The introduction lays out the book's primary question: if international law has not refereed and resolved the Palestinian-Israel conflict, then what role is it playing, and what are the potential benefits and risks that its invocation poses for the Palestinian struggle for freedom? Using UN General Assembly Resolution 2334 as a pedagogical tool, the introduction provides an analytical framework for understanding the meaning and utility of international law. It demonstrates that powerful states can use international law as a tool of domination but that the law's susceptibility to strategic deployment through legal work also imbues it with the potential to advance progressive causes. This opening discussion argues that international law is politics and that in order for it to serve an emancipatory function it must be wielded in the sophisticated service of a political program that challenges the geopolitical structure sustaining an oppressive status quo.
This chapter examines the origins of the Palestinian struggle as a quest for self-determination and freedom from settler-colonial domination. It argues that the British decision to suppress the self-determination of Palestinians in order to facilitate the self-determination of a settler population constituted a sovereign exception that justified the juridical erasure of Palestinians as a political community. The League of Nations Mandate system thereafter enshrined British policy as international law, suspending Palestinians in a state of exception. The closest that Palestinians came to realizing their self-determination during this period was during their revolt against the geopolitical structure that rendered them nonexistent in the language of law. Chapter 1 traces these legacies through the 1948 Arab-Israeli War, Israel's acceptance into the United Nations, and Israel's racialized martial law regime that justified the exceptional and distinct treatment of Palestinian citizens of Israel under the pretext of emergency.
Chapter Two examines how occupation law as established by international agreements has failed to regulate Israel's settlement enterprise. At the close of the 1967 War, Israel argued that a sovereign void in the West Bank and Gaza meant that these territories were neither occupied nor not occupied; they were sui generis, a legal concept bestowing on them unique distinction. This sui generis framework legalized Israel's presence in the territories and allowed it to steadily take Palestinian lands, remove Palestinian inhabitants, and avoid disrupting Israel's Jewish demographic majority. Israel also ensured that UN Security Council Resolution 242 did not mandate its withdrawal from the territories, deploying it instead to legitimate its takings. Aggressive U.S. intervention has facilitated Israel's interpretative model and helped normalize it as part of a tenable political framework. Together, this legal and political machinery has enabled Israel to incrementally annex Palestinian lands without serious political or legal consequence.
The 1973 War recalibrated the balance of power in the Middle East and planted the seeds for the first regional peace conference. This shift altered the Palestinian Liberation Organization's strategic thinking and produced an internal chasm that pitted a pragmatist front that supported accepting a truncated state in the West Bank and Gaza, against a rejectionist front that sought to pursue national liberation under the banner of revolution. The PLO would pursue a program of liberation diplomacy at the United Nations in an effort to cement its juridical status and create more leverage to enter into negotiations. Chapter 3 traces the PLO's entry into the United Nations and the apex of its legal advocacy, when it helped to create new law to regulate its use of force, to legislate an alternative to Resolution 242, and to pass a resolution declaring Zionism to be a form of racism.
The Palestinian intifada that began in December 1987 compelled Israel and the United States to reevaluate their entrenched opposition to negotiations with Palestinians. The United States developed a proposal for a short timetable for negotiations based on UN Security Council Resolutions 242 and 338. In its Letter of Assurances to the Palestinians, the United States reiterated a proposition almost identical to the one previously laid out in the Camp David framework agreement of 1978. Although the PLO had consistently rejected Resolution 242 and revolted against the autonomy framework proposed in 1978, in 1991, the Palestinian National Council voted to enter into the peace process. Chapter Four explains this shift within the Palestinian national movement. It also details the history of the negotiations in Washington, Madrid, and Oslo that led to the devastating terms of the 1993 Declaration of Principles and enabled Israel to consolidate its control of the Territoriese.
In November 2000, Israel publicly embraced an assassination policy targeting particular Palestinians. In authorizing military force against Palestinians and the deployment of assassinations and other prohibited tactics, Israel's legal institutions embarked on two fundamental and interlocking shifts. The first was to unsettle the applicable legal framework regulating the Israel's relationship to Palestinians. The second was to change the laws of war as they regulated a belligerent's right to use force more generally. Together, these shifts worked to expand Israel's use of force against Palestinians and to extinguish the specter of Palestinian military resistance. These seeds planted in 2000 began to come into lethal bloom during Israel's onslaughts against the Gaza Strip in the 2008<->2009 winter and the years to follow. Chapter Five traces the shift from occupation to warfare and examines how Israel is steadily establishing new law for colonial dominance.
The Conclusion describes Israel's success in extending its jurisdiction across Israel and the Occupied Palestinian Territories, obviating the possibility of a sovereign Palestinian state. Israel rules occupied Palestinians but excludes them from citizenship, administering distinct legal systems based on racial definitions. The official Palestinian leadership both deliberately and inadvertently helps sustain the apartheid condition by adhering to a sovereignty framework and a politics of acquiescence believing that the United States will deliver a Palestinian state. This ultimate chapter traces how a sovereignty framework has become a trap and counterproductive to Palestinian interests. While a rights-based approach, as embodied by the boycott, divestment, and sanctions (BDS) movement, may overcome this trap, it lacks a political program for decolonization. Counterintuitive approaches are proposed for transcending the impasse on the question of Palestine.