Justice for Some: Law and the Question of Palestine by Noura Erakat
Noura Erakat aims to explain how international law has played a role in shaping the Israel-Palestine conflict and to project how international law may be relevant to potential resolution.
Justice for Some: Law and the Question of Palestine1 focuses on recent years. As a preface, Erakat traces critical junctures in the early development of the conflict. Erakat begins with an explanation of Zionism, the project conceived at the turn of the twentieth century that sought the backing of European governments to establish a Jewish state in Palestine.2 She poses Zionism as colonial in character and then she quotes the famous statement of Theodor Herzl, a founder of Zionism, to Cecil Rhodes, who had organized a colony bearing his name, Rhodesia. Herzl asked Rhodes for help in gaining territory for a Jewish state. To explain to Rhodes why he was being approached, Herzl said that the Zionist project was "'something colonial."3
In 1917, Zionist organizers gained the support of a colonial power when Great Britain declared its support for a "Jewish national home" in Palestine, issuing a letter over the name of Lord Arthur James Balfour, the Foreign Secretary.4 The Zionist project was immediately seen as a potential threat to the self-determination of Palestine's Arab population, which constituted Palestine's majority. On that question, Erakat quotes Balfour, who explained that while the indigenous population of Palestine should not be dispossessed or oppressed, "we deliberately and rightly decline to accept the principle of self-determination."5 Balfour's rationale for disregarding self-determination, as he further explained, was the "the question of Jews outside Palestine."6
The League of Nations gave Great Britain control of Palestine, incorporating, at Great Britain's request, an obligation to implement the Balfour Declaration by facilitating Jewish immigration into Palestine.7 Erakat sees this disposition as confirmation by the League that selfdetermination was being overridden.8
Erakat gives a brief account of major developments as Great Britain administered Palestine, an administration that lasted until 1948. By 1936, the Palestinian Arabs saw that Britain was letting Jews migrate to Palestine in numbers that threatened the loss of their country. They took up arms in a rebellion that lasted until 1938. Great Britain reacted with wide-ranging repression that, as Erakat says, not only took the heart out of Arab resistance but left the Arab community so weakened that it fell easy prey in 1948 to Zionist military units as they took control of most of Palestine's territory, forcing out large segments of the Arab population in the process.9 In that year, Great Britain withdrew from Palestine. Erakat recounts how the UN General Assembly admitted Israel to UN membership in 1949 after Israel fended off questions about why it [End Page 287] was refusing to repatriate the Arabs it had forced out.10 Characterizing the role of international institutions in these early phases of the conflict, Erakat says that international law was ignored. She writes that these early developments show "international law's utility in advancing settler-colonial ambitions."11
Erakat explains a new dynamic in the conflict after the Palestine Liberation Organization (PLO) was formed in 1964. This organization, she says, adopted an advocacy stance at the United Nations. It used international law to make its case and to gain international legitimacy for regaining territorial rights for the Arabs of Palestine.12 The augmentation of the United Nations at that era with states that were formerly colonies created fertile ground for arguments based on self-determination. Erakat writes that the PLO successfully framed its position at the United Nations as one of opposing "settler-colonial subjugation" by Israel.13 "[T]he PLO," she says, "established new law on behalf of colonized people and marginalized Israel globally by emphasizing that nation's alignment with imperial powers, including Portugal, South Africa, and the United States."14
However, Erakat explains that pressure was soon being exerted on the PLO by the Soviet Union and by Arab governments to limit aspirations to only a portion of the territory of Palestine.15 This section of the book, more than any other, profits from careful research on Erakat's part. She interviewed key Palestinian figures and weaved their accounts into her historical narrative. They explain how the PLO ultimately decided to scale back its demands and to declare its intent to live alongside those who had dispossessed the Palestinian Arabs.16
Erakat then moves to more recent decades, where she sees the PLO backtracking on its reliance on international principle. In 1993, the PLO agreed to a Declaration of Principles with the Government of Israel, which called for negotiations between the two. Given that Israel, backed by the United States, was in a predominant position of strength over the PLO, the Declaration of Principles left the PLO with little to gain. This arrangement, Erakat says, "reframed the struggle as a conflict between two equal parties that required compromise by both sides."17 Moreover, at this time, Israel was constructing civilian settlements in Palestinian territory. The Declaration of Principles did not require dismantlement or a construction stoppage. It put the issue of Israel's civilian settlements off to be resolved as part of a peace agreement.
Erakat analyzes Israel's military doctrine on permissible use of force, particularly in the wake of the failed 2000 Israeli-Palestinian negotiation at Camp David, Maryland, and the violence that ensued.18 Focusing on Israel's practice of targeted assassination of Palestinians accused of anti-Israel attacks, she faults the United States for using the same tactic, beginning in the George W. Bush administration and continuing in the Barack Obama administration.19 The US use of this tactic, she says, helped Israel make a case that such assassinations are lawful.20 [End Page 288]
Erakat is meticulous in her use of sources. One minor factual glitch is her recounting of Great Britain's referral of the Palestine issue to the United Nations in 1947. Erakat states that Great Britain explicitly suggested that the United Nations should consider Palestine as a place of refuge for displaced Jews seeking to leave central Europe after the World War II Nazi atrocities.21 Great Britain had, to be sure, deemed its Balfour Declaration of 1917 as applying to Jews worldwide, but in the document of referral22 Great Britain made no mention of displaced Jews in Europe. The UN Special Committee on Palestine, which then made the recommendation to partition Palestine, did take this issue into account and drew boundaries in a manner that would leave territory to accommodate Jews not yet in Palestine. Erakat cites a passage in a book by this reviewer23 to support her statement of an explicit suggestion by Great Britain to use Palestine as a place of refuge for displaced Jews from Europe.24 That passage recounts the concern expressed at the time by Arab states that the referral would be taken in that light by the United Nations, but the passage does not say that Great Britain made such a suggestion. Indeed, once the partition proposal was finalized by the UN General Assembly, Great Britain refused to implement it, finding that the proposed territorial split was unfair to the Arabs of Palestine. Erakat's overall point here is an important one, however. The Special Committee's plan to use Palestine to resettle displaced Jews and the resulting skewed borders drawn by the Special Committee rendered the Partition Resolution a document that no one at the United Nations expected the Arab states to accept. The Partition Resolution set the stage for conflict that continues to this day.
To her credit, Erakat refers to a wealth of detail throughout her book, effectively using both prior scholarship and primary sources. Her inclusion of personal interviews, as indicated, sets her book apart from most other works on the topic. These interviews provide critical back stories on why and how the PLO decided upon particular strategies.
Erakat's conclusion about the prospects of a positive role for international law in the Israel-Palestine conflict is less than optimistic. Erakat sees the Palestinian effort to establish a state as having failed.25 The PLO's invocation of international law has been ineffective, she says, in gaining self-determination.26 She sees Israel as having established an apartheid-type system in the territory that was Palestine under the British mandate. Israel controls the territory, she explains, but excludes the Arab population from a meaningful role in governance.27 One point of hope, in her view, is the boycott movement that began in 2005, aimed primarily at Israel's hold on the Palestinian territory it took during the 1967 war. For Erakat, that movement signals a return to a rights-based approach on the Palestinian side.28 She sees Palestinians presently as "potentially ready to seek out and explore new and uncharted paths toward liberation."29 [End Page 289]
Erakat's writing is fluid and inviting. While she covers much technical material, she does so in a style that is accessible. Erakat is a human rights lawyer and acknowledges that she writes from an advocacy perspective, seeking strategies that would incorporate international law to achieve Palestinian rights. Nonetheless, Justice for Some addresses controversial and complex issues of law in a rigorous manner. It is a useful read for anyone seeking to understand how international law was involved in bringing the IsraelPalestine conflict to its current posture and how international law may play a role going forward. [End Page 290]
John Quigley is Professor Emeritus at the Moritz College of Law, The Ohio State University. In 2000, along with Howard DeNike and Kenneth Robinson, he published the volume Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Pennsylvania Studies in Human Rights). He holds A.B., M.A., and LL.B. degrees from Harvard University.
1. Noura Erakat, Justice for Some: Law and the Question of Palestine (2017).
2. Id. at 1–3.
3. Id. at 28.
4. Id. at 29.
5. Id. at 31.
7. Id. at 35–37.
8. Id. at 39.
9. Id. at 44–52.
10. Id. at 52–54.
11. Id. at 54.
12. Id. at 96–99.
13. Id. at 166.
14. Id. at 166–67.
17. Id. at 167.
18. Id. at 170–73.
19. Id. at 188–92.
20. Id. at 193–94.
21. Id. at 45.
22. Letter to Acting Secretary-General from United Kingdom Delegation to the United Nations, Question of Palestine, 2 Apr. 1947, U.N. Doc. A/286 (3 Apr. 1947).
23. John Quigley, The Case for Palestine: An International Law Perspective 32–33 (2005).
24. Erakat, supra note 1, at 245.
25. Erakat, supra note 1, at 211.
26. Id. at 219–20.
27. Id. at 213–14.
28. Id. at 228–34.
29. Id. at 240.