Excerpt from Introduction for A History of False Hope

INTRODUCTION

International Law as a Way of Being

IN MAY 2018, the United Nations Human Rights Council (UNHRC) voted to send an “independent, international commission of inquiry” to investigate violent events in the Gaza Strip that occurred around the Palestinians’ Great March of Return. To mark the seventieth anniversary of the Palestinian “Nakba,” or “catastrophe,” thousands of Palestinians had been demonstrating around the border between the Gaza Strip and Israel, demanding the right of return to their homes in historic Palestine, from which they had been expelled when Israel was established in 1948. Israeli forces shot and killed sixty protestors and injured thousands in the days before the UNHRC voted to establish the inquiry.¹

The moral-juridical premise of that 2018 fact-finding commission was articulated by the High Commissioner for Human Rights, Prince Zeid Raʿad Zeid al-Hussein of Jordan. The commission was established, he said, in “the hope [that] the truth regarding these matters will lead to justice,” and that “those responsible for violations must in the end be held accountable.”² Like most other recent investigative forays in Palestine, the relationship between facts, the truth about a set of events, accountability, justice, and political change was asserted, but the lines connecting them were left vague. The implicit theory of change embedded in fact-finding activities like this UN inquiry rests on a humanitarian ethos that posits a direct connection between revelation and action, justice and accountability. The actual activities of investigative commissions, however, reveal the more circuitous meanderings of morality and political action as they are channeled through the liberal legal logic of global governance.

The case of Palestine is a particularly clarifying lens onto these dynamics. Through a historical anthropology and ethnographic study, this book analyzes Palestinians’ engagement with commissions of inquiry that have investigated Palestine over the past one hundred years. It demonstrates how commissions have shaped Palestinian politics and the conflict with Zionism and Israel in many ways, foremost among which has been through their activation of international law as a primary medium and ideology of politics.

Tens of commissions have visited Palestine over the past century. Many were formed during periods of crisis to address an increase in violence between Palestinians and Zionists (and then Israelis after 1948). Palestine, which was a part of the Ottoman Empire until its demise after World War I, had become the focus of Jewish nationalists seeking to make the Holy Land their political home. With colonialist methods and ideologies, Jews from Europe began to settle in Palestine, just as a distinctly Palestinian national identity was also crystallizing.³ The question of who deserved sovereignty over the land produced disputes carried out in every form—from diplomacy and lobbying to civil disobedience and armed attacks. Under the auspices of the League of Nations, the British gained control over Palestine and formalized their commitment to making it a Jewish national home even while the league’s charter committed Britain and other mandatory powers to leading their charges into self-rule. Arab frustration at this situation of declining self-representation and autonomy, as well as worry about the Zionists’ designs on their country, led to periodic violent interchange among the Arabs, Zionists, and British. Most of these periods of intensified conflict resulted in Great Britain sending investigative commissions.

The British were famous for their use of commissions across their empire, but they receded from the scene when Israel became an independent state that covered most of historic Palestine in 1948.⁴ At that point, the Americans and especially the United Nations became the most active dispatchers of investigations. The stated aim of these missions usually has been to gather facts, examine them in light of international law, and seek a path to peace. Based on voluntary and public consultation, and drawing on legal language and approximating legal standards of evidence, commissions function in the realm of dialogue and civility, operating on the premise that international law can be a means to resolving the conflict. Palestinian participants have faithfully adopted these parameters and tried to explain why they deserve an independent nation-state, how their case is supported by international law, and why their deprivation of the right to sovereignty is among the root causes of the violence.

Usually consisting of academics, lawyers, military, and other experts, investigative commissions are favored by governments the world over as a mechanism for looking like they’re producing policy on the firm basis of fact. Just as often, the reports that commissions issue—sometimes bureaucratic and boring, often full of legalese and reiterations of existing policy dressed up as innovation—become a means of expressing concern while kicking a touchy political issue into the long grass. A typical, and typically unsuccessful, diplomatic device of conflict resolution and policy production, commissions investigating the problem of Palestine have never formulated the political decisions that were put into practice, never led to the implementation of international law, and certainly never come close to resolving the conflict. And yet they have been repeatedly set up and sent—by Britain, the United States, the United Nations, and other state coalitions—to investigate and make recommendations. Despite their apparent lack of political efficacy, and despite being labeled by critics as a political smoke screen, investigative commissions have been for decades a consistent feature of international engagement with Palestine.

Pushing beyond the easy recognition of the cynical political use of commissions, this book asks questions about their broader social and ideological effects as they spread liberalism’s ideals through international law’s institutions.

Commissions establish a liberal communicative space that explicitly prioritizes what Habermas calls “communicative rationality,” which Palestinians have also prioritized in their interactions with investigators.⁵ The impact of commissions has not come from their reasonably deliberated recommendations, however. More significant has been the way that commissions have shaped the form, content, and tenor of political discourse about Palestine, determining the nature of authorized conversation between Palestinians and Western powers. Although they establish legal frameworks of interaction, commissions stage affective performances, providing a venue from which to make judgments about Palestinian political worthiness. They shield the actually subjective and affectively charged nature of those judgments with the claimed objectivity of international legal referents.

This embroilment in international law on the part of everyone from political representatives, technocrats, and lawyers to NGO activists, fishermen, and farmers has narrowed political vision and action for Palestine. It has also provided “the international community” with a means to justify and enable practical refusal of Palestinian claims to independence. International law, as uniquely activated through investigative commissions, is an arena in which liberalism has functioned as an ideology of rule—in different ways, both for the rulers and the ruled. In this study, “international law” does not solely refer to the international legal canon, its rules and regulations or doctrine. Rather, it denotes a discourse and institutional network purporting to embody the international legal system’s ideals. Human rights law and particularly the laws of war and occupation are the most significant legal elements, but this study’s specific focus is on the social dynamics and political contexts shaped by this globally resonant set of norms and agreements.

Fundamentally, international law is “a social (and especially interpretative) process” that bears within it a set of moral precepts and visions of political order.⁷ The protection of civilians during war, the regulation of military occupation, and physical security are among the themes covered in the laws of war and in human rights law that are most relevant for this study. They bespeak certain beliefs about the values by which societies should be organized, the right way for governments to treat people, and the basic conditions of life that humans deserve even during the mayhem of war and existence under foreign military rule. The ways that political opponents argue about these values are also arguments about the meaning of social life and humanity.

Many believe these principles and the international legal system they justify to be necessarily benevolent, an “uncontested self-evident good.”⁸ It is only through considering the historical details of how this system has functioned in people’s lives that we may reconsider this taken-for-granted beneficence. We can also identify the moments in which this self-evident doxa—that which is taken for granted—is challenged by heterodox notions and practices—such as transnational solidarity or grassroots violence, for example. We can then see anew and pose questions of the mechanisms that are activated to reimpose the orthodoxy of international humanitarian law.⁹ International legal ideals and actors are closely linked to (but are not totally subsumed by) the ideology of liberal internationalism and the rule of law, which legal scholars promote as the means to foster civilizational order.¹⁰ Through their activation of international law, commissions have propagated liberal legalism as a useable norm of political practice among Palestinians and others seeking a means to end the conflict. Liberal legalism has at its core the idea that law is a distinct sphere of action that runs on the basis of objective rules, which can yield predictable and fair results when applied in a juridical process. Although commissions are not formally legal proceedings, they are legalistic and take liberal legalism as a fundamental premise.¹¹ Commissions make spectacles of legalized dramas and, in so doing, publicize legally codified moral notions, but always couch these performances within a liberal legal framework.

All of this does not happen solely on a philosophical, notional, or ethical plane, of course. The physical expression of power through force is the core category and concern of these legal regulations and the arguments over them. International humanitarian and human rights law seeks to define and regulate what is the correct, acceptable deployment of violence against different categories of human. This is also why international law is significant, even if its implementation is erratic. What’s in the balance for many Palestinians—whether as third-class citizens of Israel or residents of Jerusalem, as subjects of military occupation in the West Bank and Gaza Strip, or as refugees in Lebanon legally banned from working in thirty-nine professions—is finding some normative force that can influence and restrain the nonrepresentative governments that control their lives.¹²

In charting the social worlds that have congealed around each commission, this book offers a history of Palestine that chronicles how some Palestinians have understood international law, the hopes that many have invested in it, the disappointments they have experienced, the cynicism triggered by international law’s unfulfilled promises, and the renewed optimisms provoked by international legal innovations. It illuminates the ways in which legal liberalism as manifest in the workings of investigative commissions has shaped politics across a century of Palestinian history. Perhaps surprising to some, this history reveals a consistent investment in liberal principles and institutions, which runs counter to narratives of Palestinian nationalism that focus solely on armed struggle.

A History of False Hope is also an alternative history of liberalism and international law that places actors from the Global South in the same analytical field—and on the same liberal plane—as the Euro-Americans who typically populate histories of international law. In so doing, it presents a historical ethnography of lived liberalism that throws the limits, blind spots, and contradictions of liberal internationalism into relief. Most basically, the book provides more evidence that the humanitarian imagination and human rights system are never politically neutral. But it seeks to go beyond this obvious fact to probe a different set of puzzles regarding the hegemonic power of liberal internationalism and international law in politics. Although international law has been thoroughly criticized for its role in maintaining the dominant status of already powerful states, this study shifts the focus to ask why people nonetheless engage with international law, specifically humanitarian and human rights law. By attending to the many dimensions of international law and liberalism—ideological, political, institutional, social, affective, moral, and symbolic—the book seeks to explain how international law accrued hegemonic force and became part of Palestinian common sense.

Commissions put on display the liberal aims of international law, bringing political opponents together in a shared framework of social and intellectual interaction that is posited as a level playing field—but never is. Commissions are established with explicit and implicit terms of reference that bespeak core liberal principles: self-determination and the consent of the governed, the laws and ethical precepts of human rights and humanitarianism, citizenship and equality before the law, tolerance for minorities and religious freedom, aspirations and expectations for capitalist economic development, belief in moral and political progress, and faith in the resolution of conflict and establishment of political order through reasoned discourse. Although they are not the only forums activating international law, investigative commissions offer a particularly clarifying view of a terrain where fundamental political questions of freedom, justice, political order, and the law are debated. Although framed in different ways and prompted by different events, the stated goal of these commissions has been to resolve the conflict between Palestinians and Zionists through international law, an aim as yet unrealized (to put it mildly). Yet what is far more emblematic of the work of these commissions across a century is the continuously shifting criteria of sovereignty that they advance. As is the persistent inability of Palestinians to fulfill them. This sustained pattern of promise, evaluation, and denial begs a question about international legal liberalism: is its real purpose the maintenance of Palestinian unfreedom?

I begin the story in the period after World War I, when a doctrine of liberal internationalism had consolidated and “was embraced by the architects of a new world order.”¹⁴ Liberal internationalism is an ideological and institutional complex propounding liberal values as the way to deal with “the central conundrums of international politics, including the nature and causes of war, the role and character of ethics and law, and the preconditions necessary for securing peace.”¹⁵ That the liberal international order would mean dispossession and disorder for many soon became clear to those living in what we now call the Global South.

As transformations in the institutions of liberal internationalism have multiplied, eventually fusing into a self-defining regime of “global governance” in the 1990s, the array of methods by which law has been put into practice in order to manage international relations has increased.¹⁶ The Permanent Mandates Commission (PMC) at the heart of the League of Nations’ oversight regime was a first foray into maintaining the liberal international order after World War I. “Very much an imperialists’ club,” the PMC was made up of colonial officials, diplomats and lawyers, liberal academics, and peace campaigners, who together “performed impartiality” as they assessed how well Europeans were governing the backward nations they were meant to be tutoring into civilization.¹⁷ They heard often from Arab representatives who thought the Europeans were not doing a very good job at all.

Representatives of Palestinians, who insisted that the Europeans should not be there in the first place, were particularly active in demanding their independence from British rule. Although the British took over the governance of Palestine and other parts of the Middle East after the fall of the Ottoman Empire, the popular understanding was that this was, and should be, only temporary, as Arabs transitioned into defining and governing their own independent states. The 1919 King-Crane Commission asking Arabs what kind of government they wanted and the Arabs’ initial rejection of the 1936–1937 Peel Commission that considered the partition of Palestine between the Zionists and the Arabs were early examples of how liberal internationalism could function differently within and outside of the international legal frame. These commissions stirred up activities both within and outside the liberal framework, provoking the consolidation of nationalist identities and transnational Arab solidarities. While Arab engagement with the King-Crane Commission showed how high were the hopes many Palestinians had in the new international legal order (Chapter 1), the anticolonial rebellion that propelled their boycott of the Peel Commission (Chapter 2) provides one answer to those who object to my critiques of international law with “Well, what else could Palestinians do?”

The Anglo-American Committee of Inquiry of 1945–1946, which examined the position of Jews in relation to the question of Palestine after World War II, was formed during another transitional phase as the British Empire lost global influence and the United States became more interested in the Middle East. This period is marked by a shift toward the politics of humanitarianism in which sympathy for the suffering of Jews after the Holocaust became a requirement of the good liberal. Palestinians who continued to insist on the democratic principle of majority rule were caught in an unresolvable bind (Chapter 3).

When the British withdrew from Palestine, the political hot potato that was Palestine was tossed about, leaving the newly formed United Nations to pick up where the League of Nations left off. The proposed partitioning of Palestine and establishment of the state of Israel in 1948 was its first major diplomatic endeavor.¹⁸ A complex institution, the United Nations evolved into multiple bodies, some of which serve the hundreds of thousands of Palestinian refugees and their offspring who were exiled from their homes in the wake of the war in 1948.¹⁹ The United Nations General Assembly (UNGA) has been a significant meeting place in which the political aspirations and crises of Palestine (and elsewhere) have been put up for international discussion. The UNGA was originally conceived of by the Great Powers as nothing more than a place for “small nations to blow off steam,” as US President Franklin Roosevelt once admitted.²⁰ But the assembly saw its membership and activities increase and diversify over time, changing its demography and interests as the wave of decolonization occurred in the 1950s and 1960s and more states from the Global South joined the United Nations, making it an arena from which anti-colonial and anti-racist ideals could be propagated and publicized. It eventually transformed into an overseer of the human rights regime.²¹ Soon after Israel’s military occupation of the West Bank, Gaza Strip, and East Jerusalem in 1967, the UNGA established the United Nations Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories (UNSCIIP), which has conducted an annual investigation and issued a yearly report ever since. The approaches of UNSCIIP over this period reflect transformations in the epistemological bases of international law, from the production of proof and demands for corroboration to requests for proclamations of hope and expressions of Palestinian suffering. The early years of UNSCIIP illustrate how the synergy of the UN and “The Question of Palestine” developed, but also demonstrate how the language and forums of international law became a mode of politically impotent solidarity (Chapter 4).

The United States has been a major player throughout this history. Although it has been a significant base for Zionist activity and Israel’s biggest supporter, it also claimed the mantle of peace-broker, an ill-fitting cloak now tattered and soiled.²² As part of its involvement in peacemaking, the United States spearheaded the Mitchell Committee in 2000, which, along with the European Union, Norway, and Turkey, examined the causes of the second intifada (uprising) against Israeli occupation in the occupied Palestinian territory. It generated telling debate over the political significance of international law (Chapter 5).

Since 2000, several other UN entities have emerged as central to Palestinian politics. The Human Rights Council is a major forum in which the UN addresses human rights and humanitarian crises, and has become the body most active in forming investigative commissions. Although the UN has sent many commissions to Palestine, the Goldstone Mission has been by far the most controversial. Launched in the wake of Israel’s assault on Hamas in the Gaza Strip in December 2008–January 2009 (“Operation Cast Lead”), it highlighted the category of international crime in discussions of Israel’s treatment of Palestinians and, with this anti-impunity turn, reignited Palestinian hope in international law (Chapter 6). The International Court of Justice and most recently the International Criminal Court (ICC) have become major international legal institutions in which the trend toward anti-impunity in international relations is most visible. Palestinians have sought to mobilize all of these bodies and commissions in their arguments for an end to Israel’s military occupation and in their pursuit of national independence.

Many other commissions have been involved in Palestine, including: earlier investigations sent by Great Britain during the mandate; the UN Special Committee on Palestine (UNSCOP) that delivered a decision to partition the country and awarded the greater part of the country to the Zionists; the MacBride Commission, an ad hoc investigation of Israel’s actions during its invasion of Lebanon; and many other UN commissions, including the most recent one (at the time of this writing), the United Nations Commission of Inquiry on the 2018 Protests in the Occupied Palestinian Territory, which concluded in March 2019.²³ (See List of Major Commissions on page xix.) Although each was instigated by unique historical circumstances and followed its own dynamic, they all offer more evidence of how commissions function as a modality of political arbitration. Each illustrates how international law has been a terrain of struggle in the conflict over Palestine and a defining force in its international management. The specific commissions that are the focus of this book provide a good sample of the diversity of kinds of international investigative engagements and how Palestinians have responded. Together they trace a historical arc that demonstrates the depth of international legal involvement in Palestine, exemplifying both the continuities and changes within. Although international law has remained a baseline of Palestinian engagement with the international community, what commission investigators have focused on has shifted, from seeking out public opinion to sympathetic stories of suffering, just as they have demanded different qualities from the Palestinians, whether it be nationalist enthusiasm, sympathy for the Jewish plight, or willingness to compromise.

By foregrounding investigative commissions as a lens for viewing a realm of legal and political action over time, this book throws into relief the operations of liberalism through international humanitarian and human rights law on “the problem of Palestine.” It reveals more general dynamics too, as these are the same paradigms that have constituted the material, discursive, and even moral terrain of political engagement for people struggling for their rights and freedoms elsewhere, from Syria to the Democratic Republic of Congo.²⁴ The history and analysis presented here illuminates shifts in the zeitgeist of global governmentality through which conflict throughout the Global South has been managed. Whereas the definition of sovereignty and its criteria have always undergirded these dynamics, what kinds of behavior are required from what specific kinds of subjects, and the criteria by which those behaviors and subjects are judged, have transformed continuously across this history.

The case of Palestine is especially illuminating of what has been stable and what has shifted, both because of the UN’s originary and persistent presence in the conflict, and because of the predominant role of international law in the conflict’s management and representation.²⁵ Although distinct dimensions of international law and the global governance regime have been studied in relation to Palestine, the reasons for Palestinians’ fluctuating but tenacious engagement with liberal legalism have not been adequately considered. Given the recursive disappointment caused by commissions, it is a puzzle that so many people have gotten so excited about each fact-finding excursion, that so much din is stirred by these investigative reports, and especially, that Palestinians have invested so much hopeful effort in them. A History of False Hope analyzes the reasons for this hope and traces the effects of this engagement.

Notes

1. As of November 2018, Israel killed 214 Palestinians and wounded more than 18,000 since the protests began on March 30, 2018. See “Gaza Protests: All the Latest Updates,” Al-Jazeera, 2018, https://www.aljazeera.com/news/2018/04/gaza-protest-latest-updates-1804….

2. UN Human Rights Council May 18, 2018.

3. On Zionism as a colonial project, see Katz, Leff, and Mandel 2017.

4. The British used commissions in domestic and international politics with gusto. Studies of them are also numerous, offering varying levels of critique. See Block and Somers 2003; Clokie and Robinson 1937; Loades 1997; Shamir and Hacker 2001; Mongia 2004. Canada also has been prolific in its commissions. See Chua 1979.

5. Habermas 1984.

6. Asad 2015. To speak of legalism, legal liberalism, or liberalism as a “tradition” is to recognize their embodied aspects. It troubles the presumption that freedom and choice are fundamental to liberalism, to show the actual constraints inherent within law and liberalism that run counter to their proclaimed ideals and ideologies.

7. Marks 2009, 6. For a critical take on the laws of war that puts gender at the center of the analysis, see Kinsella 2011.

8. McBride 2016, 161, quoted in I. Hurd 2017, 2.

9. On doxa and orthodoxy, see Bourdieu 2013.

10. Sylvest 2009, 61–62.

11. On liberal legalism, see Hoffmann 2016; Hunt 1986; Levinson 1983.

12. On Palestinian conditions in Israel, see the information on Adalah’s website, at https://www.adalah.org/en. On Palestinian refugees in Lebanon, see United Nations Relief and Works Agency, n.d.

13. On “the international community” as ideological formation, see Weeramantry and Berman 1999, 1528.

14. Mazower 2012, xv. In Duncan Bell’s estimation, this doctrine had stabilized by 1860. See Bell 2016, 20.

15. Sylvest 2009, 3.

16. On global governance in the 1990s, see Mazower 2012, 370. For an anthropological approach to “global governance,” see Cowan 2015 and Cowan and Billaud 2015.

17. Pedersen 2015, 61, 65; Niezen and Sapignoli 2017.

18. For a critical summary of the different ways historians have told the story of 1948 and its political implications, see Shlaim 1995.

19. For an anthropological account of the UN Relief and Works Agency that was set up to deal with the refugees, see I. Feldman 2018.

20. Normand and Zaidi 2008, 110.

21. Ibid.

22. Mearsheimer and Walt, 2006; R. Khalidi 2013.

23. United Nations Human Rights Council, “The United Nations Commission of Inquiry,” n.d.

24. For a list of ongoing and recent UN fact-finding commissions elsewhere, see United Nations Human Rights Council, “International Commissions of Inquiry,” n.d.

25. Accounts of the deep and mutual impact of the international legal system, the UN, and Palestine include: Allen 2013; Erakat 2019; I. Feldman 2010; I. Feldman 2018; Makdisi and Prashad 2017, 1–4.