Interview with Professor Noura Erakat

Noura Erakat is a human rights attorney and assistant professor at George Mason University. She has served as legal counsel to the U.S. House of Representatives and as a legal advocate for Palestinian refugee rights at the United Nations. Noura’s research interests include human rights and humanitarian, refugee, and national security law. She is a frequent commentator, with recent appearances on CBS News, CNN, Fox News, and NPR, among others, and her writings have been widely published in the national media and academic journals.

 

pid_26507Noura Erakat’s book, Justice For Some: Law and the Question of Palestine, was just published by Stanford University Press. I had the honor of interviewing Noura Erakat regarding her new book. The interview is transcribed below.

Milena Sterio: your book addresses an important topic – the Israeli-Palestinian conflict – but a topic that many others have already researched and written about. How is your book, Justice for Some, different? What is your “hook”?

Noura Erakat: This book is about the relationship between international law and politics and shows how that relationship narrates the Palestinian struggle for freedom between 1917-2017. Organized chronologically, the book focusses on five different and key junctures in Palestinian history, to explain how the situation evolved to the present day and to show that the law is both the site of oppression and resistance. The book also makes a theoretical intervention by emphasizing the role of legal work, as defined by Duncan Kennedy, in determining the meaning of law and its dynamic ability to change across time and space.

Milena Sterio: What role has law, and international law in particular, played in the story of Palestine, and how does your book tackle these issues?

Noura Erakat: Although international law has not commanded conduct nor effectively punished transgressions, I show that it has been incredibly consequential. Israel’s legal workers have used it to legitimize Israeli military action in Gaza as well as provide a legal analysis that has facilitated the expansion of Israeli settlements in the West Bank. It also shows how Palestinian legal workers have used it to inscribe their juridical status as a nation in international law and institutions as well as legitimate their use of force. The book explains how the law has become the site of struggle between Israeli and Palestinian legal workers, and the law has been used to justify oppression by the former, but also to inform resistance by the latter.

Milena Sterio: Was part of your goal in writing this book to offer a different historical narrative about Palestine?

Noura Erakat: Yes – most of Palestinian history has been viewed through the lens of the Israeli-Palestinian conflict- a framework that obfuscates the power imbalance between Israel- a state, the only nuclear power in the Middle East, and the 11th most powerful army in the world and Palestinians, a stateless people. I explicitly frame the book as one about the Palestinian struggle for freedom and draw on an alternative archive of Palestinian scholarship. This is especially unique in regard to scholarship on law and Palestine because that is dominated by Israeli scholars and scholarship, thus making their legal work appear as the norm.

Milena Sterio: How did you research Palestinian history? Did you travel to the region? Did you interview any historical figures?

Noura Erakat: I used a combination of legal analysis, archival research, and primary interviews for my research. I spent time in a rich archive at the American University of Beirut library; I also spent a significant amount of time in the Ramallah and Beirut offices of the Institute for Policy Studies which curates a remarkable archive that includes Palestine Liberation Organization (PLO) annual yearbooks. There was a dearth of information on certain junctures including the negotiations that culminate in the Oslo Accords as well as the 1970s when the PLO turns to the United Nations and embarks on legal advocacy. To fill this lacuna, I conducted primary interviews. For example, I reconstruct the negotiations process by interviewing Palestinian negotiators who had participated in the Madrid and Washington negotiations. By doing this, I was able to describe, in this book, a completely different story about the Oslo Accords- one that did not just document how bad of a legal agreement it was for Palestinian interests but that also explained how and why the PLO ultimately endorses it. Much of this story has not been told before.

Milena Sterio: Who is the audience for this book?

Noura Erakat: This book is for a general audience – so anyone who wants to understand the Question of Palestine can benefit from it- in a formal classrooms teaching Middle East studies and beyond. its emphasis on law and its use of critical legal theory will make it particularly appealing to law students, practitioners, and scholars. I wrote this book as a tool of Palestinian knowledge production, where Palestinians are not portrayed simply as victims but instead where they play a central role in shaping the narrative.

Milena Sterio: Does your book offer any policy recommendations for the future?

Noura Erakat: No, this book does not offer policy recommendations. One of the goals of the book is to have a different conversation about Palestine that is not bound by the centrality of preserving Zionist settler sovereignty. It does this by proposing a different way to think about possibilities for the future by recasting the return of Palestinian refugees as the beginning of new futures rather than as the ultimate outcome of Palestinian struggle. How does the presence of six million refugees become an opportunity to forge new political communities that disrupt stark native/settler binaries? What is it that Palestinians have to offer to Jewish Israelis better than what Israel has been able to offer them? It also urges for abandoning a sovereignty framework – which has established the incommensurability of Palestinian and Zionist settler sovereignty – in favor of a framework of belonging which is not mutually exclusive. Part of this thought exercise is to think of what it would take to make Israel a part of the Middle East, rather than a satellite state in the Middle East. I suggest that this requires Jewish Israelis to accept and embrace everything indigenous to the region as the first step.

Milena Sterio: What is next on your research agenda? Do you have other projects lined up about the region or the conflict?

Noura Erakat: I have several research projects lined up. One research project looks at framing Israel’s shoot-to-kill policy in Gaza as a form of settler-colonial eliminatory violence. I am writing another article on the topic of surveillance and settler colonialism using Israel’s encroachment in one Palestinian village as a case study. And I have an additional project about the work of Israeli lawyers in the field of national security law.

My next book project begins where this book ends: namely at the “sovereignty trap,” which I define as a political arrangement of derivative sovereignty featuring native collaboration with settler-colonial and imperial powers, whereby good native behavior is rewarded with limited autonomy and perpetual subjugation. I am examining contemporary renewals of Black Palestinian transnational solidarity to explore the potential for freedom in excess of sovereignty. At this stage, my research consists primarily of interviews with activists involved in this movement.

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International Law on Statehood and Recognition: Israeli-Palestinian Conflict and the South Caucasus

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

Over the past week, I had the honor of presenting at two different conferences on statehood and recognition issues: the first one was held at Hebrew University in Jerusalem, Israel, and its official title was “Recognition in the Context of the Israeli-Palestinian Conflict,” and the second one was held in Ankara, Turkey, and its focus was on “The Centennial of the Independence of the Three Caucasus States: Historical Background, Contemporary Developments and Prospects of Peace and Prosperity” (the conference was organized by the Center for Eurasian Studies, an independent think tank based in Ankara).  My role at each of these conferences was to discuss statehood and recognition issues under International Law – in the context of the Israeli-Palestinian conflict at the first conference, and in the context of the South Caucasus conflicts at the second conference (as most readers would know, there are ongoing separatist conflicts in Nagorno-Karabakh, South Ossetia, and Abkhazia). Although these conflicts present distinct factual issues, many legal issues pertain to all; this post will briefly discuss such common legal issues in an attempt to shed light on complex issues of statehood and recognition.

Jerusalem view

Jerusalem City View

Statehood and recognition are supposed to be distinct from one another.  The former is a legal theory enshrined in international treaty law: the Montevideo Convention on the Rights and Duties of States establishes four criteria of statehood, which include the presence of a defined territory, permanent population, government, and the capacity to enter into international relations.  The latter is a political act traditionally left to the sovereignty of already-existing states. International law scholars have described two different theories of recognition of states: the declaratory view and the constitutive view. Under the former, recognition is seen as a purely political act having no bearing on the legal elements of statehood. Under this view, outside states can choose to recognize the new state, or not, but that decision does not influence the legal determination of statehood.  Under the latter, recognition is seen as one of the main elements of statehood. Thus, an entity cannot achieve statehood unless it is recognized by outside actors as a state. Under the constitutive view, recognition and statehood go hand-in-hand: an entity vying for statehood must garner the support of other existing states, which must express their desire to formally recognize this entity as their sovereign sister state. In addition to the declaratory and constitutive views, scholars have advanced a third, intermediary view on recognition.  The intermediary view seeks to combine the declaratory and constitutive views while acknowledging what truly takes place in practice.  This view posits that recognition is a political act independent of statehood, but that outside states have a duty to recognize an aspiring state if that entity objectively satisfies the four criteria of statehood.  Upon a closer examination of statehood and recognition, it thus seems evident that the two are related on a theoretical level.  The fourth criterion of the Montevideo Convention establishes the capacity to enter into international relations as one of the fundamental criteria of statehood; an aspiring state cannot possibly enter into international relations unless existing states are willing to recognize the aspiring state as a sovereign partner.  In addition, unless one supports the declaratory view on recognition, it appears that recognition is one of the elements of statehood (under both the intermediary and constitutive views).  And, in practice, recognition and statehood are closely connected. Most aspiring states must garner the support of a sufficient number of existing states, and in reality, the support of most of the Great Powers, in order to be recognized as new sovereign states. Without such recognition, aspiring states remain that – entities aspiring to achieve the supreme status of statehood. To the contrary, recognition and support by the Great Power may elevate an aspiring state to the status of statehood, although such an aspiring state may not satisfy the legal requirements of statehood.

Ankara Conference

Conference on Recognition and Statehood Issues in the Caucasus in Ankara, Turkey 

 

Several historical examples support this argument. When Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and to form an independent state in 1965, most of the world, including the Great Powers, refused to recognize Southern Rhodesia as a state. Consequently, Southern Rhodesia remained isolated from the world and was unable to conduct international relations. The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood. In the context of the former Yugoslavia, European Great Powers as well as the United States decided to prematurely recognize Croatia and Bosnia and Herzegovina, although such recognition was granted at a time when the entities in question arguably did not exercise control over their territories or have effective governments, thereby not meeting the traditional requirement for statehood.  Moreover, the United States refused to recognize the Peoples’ Republic of China (PRC) until 1978, although the PRC satisfied the legal criteria of statehood. Turkey was isolated in its own recognition of the Turkish Republic of Northern Cyprus as a state, although this entity did not necessarily fulfill all the legal elements of statehood. Finally, whereas many Western Great Powers have recognized Kosovo, Russia has refused to entertain any possibility of recognizing Kosovo as a state, although Kosovo’s fulfillment of the legal criteria of statehood is at the very least open to reasonable debate. Thus, recognition, whether it is considered a political or legal act, has a direct impact on the pragmatic determination of statehood: whether an entity will be able to truly act as a state on the international scene.  It may be argued that important states, such as Great Powers, support the constitutive view, because they equate recognition with statehood. In other words, Great Powers, as well as other important states, may decide whether to treat an emerging entity as a state based on their own geo-political interests, and not based on whether the entity satisfies the legal criteria of statehood. Thus, Great Powers, as well as many other states, have demonstrated that in practice, recognition remains constitutive of statehood.

Ankara City View

Ankara City View

Another key ingredient in the process of state creation is United Nations’ membership.  Because United Nations’ membership depends on the Security Council, it is thus subject to the geo-political whims of the five veto-wielding Great Powers (United States, Russia, United Kingdom, France, and China).  United Nations’ membership is important because it de facto elevates an aspiring state into a state.  Conversely, the denial of United Nations’ membership prevents the attainment of full statehood by an aspiring entity.  United Nations’ membership is distinct from the legal criteria of statehood (although such membership arguably enables the entertainment of international relations) and distinct from each existing state’s sovereign decision to recognize or not recognize a newly emerging entity.  However, it may be argued that United Nations’ membership reflects the collective recognition practice of the five permanent members of the Security Council, and that, in order to become a state, any entity must garner the support of these Security Council members – because entering the United Nations signifies the international community’s approval of a new sovereign member.

How does all of the above apply to the Israeli-Palestinian conflict and to the South Caucasus? Although Palestine, Nagorno-Karabakh, South Ossetia and Abkahzia may or may not satisfy the four criteria of statehood, and although Palestine may be recognized by over a hundred existing states, each of these entities have been blocked from entering the United Nations because of Security Council veto – in the case of Palestine, the United States has vetoed the Palestinian application for full membership, and in the cases of Nagorno-Karabkah, South Ossetia and Abkahzia, it is likely that the United States would equally veto membership applications.  Thus, none of these entities stand a chance of attaining statehood at the present moment. It may be argued that the Palestinian case for statehood is much stronger, because Palestine has observer status in the United Nations, because the International Criminal Court has opened an investigation into Israel, at Palestine’s request, and because Palestine has been recognized by more than one hundred existing states.  In addition, Palestine has recently sued the United States in the International Court of Justice under the Vienna Convention on Diplomatic Relations; it will be interesting to find out whether the Court takes up the case on the merits and proclaims anything regarding Palestinian statehood issues. However, because of the United States’ veto in the Security Council, Palestine does not have access to the United Nations and has no prospects of attaining the status of a sovereign state.

In sum, unless one supports the declaratory view, recognition and statehood remain connected on the theoretical level, and recognition and statehood are almost always inter-linked in practice.  Although recognition and statehood are distinct processes, it is nearly impossible to analyze the recognition of new states without focusing on the legal theory of statehood.  In addition to the link between recognition and statehood, recognition is always a political process, dominated by global politics and the interests of the Great Powers.

 

Arab Bank Case Sets Limited Precedent

On Monday September 22, 2014, a jury in the US District Court of Brooklyn found that the Arab Bank is liable for financing terrorism. This is the first jury trial to find a bank liable for financing terrorism under the 1990 Anti-Terrorism Act (ATA). The Arab Bank contends that the case was riddled with errors that should be rectified upon appeal before the Second Circuit. The Central Bank of Jordan has come out in support of the Bank, whose earnings constitute a quarter of the country’s stock market portfolio.

The decision, dubbed as a “trial against Hamas,” has been welcomed by some Palestine advocates. They are hopeful that this means, Israeli or US banks can be sued for facilitating the expansion of illegal Israeli settlements in the West Bank. That, however, is just not possible for two reasons. First, US federal courts have demonstrated an unwillingness to challenge Israeli policies, preferring to punt those questions to the Executive Branch instead. Second, it is a legislative invention, namely the ATA, that has made this case possible. Together, executive shielding of Israeli actions from judicial review and legislative endorsement of suits against Arab defendants, makes similar suit challenging Israel’s settlement policies very unlikely.

The U.S. federal court system has consistently invoked the political question doctrine to shield individuals connected to the Israeli government. The doctrine prevents the U.S. federal court system from adjudicating an issue that the U.S. Constitution textually commits to another branch of government. Since the Constitution commits foreign relations to the executive and legislative branches, the judicial branch may reject a claim as in-actionable by invoking the political question doctrine.

In 2005, Palestinian bystanders injured and killed during an operation intended to kill a Hamas leader in the Gaza Strip brought a lawsuit under the Alien Tort Statute (ATS) against Abraham Dichter, the former director of Israel’s General Security Services responsible for the operation. The plaintiffs in Matar v. Dichter, 563 F.3d 9, 11 (2d Cir. 2009) claimed that the targeted killing was extrajudicial, prohibited by the Torture Victims Protection Act (TVPA), and actionable in U.S. courts under the ATS. The Second Circuit dismissed the case for raising a political question. It characterized Dichter’s military actions as part of Israel’s foreign policy and therefore non-justiciable. The Department of State (DOS) submitted a Statement of Interest to the Court urging it to not hear the case. Israel’s Ambassador to the US at the time also submitted a letter claiming that Dichter’s actions constitute official Israeli policy. These letters had considerable influence on the panel.

In Belhas v. Ya’alon, 515 F.3d 1279, 1282 (D.C. Cir. 2008), Lebanese citizens – who were injured and killed when Israel shelled a United Nations Interim Forces in Lebanon (UNIFIL) compound – sued Moshe Ya’alon, head of the Israeli Army Intelligence during the time of the shelling. The DC District Court dismissed the case for being barred by the Foreign Sovereign Immunities Act (FSIA), which prohibits suit against a foreign country in US courts.

The claims were never heard on their merits.


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The Jerusalem Arbitration Center: “Merchants of Peace” in the Middle East

On 18 November 2013, a momentous event in the history of international commercial arbitration took place: a first-of-its-kind arbitration institution designed to resolve commercial disputes between Israeli and Palestinian businesses was launched in East Jerusalem.

The Jerusalem Arbitration Center (“JAC”) is a private initiative supported by the Paris-based International Chamber of Commerce (“ICC”) and its renowned International Court of Arbitration, and led by the Israeli and Palestinian ICC National Committees. It is intended to increase trade and investment across this troubled border and strengthen economic integration in the region by providing neutral, efficient, and effective dispute resolution services to Israeli and Palestinians businesses. (See Catherine Rogers’ prior IntLawGrrls post on the JAC here.)

The JAC has adopted the tried and true ICC arbitration model, adjusting it to local conditions. The JAC Rules resemble the ICC Rules in many respects, including the method for nominating and appointing arbitrators, the use of Terms of References, and the scrutiny of arbitral awards by the JAC Court. The Rules were adapted, however, to reflect regional particularities and the type of disputes the JAC is expected to administer. For instance, the fees and expenses associated with JAC arbitrations were significantly reduced from those of the ICC, and the default seat of arbitration was fixed as a ‘virtual’ Paris seat (i.e., excluding parties’ ability to apply to the French courts to set aside arbitral awards, in accordance with Article 1522 of the French Code of Civil Procedure), unless the parties agree otherwise.

Moreover, in addition to adopting the jurisdictional threshold familiar from ICC practice, which requires that a JAC arbitration agreement exist prima facie, the JAC Court must also confirm three additional jurisdictional requirements under the JAC Rules before a case can be admitted. First, the amount in dispute as stated in the Request for Arbitration must not exceed $7 million; second, the dispute must be a business dispute; and third, the dispute must relate to Israel, the West Bank and the Gaza Strip, including East Jerusalem. In the event that the JAC Court finds that one or more of these conditions is not met, the dispute will be transferred to the ICC Court and be administered in accordance with the latter’s Rules of Arbitration, unless the claimant withdraws its claims or the parties agree otherwise. In special circumstances, the JAC Court may seek the approval of the ICC Court to administer a case even if one of the above conditions is not met.

To ensure neutrality, professionalism, and international presence and support, the JAC Court is comprised of nine arbitration experts, with an international President (Mr. Yves Derains), an international Vice-President (Mr. Eduardo Silva Romero), two Court Members appointed by each of ICC Israel and ICC Palestine, and three international Court Members. The Secretariat is headed by an international Secretary General (Ms. Nadia Darwazeh) and includes an Israeli and a Palestinian Deputy Secretary Generals.

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UPR and Israel

The United Nations Human Rights Council is conducting the second cycle of its Universal Periodic Review mechanism. In January this year, Israel became the first country to refuse to attend its review session. That decision has been a diplomatic disaster. The Council has rescheduled the review for Tuesday 29th October. The question now is whether or not Israel will send a delegate to participate in this rescheduled session. So far, during the mechanism’s first two cycles, every single UN member state has attended its own review session. Every country, that is, except for Israel. The UPR relies upon universality – meaning that any country that pulls out can topple the house of cards. If Israel does not send someone – anyone – then its non-participation will both weaken the UPR and that country’s standing in the eyes of all of its peers.

In May 2012, Israel sent a letter stating that it would no longer engage with the Human Rights Council. During the Council’s first five years, its excessive scrutiny of and disproportionate attention to Israel had undermined the body’s credibility. There is no doubt that the Council is biased, selective and politicised in its treatment of Israel. But that country’s stance has widely been criticised by both its friends and foes. Non-participation not only sends a strong political and diplomatic message to those that criticise Israel, it also removes the possibility of that country presenting its position to the very many states who neither take a side nor have an interest in the conflict occurring within the Occupied Palestinian Territories. Failure to be present during discussions leaves those neutral, or disinterested, states only hearing one side of the debate.

But Israel’s decision not to participate in the Universal Periodic Review is far more serious than its disengagement from Council sessions. The UPR is a universal mechanism created as part of the reform process that disbanded the Commission on Human Rights and replaced that body with the Human Rights Council. UPR is an innovative mechanism that scrutinises every country’s human rights record during a four year cycle. The mechanism is a peer-review conducted by states, with input from UN independent experts, NGOs, national human rights institutions and other civil society actors. The reviews seek to provide transparency, accountability and scrutiny of national human rights records. Recommendations are then provided to the country concerned in order to strengthen and improve the realisation of human rights within their territories. Continue reading