The International Legal Scholar in Palestine: Hurling Stones under the Guise of Legal Forms?
d'Aspremont, Jean, Melbourne Journal of International Law
This paper is the written transcript of the author's exchange of views with Martti Koskenniemi and Mudar Kassis on the occasion of a debate organised by the Institute of Law at Birzeit University (Palestine). The paper explores the origin of international lawyers' frustrated expectations when it comes to the role of international law in the Middle East. More specifically it argues that the disenchantment of international lawyers is the upshot of three well-entrenched beliefs. It then elaborates on three attitudes, which can help international lawyers make sense of the role of international law in general and, particularly, the context of the Israeli-Palestinian conflict. Attention is paid to the place of compliance in studies about international law, the role of legal forms and, finally, the role of international legal scholars in a conflict like the Israeli-Palestinian conflict.
CONTENTS I Introduction: International Law in the Middle East and a Story of Disenchantment II Recipes for Disenchantment A A General Belief that International Law Needs to Be Upheld to Preserve its Raison d'Etre B A Belief that International Law Prescribes a Solution to the Middle East Conflict and Can Be a Vector for Justice C A Belief that International Law Has Failed in the Middle East III Recipes for a (Possibly) Meaningful International Legal Scholarship (in the Middle East) A Which Place for Compliance? (Or Which Struggle Do We Need to Carry Out?) B Which Role for Legal Forms? (Or How to Carry Out the Struggle?) C Which Role for Legal Scholars? (Or in Which Capacity Should We Carry Out the Struggle?) 1 The Grammarian as a Militant of Legal Forms? 2 The Militant Disguised as a Grammarian?
I INTRODUCTION: INTERNATIONAL LAW IN THE MIDDLE EAST AND A STORY OF DISENCHANTMENT
In legal discourses pertaining to the Israeli--Palestinian conflict, the idea is rife that international law is undergoing a crisis because of repetitive blatant violations and its misuse by the belligerents. Indeed, either international law is simply ignored and set aside by the belligerents, or international law itself becomes the site of the conflict, with each belligerent engaging in systematic lawfare tactics (1) through unilateral reinterpretations geared towards ex post facto conduct-legitimisation. These two phenomena have been bemoaned, as has the disdain for international law that such attitudes allegedly manifest from. Seen in this light, the story of the role of international law in the Israeli-Palestinian conflict is thus a story of disenchantment.
The fact that international law is the fountainhead of some disenchantment is certainly not new. Yet, in the context of the Israeli-Palestinian conflict, this disenchantment is particularly bitter, Indeed, here at least, on the Eastern side of the Green Line, everyone remembers that early battles on the street did not work out. On the contrary, hurling stones proved rather counterproductive when it came to improving the life of human beings living on the Eastern side of the Green Line. As a result, many participants in the conflict decided to revise their methods of combat by bringing the struggle under the umbrella of international law. In particular, they decided to continue to fight for justice from law faculties and research institutes. International law has accordingly been seen as a narrative providing legitimacy and authority to various claims heard in the context of the Israeli-Palestinian conflict. In the same vein, it was also expected that fighting on the side of (and on the basis of) international law would help convince third parties (the 'international community' and, above all, the strategic allies) that one's fight was just and legitimate.
Yet, as we know, practice did not deliver on all the promises raised by such a retreat to international law. Indeed, international law provided a title (self-determination) (2) but no statehood. …