Cause lawyering in transnational perspective: National conflict and human rights in Israel/Palestine

Law & Society Review, 1997 by Lisa Hajjar

The human rights dilemma is the need to accommodate while also challenging other forms of authority, notably state governments. A human rights perspective is simultaneously local and global because it enables and elicits international scrutiny of local conditions. Human rights work, like most cause lawyering, is targeted to national polities; there is not, except in the most abstract terms, an "international society." But whereas cause lawyering invokes a given local order through a focus on the roles and activities of lawyers, human rights invokes the international order through a focus on supranational standards (setting, monitoring, and enforcing). In this way the two are conceptually and politically complimentary. According to Richard Falk (1985:34), "[T] he protection of human rights is dependent on the interplay of normative standards and social forces committed to their implementation."

Cause lawyering on behalf of some human rights-type goal is one kind of social force to which Falk is referring. One question that this article seeks to explore is "the interplay": how cause lawyers make use of the discourse and politics of human rights in a localized setting. The specific subject is cause lawyering by Israelis and Palestinians in the Israeli military court system in the occupied West Bank and Gaza.5 The time frame under consideration extends through early 1994 when the Israeli occupation was unmediated by the transition to Palestinian "self-government" in parts of the territories.6

This case study approach allows for an assessment of the interrelations between local and global factors and forces as they affect a particular group of lawyers and their activities. At the risk of being contradictory, however, the scope of analysis of this study is best described not as global but rather as "transnational."

The growing significance of a transnational perspective reflects the increasing interdependence of international life combined with the persisting weakness of global institutions. The transnational focus is an ordering halfway house responding to global needs, yet accepting the territoriality of power and authority. Transnational order as a logic is intermediate between the horizontal language of statism and hegemony, and the vertical language of supranationalism. (Falk 1985:49)

The ordering logic of transnationalism has three discernable dimensions relevant to the subject of cause lawyering in the Israeli military court system. One is the spatially abstract regulatory language of human rights, which circulates through the international order by producing and incorporating transnational networks. Monitoring and reporting on violations and other problems by organizations like Amnesty International and Human Rights Watch depends on information provided by local sources, including lawyers. This information is then relayed through the publication of reports, which criticize existing practices or policies and recommend changes. Optimally, from the perspective of human rights organizations and activists, those reports then become a reference point for all kinds of political concerns and activities, from foreign aid to military sales to United Nations resolutions. Human rights informs cause lawyering in the Israeli military courts through the use of human rights language by local lawyers and the development of contacts between them and human rights organizations for purposes of trying to elicit international support to challenge the status quo of occupation.7