ says. But let us now talk about overdue things.

        Now that you no longer feel “singled out,” you can stop vilifying the UN and start honoring the numerous UN resolutions pertaining to Israel’s hateful practices. When are you withdrawing your particular settlement Halevy? Have you notified the UN of the date of your departure? Have you notified the Israeli water, gas and electric companies to turn off your Israeli taxpayer subsidized, piped in utilities? Keep us posted.

        And when might we expect your aggressively contrite condemnation of all the hate speech and incitement directed at Palestinians and others in this forum at +972, in Israel’s government and many of its schools and all the hate built into Israel’s practices? Read this helpful Amnesty International Report to get oriented and let me know if you’d like more assistance.
        https://www.amnesty.org/en/countries/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/

        Reply to Comment
        • itshak Gordine

          Stop dreaming. We are at home on the land of the tribe of Judah (Judea) and we multiply the buildings for our large families. Hate speech is uttered by Ramallah terrorists. Hate speech is found in Palestinian schoolbooks. “This is one of the reasons why many countries have suspended their donations to terrorists led by the corrupted negationist Mahmoud Abbas.

          Reply to Comment
        • itshak Gordine

          Ben, stop tormenting unnecessarily your mind. You know that no one will leave his house and his ancestral land to please you. On the contrary, Mr. Netanyahu said yesterday that all Jewish localities of Judea and Samaria will be not only preserved but also developed. Last week a 17-year-old Jewish girl living in Judea (Judah Territory since ancient times) died as a result of a bomb attack by Arabs. The Jewish response is still positive: an additional 300 homes will be built in her village.
          I respond to your incessant questions that only a person stranger to Israel and away from Judaism can ask. To summarize, here are the answers: Buildings will continue as much in the lines before as after 1967. Israel is a Jewish state where minorities respecting the law can live in peace. Democracy is very much alive in Israel and everyone can express themselves. There is not only the declining Haaretz to inform us, but a very large number of newspapers and other medias. The conflict we have with the Arabs is by no means our concern. On the contrary, we build relationships with our former enemies who ask for our protection.

          Reply to Comment
          • Ben

            “…where minorities respecting the law can live in peace…”

            You are in inveterate liar. You mean the “peace” of those school children noted here, at this article?
            https://972mag.com/south-hebron-hills-settlers-school/143161/

            And the “peace” noted in the video Bruce Gould links to on that page? ==>

            “Over the course of June 2019, settlers vandalized Palestinian property in at least ten villages in the West Bank, burning some 1,800 trees and dozens of dunams (a dunam equals 1000 square meters) of grain fields, uprooting more than 700 vegetable seedlings and damaging at least 55 cars and spray painting hate graffiti on buildings.”

            Reply to Comment
      • Ben

        While we are at it, please tell me why it is that everyone should be so very careful that they meet Netanyahu’s definition of anti-Semitism (anything that opposes settlements and Israel’s “right to exist as the state of the Jewish race,” basically) but you get a free pass to blithely spew hate speech against the ethnic group of your choosing? Why would that be?

        Regarding “the state of the Jewish race,” as I am using the phrase, see the concerns of your best national newspaper, the one that “no one reads” (which in and of itself supports the case made):
        https://www.haaretz.com/opinion/editorial/dna-testing-to-prove-jewishness-is-spine-chilling-1.7772897

        ‘Reality Check’ on this very page is confirming that indeed the right wing is very serious about this kind of judeosupremacist “sovereignty” and will concoct any bogus argument it can find to further it. (See Talkback’s intelligent reply to him.)

        Reply to Comment
        • Keiner Nit

          Talkback’s barely-coherent, laughably ahistoric (“citizen of Palestine”) and deliberately myopic response is intelligent, now? Why can’t a person come to the good-faith, frankly self-evident conclusion that a nation-state for a single ethnoreligious group in a multicultural territory is a terrible idea, without also denying the history of the Jewish people?

          Why is it so simplistically “Palestinians are native, Jews are not” when history shows the affair is so obviously more complicated, both for the Palestinians (composed of groups from all around the Mediterranean and Arabian Peninsula) and the Jews (a continuously existing nation that has at times admitted members from other nations)?

          Why is erasure necessary to acknowledging the horrors of Gaza and the IDF and the crimes and sins of the self-proclaimed, anti-halakhic Jewish state against people Jews have no special right to assert control over?

          Reply to Comment
          • Ben

            @Keiner Nit: Thanks for pointing out problems. Talkback took on Reality Check’s misplaced “dhimi” and brutal “sovereign” usages. That’s what I was looking at. I think you are right in your corrective about simplistic either/or thinking about heritage and legitimacy claims and which ones are “real.” I also agree with your response to Itshak Gordine about having it both ways and holding others to standards one would never dream of living up to oneself. It is good that you call out both of these things and you state it well.

            Reply to Comment
      • Ben

        On the issue of hate speech, and in regards to Netanyahu’s attempts to define anti-Semitism as any attempt to apply the terms “apartheid” or “ethnic cleansing” to what Israel is doing, I agree here with Naomi Wayne and Jeanne Warren as they respond to Ya’ir Klein’s letter about hate speech.
        https://www.theguardian.com/world/2019/aug/19/israel-apartheid-and-antisemitism

        Reply to Comment
    4. Lewis from Afula

      Like Narnians and Middle Earthers, fakestinyans cannot use any law effectively.
      That is because all fictional nationalities cannot implement anything by utilising any law.
      The only endgame will be full scale repatration of the transmuted JORDANIANS back home.
      Their relatives are waiting for them in Amman.

      Reply to Comment
      • duh

        I’m willing to bet a million dollars if the British hadn’t separated Transjordan from the Palestine Mandate you would be saying the Palestinian Arabs all came from Iraq and Syria.

        Reply to Comment
        • Itshak Gordine

          Not only from Syria and Iraq. Also from the Arabian Peninsula and the Maghreb.I

          Reply to Comment
          • Amir

            Yes and Palestine population was of course 0 before Islam…?

            Do we have space to name all the countries were jews come from? Europe, USA, Argentine, Brazil, South Africa, North Africa, Egypt, Iraq, Syria, Lebanon, Turkey, Cyprus, Cap Verde, Yemen, Ethiopia, China, India, Pakistan, Afghanistan,

            Reply to Comment
          • Lewis from Afula

            Jews come from Judea.
            PS: The clue is in the name.

            Reply to Comment
          • Amir

            Sorry but Hebrew speakers cannot pronounce J letter.

            Reply to Comment
          • itshak Gordine

            What foolishness. The letter J (pronounced Y) is very present in Hebrew: Yerushalaim, Yehudi, Yehuda ve Shomron. When we do not know we shut up ..

            Reply to Comment
          • Amir

            The letter J pronounced Y? Looool sorry but Y letter already exists and guess what? It is pronounced Y!!!!

            But can it work for letter P pronounced F???

            Reply to Comment
          • itshak Gordine

            You mention the letter “P”? Arabs are usually not able to pronounce it.

            Reply to Comment
          • duh

            Yep. No matter where Zionists end up they will always say the people already there belong somewhere else.

            Reply to Comment
          • Lewis from Afula

            Nope. We only accuse the fake “fakestimyans” of not belonging here.

            They are just re-branded JORDANIANS, who are erroneously now claiming to be a “long, lost nation” that somehow went “missing” in history. Their only problem is that their claimed nationality has no: Capital city, constitution, borders, army, generals, literature, unique language, distinct religion, scholars, King, Royal Palace, archaeological record etc etc etc.

            Essentially, we are talking about a fraudulent non-people, whose entire raison d’etre is to destroy Israelis – both physically and spiritually.

            Reply to Comment
          • duh

            Most modern nationalities didn’t exist before the 19th/20th centuries. Jordanians, Lebanese, Syrians and Iraqis didn’t until about 100 years ago. So your rantings about Palestinians are completely inane in terms of modern history. Of course the bigger issue is that if there were Palestinians in 1897 the Zionist movement would’ve either had to invade their country like so much blitzkrieg or stay home. This is the unwitting admission behind all the “no such thing as Palestinians” blather.

            Oh right, according to Israel’s supreme court, Israeli nationality doesn’t exist at all.
            https://www.timesofisrael.com/supreme-court-rejects-israeli-nationality-status/

            Reply to Comment
          • Ben

            @Duh: Exactly!

            Reply to Comment
          • Lewis from Afula

            No need to go back to 19th Century, 1972 is sufficient.
            The inhabitants of Judea & Samaria called themselves JORDANIANS at that time.
            They held JORDANIAN IDS & Passports
            Their regent was called King Hussein.
            Their capital was in Amman.
            Their country had set borders.
            Their currency was the JORDANIAN DINAR.
            Then, overnight, these people transmuted into the infamous fake nation.
            Mass Repatration of these crooks is the only resolution.

            Reply to Comment
          • Ben

            You are offering Halevy stiff competition in the Missing the Point Games.

            Reply to Comment
          • Lewis from Afula

            ……………………says the Leftist Cuckoo who does not actually live here.

            Reply to Comment
          • Ben

            @Lewis from Afula: ‘Duh’ absolutely nailed your nonsense. With a coffin nail. We can bury this squawking tape recording of a dead parrot now. R.I.P.

            And you have no answer except to call me names.

            And no I do not live in Afula and relish manning the barricades against the horror of Arab home ownership, and I do not live in Halevy’s settlement where “the foreigners can live in peace if they submit to our laws and our sovereignty except we reserve the right to burn their olive trees and tear down their houses when we feel like it, cuz we’re Jews, and we have a very, very special concept of ‘peace’ and living in it,” and I do not live in High Court of “Justice” Noam Sohleberg’s settlement either.

            Reply to Comment
          • Lewis from Afula

            The only dead parrot around here is the SJW lunatic who keeps posting silly Leftist talkbacks all day long.

            Reply to Comment
          • Itshak Gordine

            When I write Syria, Iraq, Lebanon, I think of regions and not of states. Anyone who knows History understands it.

            Reply to Comment
          • Ben

            If you had a point it’s been totally lost. Missing in action. I personally don’t think it ever showed up for duty.

            Reply to Comment
    5. zee

      Shit on you for your using this site.

      Reply to Comment
    6. Frank Adam

      The “ground floor” legal problem that the PLO Covenant Art 19 dismisses UN policy and resolutions as null and void and Art 9 insists on an armed force solution dismissing other means of solving the dispute.

      I object to the, “whiteness of Europe,” which confuses Europe’s Christian and the Arab World’s Islamic bigotries with the colour bigotries of the Americas. Both sets of prejudice exist in spite of law and order which often “winks” at their vigilante and official enforcement.

      For the record half a dozen of my relatives inclusive of spouses were citizens of British Palestine since the 1920’s.

      Reply to Comment
    7. itshak Gordine

      Switzerland and Israel seek alternative to UNWRA, which according to Ignacio Cassis, Swiss Foreign Minister, is more of a problem than a solution as it artificially prolongs refugee status

      Reply to Comment
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