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

Law & Society Review, 1997 by Lisa Hajjar

The trans-ethnonational dimension is comparably complex. Ideologically and politically, the population in Israel/Palestine is comprised of "two people," specifically two ethnonations, Jewish and Palestinian Arab. This distinction was institutionalized and politicized over the last century, a product of the sweeping rise of modernist nationalism. The Israeli-Palestinian conflict is, at root, a contest of national claims to the historic homeland, an area that conforms to the contemporary boundaries of Israel/Palestine.

In terms of the character of its sovereignty, Israel is an ethnonational state because it is a Jewish state, but its citizenry includes people not of the Jewish "nation." The term "Israeli," which refers to citizenship status, includes Jews (conflating religion and nationality), Arabs (Muslim and Christian Palestinians) and Druze (Palestinians defined communally by their religion; they were categorized as Arabs until 1961 when the state accorded them the status of a distinct nation).12 In ethnonational terms, "Palestinian" includes both Arab citizens of Israel and noncitizen residents of the territories.13 The sociopolitical order in Israel/Palestine is structured hierarchically by the political disparities of Jewish statehood (i.e., Israel) and Palestinian statelessness.14

The combined significance of these trans-statal and transethnonational factors poses a number of distinct challenges for sociolegal analysis on Israel/Palestine. First, the relationship between law and society is complicated by the fact that the parameters of analysis do not correspond to the boundaries of a sovereign state. There is no single legal order applicable throughout this area nor any common legal status or shared set of rights available to all people. Second, there is a serious question as to the semiautonomy of the law when it comes to matters relating to Palestinians because of the ways in which Israeli national security is given precedence over legal rationality within the legal codes and systems (see Briskman 1988; Lahav 1988; Shamir 1990, 1991; Zamir 1989). Third, the absence of a single "polity" corresponds to the absence of any kind of unifying legal ideology. There is no shared perspective on rights, justice, security, and so on.

Cause lawyering in the military court system has been a manifestation of the contested legitimacy of Israeli authority in the West Bank and Gaza. Most of the lawyers who have chosen to work in these courts have done so for political reasons which are rooted in their critique of Israeli government in the territories. However, cause lawyering in this context is a diversified enterprise. Some lawyers, primarily Jewish Israeli liberals, are critical of the form of Israeli rule, particularly to the extent that it involves the violation of rule of law standards. Other lawyers, including Jewish Israeli leftists, Arab Israelis, and Palestinian residents of the territories, take the occupation itself as the basis for their criticisms.