Exiled to a liminal legal zone: are we all Palestinians now?

Abstract

For the past 60 years Palestinians have been positioned in a liminal political zone in a global system of nation-states. Although the Palestinian refugee crisis is the oldest and largest in the world, Palestinians are also relegated to a liminal legal zone in that the UN-established institutions such as the unrwa to deal with the Palestinians' needs and demands through exceptional channels outside the jurisdiction of the UN's human rights regime. As a consequence, Palestinians' rights are always open to question and frequently violated, whether they are living under occupation, as second class citizens in Israel, or as refugees in surrounding Arab countries. Although the Palestinian diaspora is situated in a variety of countries, legally the Palestinians are nowhere. This article examines the liminal legal zone to which Palestinians have been exiled, particularly in regard to refugee rights, but also in the context of international humanitarian law and international prosecution of war crimes committed against Palestinians. In examining this liminal legal zone, the article also notes that in the age of the global ‘war on terror’, we are all at risk of becoming Palestinians as legal guidelines and guarantees are eroded.

Notes

1 Liisa Malkki, Purity and Exile: Violence, Memory and National Cosmology among Hutu Refugees in Tanzania, Chicago, IL: University of Chicago Press, 1995, pp 2 – 8.

2 Laura Nader, The Life of the Law, Berkeley, CA: University of California Press, 2002.

3 A survivor of the Sabra and Shatila massacre, one of the plaintiffs in a case filed under Belgium's universal jurisdiction law in 2001.

4 It is difficult to establish with legal certainty at this point the actual status of the Gaza Strip following the unilateral withdrawal of Israeli troops and illegal settlements in the summer of 2005. Although Israel took this step ‘without a partner’, and insists it is no longer occupying Gaza, Israel (and Egypt) remain in control of Gaza's borders and airspace. Israeli Air Force attacks on the Gaza Strip have not ended since the Israeli pullout. The January 2006 Palestinian elections may clarify who has political legitimacy within Gaza (at present a matter of uncertainty and doubt), but the elections will not elucidate how much sovereignty Gazans actually enjoy.

5 Jean L Cohen, ‘Whose sovereignty? Empire versus international law’, Ethics and International Affairs, 18 (3), 2004, pp 1 – 24.

6 International Humanitarian Law (ihl) refers to a body of laws and international conventions intended to provide clear codes of conduct in times of armed conflict. ihl criminalises the worst offences known to human experience. The laws define and attempt to prevent war crimes, crimes against humanity and genocide. Central to ihl are the Hague Regulations on Land Warfare of 1907, which cover means and methods of warfare; the Genocide Convention of 1948 and the Geneva Conventions of 1949 and the two additional protocols of 1977. Collectively these instruments stipulate the differences between legal and illegal conduct in times of military hostilities and military occupation. The Genocide Convention of 1948 defines genocide as certain acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’. The Rome Statutes of the International Criminal Court, adopted in 1998, represent a further refinement and clarification of ihl. Of additional importance is the Nuremberg jurisprudence, which established the law on crimes against humanity. At the heart of ihl is the stipulation that civilians and civilian infrastructure are not to be directly and intentionally harmed in times of war or at times of armed conflict.

7 Although most objective observers view Israel as a ‘belligerent’ occupier in the West Bank (and formerly in the Gaza Strip), Israel insists that it is not occupying but only ‘administering’ territories that did not enjoy sovereignty before 1967. Thus, Israeli legal scholars, diplomats and politicians have long argued that the Fourth Geneva Convention is not applicable to its actions in the West Bank or Gaza Strip.

8 See Joel Beinin, ‘The demise of the Oslo process’, Press Information Note No 1, 26 March 1999, at http://www.merip.org/mero/mero032699.html; Kathleen Cavanaugh, ‘The cost of peace: assessing the Palestinian – Israeli accords’, Middle East Report, 211, 1999, pp 10 – 12; and Sara Roy, ‘De-development revisited: Palestinian economy and society since Oslo’, Journal of Palestine Studies, 64, 1999, pp 64 – 82.

9 The multidimensional Israeli – Palestinian conflict is transnational in that it entails three separate sets of unresolved conflicts: that between Israel and the Palestinians in the West Bank and Gaza, which has now assumed a violent, militarised form; conflicts between Israel and its own Palestinian citizens, which usually assumes a legal/political form, but which turned violent in October 2000; and conflicts between Israel and millions of Palestinian refugees, which may best be described as an existential rather than a political conflict, and which may well be the most threatening to Israelis, despite its current lack of a militarised dimension.

10 Lisa Hajjar, ‘From Nuremberg to Guantánamo: international law and American power politics’, Middle East Report, 229, 2003, at www.merip.org.

11 Lord Johan Steyn, 27th FA Mann Lecture, London, 25 November 2003.

12 Kenneth Roth, ‘Introduction’, in Human Rights Watch, World Report, New York: Human Rights Watch, 2006, at www.hrw.org.

13 ‘Palestinian refugee rights: Part one—failure under international law’, presentation delivered by Susan Akram at the Palestine Center in Washington, DC, 28 July 2000, at http://www.palestinecenter.org/cpap/pubs/20000728ib.html.

14 Aluf Benn, Amira Hass & Ruth Sinai, ‘IDF general escapes arrest by London police's anti-terrorist unit’, 12 September 2005, at http://www.haaretz.com/hasen/pages/shArt.jhtml?itemNo=623525.

15 Comment by Avril MacDonald on the website of Amsterdam's Asser Institute, 26 July 2002.

16 Luc Walleyn, one of the three lawyers representing the Sabra and Shatila plaintiffs in Brussels.

17 Malkki, Purity and Exile.

18 The Second, Third, and Fourth Conventions contain a similar rule in Articles 50, 129 and 149, respectively.

19 ‘The pitfalls of universal jurisdiction: risking judicial tyranny’, Foreign Affairs, July/August 2001, at http://www.globalpolicy.org/intljustice/general/2001/07kiss.htm.

20 Michel Foucault, History of Sexuality, 1, 1976, p 95.

21 Nader, 2002, Ibid., p 15.

22 For more details, see www.indictsharon.net.