David Lloyd — Justice Deferred: Palestine, Settler Colonialism and International Law (Review of Ronit Lentin’s Traces of Racial Exception and Noura Erakat’s Justice for Some)

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by David Lloyd

Review of Ronit Lentin, Traces of Racial Exception: Racializing Israeli Settler Colonialism (London: Bloomsbury Academic, 2018). ix + 268 pp. and Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford: Stanford University Press, 2019). xiii + 331 pp.

For some decades now, Israeli propaganda (or hasbara) has managed to keep in play two quite contradictory self-descriptions that serve at once to obscure and to legitimate its ongoing subjugation of Palestinians through occupation, strangulating siege, dispossession and settlement, discrimination and collective punishment, not to mention its regular use of lethal force. Though each and every one of these routine practices has been found to be in violation of a panoply of international laws and human rights conventions, Israel and its supporters continue to repeat, with increasing vociferousness the more the facts challenge them, their shopworn incantation of these bipolar narratives: Israel is a normal (if admittedly “flawed”) democracy, indeed, the “only democracy in the Middle East”; Israel is an exception, claiming the right to exceptional allowances because of its precarious location in what President Obama liked to call, with the folksy affectation with which he was wont to disavow the racist formations of his post-racial epoch, “a very tough neighborhood” (Obama 2010). At other times, Israel also claims to be an exception because of its miraculous dispensation, as an improbable achievement that must be treasured as no other state on account if its fulfillment of a centuries-old desire for return enshrined in biblical prophecy. Less often openly acknowledged is that Israel maintains a perpetual state of exception, in its exercise of brutal sovereign power over its Palestinian subjects, deploying a variety of special or emergency powers some of which date back to the British Mandate and the origins of the Zionist settlement, while others are its own inventions.

Ronit Lentin and Noura Erakat pull apart these familiar myths about Israel in two very different but often converging books. In Traces of Racial Exception: Racializing Israeli Settler Colonialism, Lentin explores at length the nature of what she understands as Israel’s racial state, bringing to bear a succession of intersecting analytical approaches, from the theory of exception to settler colonial and race critical paradigms, testing the extent to which Israel, far from being an exception, conforms to and largely reproduces quite typical elements of the settler colonial and racial state. Her extensively documented book, which draws on the now vast body of scholarship on Palestine/Israel and Zionism as well as on detailed and exemplary accounts of specific Israeli actions against Palestinian communities, synthesizes those approaches into a compelling account of “Israeli-Zionist rule over Palestine.” This account presents “a three-pronged critical engagement with Israel’s settler colonial racial regime in Palestine: first, a state of exception; second, a racial state; and third, a settler colony”, a triad to which, in Chapter 5, she adds a critical gender analysis that undoes that equally perduring myth of Israel as a model of gender equality and LGBTQ rights.

A “normal” state of exception is understood as a temporary suspension of the rule of law to deal with one or other emergency. When Walter Benjamin famously noted that for the oppressed, the “state of emergency” is the rule, he may not have had Palestine in mind (Benjamin 2003: 392). But Lentin persuasively shows in her first chapter that, in relation to its Palestinian subject population, “Israel has been in a permanent state of exception, which means that in Israel exception is the rule.” [31] This leads her to find the standard accounts of the state of exception as “a space devoid of law” [47], largely drawn from Giorgio Agamben’s readings of legal theorist Carl Schmitt, to be “ultimately inadequate to theorize the state of Israel.” [31] In the first place, “the law, far from being suspended, actually works in the service of the racial state.” [30] By the same token, she later points out, “theories of exception and bare life are inadequate in theorizing the embodied centrality of race in the Palestinian context.” [119]

Thinking of Israel not simply as enacting a state of exception in order to deal with security issues—as its advocates usually claim—but as a systematically racial state that regulates its subject population by way of racialized categories allows Lentin to show how the Israeli exception works not by the suspension but by the proliferation of laws. The military regime of occupation in the West Bank, indeed, daily performs “the constant production of exceptions” and the arbitrary use of categorizations such as “security threats” that make precarity and unpredictability the norm for Palestinians. Her analysis interestingly corresponds to the late Nasser Hussain’s theses in “Hyperlegality”, where he showed that far from representing a state of exception, the current global war on terror—for which Israel has offered a prime laboratory—should be seen as in continuity with colonial practices that constantly generated legal categories for its subject people, like “criminal tribes”, in order to manage and control whole populations (Hussain 2007). “Security threats”, “infiltrators”, “absentees” all function similarly to subject Palestinians to a regime of ongoing collective punishment, both within Israel and in Gaza and on the West Bank.

The regime of military occupation and of domestic discriminatory laws within Israel[1] clearly does not apply to Israel’s Jewish citizens, including the settlers illegally located on the West Bank and in occupied East Jerusalem. At the end of this chapter, Lentin briefly considers the question as to whether Israel is an apartheid state, given its own policies of Hafrada (separation or segregation).  It’s important to note, since quibbles about the applicability of the comparison with South Africa have often deliberately confused the issue, that the question depends not on a loose or strict analogy with that apartheid regime, but on the legal definition of apartheid as a crime against humanity given by the Rome Statute of the International Criminal Court, that is, “inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” (Rome Statute 2002).  By that definition, as Noura Erakat shows at greater length in Justice for Some [213-8], Israel’s is indubitably an apartheid regime, whether or not its practices coincides in every respect with those of South Africa under white supremacist rule.

In some respects, it could be said that to speak of the modern state as a “racial state” is virtually an oxymoron: almost every modern state governs through categories that are either racial or function in quasi-racial ways. Lentin seeks to define more precisely what kind of racial state Israel is, and the logic behind its “dehumanizing racial classifications [that] emanate from the aim of ensuring that Jewish Israelis live at the expense of the Palestinian other(s).” [88] Although she acknowledges that  this dehumanization is based on “separation, segregation and self-segregation” [88], Lentin’s emphasis falls more on the analysis of Israel as a settler colonial entity, beginning with early Zionism’s explicit understanding of its enterprise as a colonial project of settlement and expansion down to currently ongoing efforts to dispossess and displace—or “transfer”, as the Israeli euphemism has it—the indigenous Palestinian population.[2] Her devastating account of the origins of Zionism within the context of European racial nationalism not only substantiates her argument about “the centrality of race to theorizing Zionist settler colonialism”, but also brings out the eugenicist obsessions that underlie its ideology. This clearly informs Israel’s virulent anti-Arab racism, but Lentin shows that the Zionist belief in the necessity for the colonization of Palestine “to ‘regenerate’ diaspora Jewry by creating the racially superior ‘New Jew’” [84] persists in the continuing racial discrimination against the Mizrahim or Arab Jews and African-origin Jews in Israel. As Lentin also shows in Chapter 5, this eugenicist logic also informs the profoundly masculinist features of contemporary Israeli society that persist in the face of its official proclamations of gender equality and LGBTQ friendliness. Ironically, even as critics of Israel or anti-Zionists are accused of anti-Semitism [101-3], Zionism itself turns out to have a deeply embedded disdain for “Jewish characteristics”—as one early Zionist put it, “in order to be a good Zionist, one has to be a bit of an antisemite.” [97]

Of course, the notion that colonization carries a regenerative force both for the colonizers and for the land itself is a widespread tenet of settler colonial ideology. Lentin’s analysis of Israel as a settler colony is persuasive precisely because it shows so well how the typical dynamics of settler societies account for Israel’s peculiar, but hardly exceptional, intertwining of eugenicist racism, segregation, and legalized discrimination. Apartheid is fundamental to settler colonial domination as is the dispossession and displacement of the native population. Lentin’s careful genealogy of the application of the settler colonial framework to the case of Israel is exemplary in its acknowledgement of the pioneering Palestinian contribution to that theorizing, from the insufficiently known Constantine Zurayk to Fayez Sayegh’s crucial Zionist Colonization in Palestine [62-4], even as she draws on the more recent theoretical work of Patrick Wolfe and Lorenzo Veracini. Despite the outrage that naming Israel’s identity as a settler colony arouses in some circles, early Zionists, as Lentin shows, would scarcely have disavowed the appellation. Despite the old canard about “a land without people for a people without a land”, Zionists have always been committed to that essential aspect of settler colonial projects, the deliberate displacement, or, as Wolfe famously put it, the elimination of the native. While some settler colonies, like Algeria or South Africa, required the native population to work the land and resources from which they had been displaced, Israel—not least on account of its ethno-majoritarian ideology—has constantly sought the disappearance or erasure of the Palestinian demographic majority. Its belated arrival on the colonial scene, just as the decolonizing movement was taking shape around the world, hampered and delayed its execution of that project, but, as Lentin shows in great detail throughout Traces of Racial Exception, the gradual but determined displacement of Palestinians from their own historic lands continues apace. One might say, indeed, that if Israel does indeed impose a permanent state of exception on the Palestinian people, that may be precisely what makes it a typical settler colony: the settlers, no matter how powerful they may be, retain the siege mentality that their determination to eliminate the native as an existential threat generates and sustains. As Memmi long ago observed, that also explains the inexorable rightward drift of the settler society: “every colonial nation carries the seeds of fascist temptation in its bosom” (Memmi 1967: 62).[3]

Lentin’s work, indeed, has the great value of exemplifying how theoretically stringent work that seeks to furnish a framework for understanding complex but hardly incomprehensible phenomena also carries with it a certain predictive power: her painstaking supplementation of given theoretical models with other ones gradually assembles an analytical framework that combines, not eclectically but systematically, the means by which the “Israeli exception” can be comprehended. But she also allows us to see the rationale for tendencies that, for example, liberal Zionists may lament but cannot explain. If one buy the line that Israel is a modern democracy, flawed as it may be, its actual practices and steadily expansionist drive to dispossess the Palestinians—currently heading toward full annexation of the West Bank—can only seem like aberrations wishfully hoped to be temporary. Lentin’s analysis allows us to see how they emerge quite logically from the nature of the Zionist settler colonial state. That makes Traces of Racial Exception a work that will become indispensable to anyone seeking to understand and, optimally, to organize against Israeli apartheid.

While Lentin emphasizes throughout Traces of Racial Exception the proliferation of legal terms and measures through which Israel maintains its settler colonial regime, Noura Erakat’s Justice for Some: Law and the Question of Palestine unfolds the terrain of international law on which the struggle for legitimacy has been fought for over a century. While its focus on the legal history that so deeply informs the fate of Palestine may make it seem daunting to the lay person, it is in fact a rich and compelling work that unfolds a story that at times has all the fascination of a court room drama. That is especially so in its chapters on the PLO’s legal maneuvers to achieve UN Recognition—the high point of the narrative from the Palestinian perspective—or the dismal account of the Oslo Accords that shows how abysmally the PLO leadership failed to understand the US and Israel’s maneuvering and, worse still, its reluctance to listen to the expert advice of its own legal counsel. The story that Erakat tells across this brilliant and finely documented book is crucial for anyone concerned with the Palestinian struggle and its outcomes to read. In general, the defense of Palestinian right against their constant violation by Israel, and in particular the claims of the BDS movement, have largely been articulated through appeals to international law and humanitarian conventions. But it is not always the case that the uses and, possibly more importantly, the pitfalls of the legal arguments are well understood. In that respect, Erakat’s painstaking accounting of Palestinian and Israeli legal and extra-legal maneuvers makes for an invaluable cautionary tale, alerting us to “the potential risks, and benefits, of appeals to international law.” [4]

The risk of any appeal to international law, less as a body of doctrine—as Erakat shows throughout—than as the framework for a set of practices and negotiation, lies in its status as “a derivative of a colonial order”, a “sordid origin” that both ensures “an asymmetry of rights and duties among international actors” and makes it “structurally detrimental to former colonies, peoples still under colonial domination, and individuals who lack nationality or who, like refugees, have been forcibly removed from their state and can no longer invoke its protection.” [6-7] Nowhere is the maxim that “the rule of law is not synonymous with justice” [5] more telling than in the case of the Palestinians, who continue to insist on their rights under the law in face of decades of legally sanctioned erasure as a people with sovereign rights. This is not least because the peculiar modes of exceptionality that Israel has over and again claimed for itself constitute (as Lentin also observes), less a suspension of law than—to invoke Walter Benjamin again—a form of law-making violence (Benjamin 1996: 240-1).  Israel regularly asserts “that its unprecedented conditions authorize it to create new law for itself and everyone else” [183]. Israel’s capacity to make law in its very breach is one of the patterns that this book illuminates, but the lesson it offers is not for all that a counsel of despair in the face of massive disparities of power and access to rights; it is, rather, that in spite of the asymmetry of their respective positions both Palestine and Israel have succeeded at different moments in using international law to open up “legal opportunities” [4]. The condition of doing so is the recognition of “the imbrication of law and politics” [4]: without generating autonomous political movements and mobilizing the force they can exert, the weaker party cannot seize and exploit whatever legal opportunity the framework of international laws and conventions may offer.

The ramifications of the asymmetry in the Palestinian case stem most evidently from the fact that Israel has been recognized as a state whereas Palestine has yet to gain that status. This enables Israel to declare, in various forms and at different times, the sovereign exception that constitutes “a zone of exceptional lawmaking wherein political necessity determines applicable law.” [15] But the inverse of that condition is that Palestinians, long “erased”, as Erakat puts it, both by British Mandate policies and by Zionist denials of their “juridical status” as a nation-people [39], could also be rendered legal non-subjects. As she shows in some detail in Chapter 2, in consequence of the post-1967 occupation of the West Bank, “the Palestinians would be suspended in limbo as non-citizens of Israel and as non-sovereigns under occupation, completely subject to Israel’s discretionary whims.” [63] Israel’s insistent claim that its actions are justified by “political necessity” continually trumps in practice the global consensus that it has in multiple ways violated international law and that its regime of occupation is in fact subject to the terms and regulations of the Geneva Conventions. Since there is “no general enforcement mechanism in the international sphere” [82], Israel’s capacity, with US backing, to continue to create and impose “facts on the ground”, whether through direct military violence or “under the veneer of legality” and special regulations [84], continues unabated alongside its steady incorporation of the occupied territory.

Nonetheless, Palestinians have not been without agency in the sphere of international law and two chapters of Justice for Some relate the ways in which the PLO proved able both to seize and to squander legal opportunities. Chapter 3, tellingly entitled “Pragmatic Revolutionaries”, shows how the PLO under Yasser Arafat firstly succeeded in modifying international and humanitarian law regarding armed conflicts in order to establish the legitimacy of its own use of force and thus “to challenge the criminalization of its armed struggle”. This in turn led to its ability, through its diplomatic work with the UN, “to establish itself as an embryonic sovereign with the ability to exercise a monopoly on violence and a right to use it on behalf of an entire people.” [109] This considerable victory, largely won in the context of and in solidarity with recent and ongoing decolonizing struggles, would in turn open the way to General Assembly recognition, in the 1974 Resolution 3236, of ‘the Palestinian right to self-determination and to ‘national independence and sovereignty,’ as well as the right of refugees to return to their homes and property.” [120] Affording to Palestine non-member status at the General Assembly, the subsequent Resolution 3237 “definitively settled the question of Palestinian peoplehood” and its representation by the PLO, thus effectively reversing Israeli efforts to erase the Palestinians as a nation. [121]

The successful passage of these resolutions in the face of major-power resistance, Erakat argues, not only demonstrated both the Palestinian capacity to create new international law and “the lawmaking authority of the global South” [122], but also the effectiveness of grounding legal strategy in political struggle and organizing. Nonetheless, she is alert to the dangers secreted in the ends achieved by the PLO: its legal work at the UN “exacerbated the tension between its vision for revolution and the vision for statehood” [111] That tension would play out catastrophically in the tragedy of the Oslo Accords nearly twenty years later, as Erakat shows in her dismaying account of the negotiations that led, in the view of many Palestinians, to the sacrifice of a struggle for liberation that had been significantly advanced by the First Intifada and its decentralized networks of popular initiatives, all for the sake of nominal political recognition and authority. In her view, in entering the peace process, a much-weakened PLO with diminished legitimacy “strove to save itself.” [139] The subsequent 25 years of endlessly deferred “final status” negotiations that have enabled Israel’s covert annexation of increasing segments of the West Bank, let alone the continuing violence of its occupation and siege of Gaza, have sufficiently borne home the fiasco of Oslo. Erakat analyzes in painful detail the now familiar concessions that the PLO made along the way, but also offers a compelling analysis of the willful failures of its legal and political strategies, “failures that reflected its leadership’s lack of appreciation for the law, and particularly for the law’s strategic malleability.” [159] Furthermore, what the PLO in effect sacrificed, to obtain a “ghettoized sovereignty” [171] and “a patchwork arrangement over Palestinian civil affairs and natural resources” [163], was its capacity to continue to appeal to international law. In effect, it returned the Palestinian cause to the purview of a “sovereign exception”, engendering “a specialized legal framework” that “suspended all applicable international law and norms in order to achieve an unfettered political resolution” from which Israel alone would benefit. [164] Subsequent decades have shown just how capable Israel has been in exploiting the legal and political opportunities that Oslo opened up for it.

If the PLO proved for a moment capable of creating new international law, the Oslo Accords largely ceded that initiative to Israel. Chapter 5, “From Occupation to Warfare” focuses on the ways Israel has succeeded in delegitimating the hard won recognition of the Palestinian right to resistance [180] and in legitimating its own, increasingly regular violence against its subject populations, including its “extralegal, arbitrary, and summary executions, which are prohibited in law.” [178] The main and highly instructive logic that Erakat unfolds, a logic that goes not only to Israel’s conduct under the cover of “anti-terrorist” actions but also to the counter-insurgency tactics of the United States and other major powers, is summed up in a succinct subtitle: “The Malleability of Law: A Violation Can Also Be a Proposition.” [183] Having first “exceptionalized its in fact nonexceptional confrontations with Palestinians” [180], whose occasional and sporadic resort to violence fell far short of formal armed conflict, Israel was able to expand its right to use force outside the restrictive framework of existing laws of occupation. It did so by claiming to be in a conflict with terrorism “analogous to war” [181], an imprecise terminology that permitted it to claim “that no existing body of law had adequately contemplated the conflict between states and terrorists.” [182] In the upshot, its assertion “that its unprecedented conditions authorize it to create new law for itself and everyone else” [183, my emphasis] throws a critical light on “the nature of international law as a living instrument that is continually made, implemented, broken and remade.” [183] As Erakat goes on to show in examining the legal as well as military collaboration between the United States and Israel in the “global war against terror”, they together “shaped the customary [international] law regulating the use of force against terrorism” [191] thus seeking to “determine the law for all other states.” [193] Violations become customary practices and eventually constitute new customary norms. It has long been remarked that Israel wantonly exploits Palestine as a laboratory for counter-insurgency techniques and military hardware; Erakat shows that in its lawless use of violence it has been no less successful as a laboratory for international law in the service of colonial domination.

Like Lentin, Erakat concludes her book with reflections on the failure of that framework for the peace process to which the international community has for so long paid lip service, the two-state solution that projects an independent sovereign state of Palestine on a much reduced land-base alongside that of Israel. As she says, that prospect is “obsolete”. [211] In practice, Israel’s legal maneuvers have had “an unintended consequence: it oversees an apartheid regime.” [213] In this, clearly, she agrees with the analysis that Lentin offers, including in her recognition that apartheid is the logical “consequence of Israel’s settler colonial ambitions.” [217] And, like Lentin, she recognizes in the BDS strategy a possible alternative to the armed struggle which, although it “remains available to occupied Palestinians as a matter of legal right” is, “as a matter of strategy … counterproductive and dangerous.” [227] BDS has shaped “new political space” precisely by deploying nonviolent tactics that appeal to international law and human rights norms. In other words, it supplies the political campaign that Erakat has shown to be essential to any legal strategy. At the same time, she perceives BDS as “a necessary but insufficient tactic” in a liberation movement that cannot be only for equality, but must entail “a struggle against settler-colonial dominance.” [231] This requires, she argues “a discerning political program” if the movement is not to confuse “the equivocating tendencies of a human rights framework with a practice of decolonization.” [233]

This is by no means to abandon the still essential work of the boycott movement, but it is to ask that we see in the moral force that it exerts a counter-violence that reaches beyond the framework of law and rights it draws on. Such a line of argument leads her to differ from Lentin’s commitment to “one truly democratic state for all” [170] and to argue—in a way that extends her perception of the tension between a vision of decolonization and a vision of statehood—for a process of decolonization that would displace any outcome framed within the limits of the state form. Erakat’s final pages compellingly force the question as to whether “a state-centric legal order that sanctifies the sovereignty of settler states [can] rectify and stem ongoing possession and native erasure”. [235] That is the urgent task this crucial book prescribes to anyone, and not only to Palestinians, who feels the limits of state-sanctioned conceptions of law and their remoteness from any effective concept of justice. It asks us to imagine and shape a political future beyond anything that the nation-state can offer. Palestine has always offered radical hope to those engaged in emancipatory struggles globally in the form of samud, its persistence in resistance. Erakat suggests that, beyond the often dismal horizon of the present, it also offers a vision and a means to life in common forged in the crucible of dispossession and abandonment. This is a vision worth carrying forward and a project that demands to be pursued.

 

David Lloyd is Distinguished Professor of English at the University of California Riverside. His most recent book is Under Representation: The Racial Regime of Aesthetics (New York: Fordham University Press, 2019).

 

Works Cited

Adalah, “Discriminatory Laws in Israel”, https://www.adalah.org/en/law/index. Accessed April 15, 2020.

Benjamin, Walter, “Critique of Violence,” translated by Edmund Jephcott, in Selected Writings, vol. 1, 1913–1926, edited by Marcus Bullock and Michael W. Jennings. Cambridge, MA: Harvard University Press, 1996,  236-252.

Benjamin, Walter. “On the Concept of History”, Harry Zohn, trans, in Selected Writings, Volume 4, 1938-40. Edmund Jephcott and others, trans. Howard Eiland and Michael W. Jennings, eds. Cambridge, MA: Harvard University Press, 2003, 389-400.

Hussain, Nasser. “Hyperlegality”, New Criminal Law Review, 10.4 (2007): 514-531.

Memmi, Albert. The Coloniser and the Colonised, trans. Howard Greenfield (Boston: Beacon Books, 1967).

Obama, Barack, “Interview of the President by Yonit Levi, Israeli TV”, July 7, 2010. https://obamawhitehouse.archives.gov/the-press-office/interview-president-yonit-levi-israeli-tv  Accessed April 15, 2020.

Rome Statute of the International Criminal Court. 2002.  https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf. Accessed April 15, 2020.

[1] Adalah,  the Legal Center for Arab Minority Rights in Israel, maintains a database of  over 60 such laws, “Discriminatory Laws in Israel”: https://www.adalah.org/en/law/index. Accessed April 15, 2020.

[2] Article 7 of the Rome Statute also defines “Deportation or forcible transfer of population” as such a crime. https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf

[3] Given that the United States functions as Israel’s current mother country”—a function that Zionists have historically sought to supply through alliances with the dominant imperial power of any epoch, we might do well to attend to Memmi’s warning that “the colonialist is the seed of corruption in the mother country” (Memmi 1967: 64). Lentin discusses the close alliance between Netanyahu’s Israel and contemporary US white supremacist and ethno-nationalist movements, and with right-wing governments globally, on pp.  99-101.

 

 

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