Annexation in the Shadow of the Law—Part II

[Nathaniel Berman is the Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture at Brown University. This is the second part of a two-part post.]

[In Part One of this essay, I argued for the importance of the reaffirmation of the illegality of annexation of occupied territory. I outlined, and partly responded to, the criticism of this position “from the Left” (FTL). Here I continue my response to the FTL position.]

The FTL position is based on a gamble: the gamble that once the truly realistic choice emerges in the light of day – between apartheid/colonialism and a democratic “State of all its citizens” – a struggle for justice will not only begin, but will have a reasonable chance of success. Even beyond the concerns I outlined in Part One, I have doubts about the wisdom and justice of this gamble, particularly in the current international context.

I note that the extent to which the FTL position resonates with the people in the region is highly speculative. While support for a two-state solution may be declining among Palestinians, it is far from clear that it is being abandoned in favor of a non-ethnic “State of all its citizens” rather than a national Palestinian State in all of Mandatory Palestine. (And the same could be said, conversely, and with even more force, about the decline in support for two states among Jewish Israelis.) Moreover, any decision to abandon the decades-long dream of Palestinian self-determination should be made through some kind of democratic process by Palestinians themselves – not by a unilateral Israeli act of annexation or by reliance on shifting polling data.

Most dangerously in our time, the FTL argument gambles by taking for granted an assumption upon which liberal and left-wing political theory has often foundered: the assumption that, when the moral stakes are clearly laid out in the light of day, the “people,” the “global court of public opinion,” or even the “international community” will decide in favor of truth and justice. Such an assumption has often been severely put to the test. The most well-known, and tragic, of such occasions was the interwar period.

Interwar liberal democrats as well as leftist revolutionaries were baffled by the popular support garnered by fascists and Nazis. Liberals could not understand how a modern, educated public could opt for the fascists’ blatant immorality and manifest falsehoods. Leftist revolutionaries could not understand how “the people,” especially the working-class, could opt for those whose program was directly contrary to its own economic and political interests. These conundra prompted many social critics to turn to theories of irrationality to explain popular support for fascist mendaciousness, immorality, and oppressiveness. Such quests led some Marxist theorists, such as those in the Frankfurt School, to turn to Freud. The latter’s theories of the irrational, especially the death instinct, were employed to explain the mass appeal of fascism.

Unfortunately, there is every reason to think that we, too, live in an era where the key liberal and left-wing assumption –  that “truth and justice will win out, if only they are laid before the public” – is unwarranted. Whether or not fascism is an exact description of the forces rising in today’s world, there is no doubt that they are marked by a sickeningly familiar blend of overt mendaciousness, cruelty, and racism. Under such conditions, it is quite a gamble to predict that, when faced with a choice between apartheid/colonialism and egalitarian democracy, actors with the power to implement such choices will opt for the latter. 

And this brings us back to the question of law. Liberal legalism has long viewed law as a structure which codifies, but also shapes and guides, popular aspirations. In this view, law provides a corrective to reliance on the assumption that the popular will always chooses truth and justice. Constitutional restrictions on legislative power provide a clear example of this feature of liberal legalism. A description of law as the “wise restrains that make [us] free,” a slogan coined by a Harvard law professor in the first half of the 20^th century, well expresses its underlying idea. It is easy enough to mock this slogan. I have often done so myself, especially in a younger day and in a more hopeful time. In some contexts, and in some hands, it could serve to legitimize anti-democratic rule. In other contexts, however, it could serve to preserve the basic structures of a humane society. 

In relation to the “land from the River to the Sea”: the fundamental rules of post-World War II international law concerning the use of force were first codified in response to the glorification of raw power by fascists and Nazis, then amplified in rejection of the horrors of colonialism. The prohibitions on conquest, annexation of territory, genocide, racial discrimination, and so on all stem from these contexts. Taken together, these fundamental norms constituted a rejection of much of what international law had previously promoted, often for centuries. Even today, international law continues to form a terrain of struggle between competing values, those from its colonial past and those from more progressive quarters. Moreover, the latter, more recent, values have often been violated, often grotesquely, often by those who pay lip-service to them. Noura Erakat has, in this vein, recently written a powerful analysis of the contradictory role of international law in the history of the Israeli-Palestinian conflict.

All those who brush aside the illegality of the annexation, whether from the left or right, point to international law’s inconsistencies and uneven enforcement, as well as the hypocrisies of its representatives. Underlying the FTL dismissal of illegality, however, again lies the assumption I identified above: that, faced with the “real choices,” people will choose truth, justice, and equality. Alas, in our era of the rise of forces with a striking similarity to fascism, this assumption cannot be taken for granted. The rules about the prohibition of conquest and the annexation of territory were, at least in part, motivated by concern for human life and freedom. The necessity of their codification as rules only truly appears when forces at loose in the world are determined to trample upon them – as in our historical moment. 

The FTL indifference towards, or even embrace of, formal annexation presents itself as a savvy, worldly-wise position, accepting the reality of the “one-state condition” and seeking to move toward a more just future. But the forces mounted against such a just future are enormous: ideological as well as military, regional as well as international. Our time does not seem one in which an appeal to universal sentiments of equality and democracy are likely to succeed. Nor does it seem an auspicious time for two peoples, who have fought so long to establish States identified with their ethno-national character, to give them up in the name of non-partisan universal ideals. Their resistance might be based both on principle (the ideal of national self-determination) and on pragmatics (a prudent evaluation of the chances for securing universal equality in an ethnically embittered society). In the face of these current realities, contributing to the de-legitimation of international legal prohibitions on annexation of territory acquired by force seems like an unwise wager – whatever the benefit of jolting the complacency of liberal bien-pensants. 

I am not here advocating any particular resolution of the Israel/Palestine conflict. But whatever the outcome of this tragic struggle, abandoning the legal principle of the illegality of annexation by conquest does not serve the cause of justice. On the contrary, the powerful shadow of this legal prohibition may help to tip the scales to the side of justice, adding weight to the bargaining position of the less powerful.  

A final note to broaden the stakes in standing up for these norms. Major events in recent years have already eroded international legal rules about the use of force: most prominently, the US invasion of Iraq in 2003 and the Russian annexation of Crimea in 2014. Each such violation makes the next one easier and less subject to international consequences. An Israeli annexation of the West Bank, with US backing and only token opposition from Europe, could well be the final nail in the coffin of such norms. A world in which an international discourse codifying a consensus about the use of force had vanished would be a world in which only might would make right. 

And here we would do well to remember these famous lines from Robert Bolt’s A Man for All Seasons:

Sir Thomas More: “… What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?”